Federal Railroad Safety Laws or Federal Railroad Administration Safety Regulations or Orders:

 
CONTENT

Federal Register: September 21, 2010 (Volume 75, Number 182)

Proposed Rules

Page 57597-57656

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr21se10-22

Page 57597

Part III

Department of Transportation

Federal Railroad Administration

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

Page 57598

DEPARTMENT OF TRANSPORTATION

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

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

RIN 2130-ZA00

Revised Proposal for Revisions to the Schedules of Civil

Penalties for a Violation of a Federal Railroad Safety Law or Federal

Railroad Administration Safety Regulation or Order

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

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

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

New Proposal represents a revision of FRA's December 2006 proposal to amend the Schedules for the same purposes (December 2006 Proposal or

Initial Proposal).

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

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

Fax: 202-493-2251.

Mail: U.S. Department of Transportation, Docket

Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New

Jersey Avenue, SE., Washington, DC 20590.

Hand Delivery: U.S. Department of Transportation, Docket

Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New

Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.

Monday through Friday, except Federal holidays.

Federal eRulemaking Portal: Go to http:// www.regulations.gov. Follow the online instructions for submitting comments.

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

Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov at any time or to

U.S. Department of Transportation, Docket Operations, M-30, West

Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,

Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Edward Pritchard, Director, Office of

Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200

New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6247), edward.pritchard @dot.gov; or Brian Roberts, Trial Attorney, Office of the Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10,

Washington, DC 20590 (telephone 202-493-6052), brian.roberts@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

  1. General Background

  2. Proceedings to Date, Provision of Opportunity for Comment,

    Comparison of Initial and New Proposals

    1. Initial Proposal

    2. Subsequent Changes in the Minimum and Ordinary Maximum Civil

      Penalties

    3. Provision of Opportunity for Comment, With Comparison of the

      Initial and New Proposals

  3. FRA's New Proposed Approach to Reevaluating the Schedules of

    Civil Penalties

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

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

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

    3. Grade Crossing Signal Systems and Signal and Train Control

      Regulations (49 CFR Parts 233, 234, 235, and 236)

    4. 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)

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

    1. Concerns Related to Respondents That Are Small Businesses

    2. Concerns About Initially Proposed Penalty Amounts for

      Violations of 49 CFR Parts 222, 225, and 229

    3. Concerns Related to Respondents Who Are Cited as Individuals

    4. Concerns About Effects on FRA's Confidential Close Call

      Reporting Project

    5. Concerns About Proposed Monetary Increases in the Civil

      Penalty Amounts

  6. General Background

    FRA last published comprehensive, line-by-line final revisions to the Schedules of its safety regulations on December 29, 1988. 53 FR 52918. The revisions reflected the higher maximum penalty amounts made available by the enactment of the Rail Safety Improvement Act of 1988

    (Pub. L. 100-342). With the exception of the penalties relating to the hours of service laws (49 U.S.C. chapter 211), the Rail Safety

    Improvement Act of 1988 raised the maximum penalty for any ordinary violation from $2,500 to $10,000 (``the ordinary maximum'') and to

    $20,000 for a grossly negligent violation or a pattern of repeated violations that has created an imminent hazard of death or injury or caused death or injury (``the aggravated maximum''). Therefore, FRA published amendments to the Schedules in order to ``give effect to the full range of civil penalties * * * permitted to be assessed for violation of specific regulations.'' 53 FR 52918. These amendments revised not only the maximum civil penalty amount for any violation, but also the individual line-item penalties for specific sections or subsections of the regulations.

    The Rail Safety Enforcement and Review Act (``RSERA'') (Pub. L. 102-365), which was enacted September 3, 1992, increased the maximum penalty for a violation of the hours of service laws, from $1,000 to

    $10,000 and in some cases to $20,000, making these penalty amounts uniform with those of FRA's other regulatory provisions. RSERA also increased the minimum penalty from $250 to $500 for all of FRA's regulatory provisions.

    Since the publication of the Schedules in 1988, FRA has periodically adjusted its minimum and its ordinary or aggravated maximum penalty to conform to the mandates of the Federal Civil

    Penalties Inflation Adjustment Act of 1990. 28 U.S.C. 2461 note, as amended (``Inflation Act''). The Inflation Act requires that an agency adjust by regulation each maximum penalty, or range of minimum and maximum penalties, within that agency's jurisdiction periodically to reflect inflation. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the penalties by having the agencies

    Page 57599

    charged with enforcement responsibility administratively adjust the penalties. Currently FRA's minimum penalty is $650, the ordinary maximum is $25,000 and the aggravated maximum is $100,000 (for when a

    ``grossly negligent violation or pattern of repeated violations has caused an imminent hazard or death or injury to individuals, or has caused death or injury'').

    The Inflation Act requires only that the minimum, the ordinary maximum, and the aggravated maximum civil penalty for a violation be adjusted, not that the guideline penalty amounts for a specific type of violation (e.g., a section of a particular regulation) be adjusted. As a result, FRA has not adjusted the line-item guideline penalties found in the Schedules in conjunction with its adjustments of the minimum, maximum and aggravated maximum civil penalties. FRA's practice has been to issue Schedules assigning to each section or subsection of the regulations specific dollar amounts for initial penalty assessments.

    These Schedules (and all line-item penalty amounts found within them) are statements of agency policy that specify the penalty that FRA will ordinarily assess for the violation of a particular section or subsection of a safety regulation, and are published to inform members of the regulated community of the amount that they are likely to be assessed for a given violation within the range of $650 to $25,000. The

    Schedules are ``meant to provide guidance as to FRA's policy in predictable situations, not to bind FRA from using the full range of penalty authority where extraordinary circumstances warrant.'' 49 CFR part 209, appendix A. Thus, regardless of the amounts shown in the

    Schedules, FRA continues to reserve the right to assess, within the range established by the rail safety statutes (49 U.S.C. chapter 213) or by regulation pursuant to the Inflation Act, an amount other than that listed in the Schedules based on the circumstances of the alleged violation. 73 FR 79698, Dec. 30, 2008.

  7. Proceedings to Date, Provision of Opportunity for Comment, and

    Comparison of Initial and New Proposals

    1. 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

      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

    2. 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.)

    3. 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.

      \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.

      FRA has also slightly modified the severity scale in the New

      Proposal from the severity scale in the Initial Proposal. In the New

      Proposal, FRA has used a targeted enforcement approach for establishing the civil penalties for ordinary (non-willful) violations of railroad safety regulations. As part of the targeted enforcement approach,

      Page 57600

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

      Higher penalty amounts for violations of Federal railroad safety laws and regulations are necessary because many of FRA's civil penalties have not been changed in real terms for many years. As a result, inflation has somewhat eroded the deterrent effects of most of

      FRA's civil penalties because the amounts have not been increased to account for the effects of inflation. While many of the penalty amounts in the New Proposal would represent large increases in penalty amounts even after adjusting for inflation, some penalty amounts for violations would remain unchanged (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA because of the uniform rating of FRA's existing penalties on the severity scale. The new penalty amounts in this New Proposal will maintain the deterrent effects of FRA's rail safety penalties, aiding the success of FRA's mission to make the

      United States rail system safer.

      FRA has also reexamined how it had ranked individual rail safety violations on the severity scale in the Initial Proposal. Upon second review of the severity scale rankings, FRA is proposing to move certain regulatory provisions to higher or lower levels on the severity scale in order to refine the agency's application of the severity scale to the various violations. For example, FRA is proposing to raise the severity scale ranking of 49 CFR 219.3 (``Application: Railroad does not have required program''), in this New Proposal from a ``C'' level penalty to a ``B'' level penalty. This change is necessary because the failure of a railroad covered by 49 CFR part 219 to have an alcohol and drug testing program is more likely than not to cause a rail equipment accident/incident or other accident/incident involving death, injury, or occupational illness rather than just substantially increase the likelihood that one of these events could occur. Conversely, in this

      New Proposal, FRA would lower the severity scale ranking of 49 CFR 225.35 (``Access to records and reports''), from an ``A'' level penalty to a ``D'' level penalty. This proposed change in severity scale level reflects FRA's judgment that denying its inspectors access to records and reports required by 49 CFR part 225 is not extremely likely to lead to a railroad accident/incident or other accident/injury including death, injury, or occupational illness, but could slightly increase the likelihood of one of the above mentioned occurrences if FRA is not provided access to accident reporting records and reports. FRA expects that these proposed changes to the severity scale rankings of some of its violations in the Initial Proposal better refine the agency's application of the Severity Scale to the various violations.

      In addition, FRA is proposing minor changes to its Schedules in this New Proposal to correct errors and omissions and to reflect more accurately FRA's current enforcement practices. Such errors include obvious spelling or typographical errors that were caught during the review process. Omissions corrected include line-item penalties for any existing section or subsection that had been inadvertently omitted from an existing Schedule, such as 49 CFR 213.110. Other proposed minor revisions to the Schedules include, but are not limited to, adding or deleting a suggested penalty for a violation (e.g., 49 CFR 213.109(c), 214.343(a)(2), 220.38, and 240.201(b)), rewording a line-item description for a violation (e.g., 49 CFR 219.23(f) and 233.9), renumbering violation subsections (e.g., 49 CFR 214.343(b)(1), 236.587, 236.905(d), and 236.913(j)), and adding or revising footnotes to the

      Schedules (e.g., 49 CFR parts 214, 232, and 239). For example, FRA is proposing to add a footnote 3 to the Schedule for 49 CFR part 214 to clarify that FRA will consult the suggested penalty amounts under 49

      CFR 214.343 (``Training and qualification, general:'') when assessing penalties for the training violations in 49 CFR 214.345 through 214.355, as the suggested penalty amounts for these sections had been left blank in previous versions of part 214's penalty schedule. FRA is hopeful these proposed minor changes updating its Schedules would provide a more accurate picture to the regulated community of FRA's actual enforcement practices.

      New suggested penalty amounts have also been proposed for violations of subparts that had not been mentioned in the existing penalty schedules: 49 CFR part 218, subpart E (``Protection of Occupied

      Camp Cars''); 49 CFR part 228, subpart D (``Electronic

      Recordkeeping''); 49 CFR part 232, subpart G (``Electronically

      Controlled Pneumatic (ECP) Braking Systems''); and 49 CFR part 236, subpart I (``Positive Train Control Systems'') are also included. FRA is also suggesting new penalty amounts for 49 CFR part 227

      (``Occupational Noise Exposure'') which was not ranked in the severity scale in the Initial Proposal because the final rule creating part 227 was published on October 27, 2006, but not effective until February 26, 2007. 71 FR 63066. In addition, FRA will also be accepting comments on the new penalties in 49 CFR part 237 that were published in a bridge safety standards final rule on July 15, 2010 and will become effective on September 13, 2010. 75 FR 41282.

      Further, FRA is proposing to add language to 49 CFR part 228, appendix A, to state its proposed guideline penalty amounts for both non-willful and willful violations of the hours of service laws (49

      U.S.C. chapter 211). In addition, this New Proposal would also add or change language in the portion of 49 CFR part 209, appendix A, entitled

      ``Penalty Schedules: Assessment of Maximum Penalties,'' to reflect the new minimum, ordinary maximum, and aggravated maximum civil penalties of $650, $25,000, and $100,000 respectively. Finally, FRA is also proposing to add the language ``or orders'' in two places within this portion of part 209, appendix A to update the language to reflect FRA's already existing policy of establishing civil penalty schedules and recommended civil penalty amounts applicable to violations of various orders issued by FRA (such as emergency orders under 49 U.S.C. 20104) when necessary to advance the agency's safety mission.

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

    Penalties

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

    Page 57601

    FRA is proposing to amend each of the line-item guideline penalty amounts contained within the Schedules for each of the regulations and to add guideline penalty amounts for violations of the hours of service laws to 49 CFR part 228, appendix A (collectively, Penalty Guidelines).

    In reevaluating the penalty amounts in the Schedules, FRA has developed a new proposed severity scale (``New Proposed Severity Scale'') for setting the line-item penalty amounts for each violation of the safety regulations and for violations of the hours of service laws. The severity scale FRA is proposing to adopt in this New Proposal is described in the following section.

    \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.

    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:

    \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\:

    \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\

    \5\ See 49 CFR 225.19(d).

    FRA is proposing to issue a penalty guideline for Level ``A'' of

    $19,500 for an ordinary violation and $25,000 for a willful violation of the regulation, order, or statute.

    Level B--High Probability--Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute is more likely than not to result in the occurrence of: 1. Rail equipment accident/incident; or 2. Other accident/incident (including death, injury, or occupational illness).

    FRA is proposing to issue a penalty guideline for Level ``B'' of

    $13,000 for an ordinary violation and $20,500 for a willful violation of the regulation, order, or statute.

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

    Level C--Moderate Probability--Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute substantially increases the likelihood that one of the following will occur: 1. Rail equipment accident/incident; or 2. Other accident/incident (including death, injury, or occupational illness).

    FRA is proposing to issue a penalty guideline for Level ``C'' of

    $9,500 for an ordinary violation and $17,000 for a willful violation of the regulation, order, or statute.

    Level D--Minor Probability--Failure of the railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute slightly increases the likelihood that one of the following will occur: 1. Rail equipment accident/incident; or 2. Other accident/incident (including death, injury, or occupational illness).

    FRA is proposing to issue a penalty guideline for Level ``D'' of

    $5,500 for an ordinary violation and $10,000 for a willful violation of the regulation, order, or statute.

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

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

    FRA is proposing to issue a penalty guideline for Level ``E'' of

    $2,500 for an ordinary violation and $5,000 for a willful violation of the regulation, order, or statute.

    Like the Initially Proposed Severity Scale, the New Proposed

    Severity Scale shows, there are five different levels of probabilities, ranging from ``A'' (the most severe) to ``E'' (the least severe of the types of violations). In developing the rankings (``A'' through ``E''),

    FRA concentrated on the degrees of likelihood that an accident/incident will occur or that graver consequences will occur as a result of the failure to comply with the particular section or subsection of the safety regulations or with the statute. Using the New Proposed Severity

    Scale, FRA then assigned a ranking (from ``A'' to ``E'') to each of the provisions of the particular rail safety regulations and to the hours of service statute, which the agency has responsibility for administering and enforcing. The resulting proposed line-item penalty amounts for violations of each of the sections or subsections of the safety regulations affected and for violations of the hours of service laws reflect FRA's determination, based on safety data and industry knowledge, of how likely the violation of a particular provision is to result in a rail equipment accident/incident or another type of accident/incident. Due to the increase in the ordinary maximum from

    $11,000 to $25,000 since the Initial Proposal, the new proposed civil penalty amounts have increased in most instances, but in some cases the new proposed civil penalty amount would remain the same (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA.

    Nonetheless, a determination by FRA that violation of a provision does not increase the likelihood that a rail equipment accident/incident or other accident will occur, however, does not mean that the provision is inconsequential to the effectiveness of

    Page 57602

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

    Currently, each Schedule is in the form of a table consisting of three columns with one or more footnotes. Like the initially proposed

    Schedules, the new proposed Schedules would continue to be structured in this fashion and to provide guideline penalty amounts for two categories of violations: Ordinary (non-willful) and willful. Each new proposed Schedule lists the CFR section or subsection in the left-hand column, sometimes with additional designations to distinguish different types of violations (penalty codes) of the section or subsection in order to facilitate the assessment of civil penalties. The only exception continues to be 49 CFR part 231; the left-hand column of the new proposed Schedule lists the FRA defect codes \6\ for that part, and not the corresponding CFR sections. The reason for this continues to be the fact that the defect codes are organized by the type of safety appliance, which makes them easier to use, than the section numbers of part 231, which are organized primarily by car or locomotive type.

    Nevertheless, if necessary, every defect code can be traced to a specific regulatory provision in part 231 or statutory provision in 49

    U.S.C. chapter 203, or both. The corresponding penalties for each violation are listed in the middle and right-hand columns: The guideline penalty amount for an ordinary violation and then the guideline penalty amount for a willful violation. The ordinary penalties apply to railroads or other respondents, except individuals, while the ``willful'' column applies to willful violations committed by railroads or individuals.

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

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

    Ordinary

    Willful

    Severity level under new Proposal

    violations violations

    Level A.......................................

    $19,500

    $25,000

    Level B.......................................

    13,000

    20,500

    Level C.......................................

    9,500

    17,000

    Level D.......................................

    5,500

    10,000

    Level E.......................................

    2,500

    5,000

  9. 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.

    1. 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.

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

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

      ``Gage'' received a new proposed ``A'' ranking (and new proposed penalty guideline amounts of $19,500 for an ordinary violation and

      $25,000 for a willful violation) because improper gage is one of the leading causes of track-related train accidents.

      In ranking the sections or subsections of 49 CFR part 214

      (``Railroad Workplace Safety''), FRA took into consideration not only the probability that an accident/incident could result if a violation occurred, but also the fact that

      Page 57603

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

    3. 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.

    4. 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.

  10. 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.

    1. Concerns Related to Respondents That Are Small Businesses

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

      In addition, the American Short Line and Regional Railroad

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

      In response to these concerns, FRA would like to emphasize appendix

      C to 49 CFR part 209, where FRA has published its policy statement concerning small business entities. FRA understands that small entities in the rail industry have significantly different characteristics from larger carriers and shippers. Therefore, FRA has developed programs to respond to compliance-related inquiries of small entities, and to ensure proper handling of civil penalty and other enforcement actions against small businesses. FRA inspectors provide training on the requirements of all railroad safety statutes for new and existing small businesses upon request. Also, it is FRA's policy to maintain frequent and open communications with the national representatives of the primary small entity associations and to consult with these organizations before embarking on new policies that may impact the interests of small businesses. Additionally, FRA has posted all of its manuals electronically for compliance with the rail safety disciplines at http://www.fra.dot.gov.

      FRA employs an enforcement policy that addresses the unique nature of small entities in the imposition of civil penalties and resolution of those assessments. Pursuant to appendix A to 49 CFR part 209, it is

      FRA's policy to consider a variety of factors in determining whether to take enforcement action against persons, including small entities, who have violated the safety laws and regulations. In general, the presence of both good faith and prompt remedial action on the part of the small entity militates against taking a civil penalty action, especially if the violation is an isolated event. Once FRA has assessed a civil penalty, FRA may adjust or compromise the initial penalty claim based on a wide variety of mitigating factors. The mitigating criteria that

      FRA applies are found in the railroad safety statutes at 49 U.S.C. ch. 213 and in the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (``SBREFA''); these factors include the severity of the safety or health risk presented; the existence of alternative methods of eliminating the safety hazard; the entity's culpability; the entity's compliance history; the entity's ability to pay the assessment; the impact an assessment might exact on the

      Page 57604

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

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

      Finally, the Small Railroad Business Owners' Association of America

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

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

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

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

      With regard to part 222 (the train horn rule), AAR contended that a

      ``D'' level penalty for a violation of Sec. 222.21(b) is unsubstantiated, as the sounding of a horn for more than 20 seconds will not increase the likelihood of an accident or incident.

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

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

      ``D'' level penalty with the exception of ``failure to sound the horn at least 15 seconds and less than \1/4\-mile before a crossing,'' which is assessed as a proposed ``C'' level penalty.

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

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

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

      AAR also argued that a ``B'' level penalty for a violation of 49

      CFR 225.13 was unmerited, as a railroad's filing of a report one day late would not be more likely to cause an accident or incident.

      FRA has taken into consideration AAR's comments involving FRA's regulations on accident/incident reporting, 49 CFR part 225. FRA acknowledges the merits in AAR's comments with regard to Sec. 225.13, and FRA has revised the proposed penalty ranking for a violation of

      Sec. 225.13 from a ``B'' to an ``E.'' Upon reevaluating how part 225 violations were ranked on the severity scale in the Initial Proposal,

      FRA has lowered many of the proposed severity scale rankings for violations of this part. For example, FRA has determined to change the ranking of a Sec. 225.11 violation (failure to submit monthly report of accidents/incidents) from a proposed ``B'' to a proposed ``D'' level penalty. At the same time, FRA has determined that a violation of Sec. 225.9, failure to report certain accidents or incidents, immediately via telephone to the National Response Center, would be more detrimental to railroad safety, because the failure could prevent FRA from learning about the event and deciding whether or not the agency should commence an investigation. Even delayed notification could compromise such an investigation and prevent FRA from obtaining information that could identify safety problems that could cause future accidents or incidents. FRA has, therefore, changed the penalty amount from a proposed ``E'' to a proposed ``C'' level penalty.

      Finally, AAR stated that a ``C'' level penalty for a violation of a provision of the Locomotive Safety Standards, 49 CFR 229.137(a)(3), was uncalled for, as the lack of a toilet in the lead locomotive will not

      ``substantially increase the likelihood of an accident or incident.''

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

      Page 57605

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

      Severity Scale. FRA also notes that an engineer who contracts one of those diseases on duty might well be unable to operate his or her train safely.

    3. 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.

    4. 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.

    5. Concerns About Proposed Monetary Increases in the Civil Penalty

      Amounts

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

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

      As previously stated, in undertaking this effort to revise the

      Schedules comprehensively after many years, FRA is focusing on areas that pose greater safety risks, and maintaining enforcement in other regulatory areas per its authority to set penalty guidelines within the minimum, ordinary maximum, and aggravated maximum statutory penalties.

      With the New Proposal, some of the proposed penalty amounts if adopted by FRA will indeed show large increases, even after adjusting for inflation.\7\ However, as previously stated, some newly proposed penalty amounts for violations would remain unchanged (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)). Again, the penalty amounts in the New Proposal reflect the

      Page 57606

      reanalyzed risk basis for the penalty amounts and the new ordinary maximum statutory penalty. FRA believes that these new proposed

      Schedules will maintain and increase the effect of the civil monetary penalties, fostering a higher overall level of safety.

      \7\ For example, BLET stated that the penalty for 49 CFR 214.103(ii) (``Failure to use fall protection'') would increase 340 percent. Expressing the original penalty amounts in 2006 dollars

      (for consistency with the first proposed penalty schedules that were published on December 5, 2006), the increase would actually have been 204 percent; however, with the proposed penalties in this notice, the increase in real dollars would be 559 percent.

      Similarly, for 49 CFR 218.22(c)(5) (``Utility employees: Assignment conditions: Performing functions not listed''), BLET found an 87.5 percent increase. Measured in 2006 dollars, the difference between the current penalties and the originally-proposed revised penalties would have been 15 percent, and with the proposed penalties in this notice, the real difference would be about 46 percent. For 49 CFR 219.11(b)(1) (``General conditions for chemical tests: Employee unlawfully refuses to participate in testing''), BLET calculated a 120 percent increase, the change in real dollars from the original proposal would have been 41 percent. With the proposed penalties in this New Proposal, the increase would be about 22 percent (Upon reevaluating the severity scale rankings in the Initial Proposal,

      FRA lowered the severity scale ranking for violations of Sec. 219.11(b)(1) from a proposed ``A'' to a proposed ``D'' level penalty.) In each of these examples, the rules concern areas of significant risk. Consequentially, FRA has determined that higher proposed penalties are necessary and justified.

      List of Subjects 49 CFR Part 209

      Administrative practice and procedure, Hazardous materials transportation, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 213

      Bridges, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 214

      Bridges, Occupational safety and health, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 215

      Freight, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 217

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 218

      Occupational safety and health, Penalties, Railroad employees,

      Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 219

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

      Transportation. 49 CFR Part 220

      Penalties, Radio, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 221

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 222

      Administrative practice and procedure, Penalties, Railroad safety,

      Reporting and recordkeeping requirements. 49 CFR Part 223

      Glass and glass products, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 224

      Penalties, Railroad locomotive safety, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 225

      Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 227

      Locomotives, Noise control, Occupational safety and health,

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 228

      Administrative practice and procedures, Buildings and facilities,

      Hazardous materials transportation, Noise control, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 229

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 230

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 231

      Penalties, Railroad safety. 49 CFR Part 232

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 233

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 234

      Highway safety, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 235

      Administrative practice and procedure, Penalties, Railroad safety,

      Reporting and recordkeeping requirements. 49 CFR Part 236

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 238

      Fire prevention, Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 239

      Penalties, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 240

      Administrative practice and procedure, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 241

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

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

      PART 209--[AMENDED] 1. The authority citation for part 209 continues to read as follows:

      Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49. 2. Appendix A to part 209 is revised to read as follows:

      Appendix A to Part 209--Statement of Agency Policy Concerning

      Enforcement of the Federal Railroad Safety Laws

      Penalty Schedules: Assessment of Maximum Penalties

      As recommended by the Department of Transportation in its initial proposal for rail safety legislative revisions in 1987, the

      RSIA raised the maximum civil penalties for violations of the safety regulations or orders. Under the Hours of Service Act, the penalty was changed from a flat $500 to a penalty of ``up to $1,000, as the

      Secretary of Transportation deems reasonable.'' Under all the other statutes, the maximum penalty was raised from $2,500 to $10,000 per violation, except that ``where a grossly negligent violation or pattern of repeated violations has created an imminent hazard of death or injury,'' the penalty was raised to a maximum of $20,000 per violation.

      The Rail Safety Enforcement and Review Act (RSERA), enacted in 1992, increased the maximum penalty from $1,000 to $10,000 and in some cases, $20,000 for a violation of the hours of service laws, making these penalty amounts uniform with those of FRA's other regulatory provisions and orders. RSERA also increased the minimum civil monetary penalty from $250 to $500 for all of FRA's regulatory provisions and orders. The Federal Civil Penalties Inflation

      Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement

      Act of 1996 (Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996)

      (Inflation Act) required that agencies adjust by regulation each minimum and maximum civil monetary penalty within the agency's jurisdiction for inflation and make subsequent adjustments once every four years after the initial adjustment. Accordingly, FRA's minimum and maximum civil monetary penalties have been adjusted.

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

      Page 57607

      FRA's civil monetary ordinary and aggravated maximum penalties to

      $25,000 and $100,000 respectively. FRA amended the civil penalty provisions in its regulations so as to make $25,000 the ordinary maximum penalty per violation and $100,000 the aggravated maximum penalty per violation, as authorized by the RSIA of 2008, in a final rule published on December 30, 2008 in the Federal Register. 73 FR 79700. The December 30, 2008 final rule also adjusted the minimum civil penalty from $550 to $650 pursuant to Inflation Act requirements. Id. A correcting amendment to the civil penalty provisions in 49 CFR part 232 was published on April 6, 2009. 74 FR 15388.

      FRA's traditional practice has been to issue penalty schedules assigning to each particular regulation or order specific dollar amounts for initial penalty assessments. The schedule (except where issued after notice and an opportunity for comment) constitutes a statement of agency policy, and is ordinarily issued as an appendix to the relevant part of the Code of Federal Regulations. For each regulation or order, the schedule shows two amounts within the $650 to $25,000 range in separate columns, the first for ordinary violations, the second for willful violations (whether committed by railroads or individuals). In one instance--part 231--the schedule refers to sections of the relevant FRA defect code rather than to sections of the CFR text. Of course, the defect code, which is simply a reorganized version of the CFR text used by FRA to facilitate computerization of inspection data, is substantively identical to the CFR text.

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

      PART 213--[AMENDED] 3. The authority citation for part 213 continues to read as follows:

      Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461, note; and 49 CFR 1.49(m). 4. Appendix B to part 213 is revised to read as follows:

      Appendix B to Part 213--Schedule of Civil Penalties \1\

      Willful

      Section 2 3

      Violation

      violation

      Subpart A--General 213.4(a) Excepted track \2\.........

      $9,500

      $17,000 213.4(b) Excepted track \2\.........

      13,000

      20,500 213.4(c) Excepted track \ 2\........

      13,000

      20,500 213.4(d) Excepted track \2\.........

      13,000

      20,500 213.4(e):

      (1) Excepted track.............

      13,000

      20,500

      (2) Excepted track.............

      13,000

      20,500

      (3) Excepted track.............

      13,000

      20,500

      (4) Excepted track.............

      13,000

      20,500 213.4(f) Excepted track.............

      5,500

      10,000 213.7 Designation of qualified

      9,500

      17,000 persons to supervise certain renewals and inspect track......... 213.9 Classes of track: Operating

      19,500

      25,000 speed limits....................... 213.11 Restoration or renewal of

      9,500

      17,000 track under traffic conditions..... 213.13 Measuring track not under

      13,000

      20,500 load...............................

      Subpart B--Roadbed 213.33 Drainage.....................

      13,000

      20,500 213.37 Vegetation...................

      9,500

      17,000

      Subpart C--Track Geometry 213.53 Gage.........................

      19,500

      25,000 213.55 Alignment....................

      13,000

      20,500 213.57 Curves; elevation and speed

      13,000

      20,500 limitations........................ 213.59 Elevation of curved track;

      13,000

      20,500 runoff............................. 213.63 Track surface................

      13,000

      20,500

      Subpart D--Track Structure 213.103 Ballast; general............

      9,500

      17,000 213.109 Crossties:

      (a) Material used..............

      5,500

      10,000

      (b) Distribution of ties.......

      13,000

      20,500

      (d) Sufficient number of

      9,500

      17,000 nondefective ties..............

      (f) Joint ties.................

      9,500

      17,000

      (g) Track constructed without

      9,500

      17,000 crossties...................... 213.110 Gage restraint measurement systems:

      (a) through (b) Notification...

      9,500

      17,000

      (c) Design requirements........

      13,000

      20,500

      (g) through (i) Exception

      9,500

      17,000 reports........................

      (j) Data integrity.............

      13,000

      20,500

      (k) Training...................

      9,500

      17,000

      (l) Remedial actions...........

      19,500

      25,000

      (m) PTLF.......................

      13,000

      20,500

      (n) Recordkeeping..............

      9,500

      17,000

      (o) Inspection frequency.......

      19,500

      25,000 213.113 Defective rails.............

      19,500

      25,000 213.115 Rail end mismatch...........

      9,500

      17,000 213.118(a) CWR plan in effect.......

      13,000

      20,500 213.118(b) CWR plan filed with FRA..

      13,000

      20,500 213.119 Continuous welded rail:

      Page 57608

      (a) CWR installation/adjustment

      13,000

      20,500 procedures.....................

      (b) CWR fastening requirements.

      13,000

      20,500

      (c) CWR joint installation/

      13,000

      20,500 maintenance procedures.........

      (d) CWR rail temperature

      13,000

      20,500 requirements...................

      (e) CWR alinement..............

      13,000

      20,500

      (f) Procedures for controlling

      13,000

      20,500 train speed on CWR track.......

      (g) CWR track inspections......

      13,000

      20,500

      (h) CWR joint bar inspections..

      13,000

      20,500

      (i) CWR training...............

      13,000

      20,500

      (j) CWR records................

      9,500

      17,000

      (k) CWR manual at job site.....

      9,500

      17,000 213.121(a) Rail joints..............

      13,000

      20,500 213.121(b) Rail joints..............

      13,000

      20,500 213.121(c) Rail joints..............

      19,500

      25,000 213.121(d) Rail joints..............

      13,000

      20,500 213.121(e) Rail joints..............

      13,000

      20,500 213.121(f) Rail joints..............

      13,000

      20,500 213.121(g) Rail joints..............

      13,000

      20,500 213.121(h) Rail joints..............

      13,000

      20,500 213.122 Torch cut rail..............

      13,000

      20,500 213.123 Tie plates..................

      9,500

      17,000 213.127 Rail fastenings.............

      13,000

      20,500 213.133 Turnouts and track

      9,500

      17,000 crossings, generally............... 213.135 Switches:...................

      (a) through (g)................

      13,000

      20,500

      (h) chipped or worn points.....

      13,000

      20,500 213.137 Frogs.......................

      13,000

      20,500 213.139 Spring rail frogs...........

      13,000

      20,500 213.141 Self-guarded frogs..........

      9,500

      17,000 213.143 Frog guard rails and guard

      13,000

      20,500 faces; gage........................

      Subpart E--Track Appliances and

      Track-Related Devices 213.205 Derails.....................

      9,500

      17,000

      Subpart F--Inspection 213.233 Track inspections...........

      9,500

      17,000 213.235 Switches, crossings,

      9,500

      17,000 transition devices................. 213.237 Inspection of rail..........

      13,000

      20,500 213.239 Special inspections.........

      9,500

      17,000 213.241 Inspection records..........

      9,500

      17,000

      Subpart G--Train Operations at Track

      Classes 6 and Higher 213.305 Designation of qualified

      19,500

      25,000 individuals; general qualifications 213.307 Class of track; operating

      19,500

      25,000 speed limits....................... 213.309 Restoration or renewal of

      19,500

      25,000 track under traffic conditions..... 213.311 Measuring track not under

      13,000

      20,500 load............................... 213.319 Drainage....................

      9,500

      17,000 213.321 Vegetation..................

      9,500

      17,000 213.323 Track gage..................

      19,500

      25,000 213.327 Alignment...................

      19,500

      25,000 213.329 Curves, elevation and speed

      19,500

      25,000 limits............................. 213.331 Track surface...............

      19,500

      25,000 213.333 Automated vehicle inspection

      19,500

      25,000 systems............................ 213.335 Crossties:

      (a) Material used..............

      9,500

      17,000

      (b) Distribution of ties.......

      13,000

      20,500

      (c) Sufficient number of

      9,500

      17,000 nondefective ties, non-concrete

      (d) Sufficient number of

      19,500

      25,000 nondefective, concrete ties....

      (e) Joint ties.................

      19,500

      25,000

      (f) Track constructed without

      19,500

      25,000 crossties......................

      (g) Non-defective ties

      19,500

      25,000 surrounding defective ties.....

      (h) Tie plates.................

      19,500

      25,000

      (i) Tie plates.................

      19,500

      25,000 213.337 Defective rails.............

      19,500

      25,000 213.339 Inspection of rail in

      19,500

      25,000 service............................ 213.341 Inspection of new rail......

      19,500

      25,000 213.343 Continuous welded rail (a)

      19,500

      25,000 through (h)........................ 213.345 Vehicle qualification

      19,500

      25,000 testing (a) through (b)............

      (c) through (e)................

      19,500

      25,000 213.347 Automotive or railroad

      13,000

      20,500 crossings at grade................. 213.349 Rail end mismatch...........

      13,000

      20,500 213.351(a) Rail joints..............

      19,500

      25,000

      Page 57609

      213.351(b) Rail joints..............

      19,500

      25,000 213.351(c) Rail joints..............

      19,500

      25,000 213.351(d) Rail joints..............

      19,500

      25,000 213.351(e) Rail joints..............

      13,000

      20,500 213.351(f) Rail joints..............

      19,500

      25,000 213.351(g) Rail joints..............

      19,500

      25,000 213.352 Torch cut rails.............

      9,500

      17,000 213.353 Turnouts, crossovers,

      19,500

      25,000 transition devices................. 213.355 Frog guard rails and guard

      13,000

      20,500 faces; gage........................ 213.357 Derails.....................

      9,500

      17,000 213.359 Track stiffness.............

      19,500

      25,000 213.361 Right of way................

      9,500

      17,000 213.365 Visual inspections..........

      19,500

      25,000 213.367 Special inspections.........

      19,500

      25,000 213.369 Inspections records.........

      9,500

      17,000

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ In addition to assessment of penalties for each instance of noncompliance with the requirements identified by this footnote, track segments designated as excepted track that are or become ineligible for such designation by virtue of noncompliance with any of the requirements to which this footnote applies are subject to all other requirements of part 213 until such noncompliance is remedied.

      \3\ The penalty schedule uses section numbers from 49 CFR part 213. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 214--[AMENDED] 5. The authority citation for part 214 continues to read as follows:

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

      CFR 1.49. 6. Appendix A to part 214 is revised to read as follows:

      Appendix A to Part 214--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Bridge Worker Safety

      Standards 214.103 Fall protection:

      (i) Failure to provide fall

      $13,000

      $20,500 protection.....................

      (ii) Failure to use fall

      19,500

      25,000 protection..................... 214.105 Standards and practices:

      (a) General:

      (1) Fall protection used for

      9,500

      17,000 other purposes.............

      (2) Failure to remove from

      9,500

      17,000 service....................

      (3) Failure to protect from

      9,500

      17,000 deterioration..............

      (4) Failure to inspect and

      13,000

      20,500 remove.....................

      (5) Failure to train........

      13,000

      20,500

      (6) Failure to provide for

      13,000

      20,500 prompt rescue..............

      (7) Failure to prevent

      9,500

      17,000 damage.....................

      (8) Failure to use proper

      9,500

      17,000 connectors.................

      (9) Failure to use proper

      9,500

      17,000 anchorages.................

      (b) Fall arrest system:

      (1)-(17) Failure to provide

      9,500

      17,000 conforming equipment.......

      (c) Safety net systems:

      (1) Failure to install close

      9,500

      17,000 to workplace...............

      (2) Failure to provide fall

      13,000

      20,500 arrest if over 30 feet.....

      (3) Failure to provide for

      13,000

      20,500 unobstructed fall..........

      (4) Failure to test.........

      9,500

      17,000

      (5) Failure to use proper

      9,500

      17,000 equipment..................

      (6) Failure to prevent

      13,000

      20,500 contact with surface below.

      (7) Failure to properly

      13,000

      20,500 install....................

      (8) Failure to remove

      13,000

      20,500 defective nets.............

      (9) Failure to inspect......

      13,000

      20,500

      (10) Failure to remove

      5,500

      10,000 objects....................

      (11)-(13) Failure to use

      9,500

      17,000 conforming equipment....... 214.107 Working over water:

      (a)(i) Failure to provide life

      13,000

      20,500 vest...........................

      (ii) Failure to use life

      13,000

      20,500 vest.......................

      (c) Failure to inspect..........

      9,500

      17,000

      (e)(i) Failure to provide ring

      13,000

      20,500 buoys..........................

      Page 57610

      (ii) Failure to use ring

      ................

      17,000 buoys......................

      (f)(i) Failure to provide skiff.

      9,500

      17,000

      (ii) Failure to use skiff... ................

      17,000 214.109 Scaffolding:

      (a)-(f) Failure to provide

      13,000

      20,500 conforming equipment........... 214.113 Head protection:

      (a)(i) Failure to provide.......

      13,000

      20,500

      (ii) Failure to use.........

      13,000

      20,500

      (b) or (c) Failure to provide

      9,500

      17,000 conforming equipment........... 214.115 Foot protection:

      (a)(i) Failure to require use of

      9,500

      17,000

      (ii) Failure to use.........

      9,500

      17,000 214.117 Eye and face protection:

      (a)(i) Failure to provide.......

      9,500

      17,000

      (ii) Failure to use.........

      5,500

      10,000

      (b) Failure to use conforming

      9,500

      17,000 equipment......................

      (c) Use of defective equipment..

      9,500

      17,000

      (d) Failure to provide for

      9,500

      17,000 corrective lenses..............

      Subpart C--Roadway Worker Protection

      Rule 214.303 Railroad on-track safety programs, generally:

      (a) Failure of a railroad to

      19,500

      25,000 implement an On-track Safety

      Program........................

      (b) On-track Safety Program of a

      9,500

      17,000 railroad includes no internal monitoring procedure........... 214.305 Compliance Dates:

      Failure of a railroad to comply

      9,500

      17,000 by the specified dates......... 214.307 Review and approval of individual on-track safety programs by FRA:

      (a)(i) Failure to notify FRA of

      2,500

      5,000 adoption of On-track Safety

      Program........................

      (ii) Failure to designate

      2,500

      5,000 primary person to contact for program review......... 214.309 On-track safety program documents:

      (1) On-track Safety Manual not

      9,500

      17,000 provided to prescribed employees......................

      (2) On-track Safety Program

      5,500

      10,000 documents issued in fragments.. 214.311 Responsibility of employers:

      (b) Roadway worker required by

      19,500

      25,000 employer to foul a track during an unresolved challenge........

      (c) Roadway workers not provided

      9,500

      17,000 with written procedure to resolve challenges of on-track safety procedures.............. 214.313 Responsibility of individual roadway workers:

      (a) Failure to follow railroad's ................

      25,000 on-track safety rules..........

      (b) Roadway worker fouling a

      ................

      25,000 track when not necessary in the performance of duty............

      (c) Roadway worker fouling a

      ................

      25,000 track without ascertaining that provision is made for on-track safety.........................

      (d) Roadway worker failing to

      ................

      25,000 notify employer of determination of improper on- track safety provisions........ 214.315 Supervision and communication:

      (a) Failure of employer to

      19,500

      25,000 provide job briefing...........

      (b) Incomplete job briefing.....

      13,000

      20,500

      (c)(i) Failure to designate

      13,000

      20,500 roadway worker in charge of roadway work group.............

      (ii) Designation of more

      9,500

      17,000 than one roadway worker in charge of one roadway work group......................

      (iii) Designation of non-

      13,000

      20,500 qualified roadway worker in charge of roadway work group......................

      (d)(i) Failure to notify roadway

      13,000

      20,500 workers of on-track safety procedures in effect...........

      (ii) Incorrect information

      13,000

      20,500 provided to roadway workers regarding on-track safety procedures in effect.......

      (iii) Failure to notify

      13,000

      20,500 roadway workers of change in on-track safety procedures.................

      (e)(i) Failure of lone worker to

      9,500

      17,000 communicate with designated employee for daily job briefing

      (ii) Failure of employer to

      13,000

      20,500 provide means for lone worker to receive daily job briefing................... 214.317 On-track safety procedures, generally:

      On-track safety rules conflict

      19,500

      25,000 with this part................. 214.319 Working limits, generally:

      (a) Nonqualified roadway worker

      13,000

      20,500 in charge of working limits....

      (b) More than one roadway worker

      13,000

      20,500 in charge of working limits on the same track segment.........

      (c)(1) Working limits released

      19,500

      25,000 without notifying all affected roadway workers................

      (2) Working limits released

      19,500

      25,000 before all affected roadway workers are otherwise protected.................. 214.321 Exclusive track occupancy:

      (b) Improper transmission of

      9,500

      17,000 authority for exclusive track occupancy......................

      (b)(1) Failure to repeat

      9,500

      17,000 authority for exclusive track occupancy to issuing employee..

      (2) Failure to retain

      5,500

      10,000 possession of written authority for exclusive track occupancy............

      (3) Failure to record

      13,000

      20,500 authority for exclusive track occupancy when issued

      (c) Limits of exclusive track

      19,500

      25,000 occupancy not identified by proper physical features.......

      (d)(1) Movement authorized into

      19,500

      25,000 limits of exclusive track occupancy without authority of roadway worker in charge.......

      (2) Movement authorized

      19,500

      25,000 within limits of exclusive track occupancy without authority of roadway worker in charge..................

      (3) Movement within limits

      19,500

      25,000 of exclusive track occupancy exceeding restricted speed without authority of roadway worker in charge..................

      Page 57611

      214.323 Foul time:

      (a) Foul time authority

      19,500

      25,000 overlapping movement authority of train or equipment..........

      (b) Failure to repeat foul time

      9,500

      17,000 authority to issuing employee.. 214.325 Train coordination:

      (a) Train coordination limits

      13,000

      20,500 established where more than one train is authorized to operate.

      (b)(1) Train coordination

      9,500

      17,000 established with train not visible to roadway worker at the time.......................

      (2) Train coordination

      9,500

      17,000 established with moving train......................

      (3) Coordinated train moving

      13,000

      20,500 without authority of roadway worker in charge...

      (4) Coordinated train

      13,000

      20,500 releasing movement authority while working limits are in effect....... 214.327 Inaccessible track:

      (a) Improper control of entry to

      13,000

      20,500 inaccessible track.............

      (5) Remotely controlled

      13,000

      20,500 switch not properly secured by control operator........

      (b) Train or equipment moving

      13,000

      20,500 within inaccessible track limits without permission of roadway worker in charge.......

      (c) Unauthorized train or

      13,000

      20,500 equipment located within inaccessible track limits...... 214.329 Train approach warning provided by watchmen/lookouts:

      (a) Failure to give timely

      19,500

      25,000 warning of approaching train...

      (b)(1) Failure of watchman/

      13,000

      20,500 lookout to give full attention to detecting approach of train.

      (2) Assignment of other

      19,500

      25,000 duties to watchman/lookout.

      (c) Failure to provide proper

      9,500

      17,000 warning signal devices.........

      (d) Failure to maintain position

      13,000

      20,500 to receive train approach warning signal.................

      (e) Failure to communicate

      13,000

      20,500 proper warning signal..........

      (f)(1) Assignment of

      13,000

      20,500 nonqualified person as watchman/ lookout........................

      (2) Nonqualified person

      9,500

      17,000 accepting assignment as watchman/lookout...........

      (g) Failure to properly equip a

      9,500

      17,000 watchman/lookout............... 214.331 Definite train location:

      (a) Definite train location

      13,000

      20,500 established where prohibited...

      (b) Failure to phase out

      9,500

      17,000 definite train location by required date..................

      (d)(1) Train location

      13,000

      20,500 information issued by unauthorized person............

      (2) Failure to include all

      19,500

      25,000 trains operated on train location list..............

      (5) Failure to clear track

      13,000

      20,500 10 minutes before earliest departure time of train at last station prior to work location, or failure to remain clear until such train passed...............

      (6) Train passing station

      19,500

      25,000 before time shown in train location list..............

      (7) Nonqualified person

      13,000

      20,500 using definite train location to establish on- track safety............... 214.333 Informational line-ups of trains:

      (a) Informational line-ups of

      19,500

      25,000 trains used for on-track safety where prohibited...............

      (b) Informational line-up

      19,500

      25,000 procedures inadequate to protect roadway workers........

      (c) Failure to discontinue

      9,500

      17,000 informational line-ups by required date.................. 214.335 On-track safety procedures for roadway work groups:

      (a) Failure to provide on-track

      19,500

      25,000 safety for a member of a roadway work group.............

      (b) Member of roadway work group

      13,000

      20,500 fouling a track without authority of employee in charge

      (c) Failure to provide train

      19,500

      25,000 approach warning or working limits on adjacent track where required....................... 214.337 On-track safety procedures for lone workers:

      (b) Failure by employer to

      19,500

      25,000 permit individual discretion in use of individual train detection......................

      (c)(1) Individual train

      13,000

      20,500 detection used by nonqualified employee.......................

      (2) Use of individual train

      19,500

      25,000 detection while engaged in heavy or distracting work..

      (3) Use of individual train

      19,500

      25,000 detection in controlled point or manual interlocking...............

      (4) Use of individual train

      19,500

      25,000 detection with insufficient visibility.................

      (5) Use of individual train

      19,500

      25,000 detection with interfering noise......................

      (6) Use of individual train

      19,500

      25,000 detection while a train is passing....................

      (d) Failure to maintain access

      19,500

      25,000 to place of safety clear of live tracks....................

      (e) Lone worker unable to

      19,500

      25,000 maintain vigilant lookout......

      (f)(1) Failure to prepare

      5,500

      10,000 written statement of on-track safety.........................

      (2) Incomplete written

      2,500

      5,000 statement of on-track safety.....................

      (3) Failure to produce

      2,500

      5,000 written statement of on- track safety to FRA........ 214.339 Audible warning from trains:

      (a) Failure to require audible

      9,500

      17,000 warning from trains............

      (b) Failure of train to give

      9,500

      17,000 audible warning where required. 214.341 Roadway maintenance machines:

      (a) Failure of on-track safety

      19,500

      25,000 program to include provisions for safety near roadway maintenance machines...........

      (b) Failure to provide operating

      9,500

      17,000 instructions...................

      (1) Assignment of

      13,000

      20,500 nonqualified employee to operate machine............

      (2) Operator unfamiliar with

      13,000

      20,500 safety instructions for machine....................

      (3) Roadway worker working

      13,000

      20,500 with unfamiliar machine....

      (c) Roadway maintenance machine

      19,500

      25,000 not clear of passing trains or operation of machine component closer than four feet to adjacent track without procedural instructions........ 214.343 Training and qualification, general:

      (a)(1) Assignment of roadway

      13,000

      20,500 worker duties to employee that is not trained or qualified....

      (a)(2) Acceptance of roadway

      13,000

      20,500 worker assignment by employee that is not trained or qualified......................

      (b)(1) Failure to provide

      13,000

      20,500 initial training...............

      Page 57612

      (b)(2) Failure to provide annual

      9,500

      17,000 training.......................

      (c) Failure to provide training

      13,000

      20,500 to employee other than a roadway worker on functions related to on-track safety.....

      (d)(1) Failure to maintain

      9,500

      17,000 records of qualifications......

      (2) Incomplete records of

      5,500

      10,000 qualifications.............

      (3) Failure to provide

      2,500

      5,000 records of qualifications to FRA..................... 214.345 Training for all roadway

      \3\

      \3\ workers............................ 214.347 Training and qualification

      \3\

      \3\ for lone workers................... 214.349 Training and qualification

      \3\

      \3\ of watchmen/lookouts............... 214.351 Training and qualification

      \3\

      \3\ of flagmen......................... 214.353 Training and qualification

      \3\

      \3\ of roadway workers who provide on- track safety for roadway work groups............................. 214.355 Training and qualification

      \3\

      \3\ in on-track safety for operators of roadway maintenance machines.......

      Subpart D--On-Track Roadway

      Maintenance Machines and Hi-Rail

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

      (a) Failure of employee to

      ................

      20,500 notify employer that the machine or vehicle does not comply with this subpart or has a condition inhibiting safe operation......................

      (b) Roadway worker required to

      19,500

      25,000 operate machine or vehicle when good-faith challenge not resolved.......................

      (c) Failure of employer to have

      19,500

      25,000 or follow written procedures to resolve good-faith challenges.. 214.505 Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs:

      (a) Failure to equip new

      19,500

      25,000 machines with required systems.

      (b) Failure of new or existing

      19,500

      25,000 machines to protect employees from exposure to air contaminants...................

      (c) Failure of employer to

      9,500

      17,000 maintain required list of machines or make list available

      (d) Removal of ``designated

      9,500

      17,000 machine'' from list before retired or sold................

      (e) Personal respiratory

      19,500

      25,000 protective equipment not provided when ventilation system fails...................

      (f) Personal respiratory

      19,500

      25,000 protective equipment fails to meet required standards........

      (g) Other new machines with

      19,500

      25,000 enclosed cabs not equipped with operable heating and ventilation systems............

      (h) Nonenclosed station not

      19,500

      25,000 equipped with covering, where feasible....................... 214.507 Required safety equipment for new on-track roadway maintenance machines:

      (a)(1)-(5) Failure to equip new

      19,500

      25,000 machine or provide protection as specified in these paragraphs.....................

      (a)(6)-(7) Failure to equip new

      13,000

      20,500 machine with first-aid kit or operative and charged fire extinguisher...................

      (b) Position for operator to

      19,500

      25,000 stand not properly equipped to provide safe and secure position.......................

      (c) New machine not equipped

      13,000

      20,500 with accurate speed indicator, as required....................

      (d) As-built light weight not

      13,000

      20,500 conspicuously displayed on new machine........................ 214.509 Required visual illumination

      13,000

      20,500 and reflective devices for new on- track roadway maintenance machines. 214.511 Required audible warning

      19,500

      25,000 devices for new on-track roadway maintenance machines............... 214.513 Retrofitting of existing on- track roadway maintenance machines; general:

      (a) Failure to provide safe and

      19,500

      25,000 secure position and protection from moving parts inside cab for each roadway worker transported on machine.........

      (b) Horn or other audible

      13,000

      20,500 warning device is missing, inoperable, or has noncompliant triggering mechanism...........

      (c) Illumination device or

      13,000

      20,500 portable light missing, inoperable, improperly secured, or incapable of illuminating track as required.............. 214.515 Overhead covers for existing on-track roadway maintenance machines:

      (a) Failure to repair,

      19,500

      25,000 reinstall, or maintain overhead cover as required..............

      (b) Failure to provide written

      9,500

      17,000 response to operator's request within 60 days................. 214.517 Retrofitting of existing on- track roadway maintenance machines manufactured on or after January 1, 1991:

      (a) Failure to equip machine

      19,500

      25,000 with change-of-direction alarm or rearward viewing device.....

      (b) Failure to equip machine

      19,500

      25,000 with operative heater..........

      (c) Failure to display light

      13,000

      20,500 weight of machine as required..

      (d) Failure to equip machine

      19,500

      25,000 with reflective material, reflective device, or operable brake lights...................

      (e) Failure to install or

      19,500

      25,000 replace safety glass as required.......................

      (f) Failure to equip machine

      19,500

      25,000 with turntable restraint device or warning light as required... 214.518 Safe and secure position for

      19,500

      25,000 riders............................. 214.519 Floors, decks, stairs, and

      19,500

      25,000 ladders for on-track roadway maintenance machines............... 214.521 Flagging equipment for on-

      13,000

      20,500 track roadway maintenance machines and hi-rail vehicles............... 214.523 Hi-rail vehicles:

      (a) Failure to inspect hi-rail

      19,500

      25,000 gear annually..................

      (b) Failure to maintain

      9,500

      17,000 inspection record or make record available to FRA........

      (c) Failure to equip new hi-rail

      13,000

      20,500 vehicle with alarm and light or beacon as required.............

      (d)(2) Failure of operator to

      9,500

      17,000 tag, date, or report noncomplying condition.........

      (d)(3) Failure to repair or

      13,000

      20,500 replace noncomplying alarms, lights, or beacons as required. 214.525 Towing with on-track roadway

      19,500

      25,000 maintenance machines or hi-rail vehicles........................... 214.527 On-track roadway maintenance machines; inspection for compliance and schedule for repairs:

      (a) Failure of operator to check

      9,500

      17,000 on-track roadway maintenance machine for compliance.........

      (b) Failure of operator to tag,

      9,500

      17,000 date, or report noncomplying condition......................

      Page 57613

      (c)(1)-(4) Failure to meet

      13,000

      20,500 requirements for operating on- track roadway maintenance machine with noncomplying headlights, work lights, horn, fire extinguisher, alarm, warning light, or beacon.......

      (c)(5) Failure to repair or

      19,500

      25,000 replace defective or missing operator's seat within required time period.................... 214.529 In-service failure of

      19,500

      25,000 primary braking system............. 214.531 Schedule of repairs; general

      13,000

      20,500 214.533 Schedule of repairs subject to availability of parts:

      (a)-(c) Failure to order

      13,000

      20,500 necessary part(s), make repair(s), or remove on-track roadway maintenance machine or hi-rail vehicle from service as required.......................

      (d) Failure to maintain record

      9,500

      17,000 or make record available to FRA

      \1\ A penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The

      Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 214. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      \3\ See Sec. 214.343 (Training and qualification, general).

      PART 215--[AMENDED] 7. The authority citation for part 215 continues to read as follows:

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

      CFR 1.49. 8. Appendix B to part 215 is revised to read as follows:

      Appendix B to Part 215--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      Violation

      Subpart A--General 215.9 Movement for repair:

      ................ ................

      (a), (c).......................

      \1\

      \1\

      (b)............................

      $5,500

      $10,000 215.11 Designation of qualified

      9,500

      17,000 persons............................ 215.13 Pre-departure inspection.....

      9,500

      17,000

      Subpart B--Freight Car Components

      Suspension System 215.103 Defective wheel:

      (a) Flange thickness of:

      ................ ................

      (1) \7/8\'' or less but more

      9,500

      17,000 than \13/16\''.............

      (2) \13/16\'' or less.......

      13,000

      20,500

      (b) Flange height of:

      (1) 1\1/2\'' or greater but

      9,500

      17,000 less than \15/8\''.........

      (2) \15/8\'' or more........

      13,000

      20,500

      (c) Rim thickness of:

      (1) \11/16\'' or less but

      9,500

      17,000 more than \5/8\''..........

      (2) \5/8\'' or less........

      13,000

      20,500

      (d) Wheel rim, flange plate hub width:

      (1) Crack of less than 1''..

      9,500

      17,000

      (2) Crack of 1'' or more....

      13,000

      20,500

      (3) Break...................

      19,500

      25,000

      (e) Chip or gouge in flange of:

      (1) 1\1/2\'' or more but

      5,500

      10,000 less than 1\5/8\'' in length; and \1/2\'' or more but less than \5/8\'' in width......................

      (2) \15/8\'' or more in

      9,500

      17,000 length; or \5/8\'' or more in width...................

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

      (1)(i) One spot more than

      5,500

      10,000 2\1/2\'', but less than 3'', in length.............

      (ii) One spot 3'' or

      9,500

      17,000 more in length.........

      (2)(i) Two adjoining spots

      5,500

      10,000 each of which is more than 2'' but less than 2\1/2\'' in length..................

      (ii) Two adjoining spots

      9,500

      17,000 both of which are at least 2'' in length, if either spot is 2\1/2\'' or more in length......

      (g) Loose on axle...............

      19,500

      25,000

      (h) Overheated; discoloration extending:

      (1) More than 4'' but less

      9,500

      17,000( than 4\1/2\''..............

      (2) 4\1/2\'' or more........

      13,000

      20,500

      (i) Welded......................

      13,000

      20,500 215.105 Defective axle:

      (a)(1) Crack of 1'' or less.....

      9,500

      17,000

      (2) Crack of more than 1''.

      13,000

      20,500

      (3) Break..................

      19,500

      25,000

      Page 57614

      (b) Gouge in surface that is

      5,500

      10,000 between the wheel seats and is more than \1/8\'' in depth.....

      (c) End collar with crack or

      9,500

      17,000 break..........................

      (d) Journal overheated.........

      19,500

      25,000

      (e) Journal surface has: A

      9,500

      17,000 ridge; a depression; a circumferential score; corrugation; a scratch; a continuous streak; pitting; rust; or etching............... 215.107 Defective plain bearing box: general:

      (a)(1) No visible free oil

      5,500

      10,000

      (2) Lubricating pad dry (no

      13,000

      20,500 expression of oil observed when pad is compressed)....

      (b) Box lid is missing, broken,

      5,500

      10,000 or open except to receive servicing......................

      (c) Contains foreign matter that

      9,500

      17,000 can be expected to damage the bearing or have a detrimental effect on the lubrication of the journal and bearing 215.109 Defective plain bearing box: journal lubrication system:

      (a) Lubricating pad has a tear..

      5,500

      10,000

      (b) Lubricating pad scorched,

      9,500

      17,000 burned, or glazed..............

      (c) Lubricating pad contains

      9,500

      17,000 decaying or deteriorating fabric.........................

      (d) Lubricating pad has an

      9,500

      17,000 exposed center core or metal parts contacting the journal...

      (e) Lubricating pad is missing

      13,000

      20,500 or not in contact with the journal........................ 215.111 Defective plain bearing:

      (a) Missing.....................

      19,500

      25,000

      (b) Bearing liner is loose or

      9,500

      17,000 has piece broken out...........

      (c) Overheated..................

      19,500

      25,000 215.113 Defective plain bearing wedge:

      (a) Missing.....................

      19,500

      25,000

      (b) Cracked.....................

      9,500

      17,000

      (c) Broken......................

      13,000

      20,500

      (d) Not located in its design

      9,500

      17,000 position....................... 215.115 Defective roller bearing:

      (a)(1) Overheated...............

      19,500

      25,000

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

      13,000

      20,500

      (ii) Cap screw lock

      5,500

      10,000 broken, missing or improperly applied.....

      (3) Seal is loose or

      5,500

      10,000 damaged, or permits leakage of lubricant...............

      (b)(1) Not inspected and tested

      13,000

      20,500 after derailment

      (2) Not disassembled after

      9,500

      17,000 derailment.................

      (3) Not repaired or replaced

      13,000

      20,500 after derailment........... 215.117 Defective roller bearing adapter:

      (a) Cracked or broken...........

      9,500

      17,000

      (b) Not in its design position..

      13,000

      20,500

      (c) Worn on the crown...........

      9,500

      17,000 215.119 Defective freight car truck:

      (a)(1) A side frame or bolster

      19,500

      25,000 that is broken.................

      (2)(i) Side frame or bolster

      9,500

      17,000 with crack of: \1/4\'' or more, but less than 1''....

      (ii) 1'' or more........

      13,000

      20,500

      (b) A snubbing device that is

      9,500

      17,000 ineffective or missing.........

      (c) Side bearing(s):

      (1) Assembly missing or

      19,500

      25,000 broken.....................

      (2) In contact except by

      13,000

      20,500 design.....................

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

      (i) More than \3/4\''

      9,500

      17,000 but not more than 1''..

      (ii) More than 1''......

      13,000

      20,500

      (d) Truck spring(s):

      (1) Do not maintain travel

      9,500

      17,000 or load....................

      (2) Compressed solid........

      9,500

      17,000

      (3) Outer truck springs broken or missing:

      (i) Two outer springs...

      9,500

      17,000

      (ii) Three or more outer

      13,000

      20,500 springs................

      (e) Truck bolster-center plate

      13,000

      20,500 interference...................

      (f) Brake beam shelf support

      9,500

      17,000 worn...........................

      Car Bodies 215.121 Defective car body:

      (a) Has less than \21/2\''

      9,500

      17,000 clearance from the top of rail.

      (b) Car center sill is:

      (1) Broken.................

      19,500

      25,000

      (2) Cracked more than 6''..

      9,500

      17,000

      (3) Bent or buckled more

      9,500

      17,000 than \21/2\'' in any 6' length.....................

      (c) Coupler carrier that is

      9,500

      17,000 broken or missing..............

      (d) Car door not equipped with

      19,500

      25,000 operative safety hangers.......

      (e)(1) Center plate not

      19,500

      25,000 properly secured...............

      (2) Portion missing........

      9,500

      17,000

      (3) Broken.................

      19,500

      25,000

      (4) Two or more cracks.....

      9,500

      17,000

      Page 57615

      (f) Broken sidesill,

      9,500

      17,000 crossbearer, or body bolster...

      Draft System 215.123 Defective couplers:

      (a) Shank bent out of alignment.

      5,500

      10,000

      (b) Crack in highly stressed

      9,500

      17,000 junction area..................

      (c) Coupler knuckle broken or

      9,500

      17,000 cracked........................

      (d) Coupler knuckle pin or

      9,500

      17,000 thrower that is missing or inoperative....................

      (e) Coupler retainer pin lock

      5,500

      10,000 that is missing or broken......

      (f) Coupler with following

      9,500

      17,000 conditions: Locklift inoperative; no anticreep protection; or coupler lock is missing, inoperative, bent, cracked, or broken............. 215.125 Defective uncoupling device.

      9,500

      17,000 215.127 Defective draft arrangement:

      (a) Draft gear that is

      9,500

      17,000 inoperative....................

      (b) Yoke that is broken.........

      9,500

      17,000

      (c) End of car cushioning unit

      9,500

      17,000 is leaking or inoperative......

      (d) Vertical coupler pin

      19,500

      25,000 retainer plate missing or has missing fastener...............

      (e) Draft key or draft key

      19,500

      25,000 retainer that is inoperative or missing........................

      (f) Follower plate that is

      9,500

      17,000 missing or broken.............. 215.129 Defective cushioning device.

      9,500

      17,000

      Subpart C--Restricted Equipment 215.203 Restricted cars.............

      9,500

      17,000

      Subpart D--Stenciling 215.301 General.....................

      5,500

      10,000 215.303 Stenciling of restricted

      5,500

      10,000 cars............................... 215.305 Stenciling of maintenance-of-

      5,500

      10,000 way................................

      \1\ A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single freight car that is placed or continued in service by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. A failure to perform, with respect to a particular freight car, the predeparture inspection required by Sec. 215.13 of this part will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on the car. The

      Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. Failure to observe any condition for movement set forth in paragraphs (a) and (c) of Sec. 215.9 will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the freight car at the time of movement. Maintenance-of-way equipment not stenciled in accordance with Sec. 215.305 is subject to all requirements of this part. See Sec. 215.3(c)(3).

      \2\ The penalty schedule uses section numbers from 49 CFR part 215. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 217--[AMENDED] 9. The authority citation for part 217 continues to read as follows:

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

      CFR 1.49. 10. Appendix A to part 217 is revised to read as follows:

      Appendix A to Part 217--Schedule Of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      Violation

      Subpart A--General 217.7 Operating Rules:

      (a).............................

      $5,500

      $10,000

      (b).............................

      5,500

      10,000

      (c).............................

      5,500

      10,000 217.9 Operational tests and inspections:

      (a) Failure to implement a

      9,500-

      17,000- program........................

      19,500

      25,000

      (b) Railroad and railroad testing officer responsibilities:

      (1) Failure to provide

      13,000

      20,500 instruction, examination, or field training, or failure to conduct tests in accordance with program....

      (2) Records.................

      9,500

      17,000

      (c) Record of program; program

      9,500-

      17,000- incomplete.....................

      19,500

      25,000

      (d) Records of individual tests

      9,500

      17,000 and inspections................

      (e) Failure to retain copy of or conduct:.......................

      (1)(i) Quarterly review.....

      13,000

      20,500

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

      13,000

      20,500 review.....................

      (3) Records.................

      9,500

      17,000

      Page 57616

      (f) Annual summary..............

      9,500

      17,000

      (h) Failure to timely or

      13,000-

      20,500- appropriately amend program

      19,500

      25,000 after disapproval.............. 217.11 Program of instruction on operating rules:

      (a).............................

      5,500-

      10,000- 13,000

      20,500

      (b).............................

      5,500-

      10,000- 13,000

      20,500

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 217. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 218--[AMENDED] 11. The authority citation for part 218 continues to read as follows:

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

      CFR 1.49. 12. Appendix A to part 218 is revised to read as follows:

      Appendix A to Part 218--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Blue Signal Protection of

      Workmen 218.22 Utility employees:

      (a) Employee qualifications.....

      $5,500

      $10,000

      (b) Concurrent service..........

      9,500

      17,000

      (c) Assignment conditions:

      (1) No controlling

      9,500

      17,000 locomotive.................

      (2) Empty cab...............

      9,500

      17,000

      (3)(4) Improper

      9,500

      17,000 communication..............

      (5) Performing functions not

      5,500

      10,000 listed.....................

      (d) Improper release............

      5,500

      10,000

      (f) More than three utility

      5,500

      10,000 employees with one crew........ 218.23 Blue signal display..........

      9,500

      17,000 218.24 One-person crew:

      (a)(1) Equipment not coupled or

      5,500

      10,000 insufficiently separated.......

      (a)(2) Unoccupied locomotive cab

      9,500

      17,000 not secured....................

      (b) Helper service..............

      5,500

      10,000 218.25 Workmen on a main track......

      9,500

      17,000 218.27 Workmen on track other than main track:

      (a) Protection provided except

      5,500

      10,000 that signal not displayed at switch.........................

      (b) through (e).................

      9,500

      17,000 218.29 Alternate methods of protection:

      (a)(1) Protection provided

      5,500

      10,000 except that signal not displayed at switch............

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

      9,500

      17,000

      (b)(1) Protection provided

      5,500

      10,000 except that signal not displayed at switch............

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

      9,500

      17,000

      (c) Use of derails..............

      9,500

      17,000

      (d) Emergency repairs...........

      9,500

      17,000 218.30 Remotely controlled switches:

      (a) and (b).....................

      9,500

      17,000

      (c).............................

      2,500

      5,000

      Subpart C--Protection of Trains and

      Locomotives 218.35 Yard limits:

      (a) and (b).....................

      9,500

      17,000

      (c).............................

      2,500

      5,000 218.37 Flag protection:

      (a).............................

      9,500

      17,000

      (b) and (c).....................

      9,500

      17,000 218.39 Hump operations..............

      9,500

      17,000 218.41 Noncompliance with hump

      9,500

      17,000 operations rule....................

      Subpart D--Prohibition against

      Tampering with Safety Devices 218.55 Tampering.................... ................

      17,000 218.57

      (i) Knowingly operating or

      5,500 ................ permitting operation of disabled equipment.............

      (ii) Willfully operating or

      ................

      10,000 permitting operation of disabled equipment............. 218.59 Operation of disabled

      5,500

      10,000 equipment..........................

      Page 57617

      Subpart E--Protection of Occupied

      Camp Cars 218.71 Warning Signal Display:

      (a) Warning signals.............

      5,500

      10,000

      (1) Cars may not be moved...

      9,500

      17,000

      (2) Rolling equipment may

      5,500

      10,000 not be on same track reducing view of warning signal.....................

      (3) Rolling equipment may

      9,500

      17,000 not pass a warning signal..

      (4) Signal will be displayed

      5,500

      10,000 immediately and only removed prior to departure. 218.75 Methods of protection for camp cars on main track:

      (a) Warning signals near each

      5,500

      10,000 switch with access.............

      (b) Immediate notification of

      9,500

      17,000 occupation.....................

      (c) Alerting affected personnel

      5,500

      10,000 of cars........................

      (d) Manual switched lined and

      9,500

      17,000 locked.........................

      (e) Remote switches protected...

      9,500

      17,000 218.77 Remotely controlled switches:

      (a) Remote switch lined and

      9,500

      17,000 locked.........................

      (b) Operator may not remove

      9,500

      17,000 locking device without permission.....................

      (c) Recordkeeping...............

      2,500

      5,000

      (d) Derail and signal when

      9,500

      17,000 located on main track.......... 218.79 Alternative methods for protection:

      (a) Other than main track:

      (1) Warning signal at each

      9,500

      17,000 switch providing access....

      (2) Switches lined and

      9,500

      17,000 locked.....................

      (3) Derails 50 feet away

      9,500

      17,000 when speed is 5MPH.........

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

      (1) Derails 150 feet away

      9,500

      17,000 from equipment.............

      (2) Derails must be locked

      9,500

      17,000 in derailing position with signal.....................

      Subpart F--Handling Equipment,

      Switches and Derails 218.95 Instruction, Training and

      Examination:

      (a) Program.....................

      9,500-13,000

      17,000-20,500

      (b) Records.....................

      9,500

      17,000

      (c) Failure to timely or

      9,500-13,000

      17,000-20,500 appropriately amend program after disapproval.............. 218.97 Good Faith Challenge

      Procedures:

      (a) Employee Responsibility

      ................

      5,000

      Failure........................

      (b) through (d) Failure to adopt

      9,500

      17,000 or implement procedures........ 218.99 Shoving or Pushing Movements:

      (a) Failure to implement

      13,000

      20,500 required operating rule........

      (b) Failure to conduct job

      9,500-13,000

      17,000-20,500 briefing, use a qualified employee, or establish proper protection.....................

      (c) Failure to observe equipment

      9,500

      17,000 direction......................

      (d) Failure to properly

      9,500

      17,000 establish point protection within a remote control zone...

      (e) Failure to abide by

      9,500

      17,000 operational exception requirements................... 218.101 Leaving Equipment in the

      Clear:

      (a) Failure to implement

      9,500

      17,000 required operating rule........

      (b) Equipment left improperly

      9,500

      17,000 fouling........................

      (c) Failure to implement

      9,500

      17,000 procedures for identifying clearance points............... 218.103 Hand-operated switches, including crossover switches:

      (a) Failure to implement

      9,500

      17,000 required operating rule........

      (b) through (d) Railroad

      9,500

      17,000 employee failures.............. 218.105 Additional operational requirements for hand-operated main track switches:

      (a) Failure to implement

      13,000

      20,500 required operating rule........

      (b) and (c) Railroad and

      9,500

      17,000 employee failures..............

      (d) Failure to properly release

      13,000

      20,500 authority limits............... 218.107 Additional operational requirements for hand-operated crossover switches:

      (a) Failure to implement

      9,500

      17,000 required operating rule........

      (b) and (c) Railroad and

      9,500

      17,000 employee failures.............. 218.109 Hand-operated fixed derails:

      (a) Failure to implement

      9,500

      17,000 required operating rule........

      (b) and (c) Railroad and

      9,500

      17,000 employee failures..............

      \1\ Except as provided for in Sec. 218.57, a penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where the circumstances warrant. See 49 CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 218. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      Page 57618

      PART 219--[AMENDED] 13. The authority citation for part 219 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(m). 14. Appendix A to part 219 is revised to read as follows:

      Appendix A to Part 219--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 219.3 Application: Railroad does not

      $13,000

      $20,500 have required program 219.11 General conditions for chemical tests:

      (b)(1) Employee unlawfully

      5,500

      10,000 refuses to participate in testing........................

      (b)(2) Employer fails to give

      13,000

      20,500 priority to medical treatment..

      (b)(3) Employee fails to remain

      5,500

      10,000 available......................

      (b)(4) Employee tampers with

      5,500

      10,000 specimen.......................

      (d) Employee unlawfully required

      5,500

      10,000 to execute a waiver of rights..

      (e) Railroad used or authorized ................

      10,000 the use of coercion to obtain specimens......................

      (g) Failure to meet supervisory

      9,500

      17,000 training requirements or program of instruction not available or program not complete.......................

      (h) Urine or blood specimens

      5,500

      10,000 provided for Federal testing were used for nonauthorized testing........................ 219.23 Railroad policies:

      (a) Failure to provide written

      5,500

      10,000 notice of FRA test.............

      (b) Failure to provide written

      2,500

      5,000 notice of basis for FRA test...

      (c) Use of Subpart C form for

      2,500

      5,000 other test.....................

      (d) Failure to provide

      2,500

      5,000 educational materials..........

      (e) Educational materials fail

      2,500

      5,000 to explain requirements of this part and/or include required content........................

      (f) Non-Federal provisions are

      5,500

      10,000 not clearly described as independent authority..........

      Subpart B--Prohibitions 219.101 Alcohol and drug use prohibited:

      Employee violates prohibition(s)

      19,500

      25,000 219.103 Prescribed and over-the- counter drugs:

      (a) Failure to train employee

      5,500

      10,000 properly on requirements....... 219.104 Responsive action:

      (a) Failure to remove employee

      19,500

      25,000 from covered service immediately....................

      (b) Failure to provide notice

      5,500

      10,000 for removal....................

      (c) Failure to provide prompt

      5,500

      10,000 hearing........................

      (d) Employee improperly returned

      13,000

      20,500 to service..................... 219.105 Railroad's duty to prevent violations:

      (a) Employee improperly

      19,500

      25,000 permitted to remain in covered service........................

      (b) Failure to exercise due

      9,500

      17,000 diligence to assure compliance with prohibition............... 219.107 Consequences of unlawful refusal:

      (a) Failure to disqualify an

      13,000

      20,500 employee for nine months following a refusal............

      (e) Employee unlawfully returned

      13,000

      20,500 to service.....................

      Subpart C--Post-Accident

      Toxicological Testing 219.201 Events for which testing is required:

      (a) Failure to test after

      13,000

      20,500 qualifying event (each employee not tested is a violation).....

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

      5,500

      10,000 faith determination............

      (c)(1)(ii) Failure to provide

      2,500

      5,000 requested decision report to

      FRA............................

      (c)(2) Testing performed after

      9,500

      17,000 nonqualifying event............ 219.203 Responsibilities of railroads and employees:

      (a)(1)(i) and (a)(2)(i) Failure

      5,500

      10,000 to properly test/exclude from testing........................

      (a)(1)(ii) and (a)(2)(ii)

      5,500

      10,000

      Noncovered service employee tested.........................

      (b)(1) Delay in obtaining

      5,500

      10,000 specimens due to failure to make every reasonable effort...

      (c) Independent medical facility

      5,500

      10,000 not utilized...................

      (d) Failure to report event or

      2,500

      5,000 contact FRA when intervention required....................... 219.205 Specimen collection and handling:

      (a) Failure to observe

      5,500

      10,000 requirements with respect to specimen collection, marking and handling...................

      (b) Failure to provide properly

      2,500

      5,000 prepared forms with specimens..

      (d) Failure to promptly or

      5,500

      10,000 properly forward specimens..... 219.207 Fatality:

      (a) Failure to test.............

      13,000

      20,500

      (a)(1) Failure to ensure timely

      2,500

      5,000 collection and shipment of required specimens.............

      (b) Failure to request

      5,500

      10,000 assistance when necessary...... 219.209 Reports of tests and refusals:

      (a)(1) Failure to provide

      2,500

      5,000 telephonic report..............

      (b) Failure to provide written

      2,500

      5,000 report of refusal to test......

      (c) Failure to maintain report

      2,500

      5,000 explaining why test not conducted within four hours.... 219.211 Analysis and follow-up:

      (c) Failure of MRO to report

      5,500

      10,000 review of positive results to

      FRA............................

      Subpart D--Testing for Cause 219.300 Mandatory reasonable suspicion testing:

      (a)(1) Failure to test when

      19,500

      25,000 reasonable suspicion criteria met............................

      Page 57619

      (a)(2) Tested when reasonable

      9,500

      17,000 suspicion criteria not met..... 219.301 Testing for reasonable cause:

      (a) Event did not occur during

      5,500

      10,000 daily tour.....................

      (b)(2) Tested when accident/

      9,500

      17,000 incident criteria not met......

      (b)(3) Tested when operating

      9,500

      17,000 rules violation criteria not met............................ 219.302 Prompt specimen collection:

      (a) Specimen collection not

      5,500

      10,000 conducted promptly.............

      Subpart E--Identification of

      Troubled Employees 219.401 Requirement for policies:

      (b) Failure to publish and/or

      5,500

      10,000 implement required policy...... 219.407 Alternate policies:

      (c) Failure to file agreement or

      5,500

      10,000 other document or provide timely notice or revocation....

      Subpart F--Pre-Employment Tests 219.501 Pre-employment tests:

      (a) Failure to perform pre-

      13,000

      20,500 employment drug test before first time employee performs covered service................

      Subpart G--Random Testing Programs 219.601 Railroad random drug programs:

      (a)(1) Failure to file a random

      13,000

      20,500 program........................

      (a)(2) Failure to file amendment

      5,500

      10,000 to program.....................

      (b) Failure to meet random

      9,500

      17,000 testing criteria...............

      (b)(1)(i) Failure to use a

      9,500

      17,000 neutral selection process......

      (b)(2)(i)(B) Testing not spread

      5,500

      10,000 throughout the year............

      (b)(3) Testing not distributed

      5,500

      10,000 throughout the day.............

      (b)(4) Advance notice provided

      9,500

      17,000 to employee....................

      (b)(6) Testing when employee not

      5,500

      10,000 on duty........................ 219.601 A Failure to include covered

      9,500

      17,000 service employee in pool........... 219.602 Administrator's determination of drug testing rate:

      (f) Total number of tests below

      13,000

      20,500 minimum random drug testing rate........................... 219.603 Participation in drug testing:

      Failure to document reason for

      5,500

      10,000 not testing selected employee.. 219.607 Railroad random alcohol programs:

      (a)(1) Failure to file a random

      13,000

      20,500 alcohol program................

      (a)(2) Failure to file amendment

      5,500

      10,000 to program.....................

      (b) Failure to meet random

      9,500

      17,000 testing criteria...............

      (b)(1) Failure to use a neutral

      9,500

      17,000 selection process..............

      (b)(5) Testing when employee not

      5,500

      10,000 on duty........................

      (b)(8) Advance notice provided

      9,500

      17,000 to employee.................... 219.607 A Failure to include covered

      9,500

      17,000 service employee in pool........... 219.608 Administrator's determination of random alcohol testing rate:

      (e) Total number of tests below

      13,000

      20,500 minimum random alcohol testing rate........................... 219.609 Participation in alcohol

      5,500

      10,000 testing: Failure to document reason for not testing selected employee

      Subpart H--Drug and Alcohol Testing

      Procedures 219.701 Standards for drug and alcohol testing:

      (a) Failure to comply with part

      5,500

      10,000 40 procedures in Subpart B, D,

      F, or G testing................

      (b) Testing not performed in a

      5,500

      10,000 timely manner..................

      Subpart I--Annual Report 219.800 Reporting alcohol and drug misuse prevention program results in a management information system:

      (a) Failure to submit MIS report

      5,500

      10,000 on time........................

      (c) Failure to submit accurate

      5,500

      10,000

      MIS report.....................

      (d) Failure to include required

      5,500

      10,000 data...........................

      Subpart J--Recordkeeping

      Requirements 219.901 Retention of Alcohol Testing

      Records:

      (a) Failure to maintain records

      5,500

      10,000 required to be kept by part 40.

      (b) Failure to maintain records

      5,500

      10,000 required to be kept for five years..........................

      (c) Failure to maintain records

      5,500

      10,000 required to be kept for two years.......................... 219.903 Retention of Drug Testing

      Records:

      (a) Failure to maintain records

      5,500

      10,000 required to be kept by part 40.

      (b) Failure to maintain records

      5,500

      10,000 required to be kept for five years..........................

      (c) Failure to maintain records

      5,500

      10,000 required to be kept for two years.......................... 219.905 Access to facilities and records:

      (a) Failure to release records

      9,500

      17,000 in this subpart in accordance with part 40...................

      (b) Failure to permit access to

      9,500

      17,000 facilities.....................

      (c) Failure to provide access to

      9,500

      17,000 results of railroad alcohol and drug testing programs..........

      \1\ A penalty may be assessed against an individual only for a willful violation. The FRA Administrator reserves the right to assess a penalty of up to $100,000 for any violation, including ones not listed in this penalty schedule, where circumstances warrant. See 49 CFR part 209, appendix A.

      Page 57620

      \2\ The penalty schedule uses section numbers from 49 CFR part 219. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 220--[AMENDED] 15. The authority citation for part 220 continues to read as follows:

      Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49. 16. Appendix C to part 220 is revised to read as follows:

      Appendix C to Part 220--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 220.9 Requirements for trains.......

      $13,000

      $20,500 220.11 Requirements for roadway

      13,000

      20,500 workers............................

      Subpart B--Radio and Wireless

      Communication Procedures 220.21 Railroad operating rules; radio communications:

      (a).............................

      9,500

      17,000

      (b).............................

      9,500

      17,000 220.23 Publication of radio

      9,500

      17,000 information........................ 220.25 Instruction of employees.....

      9,500

      17,000 220.27 Identification...............

      9,500

      17,000 220.29 Statement of letters and

      9,500

      17,000 numbers............................ 220.31 Initiating a transmission....

      5,500

      10,000 220.33 Receiving a transmission.....

      9,500

      17,000 220.35 Ending a transmission........

      9,500

      17,000 220.37 Voice test...................

      13,000

      20,500 220.38 Failed equipment.............

      2,500

      5,000 220.39 Continuous monitoring........

      9,500

      17,000 220.41 [Reserved]................... 220.43 Communication consistent with

      13,000

      20,500 the rules.......................... 220.45 Complete communications......

      13,000

      20,500 220.47 Emergencies..................

      19,500

      25,000 220.49 Switching, backing or pushing

      19,500

      25,000 220.51 Signal indications...........

      13,000

      20,500 220.61 Radio transmission of

      19,500

      25,000 mandatory directives...............

      \1\ A penalty may be assessed against and only for a willful violation.

      The Administrator reserves the right to assess a penalty of up to

      $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 220. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 221--[AMENDED] 17. The authority citation for part 221 continues to read as follows:

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

      CFR 1.49. 18. Appendix C to part 221 is revised to read as follows:

      Appendix C to Part 221--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Marking Devices 221.13 Marking device display:

      (a) Device not present, not

      $9,500

      $17,000 displayed, or not properly illuminated....................

      (d) Device too close to rail....

      2,500

      5,000 221.14 Marking devices: Use of

      5,500

      10,000 unapproved or noncomplying device.. 221.15 Marking device inspection:

      (a) Failure to inspect at crew

      5,500

      10,000 change.........................

      (b), (c) Improper inspection....

      5,500

      10,000 221.16 Inspection procedure:

      (a) Failure to obtain protection

      9,500

      17,000

      (b) Improper protection.........

      5,500

      10,000 221.17 Movement of defective

      (1)

      (1) equipment..........................

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

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

      Page 57621

      \2\ The penalty schedule uses section numbers from 49 CFR part 221. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 222--[AMENDED] 19. The authority citation for part 222 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20153, 21301, 21304; 28

      U.S.C. 2461, note; and 49 CFR 1.49. 20. Appendix H to part 222 is revised to read as follows:

      Appendix H to Part 222--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Use of Locomotive Horns 222.21 Use of locomotive horn:

      (a) Failure to sound horn at

      $9,500

      $17,000 grade crossing.................

      Failure to sound horn in proper

      5,500

      10,000 pattern........................

      (b) Failure to sound horn at

      9,500

      17,000 least 15 seconds and less than

      \1/4\ mile before crossing.....

      Sounding the horn more than

      5,500

      10,000 25 seconds before the crossing...................

      Sounding the horn more than

      5,500

      10,000

      \1/4\ mile in advance of crossing...................

      Subpart C--Exceptions to the Use of the Locomotive Horn

      Silenced Horns at Individual

      Crossings 222.33 Failure to sound horn when

      9,500

      17,000 conditions of Sec. 222.33 are not met................................

      Silenced Horns at Groups of

      Crossings--Quiet Zones 222.45 Routine sounding of the

      5,500

      10,000 locomotive horn at a quiet zone crossing........................... 222.49(b) Failure to provide Grade

      2,500

      5,000

      Crossing Inventory Form information 222.59(d) Routine sounding of the

      2,500

      5,000 locomotive horn at a grade crossing equipped with wayside horn.........

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 222. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 223--[AMENDED] 21. The authority citation for part 223 continues to read as follows:

      Authority: 49 U.S.C. 20102-03, 20133, 20701-20702, 21301-02, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49. 22. Appendix B to part 223 is revised to read as follows:

      Appendix B to Part 223--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Specific Requirements 223.9 New or rebuilt equipment:

      (a) Locomotives.................

      $5,500

      $10,000

      (b) Cabooses....................

      5,500

      10,000

      (c) Passenger cars..............

      5,500

      10,000 223.11(c) Existing locomotives......

      5,500

      10,000

      (d) Repair of window............

      2,500

      5,000 223.13(c) Existing cabooses.........

      5,500

      10,000

      (d) Repair of window............

      2,500

      5,000 223.15(c) Existing passenger cars...

      5,500

      10,000

      (d) Repair of window............

      2,500

      5,000 223.17 Identification of units......

      2,500

      5,000

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

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

      \2\ The penalty schedule uses section numbers from 49 CFR part 223. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      Page 57622

      PART 224--[AMENDED] 23. The authority citation for part 224 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20148 and 21301; 28 U.S.C. 2461; and 49 CFR 1.49. 24. Appendix A to part 224 is revised to read as follows:

      Appendix A to Part 224--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Application, Inspection, and Maintenance of Retroreflective

      Material 224.103 Characteristics of retroreflective sheeting:

      (a)-(d) Retroreflective sheeting

      $5,500

      $10,000 applied does not meet the requirements of Sec. 224.103. 224.105 Sheeting dimensions and quantity:

      (a) Failure to apply minimum

      5,500

      10,000 amount of retroreflective sheeting in accordance with

      Table 2........................

      (b) Applying retroreflective

      5,500

      10,000 sheeting of wrong dimensions... 224.106 Location of retroreflective sheeting:

      (a), (b) Applying

      5,500

      10,000 retroreflective sheeting in nonconforming pattern.......... 224.107 Implementation schedule:

      (a)(1), (b)(1) Failure to apply

      5,500

      10,000 retroreflective sheeting to new freight car or locomotive before equipment placed in service........................

      (a)(2), (b)(2), (b)(4) Failure

      5,500

      10,000 to apply retroreflective sheeting to existing freight car or locomotive in accordance with minimum schedule of paragraphs (a)(2), (b)(2), or

      (b)(4)......................... 224.109 Inspection, repair, and replacement:

      (1) Failure to perform

      5,500

      10,000 inspection.....................

      (2) Failure to properly notify

      5,500

      10,000 car owner of defect............

      (3) Failure to retain written

      2,500

      5,000 notification of defect for two years..........................

      (4) Failure to repair defect

      5,500

      10,000 after notification.............

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 224. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 225--[AMENDED] 25. The authority citation for part 225 continues to read as follows:

      Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49. 26. Appendix A to part 225 is revised to read as follows:

      Appendix A to Part 225--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      225.9 Telephonic reports of certain

      $9,500

      $17,000 accidents/incidents................ 225.11 Reports of accidents/

      5,500

      10,000 incidents.......................... 225.12(a): Failure to file Railroad

      Employee Human Factor Attachment properly:

      (1) Employee identified.........

      2,500

      5,000

      (2) No employee identified......

      2,500

      5,000 225.12(b):

      (1) Failure to notify employee

      5,500

      10,000 properly.......................

      (2) Notification of employee not

      2,500

      5,000 involved in accident........... 225.12(c): Failure of employing

      2,500

      5,000 railroad to provide requested information properly............... 225.12(d):

      (1) Failure to revise report

      2,500

      5,000 when identity becomes known....

      (2) Failure to notify after late

      5,500

      10,000 identification................. 225.12(f)(1): Submission of notice

      2,500

      5,000 if employee dies as result of the reported accident.................. 225.12(g): Willfully false accident ................

      20,500 statement by employee.............. 225.13 Late reports.................

      2,500

      5,000 225.17(d) Alcohol or drug

      9,500

      17,000 involvement........................ 225.23 Joint operations.............

      (1)

      (1) 225.25 Recordkeeping................

      5,500

      10,000 225.27 Retention of records.........

      2,500

      5,000 225.33:

      (1) Failure to adopt the

      9,500

      17,000

      Internal Control Plan..........

      (2) Inaccurate reporting due to

      9,500

      17,000 failure to comply with the

      Internal Control Plan..........

      (3) Failure to comply with the

      9,500

      17,000 intimidation/harassment policy in the Internal Control Plan...

      Page 57623

      225.35 Access to records and reports

      5,500

      10,000

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

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

      \2\ The penalty schedule uses section numbers from 49 CFR part 225. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 227--[AMENDED] 27. The authority citation for part 227 continues to read as follows:

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

      CFR 1.49. 28. Appendix G to part 227 is revised to read as follows:

      Appendix G to Part 227--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 227.3 Application:

      (b)(4) Failure to meet the

      $5,500

      $10,000 required conditions for foreign railroad operations............

      Subpart B--Occupational Noise

      Exposure for Railroad Operating

      Employees 227.103 Noise monitoring program:

      (a) Failure to develop and/or

      19,500

      25,000 implement a noise monitoring program........................

      (b) Failure to use sampling as

      5,500

      10,000 required.......................

      (c) Failure to integrate sound

      5,500

      10,000 levels and/or make noise measurements as required.......

      (d) Failure to repeat noise

      5,500

      10,000 monitoring where required......

      (e) Failure to consider work

      5,500

      10,000 environments where hearing protectors may be omitted......

      (f) Failure to provide

      2,500

      5,000 opportunity to observe monitoring.....................

      (g) Reporting of monitoring results:

      (1) Failure to notify

      5,500

      10,000 monitored employee.........

      (2) Failure to post results

      5,500

      10,000 as required................ 227.105 Protection of employees:

      (a) Failure to provide

      19,500

      25,000 appropriate protection to exposed employee...............

      (b) Failure to observe and

      5,500

      10,000 document sources of noise exposure.......................

      (c)-(d) Failure to protect

      13,000

      20,500 employee from impermissible continuous noise............... 227.107 Hearing conservation program:

      (a) Failure to administer an HCP

      19,500

      25,000

      (b) Failure to compute noise

      9,500

      17,000 exposure as required........... 227.109 Audiometric testing program:

      (a) Failure to establish and/or

      19,500

      25,000 maintain an audiometric testing program........................

      (b) Failure to provide

      5,500

      10,000 audiometric test at no cost to employee.......................

      (c) Failure to have qualified

      5,500

      10,000 person perform audiometric test

      (d) [Reserved].................. ................ ................

      (e) Failure to establish

      9,500

      17,000 baseline audiogram as required.

      (f) Failure to offer and/or

      5,500

      10,000 require periodic audiogram as required.......................

      (g) Failure to evaluate

      5,500

      10,000 audiogram as required..........

      (h) Failure to comply with

      5,500

      10,000 follow-up procedures as required.......................

      (i) Failure to use required

      5,500

      10,000 method for revising baseline audiograms..................... 227.111 Audiometric test requirements:

      (a) Failure to conduct test as

      5,500

      10,000 required.......................

      (b) Failure to use required

      5,500

      10,000 equipment......................

      (c) Failure to administer test

      5,500

      10,000 in room that meets requirements

      (d) Complete failure to

      13,000

      20,500 calibrate......................

      (1) Failure to perform daily

      2,500

      5,000 calibration as required....

      (2) Failure to perform

      2,500

      5,000 annual calibration as required...................

      (3) Failure to perform

      2,500

      5,000 exhaustive calibration as required................... 227.115 Hearing protectors (HP):

      (a) Failure to comply with

      9,500

      17,000 general requirements...........

      (b) Failure to make HP available

      5,500

      10,000 as required....................

      (c) Failure to require use of HP

      13,000

      20,500 at action level................

      (d) Failure to require use of HP

      13,000

      20,500 at TWA of 90 dB(A)............. 227.117 Hearing protector attenuation:

      (a) Failure to evaluate

      2,500

      5,000 attenuation as required........

      (b)-(c) Failure to attenuate to

      2,500

      5,000 required level.................

      (d) Failure to reevaluate

      2,500

      5,000 attenuation....................

      Page 57624

      227.119 Training program:

      (a) Failure to institute a

      9,500

      17,000 training program as required...

      (b) Failure to provide training

      2,500

      5,000 within required time frame.....

      (c) Failure of program and/or

      2,500

      5,000 training materials to include required information........... 227.121 Recordkeeping:

      (a) General Requirements:

      (1) Failure to make record

      2,500

      5,000 available as required......

      (3) Failure to transfer or

      2,500

      5,000 retain records as required.

      (b)-(f) Records:

      (1) Failure to maintain

      2,500

      5,000 record or failure to maintain record with required information.......

      (2) Failure to retain

      2,500

      5,000 records for required time period.....................

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 227. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 228--[AMENDED] 29. The authority citation for part 228 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div.

      A, Pub. L. 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49; and 49 U.S.C. 103. 30. In appendix A to part 228, the ninth paragraph below the heading ``General Provisions'', entitled ``Penalty'' is revised to read as follows:

      Appendix A to Part 228--Requirements of the Hours of Service Act:

      Statement of Agency Policy and Interpretation

      * * * * *

      General Provisions

      * * * * *

      Penalty. * * * Effective October 9, 2007, the ordinary maximum penalty of $11,000 was raised to $16,000 as required under law.

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

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

      Appendix B to Part 228--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Records and Reporting 228.9 Railroad records..............

      $5,500

      $10,000 228.11 Hours of duty records........

      2,500

      5,000

      Error on record reflect pattern

      13,000

      20,500 of inaccurate recordkeeping.... 228.17 Dispatcher's record..........

      2,500

      5,000 228.19 Monthly reports of excess

      9,500

      17,000 service............................

      Subpart D--Electronic Recordkeeping 228.203 Program components..........

      9,500

      17,000 228.205 Access to electronic records

      9,500

      17.000 228.207 Training....................

      5,500

      10,000

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 228. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 229--[AMENDED] 32. The authority citation for part 229 continues to read as follows:

      Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20137-20138, 20143, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49

      CFR 1.49(c), (m). 33. Appendix B to part 229 is revised to read as follows:

      Page 57625

      Appendix B to Part 229--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 229.7 Prohibited acts: Safety

      $2,500-13,000

      $5,000-20,500 deficiencies not governed by specific regulations: To be assessed on relevant facts......... 229.9 Movement of noncomplying

      (\1\)

      (\1\) locomotives........................ 229.11 Locomotive identification....

      2,500

      5,000 229.13 Control of locomotives.......

      9,500

      17,000 229.17 Accident reports.............

      15,500

      10,000 219.19 Prior waivers................

      (\1\)

      (\1\)

      Subpart B--Inspection and Tests 229.21 Daily inspection:

      (a)(b):

      (1) Inspection overdue.....

      5,500

      10,000

      (2) Inspection report not

      2,500

      5,000 made, improperly executed, or not retained............

      (c) Inspection not performed by

      2,500

      5,000 a qualified person............. 229.23 Periodic inspection General

      (a)(b):

      (1) Inspection overdue......

      5,500

      10,000

      (2) Inspection performed

      5,500

      10,000 improperly or at a location where the underneath portion cannot be safely inspected..................

      (c)(d):

      (1) Form missing............

      2,500

      5,000

      (2) Form not properly

      2,500

      5,000 displayed..................

      (3) Form improperly executed

      2,500

      5,000

      (e) Replace Form FRA F 6180-49A

      2,500

      5,000 by April 2.....................

      (f) Secondary record of the

      2,500

      5,000 information reported on Form

      FRA F 6180.49A................. 229.25:

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

      5,500

      10,000 periodic inspection............

      (e)(5) Ineffective maintenance.

      13,000

      20,500 229.27 Annual tests.................

      5,500

      10,000 229.29 Biennial tests...............

      5,500

      10,000 229.31:

      (a) Biennial hydrostatic tests

      5,500

      10,000 of main reservoirs.............

      (b) Biennial hammer tests of

      5,500

      10,000 main reservoirs................

      (c) Drilled telltale holes in

      5,500

      10,000 welded main reservoirs.........

      (d) Biennial tests of aluminum

      5,500

      10,000 main reservoirs................ 229.33 Out-of-use credit............

      2,500

      5,000

      Subpart C--Safety Requirements

      General Requirements 229.41 Protection against personal

      9,500

      17,000 injury............................. 229.43 Exhaust and battery gases....

      9,500

      17,000 229.45 General condition: To be

      2,500-13,000

      5,000-20,500 assessed based on relevant facts...

      Brake System 229.46 Brakes: General..............

      9,500

      17,000 229.47 Emergency brake valve........

      9,500

      17,000 229.49 Main reservoir system:

      (a)(1) Main reservoir safety

      9,500

      17,000 valve..........................

      (2) Pneumatically actuated

      9,500

      17,000 control reservoir..........

      (b)(c) Main reservoir governors

      9,500

      17,000 229.51 Aluminum main reservoirs.....

      9,500

      17,000 229.53 Brake gauges.................

      9,500

      17,000 229.55 Piston travel................

      9,500

      17,000 229.57 Foundation brake gear........

      9,500

      17,000 229.59 Leakage......................

      9,500

      17,000

      Draft System 229.61 Draft system.................

      5,500

      10,000

      Suspension System 229.63 Lateral motion...............

      5,500

      10,000 229.64 Plain bearing................

      5,500

      10,000 229.65 Spring rigging...............

      5,500

      10,000 229.67 Trucks.......................

      9,500

      17,000 229.69 Side bearings................

      9,500

      17,000 229.71 Clearance above top of rail..

      2,500

      5,000 229.73 Wheel sets...................

      9,500

      17,000 229.75 Wheel and tire defects:

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

      (1) One spot \21/2\'' or

      9,500

      17,000 more but less than 3'' in length.....................

      (2) One spot 3'' or more in

      13,000

      20,500 length.....................

      (3) Two adjoining spots each

      9,500

      17,000 of which is 2'' or more in length but less than \21/ 2\'' in length.............

      Page 57626

      (4) Two adjoining spots each

      13,000

      20,500 of which are at least 2'' in length, if either spot is \21/2\'' or more in length.....................

      (b) Gouge or chip in flange of:

      (1) More than \11/2\'' but

      9,500

      17,000 less than \15/8\'' in length; and more than \1/ 2\'' but less than \5/8\'' in width...................

      (2) \15/8\'' or more in

      13,000

      20,500 length and \5/8\'' or more in width...................

      (c) Broken rim..................

      19,500

      25,000

      (e) Seam in tread...............

      9,500

      17,000

      (f) Flange thickness of:........

      (1) \7/8\'' or less but more

      9,500

      17,000 than \13/16\''.............

      (2) \13/16\'' or less.......

      13,000

      20,500

      (g) Tread worn hollow...........

      9,500

      17,000

      (h) Flange height of:

      (1) \11/2\'' or greater but

      9,500

      17,000 less than \15/8\''.........

      (2) \15/8\'' or more........

      13,000

      20,500

      (i) Tire thickness..............

      9,500

      17,000

      (j) Rim thickness:

      (1) Less than 1'' in road

      9,500

      17,000 service and \3/4\'' in yard service....................

      (2) \15/16\'' or less in

      13,000

      20,500 road service and \11/16\'' in yard service............

      (k):

      (1) Crack of less than 1''..

      9,500

      17,000

      (2) Crack of 1'' or more....

      13,000

      20,500

      (3) Break...................

      19,500

      25,000

      (l) Loose wheel or tire.....

      19,500

      25,000

      (m) Welded wheel or tire........

      9,500

      17,000

      Electrical System 229.77 Current collectors...........

      5,500

      10,000 229.79 Third rail shoes and beams...

      5,500

      10,000 229.81 Emergency pole; shoe

      9,500

      17,000 insulation......................... 229.83 Insulation or grounding......

      13,000

      20,500 229.85 Door and cover plates marked

      5,500

      10,000

      ``Danger''......................... 229.87 Hand operated switches.......

      5,500

      10,000 229.89 Jumpers; cable connections:

      (a) Jumpers and cable

      9,500

      17,000 connections; locked and guarded

      (b) Condition of jumpers and

      9,500

      17,000 cable connections.............. 229.91 Motors and generators........

      9,500

      17,000

      Internal Combustion Equipment 229.93 Safety cut-off device........

      9,500

      17,000 229.95 Venting......................

      9,500

      17,000 229.97 Grounding fuel tanks.........

      9,500

      17,000 229.99 Safety hangers...............

      9,500

      17,000 229.101 Engines:

      (a) Temperature and pressure

      5,500

      10,000 alarms, controls, and switches.

      (b) Warning notice..............

      9,500

      17,000

      (c) Wheel slip/slide protection.

      5,500

      10,000

      Steam Generators 229.103 Safe working pressure;

      9,500

      17,000 factor of safety 229.105 Steam generator number......

      2,500

      5,000 229.107 Pressure gauge..............

      9,500

      17,000 229.109 Safety valves...............

      9,500

      17,000 229.111 Water-flow indicator........

      9,500

      17,000 229.113 Warning notice..............

      9,500

      17,000

      Cabs and Cab Equipment 229.115 Slip/slide alarms...........

      9,500

      17,000 229.117 Speed indicators............

      9,500

      17,000 229.119 Cabs, floors, and passageways:

      (a)(1) Cab set not securely

      5,500

      10,000 mounted or braced..............

      (2) Insecure or improper

      5,500

      10,000 latching device............

      (b) Cab windows of lead

      5,500

      10,000 locomotive.....................

      (c) Floors, passageways, and

      5,500

      10,000 compartments...................

      (d) Ventilation and heating

      9,500

      17,000 arrangement....................

      (e) Continuous barrier.........

      9,500

      17,000

      (f) Containers for fuses and

      9,500

      17,000 torpedoes...................... 229.121 Locomotive cab noise:

      (a) Performance Standards

      (1) Failure to meet sound

      13,000

      20,500 level......................

      (2) Improper maintenance

      5,500

      10,000 alterations................

      (3) Failure to comply with

      5,500

      10,000 static test protocols......

      (b) Maintenance of Locomotives:

      (1) Failure to maintain

      5,500

      10,000 excessive noise report record or respond to report as required................

      Page 57627

      (3) Failure to make good

      5,500

      10,000 faith effort as required...

      (4) Failure to maintain

      2,500

      5,000 record as required......... 229.123 Pilots, snowplows, end

      5,500

      10,000 plates............................. 229.125:

      (a) Headlights..................

      9,500

      17,000

      (d) Auxiliary lights............

      9,500

      17,000 229.127 Cab lights..................

      5,500

      10,000 229.129 Locomotive horn:

      (a) Prescribed sound levels.....

      9,500

      17,000

      Arrangement of horn.............

      9,500

      17,000

      (b) Failure to perform sound

      9,500

      17,000 level test.....................

      (c) Sound level test improperly

      9,500

      17,000 performed......................

      Record of sound level test

      5,500

      10,000 improperly executed, or not retained........................... 229.131 Sanders.....................

      2,500

      5,000 229.135 Event Recorders:

      (a) Lead locomotive without in-

      9,500

      17,000 service event recorder.........

      (b) Failure to meet equipment

      9,500

      17,000 requirements...................

      (c) Unauthorized removal or

      9,500

      17,000 failure to remove from service.

      (d) Improper response to out of

      9,500

      17,000 service event recorder.........

      (e) Failure to preserve data or

      9,500

      17,000 unauthorized extraction of data

      (g) Tampering with device or

      9,500

      17,000 data........................... 229.137 Sanitation, general:

      (a) Sanitation compartment in

      9,500

      17,000 lead unit, complete failure to provide required items.........

      (1) Ventilation.............

      5,500

      10,000

      (2) Door missing............

      5,500

      10,000

      (2)(i) Door doesn't close...

      5,500

      10,000

      (2)(ii) No modesty lock.....

      2,500

      5,000

      (3) Not equipped with toilet

      9,500

      17,000 in lead....................

      (4) Not equipped with

      5,500

      10,000 washing system.............

      (5) Lack of paper...........

      5,500

      10,000

      (6) Lack of trash receptacle

      5,500

      10,000

      (b) Exceptions:

      (1)(i) Commuter service,

      2,500

      5,000 failure to meet conditions of exception...............

      (1)(ii) Switching service,

      2,500

      5,000 failure to meet conditions of exception...............

      (1)(iii) Transfer service,

      2,500

      5,000 failure to meet conditions of exception...............

      (1)(iv) Class III, failure

      2,500

      5,000 to meet conditions of exception..................

      (1)(v) Tourist, failure to

      2,500

      5,000 meet conditions of exception..................

      (1)(vi) Control cab

      2,500

      5,000 locomotive, failure to meet conditions of exception....

      (2) Noncompliant toilet.....

      5,500

      10,000

      (c) Defective/unsanitary toilet

      5,500

      10,000 in lead unit...................

      (1)-(5) Failure to meet

      5,500

      10,000 conditions of exception....

      (d) Defective/unsanitary unit;

      5,500

      10,000 failure to meet conditions for trailing position..............

      (e) Defective/sanitary unit;

      5,500

      10,000 failure to meet conditions for switching/transfer service.....

      (f) Paper, washing, trash

      5,500

      10,000 holder; failure to equip prior to departure...................

      (g) Inadequate ventilation;

      5,500

      10,000 failure to repair or move prior to departure...................

      (h) Door closure/modesty lock;

      2,500

      5,000 failure to repair or move......

      (i) Failure to retain/maintain

      5,500

      10,000 of equipped units..............

      (j) Failure to equip new units/

      5,500

      10,000 in-cab facility................

      (k) Failure to provide potable

      5,500

      10,000 water.......................... 229.139 Servicing requirements:

      (a) Lead occupied unit not

      5,500

      10,000 sanitary.......................

      (b) Components not present/

      2,500

      5,000 operating......................

      (c) Occupied unit in switching,

      2,500

      5,000 transfer service, in trailing position not sanitary..........

      (d) Defective unit used more

      5,500

      10,000 than ten days..................

      (e) Failure to repair defective

      2,500

      5,000 modesty lock...................

      Subpart D--Locomotive

      Crashworthiness Design Requirements 229.141 Body structure, MU

      9,500

      17,000 locomotives........................ 229.205 General requirements:

      (a)(1) Wide-nose locomotive not

      19,500

      25,000 designed in compliance with AAR

      S-580-2005.....................

      (2) Wide-nose locomotive not

      19,500

      25,000 designed in compliance with new approved design standard...................

      (3) Wide-nose locomotive not

      19,500

      25,000 designed in compliance with alternate approved design standard...................

      (b) Monocoque or semi-monocoque

      19,500

      25,000 locomotive not in compliance with design requirements.......

      (c) Narrow-nose not in

      19,500

      25,000 compliance with design requirements................... 229.206 Design requirements:

      Locomotive fails to meet--

      (1) Emergency egress

      19,500

      25,000 requirements...............

      (2) Emergency interior

      19,500

      25,000 lighting requirements......

      (3) Interior configuration

      19,500

      25,000 requirements............... 229.213 Locomotive manufacturing information:

      (a) Failure to retain required

      9,500

      17,000 information....................

      (b) Failure to produce required

      9,500

      17,000 information....................

      Page 57628

      229.215 Retention and inspection of designs:

      (a) Failure to retain required

      9,500

      17,000 design records.................

      (b) Failure to retain required

      9,500

      17,000 repair or modification records.

      (c) Failure to make records

      9,500

      17,000 available when requested....... 229.217 Fuel tank:

      (a) External fuel tank..........

      19,500

      25,000

      (b) Internal fuel tank..........

      19,500

      25,000

      \1\ A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single locomotive that is used by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. However, a failure to perform, with respect to a particular locomotive, any of the inspections and tests required under subpart B of this part will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on that locomotive. Moreover, the

      Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. Failure to observe any condition for movement set forth in

      Sec. 229.9 will deprive the railroad of the benefit of the movement- for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the locomotive at the time of movement. Failure to comply with Sec. 229.19 will result in the lapse of any affected waiver.

      \2\ The penalty schedule uses section numbers from 49 CFR part 229. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 230--[AMENDED] 34. The authority citation for part 230 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; and 49 CFR 1.49. 35. Appendix D to part 230 is revised to read as follows:

      Appendix D to Part 230--Schedule of Civil Penalties

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General

      General Inspection Requirements 230.11 Repair of non-complying conditions:

      (a) Failure to repair

      $5,500

      $10,000 noncomplying steam locomotive prior to use in service........

      (b) Failure of owner and/or

      5,500

      10,000 operator to approve repairs made prior to use of steam locomotive..................... 230.12 Movement of noncomplying

      (1)

      (1) steam locomotive................... 230.13 Daily inspection:

      (a)(b):

      (1) Inspection overdue......

      9,500

      17,000

      (2) Inspection not performed

      5,500

      10,000 by qualified person........

      (c) Inspection report not made,

      5,500

      10,000 improperly executed or not retained....................... 230.14 Thirty-one service day inspection:

      (a):

      (1) Inspection overdue......

      9,500

      17,000

      (2) Inspection not performed

      5,500

      10,000 by qualified person........

      (b) Failure to notify FRA.......

      5,500

      10,000

      (c) Inspection report not made,

      5,500

      10,000 improperly executed, not properly filed................. 230.15 Ninety-two service day inspection:

      (a):

      (1) Inspection overdue......

      9,500

      17,000

      (2) Inspection not performed

      5,500

      10,000 by qualified person........

      (b) Inspection report not made,

      5,500

      10,000 improperly executed, not properly filed................. 230.16 Annual inspection:

      (a):

      (1) Inspection overdue......

      9,500

      17,000

      (2) Inspection not performed

      5,500

      10,000 by qualified person........

      (b) Failure to notify FRA.......

      5,500

      10,000

      (c) Inspection report not made,

      5,500

      10,000 improperly executed, not properly filed................. 230.17 One thousand four hundred seventy-two service day inspection:

      (a):

      (1) Inspection overdue......

      9,500

      17,000

      (2) Inspection not performed

      5,500

      10,000 by qualified person........

      (b) Inspection report not made,

      5,500

      10,000 improperly executed, not properly maintained, not properly filed.................

      Recordkeeping Requirements 230.18 Service days:

      (a) Service day record not

      5,500

      10,000 available for inspection.......

      (b) Failure to file service day

      5,500

      10,000 report with FRA Regional

      Administrator..................

      (c) Failure to complete all

      9,500

      17,000 1,472 service day inspection items prior to returning retired steam locomotive to service........................

      Page 57629

      230.19 Posting of forms:

      (a) FRA Form No. 1:

      (1) FRA Form No. 1 not

      5,500

      10,000 properly filled out........

      (2) FRA Form No. 1 not

      5,500

      10,000 properly displayed.........

      (b) FRA Form No. 3:

      (1) FRA Form No. 3 not

      5,500

      10,000 properly filled out........

      (2) FRA Form No. 3 not

      5,500

      10,000 properly displayed......... 230.20 Alteration and repair reports:

      (a) Alterations:

      (1) Failure to properly file

      5,500

      10,000

      FRA Form No. 19 with FRA

      Regional Administrator.....

      (2) FRA Form No. 19 not

      5,500

      10,000 properly filled out........

      (3) FRA Form No. 19 not

      5,500

      10,000 properly maintained........

      (b) Repairs to unstayed portions of the boiler:

      (1) FRA Form No. 19 not

      5,500

      10,000 properly filled out........

      (2) FRA Form No. 19 not

      5,500

      10,000 properly maintained........

      (c) Repairs to stayed portions of the boiler:

      (1) FRA Form No. 19 not

      5,500

      10,000 properly filled out........

      (2) FRA Form No. 19 not

      5,500

      10,000 properly maintained........ 230.21 Failure to properly document

      5,500

      10,000 steam locomotive number change..... 230.22 Failure to properly report

      9,500

      17,000 accident resulting from failure of steam locomotive boiler or part or appurtenance thereof...............

      Subpart B--Boilers and Appurtenances 230.23 Responsibility for general construction and safe working pressure:

      (a) Failure to properly

      19,500

      25,000 establish safe working pressure for steam locomotive boiler....

      (b) Placing steam locomotive in

      19,500

      25,000 service before safe working pressure for boiler has been established....................

      Allowable Stress 230.24 Maximum allowable stress values on boiler components:

      (a) Use of materials not of

      5,500

      10,000 sufficient tensile strength....

      (b) Use of a safety factor value

      13,000

      20,500 of less than four when using the code of original construction in boiler calculations................... 230.25 Maximum allowable stresses on stays and braces:

      (a) Exceeding allowable stress

      5,500

      10,000 values on fire box and/or combustion chamber.............

      (b) Exceeding allowable stress

      5,500

      10,000 values on round, rectangular or gusset braces..................

      Inspection and Repair 230.29 Inspection and repair:

      (a):

      (1) Failure of owner and/or

      9,500

      17,000 operator to inspect and repair any steam locomotive boiler and/or appurtenance under control thereof......

      (2) Failure to remove steam

      13,000

      20,500 locomotive from service when considered necessary to do so...................

      (b):

      (1) Failure of perform

      13,000

      20,500 repairs in accordance with accepted industry standards

      (2) Owner and/or operator

      13,000

      20,500 returning steam locomotive boiler and/or appurtenances to service before they are in good condition and safe and suitable for service... 230.30 Lap-joint seam boilers,

      13,000

      20,500 failure to properly inspect........ 230.31 Flues to be removed:

      (a):

      (1) Failure to remove all

      9,500

      17,000 flues when inspecting boiler.....................

      (2) Failure to enter boiler

      9,500

      17,000 and clean and inspect......

      (b) Failure to remove

      5,500

      10,000 superheater flues when deemed necessary to do so............. 230.32 Time and method of inspection:

      (a) Failure to perform 1,472

      9,500

      17,000 service day inspection when required to do so..............

      (b) Failure to properly inspect

      9,500

      17,000 boiler during 1,472 service day inspection..................... 230.33 Welded repairs and alterations:

      (a) Failure to obtain permission

      9,500

      17,000 before welding on unstayed portions of boiler containing alloy or carbon steel with carbon content over .25 percent carbon.........................

      (b) Failure to perform welding

      9,500

      17,000 on unstayed portions of boiler containing carbon steel not exceeding .25 percent carbon in accordance with a nationally accepted standard for boiler repairs........................

      (c):

      (1) Failure to submit

      9,500

      17,000 written request for approval before performing weld buildup on wasted areas of unstayed boiler surfaces that exceed 100 square inches or the smaller of 25 percent of minimum required wall thickness or \1/2\ inch....

      (2) Repairing wasted sheets.

      9,500

      17,000 230.34 Riveted repairs and alterations:

      (a) Failure to obtain approval

      9,500

      17,000 before making riveted alterations on unstayed portions of the boiler; failure to do riveting in accordance with established railroad practices or accepted national standards for boiler repairs...

      (b) Failure to perform riveted

      9,500

      17,000 repairs on unstayed boiler portions in accordance with established railroad practices or accepted national standards for boiler repairs.............

      Page 57630

      (c) Failure to perform riveted

      5,500

      10,000 repairs on stayed boiler portions in accordance with established railroad practices or accepted national standards for boiler repairs.............

      Pressure Testing of Boilers 230.35 Failure to raise temperature

      5,500

      10,000 of steam locomotive boiler to 70 degrees F. before applying hydrostatic pressure to the boiler. 230.36 Hydrostatic testing of boilers:

      (a) Failure to perform

      9,500

      17,000 hydrostatic test of boiler as required.......................

      (b) Failure to properly perform

      9,500

      17,000 hydrostatic test...............

      (c) Failure to properly inspect

      9,500

      17,000 boiler after conducting hydrostatic test above MAWP.... 230.37 Failure to perform proper

      5,500

      10,000 steam test or inspection of boiler after completion of repair or alteration to boiler...............

      Staybolts 230.38 Telltale holes:

      (a) Failure to have telltale

      5,500

      10,000 holes as required in staybolts.

      (b) Failure to have proper

      5,500

      10,000 telltale holes in reduced body staybolts......................

      (c) Failure to keep telltale

      5,500

      10,000 holes when so required......... 230.39 Broken staybolts:

      (a) Boiler in service with

      9,500

      17,000 excess number of broken staybolts......................

      (b) Failure to replace staybolts

      9,500

      17,000 when required to do so; to properly replace staybolts when so required; to inspect adjacent staybolts when replacing broken staybolts.....

      (c) Failure to count leaking,

      9,500

      17,000 plugged, or missing telltale holes as broken staybolts......

      (d) Closing telltale holes by

      9,500

      17,000 prohibited means............... 230.40 Time and method of staybolt testing:

      (a) Failure to hammer test

      5,500

      10,000 staybolts when so required.....

      (b) Failure to properly hammer

      5,500

      10,000 test staybolts................. 230.41 Flexible staybolts with caps:

      (a) Failure to inspect flexible

      5,500

      10,000 staybolts as required..........

      (b) Failure to replace broken

      5,500

      10,000 flexible staybolts; failure to close inner ends of telltale holes as required..............

      (c) Failure to report removal of

      5,500

      10,000 flexible staybolts caps and other tests on FRA Form No. 3 when so required...............

      (d) Failure to remove staybolt

      5,500

      10,000 caps or otherwise test when FRA inspector or steam locomotive owner and/or operator consider it necessary to do so..........

      Steam Gauges 230.42 Failure to have accurate

      13,000

      20,500 boiler steam gauge where engine crew can conveniently read......... 230.43 Failure to have gauge siphon

      5,500

      10,000 of proper capacity on steam gauge supply pipe; failure to properly clean, maintain the steam gauge supply pipe........................ 230.44 Failure to test steam gauge

      5,500

      10,000 when so required................... 230.45 Failure to properly test and/

      5,500

      10,000 or set steam gauge................. 230.46 Failure to attach to boiler

      5,500

      10,000 backhead metal badge plate showing allowable steam pressure........... 230.47 Boiler Number:

      (a) (b) (c) Failure to stamp

      5,500

      10,000 builder's number on boiler when number is known................

      Safety Relief Valves 230.48 Number and capacity of safety relief valves:

      (a) Failure to equip steam

      13,000

      20,500 locomotive boiler with proper safety relief valves...........

      (b) Failure to provide

      13,000

      20,500 additional safety relief valve capacity when so required...... 230.49 Setting of safety relief valves:

      (a) Safety relief valve(s) set

      13,000

      20,500 and/or adjusted by person not competent to do so.............

      (b) Safety relief valve(s) not

      13,000

      20,500 set to open at prescribed pressure(s)....................

      (c) Safety relief valve(s) not

      13,000

      20,500 properly set...................

      (d) Set pressure of lowest

      5,500

      10,000 safety relief valve not properly indicated............. 230.50 Failure to test and adjust

      9,500

      17,000 safety relief valves when required to do so...........................

      Water Glasses and Gauge Cocks 230.51 Failure to equip steam

      5,500

      10,000 locomotive boiler with at least two properly installed water glasses... 230.52 Failure to properly equip

      13,000

      20,500 water glasses...................... 230.53 Failure to properly clean

      5,500

      10,000 water glass valves and/or gauge cocks when required to do so....... 230.54 Testing and maintenance:

      (a) Failure to properly test

      5,500

      10,000 water glasses and/or gauge cocks..........................

      (b) Failure to properly maintain

      9,500

      17,000 gauge cocks, water column drain valves, and/or water glass valves......................... 230.55 Tubular type water and lubricator glasses and shields:

      (a) Failure to renew tubular

      5,500

      10,000 type water glasses as required.

      (b) Failure to properly shield

      5,500

      10,000 tubular water glasses and/or lubricator glasses.............

      (c) Failure to properly locate

      5,500

      10,000 and/or maintain water glasses and/or water glass shields..... 230.56 Failure to equip water glass

      5,500

      10,000 with suitable lamp.................

      Injectors, Feedwater Pumps, and Flue

      Plugs 230.57 Injectors and feedwater pumps:

      (a) Failure to equip steam

      13,000

      20,500 locomotive with proper means for delivering water to the boiler.........................

      Page 57631

      (b) Failure to properly test and/

      13,000

      20,500 or maintain injectors, feedwater pumps, boiler checks, delivery pipes, feed water pipes, tank hose, tank valves..

      (c) Failure to properly brace

      5,500

      10,000 injectors, feedwater pumps, and/ or associated piping........... 230.58 Flue plugs:

      (a) Plugging flue plugs when not

      5,500

      10,000 otherwise permitted............

      (b) Improperly plugging flue

      5,500

      10,000 plugs, when otherwise permitted

      Fusible Plugs 230.59 Failure to remove and

      9,500

      17,000 properly clean fusible boiler plugs when required to do so; failure to properly note removal..............

      Washing Boilers 230.60 Time of washing:

      (a) Failure to thoroughly wash

      5,500

      10,000 boiler when required to do so..

      (b) Failure to remove washout

      9,500

      17,000 plugs, arch tube plugs, thermic siphon plugs, circulator plugs, water bar plugs when washing locomotive boiler..............

      (c) Failure to examine and/or

      9,500

      17,000 properly maintain washout plugs washout plug sleeves, threaded openings.......................

      (d) Failure to clean fusible

      9,500

      17,000 plugs when required to do so... 230.61 Arch tubes, water bar tubes, circulators and thermic siphons:

      (a) Failure to clean, wash,

      5,500

      10,000 inspect arch tubes, water bar tubes, circulators and thermic siphons as required............

      (b) Failure to renew arch tubes,

      9,500

      17,000 water bar tubes; failure to repair or renew circulators, thermic siphons when required..

      (c) Failure to properly inspect

      9,500

      17,000 and/or replace as necessary arch tubes, water bar tubes, circulators....................

      Steam Pipes 230.62 Failure to properly inspect

      13,000

      20,500 and/or repair or replace as necessary dry pipes subject to pressure........................... 230.63 Failure to properly inspect

      9,500

      17,000 smoke box, steam pipes, pressure parts when required to do so.......

      Steam Leaks 230.64 Failure to remove from

      9,500

      17,000 service steam locomotive boiler leaking under lagging from condition which may reduce safety and/or repair the boiler before returning to service............... 230.65 Failure to keep steam

      5,500

      10,000 locomotive boiler, piping, appurtenances in repair so steam does not obscure vision............

      Subpart C--Steam Locomotives and

      Tenders 230.66 Failure to properly oversee

      5,500

      10,000 general design, construction, maintenance of steam locomotive(s) and tender(s)...................... 230.67 Failure to ensure all steam

      13,000

      20,500 locomotives and tenders are properly inspected and repaired and/ or all defects are properly repaired and steam locomotive and/ or tender are in good condition, safe and suitable for service before being returned to service...

      Speed Indicators 230.68 Failure to equip steam

      5,500

      10,000 locomotive that operates in excess of 20 miles per hour over the general system with speed indicator maintained to ensure accurate functioning........................

      Ash Pans 230.69 Failure to equip steam

      5,500

      10,000 locomotive with properly supported ash pan with operating mechanism that may be safely operated and securely closed....................

      Brake and Signal Equipment 230.70 Safe condition:

      (a) Failure to perform proper

      5,500

      10,000 pre-departure inspection when so required....................

      (b) Failure to properly equip

      5,500

      10,000 steam locomotive with brake pipe valve clearly identified as ``Emergency Brake Valve''... 230.71 Orifice testing of air compressors:

      (a)(b):

      Failure to properly test and/

      5,500

      10,000 or maintain air compressor(s) capacity..... 230.72 Testing main reservoirs:

      (a) Failure to properly test

      5,500

      10,000 main reservoir(s) when required

      (b) Impermissibly or improperly

      5,500

      10,000 drilling main reservoir........

      (c) Impermissibly using NDE

      5,500

      10,000 method to measure wall thickness of main reservoir....

      (d) Failure to use appropriate

      9,500

      17,000 method of NDE testing of wall thickness of welded or riveted longitudinal lap seam main reservoir(s); failure to withdraw main reservoir(s) from service when testing reveals insufficient wall thickness.... 230.73 Air gauges:

      (a) Failure to equip steam

      5,500

      10,000 locomotive with properly located air gauge(s) that are no more than three psi in error

      (b) Failure to test air gauge(s)

      5,500

      10,000 when so required...............

      (c) Failure to properly test air

      5,500

      10,000 gauge(s)....................... 230.74 Failure to properly clean and/

      5,500

      10,000 or test all air brake valves, related dirt collectors, filters when required to do so.............

      Page 57632

      230.75 Failure to properly stencil

      5,500

      10,000 or display date of testing and cleaning and initials of shop or station performing work............ 230.76 Piston travel:

      (a) Insufficient minimum piston

      5,500

      10,000 travel.........................

      (b) Excessive piston travel when

      5,500

      10,000 steam locomotive is stationary. 230.77 Foundation brake gear:

      (a) Failure to properly maintain

      5,500

      10,000 foundation brake gear..........

      (b) Foundation brake gear less

      5,500

      10,000 than 2.5 inches above rail..... 230.78 Leakage:

      (a):

      (1) Failure to test for

      5,500

      10,000 leakage from main reservoir or related piping as required...................

      (2) Failure to repair

      5,500

      10,000 excessive leakage from main reservoir or related piping leakage....................

      (b) Failure to test for brake

      5,500

      10,000 cylinder as required...........

      (c):

      (1) Failure to test for

      5,500

      10,000 leakage from steam locomotive brake pipe as required...................

      (2) Failure to repair

      5,500

      10,000 excessive brake pipe leakage.................... 230.79 Train signal system:

      (1) Failure to test the train

      5,500

      10,000 signal system or other form of on-board communication as required.......................

      (2) Failure to repair train

      5,500

      10,000 signal system or other on-board communication when not safe or suitable for service...........

      Cabs, Warning Signals, Sanders and

      Lights 230.80 Cabs:

      (a) Steam locomotive cab not

      5,500

      10,000 safe and suitable for service..

      (b) Steam pipes: Construction,

      5,500

      10,000 attachment.....................

      (c) Oil-burning steam

      5,500

      10,000 locomotive, cab-enclosed....... 230.81 Cab aprons:

      (a) Cab apron, general

      5,500

      10,000 provisions.....................

      (b) Cab apron, insufficient

      5,500

      10,000 width.......................... 230.82 Fire doors:

      (a) Safe and suitable for

      5,500

      10,000 service, general provisions....

      (b) Construction and maintenance

      5,500

      10,000 of mechanically operated fire doors..........................

      (c) Construction and maintenance

      5,500

      10,000 of hand-operated fire doors.... 230.83 Cylinder cocks:

      (1) Failure to properly equip

      5,500

      10,000 with cylinder cocks............

      (2) Failure to properly maintain

      5,500

      10,000 cylinder cocks................. 230.84 Sanders:

      (1) Inoperable sanders..........

      5,500

      10,000

      (2) Failure to test sanders.....

      5,500

      10,000 230.85 Audible warning devices:

      (a) General provisions..........

      5,500

      10,000

      (b) Sound level measurements,

      5,500

      10,000

      Failure to properly take....... 230.86 Required illumination:

      (a) General provisions..........

      5,500

      10,000

      (b) Dimming device, failure to

      5,500

      10,000 properly equip with............

      (c) Multiple locomotives,

      5,500

      10,000 failure of lead locomotive to display headlight.............. 230.87 Cab lights: Failure to

      5,500

      10,000 properly equip with................

      Throttles and Reversing Gear 230.88 Throttles: Failure to

      5,500

      10,000 properly maintain, equip........... 230.89 Reverse gear:

      (a) General provisions..........

      5,500

      10,000

      (b) Air-operated power reverse

      5,500

      10,000 gear...........................

      (c) Power reverse gear

      5,500

      10,000 reservoirs.....................

      Draw Gear and Draft Systems 230.90 Draw gear and draft systems:

      (a) Maintenance and testing.....

      5,500

      10,000

      (b) Safety bars and chains,

      5,500

      10,000 general........................

      (c) Safety bars and chains,

      5,500

      10,000 minimum length.................

      (d) Lost motion between steam

      5,500

      10,000 locomotive and tender..........

      (e) Spring buffers: Improper

      5,500

      10,000 application, compression....... 230.91 Chafing irons: Improper

      5,500

      10,000 application, maintenance........... 230.92 Draw gear, draft systems:

      5,500

      10,000

      Improperly maintained, fastened....

      Driving Gear 230.93 Pistons and piston rods:

      (a) Failure to properly inspect,

      5,500

      10,000 maintain, renew................

      (b) Fasteners: Failure to keep

      5,500

      10,000 tight, properly equip.......... 230.94 Crossheads: Improperly

      5,500

      10,000 maintained, excess clearance....... 230.95 Guides: Failure to securely

      5,500

      10,000 fasten, properly maintain.......... 230.96 Main, side, valve motion

      5,500

      10,000 rods:

      Page 57633

      (a) General.....................

      5,500

      10,000

      (b) Repairs.....................

      5,500

      10,000

      (1) Failure to make in

      5,500

      10,000 accordance with accepted national standard..........

      (2) Failure to submit

      5,500

      10,000 written request for approval prior to welding..

      (c) Bearings and bushings.......

      5,500

      10,000

      (d) Rod side motion: Excessive

      5,500

      10,000 motion.........................

      (e) Oil, grease cups: Failure to

      5,500

      10,000 securely fasten, properly equip

      (f) Main rod bearings:

      (1) Excessive bore..........

      5,500

      10,000

      (2) Excessive lost motion...

      5,500

      10,000

      (g) Side rod bearings, excessive

      5,500

      10,000 bore........................... 230.97 Crank pins:

      (a) General provisions..........

      5,500

      10,000

      (b) Maintenance: Failure to

      5,500

      10,000 maintain in safe, suitable condition......................

      Running Gear 230.98 Driving, trailing, engine truck axles:

      (a) Condemning defects..........

      5,500

      10,000

      (b) Journal diameter: Failure to

      2,500

      5,000 stamp on end of axle........... 230.99 Tender truck axle:

      5,500

      10,000

      Insufficient diameter.............. 230.100 Defects in tender truck axles and journals:

      (a) Tender truck axle condemning

      5,500

      10,000 defects........................

      (b) Tender truck journal

      5,500

      10,000 condemning defects............. 230.101 Steam locomotive driving journal boxes:

      (a) Driving journal boxes:

      5,500

      10,000

      Failure to properly maintain...

      (b) Broken bearings: Failure to

      5,500

      10,000 renew..........................

      (c) Loose bearings: Failure to

      5,500

      10,000 repair or renew................ 230.102 Tender plain bearing journal

      5,500

      10,000 boxes: Failure to repair........... 230.103 Tender roller bearing

      5,500

      10,000 journal boxes: Failure to properly maintain........................... 230.104 Driving box shoes and

      5,500

      10,000 wedges: Failure to properly maintain........................... 230.105 Lateral motion:

      (a) Condemning limits: Total

      5,500

      10,000 lateral motion in excess of....

      (b) Limits exceeded, failure to

      5,500

      10,000 demonstrate conditions require additional lateral motion......

      (c) Interferes with other parts

      5,500

      10,000 of steam locomotive............

      Trucks, Frames and Equalizing System 230.106 Steam locomotive frame:

      (a) Failure to properly inspect

      5,500

      10,000 and/or maintain................

      (b) Broken frames, not properly

      13,000

      20,500 patched or secured............. 230.107 Tender frame and body:

      (a) Failure to properly maintain

      5,500

      10,000

      (b) Height difference between

      5,500

      10,000 tender deck and steam locomotive cab floor or deck excessive......................

      (c) Gangway minimum width

      5,500

      10,000 excessive......................

      (d) Tender frame condemning

      9,500

      17,000 defects........................ 230.108 Steam locomotive leading and trailing trucks:

      (a) Failure to properly maintain

      5,500

      10,000

      (b) Safety chain, suitable

      5,500

      10,000 safety chain not provided......

      (c) Insufficient truck clearance

      5,500

      10,000 230.109 Tender trucks:

      (a):

      (1) Tender truck frames.....

      5,500

      10,000

      (2) Tender truck center

      5,500

      10,000 plate......................

      (b) Tender truck bolsters:

      9,500

      17,000

      Failure to properly maintain...

      (c) Condemning defects, springs

      5,500

      10,000 and/or spring rigging..........

      (d) Truck securing arrangement:

      5,500

      10,000

      Not properly maintained........

      (e) Side bearings, truck

      5,500

      10,000 centering devices..............

      (f) Friction side bearings: Run

      5,500

      10,000 in contact.....................

      (g):

      (1) Side bearings, failure

      5,500

      10,000 to equip rear trucks with..

      (2) Insufficient clearance

      5,500

      10,000 of......................... 230.110 Pilots:

      (a) General provisions..........

      5,500

      10,000

      (b) Clearance, insufficient or

      5,500

      10,000 excessive...................... 230.111 Spring rigging:

      (a) Arrangement of springs and

      5,500

      10,000 equalizers.....................

      (b) Spring or spring rigging

      5,500

      10,000 condemning defects.............

      Wheels and Tires 230.112 Wheels and tires:

      (a) Improperly mounted, excess

      9,500

      17,000 variance in axle diameter......

      (b) Out of gage.................

      5,500

      10,000

      (c) Flange distance variance,

      5,500

      10,000 excessive......................

      Page 57634

      (d) Tire thickness, insufficient

      5,500

      10,000

      (e) Tire width, insufficient....

      5,500

      10,000 230.113 Wheels and tire defects:

      (1) Failure to repair...........

      5,500

      10,000

      (2) Welding on, except as

      9,500

      17,000 otherwise provided for.........

      (a) Cracks or breaks in.....

      5,500

      10,000

      (b) Flat spots..............

      5,500

      10,000

      (c) Chipped flange..........

      5,500

      10,000

      (d) Broken rim..............

      5,500

      10,000

      (e) Shelled-out spots.......

      5,500

      10,000

      (f) Seams...................

      5,500

      10,000

      (g) Worn flanges, excessive

      5,500

      10,000 wear.......................

      (h) Worn treads, excessive

      5,500

      10,000 wear.......................

      (i) Flange height,

      5,500

      10,000 insufficient or excessive..

      (j) Rim thickness,

      5,500

      10,000 insufficient...............

      (k) Wheel diameter,

      5,500

      10,000 excessive variance......... 230.114 Wheel centers:

      (a) Filling blocks and shims....

      5,500

      10,000

      (b) Wheel center condemning

      5,500

      10,000 limits, failure to repair......

      (c) Wheel center repairs........

      5,500

      10,000

      (d) Counterbalance maintenance..

      5,500

      10,000

      Steam Locomotive Tanks 230.115 Feed water tanks:

      (a) General provisions..........

      5,500

      10,000

      (b) Inspection frequency,

      5,500

      10,000 failure to inspect as required.

      (c) Top of tender: Improperly

      5,500

      10,000 maintained and/or equipped..... 230.116 Oil tanks:

      (1) Failure to properly

      13,000

      20,500 maintain.......................

      (2) Failure to equip with

      19,500

      25,000 complying safety cut-off device

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A. Failure to observe any condition for movement set forth in Sec. 230.12 will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the locomotive at the time of movement. Failure to comply with Sec. 230.12 will result in the lapse of any affected waiver. Generally, when two or more violations of these regulations are discovered with respect to a single locomotive that is used by a railroad, the appropriate penalties set forth are aggregated up to a maximum of

      $25,000 per day. However, a failure to perform, with respect to a particular locomotive, any of the inspections and tests required under this part, will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on that locomotive.

      \2\ The penalty schedule uses section numbers from 49 CFR part 230. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 231--[AMENDED] 36. The authority citation for part 231 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; and 49 CFR 1.49. 37. Appendix A to part 231 is revised to read as follows:

      Appendix A to Part 231--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      110.A1 Hand brake or hand brake part

      $13,000

      $20,500 missing............................ 110.A2 Hand brake or hand brake part

      13,000

      20,500 broken............................. 110.A3 Hand brake or hand brake part

      9,500

      17,000 loose or worn...................... 110.B1 Hand brake inoperative.......

      13,000

      20,500 110.B2 Hand brake inefficient.......

      9,500

      17,000 110.B3 Hand brake improperly applied

      9,500

      17,000 110.B4 Hand brake incorrectly

      5,500

      10,000 located............................ 110.B5 Hand brake shaft welded or

      5,500

      10,000 wrong dimension.................... 110.B6 Hand brake shaft not retained

      5,500

      10,000 in operating position.............. 110.B8 Hand brake or hand brake

      5,500

      10,000 parts wrong design................. 114.B2 Hand brake wheel or lever has

      5,500

      10,000 insufficient clearance around rim or handle.......................... 114.B3 Hand brake wheel/lever

      5,500

      10,000 clearance insufficient to vertical plane through inside face of knuckle............................ 120.A1 Brake step missing except by

      13,000

      20,500 design............................. 120.A2 Brake step or brace broken or

      13,000

      20,500 decayed............................ 120.A3 Brake step or brace loose....

      9,500

      17,000 120.B1 Brake step or brace bent.....

      9,500

      17,000

      Page 57635

      120.B2 Brake step or brace wrong

      5,500

      10,000 dimensions......................... 120.C1 Brake step improperly applied

      5,500

      10,000 120.C2 Brake step improperly located

      5,500

      10,000 120.C3 Brake step with less than 4''

      5,500

      10,000 clearance to vertical plane through inside face of knuckle............. 120.C4 Brake step obstructed or

      9,500

      17,000 otherwise unsafe................... 124.A1 Running board missing or part

      13,000

      20,500 missing except by design........... 124.A2 Running board broken or

      13,000

      20,500 decayed............................ 124.A3 Running board loose presents

      9,500

      17,000 a tripping hazard or other unsafe condition.......................... 124.A4 Running board wrong material.

      5,500

      10,000 124.B1 Running board bent to the

      9,500

      17,000 extent that it is unsafe........... 124.B2 Running board wrong

      5,500

      10,000 dimensions......................... 124.B3 Running board wrong location.

      5,500

      10,000 124.C1 Running board improperly

      5,500

      10,000 applied............................ 124.C2 Running board obstructed.....

      9,500

      17,000 126.A1 End platform missing or part

      13,000

      20,500 except by design................... 126.A2 End platform broken or

      13,000

      20,500 decayed............................ 126.A3 End platform loose...........

      9,500

      17,000 126.B1 End platform or brace bent...

      5,500

      10,000 126.B2 End platform wrong dimensions

      5,500

      10,000 126.C1 End platform improperly

      5,500

      10,000 applied............................ 126.C2 End platform with less than

      5,500

      10,000 required clearance to vertical plane through inside knuckle....... 126.C3 End platform improperly

      5,500

      10,000 located............................ 126.C4 End platform obstructed......

      9,500

      17,000 128.A1 Platform or switching step

      13,000

      20,500 missing............................ 128.A2 Platform or switching step

      13,000

      20,500 broken or decayed.................. 128.A3 Platform or switching step

      9,500

      17,000 loose.............................. 128.B1 Platform or switching step

      9,500

      17,000 bent............................... 128.B2 Platform or switching step

      5,500

      10,000 does not meet the required location or dimensions...................... 128.C1 Platform or switching step

      9,500

      17,000 improperly applied or repaired..... 128.C2 Platform or switching step

      9,500

      17,000 obstructed......................... 128.D1 Switching step back stop or

      5,500

      10,000 kick plate missing................. 128.D2 Switching step not

      5,500

      10,000 illuminated when required.......... 128.D3 Non-illuminated step not

      5,500

      10,000 painted contrasting color.......... 130.A1 Sill step or additional

      13,000

      20,500 tread, missing..................... 130.A2 Sill step or additional

      13,000

      20,500 tread, broken...................... 130.A3 Sill step or additional

      9,500

      17,000 tread, loose....................... 130.B1 Sill step or additional

      9,500

      17,000 tread, bent........................ 130.B2 Sill step or additional

      5,500

      10,000 tread, having wrong dimensions or improperly located................. 130.B3 Sill step improperly applied.

      5,500

      10,000 132.A1 Side door step missing step..

      13,000

      20,500 132.A2 Side door step broken........

      13,000

      20,500 132.A3 Side door step loose.........

      9,500

      17,000 132.B1 Side door step bent..........

      9,500

      17,000 132.B2 Side door step having wrong

      5,500

      10,000 dimensions......................... 134.A1 Ladder missing...............

      13,000

      20,500 134.A2 Ladder broken................

      13,000

      20,500 134.A3 Ladder loose.................

      9,500

      17,000 134.B1 Ladder bent..................

      9,500

      17,000 134.B2 Ladder having wrong

      5,500

      10,000 dimensions......................... 134.C1 Ladder improperly applied....

      5,500

      10,000 134.C2 Ladder having insufficient

      5,500

      10,000 clearance or improperly located.... 134.C3 Ladder wrong design..........

      5,500

      10,000 134.C4 Ladder wrong material........

      5,500

      10,000 134.D1 End clearance insufficient...

      5,500

      10,000 136.A1 Ladder tread or handholds

      13,000

      20,500 missing............................ 136.A2 Ladder tread or handhold

      13,000

      20,500 broken............................. 136.A3 Ladder tread or handhold

      9,500

      17,000 loose except by design............. 136.B1 Ladder tread or handhold bent

      9,500

      17,000 to the extent that it may be unsafe 136.B2 Ladder tread or handhold

      5,500

      10,000 wrong dimensions................... 136.C1 Ladder tread or handhold

      5,500

      10,000 improperly applied................. 136.C2 Ladder tread or handhold

      5,500

      10,000 having wrong clearance............. 136.C3 Ladder or handhold improperly

      5,500

      10,000 located............................ 136.C4 Ladder tread or handhold

      9,500

      17,000 obstructed......................... 136.C5 Ladder tread without

      9,500

      17,000 footguards......................... 138.A1 Hand or safety railing

      13,000

      20,500 missing............................ 138.A2 Hand or safety railing broken

      13,000

      20,500 138.A3 Hand or safety railing loose

      9,500

      17,000 except by design................... 138.B1 Hand or safety railing bent..

      9,500

      17,000 138.B2 Hand or safety railing wrong

      5,500

      10,000 dimensions......................... 138.C1 Hand or safety railing

      5,500

      10,000 improperly applied................. 138.C2 Hand or safety railing having

      5,500

      10,000 less than the required clearance...

      Page 57636

      138.C3 Hand or safety railing

      5,500

      10,000 improperly located................. 140.A1 Uncoupling lever missing.....

      9,500

      17,000 140.A2 Uncoupling lever broken or

      9,500

      17,000 disconnected....................... 140.B1 Uncoupling lever bent will

      9,500

      17,000 not safely and reasonably function as intended........................ 140.C1 Uncoupling lever bracket bent

      9,500

      17,000 lever will not function properly... 140.C2 Uncoupling lever bracket

      9,500

      17,000 broken or missing.................. 140.D1 Uncoupling lever wrong

      5,500

      10,000 dimension.......................... 140.D2 Uncoupling lever with

      5,500

      10,000 improper handle clearance.......... 144.A1 Coupler missing..............

      13,000

      20,500 144.B1 Coupler height incorrect.....

      5,500

      10,000 144.C1 Coupler inoperative..........

      9,500

      17,000 145.A1 Kick plates missing..........

      5,500

      10,000 145.A2 Kick plates broken...........

      5,500

      10,000 145.B1 Kick plates wrong dimensions.

      5,500

      10,000 145.B2 Kick plates improper

      5,500

      10,000 clearance.......................... 145.B3 Kick plates insecure or

      5,500

      10,000 improperly applied................. 146.A Notice or stencil not posted

      2,500

      5,000 on cabooses with running boards removed............................ 146.B Safe means not provided to

      2,500

      5,000 clean or maintain windows of caboose............................ 231.31 Drawbars, standard height....

      9,500

      17,000

      \1\ A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single unit of equipment that is used by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix

      A.

      \2\ This schedule uses section numbers from FRA's Safety Appliance

      Defect Code, a restatement of the CFR text in a reorganized format.

      For convenience, and as an exception to FRA's general policy, penalty citations will cite the defect code rather than the CFR. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR and/or statutory citation in place of the defect code section cited in the penalty demand letter.

      PART 232--[AMENDED] 38. The authority citation for part 232 continues to read as follows:

      Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301- 20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49. 39. Appendix A to part 232 is revised to read as follows:

      Appendix A to Part 232--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 232.15 Movement of power brake defects:

      (a) Improper movement, general..

      (\1\)

      (\1\)

      (11) Failure to make

      $9,500

      $17,000 determinations and provide notification of en route defect.....................

      (b) Complete failure to tag.....

      9,500

      17,000

      (1) Insufficient tag or

      2,500

      5,000 record.....................

      (2), (4) Improper removal of

      9,500

      17,000 tag........................

      (3) Failure to retain record

      9,500

      17,000 of tag.....................

      (c) Improper loading or purging.

      9,500

      17,000

      (e) Improper placement of

      9,500

      17,000 defective equipment............ 232.19 Availability of records......

      (\1\)

      (\1\)

      Subpart B--General Requirements 232.103 All train brake systems:

      (a)-(c), (h)-(i) Failure to

      9,500

      17,000 meet general design requirements...................

      (d) Failure to have proper

      13,000

      20,500 percentage of operative brakes from Class I brake test........

      (e) Operating with less than 85

      13,000

      20,500 percent operative brakes.......

      (f) Improper use of car with

      9,500

      17,000 inoperative or ineffective..... brakes..........................

      (g) Improper display of piston

      9,500

      17,000 travel.........................

      (m) Failure to stop train with

      9,500

      17,000 excess air flow or gradient....

      (n) Securement of unattended

      ................ ................ equipment:

      (1) Failure to apply

      13,000

      20,500 sufficient number of hand brakes; failure to develop or implement procedure to verify number applied......

      (2) Failure to reduce to

      9,500

      17,000 zero or vent brake pipe....

      (3) Failure to apply hand

      9,500

      17,000 brakes on locomotives......

      (4) Failure to adopt or

      13,000

      20,500 comply with procedures for securing unattended locomotive.................

      (o) Improper adjustment of air

      9,500

      17,000 regulating devices.............

      (p) Failure to hold supervisors

      9,500

      17,000 jointly responsible............ 232.105 Locomotives:

      (a) Air brakes not in safe and

      13,000

      20,500 suitable condition.............

      (b) Not equipped with proper

      13,000

      20,500 hand or parking brake..........

      Page 57637

      (c)(1) Failure to inspect/

      9,500

      17,000 repair hand or parking brake...

      (2) Failure to properly

      5,500

      10,000 stencil, tag, or record....

      (d) Excess leakage from

      9,500

      17,000 equalizing reservoir...........

      (e) Improper use of feed or

      9,500

      17,000 regulating valve braking.......

      (f) Improper use of passenger

      9,500

      17,000 position.......................

      (g) Brakes in operative

      13,000

      20,500 condition...................... 232.107 Air sources/cold weather operations:

      (a)(1), (2) Failure to adopt or

      13,000

      20,500 comply with monitoring program for yard air sources...........

      (3) Failure to maintain

      9,500

      17,000 records....................

      (b) Failure to blow

      13,000

      20,500 condensation...................

      (c) Use of improper chemicals..

      13,000

      20,500

      (d) Failure to equip or drain

      13,000

      20,500 yard air reservoirs............

      (e) Failure to adopt or comply

      13,000

      20,500 cold weather operating procedures..................... 232.109 Dynamic brakes:

      (a) Failure to provide

      9,500

      17,000 information....................

      (b) Failure to make repairs....

      9,500

      17,000

      (c) Failure to properly tag....

      5,500

      10,000

      (d) Failure to maintain record

      2,500

      5,000 of repair......................

      (e) Improper deactivation......

      9,500

      17,000

      (f) Improper use of locomotive

      9,500

      17,000 as controlling unit............

      (g) Locomotive not properly

      9,500

      17,000 equipped with indicator........

      (h) Rebuilt locomotive not

      9,500

      17,000 properly equipped..............

      (j) Failure to adopt or comply

      13,000

      20,500 with dynamic brake operating rules..........................

      (k) Failure to adopt or comply

      13,000

      20,500 with training on operating procedures..................... 232.111 Train handling information:

      (a) Failure to adopt and comply

      13,000

      20,500 with procedures................

      (b) Failure to provide specific

      9,500

      17,000 information....................

      Subpart C--Inspection and Testing

      Requirements 232.203 Training requirements:

      (a) Failure to develop or adopt

      19,500

      25,000 program........................

      (b)(1)-(9) Failure to address or

      9,500

      17,000 comply with specific required item or provision of program...

      (c) Failure to adopt or comply

      13,000

      20,500 with two-way EOT program.......

      (d) Failure to adopt or comply

      13,000

      20,500 with retaining valve program...

      (e) Failure to maintain adequate

      13,000

      20,500 records........................

      (f) Failure to adopt and comply

      19,500

      25,000 with periodic assessment plan.. 232.205 Class I brake test--initial terminal inspection:

      (a) Complete failure to perform

      (\1\) 19,500

      25,000 inspection.....................

      (c)(1)-(4), (6)-(8) Partial

      13,000

      20,500 failure to perform inspection..

      (c)(5) Failure to properly

      9,500

      17,000 adjust piston travel (per car).

      (d) Failure to use carman when

      5,500

      10,000 required.......................

      (e) Failure to provide proper

      9,500

      17,000 notification...................

      (f) Failure to void compressed

      9,500

      17,000 air............................ 232.207 Class IA brake tests--1,000- mile inspection:

      (a) Complete failure to perform

      (\1\) 13,000

      20,500 inspection.....................

      (b)(1)-(6) Partial failure to

      9,500

      17,000 perform inspection.............

      (c) Failure to properly

      9,500

      17,000 designate location.............

      (c)(1) Failure to perform at

      9,500

      17,000 designated location............

      (c)(2) Failure to provide

      9,500

      17,000 notification................... 232.209 Class II brake tests-- intermediate inspection:

      (a) Complete failure to perform

      (\1\) 13,000

      20,500 inspection.....................

      (b)(1)-(5), (c) Partial failure

      9,500

      17,000 to perform inspection..........

      (c) Failure to conduct Class I

      (\1\)

      (\1\) after Class II pick-up......... 232.211 Class III brake tests-- trainline continuity inspection:

      (a) Complete failure to perform

      13,000

      20,500 inspection.....................

      (b)(1)-(4), (c) Partial failure

      9,500

      17,000 to perform inspection..........

      (d) Failure to restore air

      9,500

      17,000 pressure at rear............... 232.213 Extended haul trains:

      (a)(1) Failure to properly

      13,000

      20,500 designate an extended haul train..........................

      (a)(2)-(3), (5)(i), (8) Failure

      (\1\)

      (\1\) to perform inspections.........

      (a)(4) Failure to remove

      5,500

      10,000 defective car (per car)........

      (a)(5)(ii), (6) Failure to

      13,000

      20,500 conduct inbound inspection.....

      (a)(7) Failure to maintain

      5,500

      10,000 record of defects (per car)....

      (b) Improper movement or use of

      13,000

      20,500 extended haul train............ 232.215 Transfer train brake tests:

      (a) Failure to perform

      13,000

      20,500 inspection.....................

      (b) Failure to perform on cars

      9,500

      17,000 added.......................... 232.217 Train brake system tests conducted using yard air:

      (a) Failure to use suitable

      9,500

      17,000 device.........................

      (b) Improper connection of air

      13,000

      20,500 test device....................

      (c) Failure to properly perform

      (\1\)

      (\1\) inspection.....................

      Page 57638

      (d) Failure to calibrate test

      9,500

      17,000 device.........................

      (e) Failure to use accurate

      9,500

      17,000 device......................... 232.219 Double heading and helper service:

      (a) Failure to perform

      9,500

      17,000 inspection or inability to control brakes.................

      (b) Failure to make visual

      9,500

      17,000 inspection.....................

      (c) Use of improper helper link

      9,500

      17,000 device.........................

      Subpart D--Periodic Maintenance and

      Testing Requirements 232.303 General requirements:

      (b)-(d) Failure to conduct

      9,500

      17,000 inspection or test when car on repair track...................

      (e) Improper movement of

      9,500

      17,000 equipment for testing..........

      (e)(1) Failure to properly tag

      5,500

      10,000 equipment for movement.........

      (e)(2)-(4) Failure to retain

      5,500

      10,000 record or improper removal of tag or card....................

      (f) Failure to stencil or track

      9,500

      17,000 test information............... 232.305 Single car tests:

      (a) Failure to test in accord

      9,500

      17,000 with required procedure........

      (b)-(c) Failure to perform test

      9,500

      17,000 232.309 Single car air brake test equipment and devices:

      (a)-(f) Failure to properly

      9,500

      17,000 test or calibrate..............

      Subpart E--End-of-Train Devices 232.403 Design standards for one-way devices:

      (a)-(g) Failure to meet

      9,500

      17,000 standards...................... 232.405 Design standards for two-way ................ ................ devices:

      (a)-(i) Failure to meet

      9,500

      17,000 standards...................... 232.407 Operating requirements for two-way devices:

      (b) Failure to equip a train....

      13,000

      20,500

      (c) Improper purchase...........

      9,500

      17,000

      (f)(1) Failure of device to be

      13,000

      20,500 armed and operable.............

      (f)(2) Insufficient battery

      9,500

      17,000 charge.........................

      (f)(3) Failure to activate the

      9,500

      17,000 device.........................

      (g) Improper handling of en

      13,000

      20,500 route failure, freight or other non-passenger..................

      (h) Improper handling of en

      13,000

      20,500 route failure, passenger....... 232.409 Inspection and testing of devices:

      (a) Failure to have unique code.

      9,500

      17,000

      (b) Failure to compare

      9,500

      17,000 quantitative values............

      (c) Failure to test emergency

      13,000

      20,500 capability.....................

      (d) Failure to properly

      9,500

      17,000 calibrate......................

      Subpart F--Introduction of New Brake

      System Technology 232.503 Process to introduce new technology:

      (b) Failure to obtain FRA

      19,500

      25,000 approval....................... 232.505 Pre-revenue service

      ................ ................ acceptance testing plan:

      (a) Failure to obtain FRA

      13,000

      20,500 approval.......................

      (b) Failure to comply with plan.

      9,500

      17,000

      (f) Failure to test previously

      13,000

      20,500 used technology................

      Subpart G--Electronically Controlled

      Pneumatic (ECP) Braking Systems 232.603 Design, interoperability, and configuration management requirements:

      (a) Failure to meet minimum

      5,500

      10,000 standards......................

      (b) Using ECP brake equipment

      9,500

      17,000 without approval...............

      (c) Failure to adopt and comply

      13,000

      20,500 with a proper configuration management plan................ 232.605 Training Requirements:

      (a) Failure to adopt and comply

      (\1\)

      (\1\) with a proper training, qualification, and designation program for employees that perform inspection, testing or maintenance....................

      (b) Failure to amend operating

      13,000

      20,500 rules..........................

      (c) Failure to adopt and comply

      13,000

      20,500 with proper training criteria for locomotive engineers....... 232.607 Inspection and testing requirements:

      (a)(1), (b), (c)(1) Complete or

      (\1\)

      (\1\) partial failure to perform inspection.....................

      (a)(2) Complete or partial

      9,500

      17,000 failure to perform pre- departure inspection...........

      (c)(1)(iv), (c)(2) Failure to

      9,500

      17,000 perform visual inspection on a car added en route.............

      (d) Failure to perform

      (\1\)

      (\1\) inspection.....................

      (e)(1), (2) Failure to properly

      9,500

      17,000 initialize the train...........

      (e)(3) Failure to ensure

      9,500

      17,000 identical consist and system information....................

      (f)(1) Failure to apply a proper

      (\1\)

      (\1\) brake pipe service reduction...

      (f)(2) Failure to properly

      (\1\)

      (\1\) adhere to the proper piston travel ranges..................

      (g)(1)-(4) Improperly located

      13,000

      20,500 and guarded cable..............

      (g)(5) Condition of cable and

      9,500

      17,000 connections.................... 232.609 Handling of defective equipment with ECP brake systems:

      (a) Failure to have proper

      (\1\)

      (\1\) percentage of operative brakes from Class I brake test........

      (b) Failure to prevent a car

      9,500

      17,000 known to arrive with defective brakes to depart location where a Class I brake test is required.......................

      Page 57639

      (c) Improper movement of a car

      9,500

      17,000 equipped with conventional pneumatic brakes...............

      (d) Operating with less than 85

      (\1\)

      (\1\) percent operative brakes.......

      (f)(2)(i) Improper placement of

      (\1\)

      (\1\) defective conventional brake equipment......................

      (f)(2)(ii) Improper placement of

      9,500

      17,000 defective ECP brake equipment..

      (g) Improper movement of

      (\1\)

      (\1\) defective stand-alone ECP brake equipment in a train operating with conventional pneumatic brakes.........................

      (h) Improper movement from

      (\1\)

      (\1\) initial terminal of stand-alone

      ECP brake equipment in a conventional brake operated train..........................

      (i) Failure to tag equipment....

      (\1\)

      (\1\)

      (j)(1) Failure to adopt and

      5,500

      10,000 comply with procedures for the movement of defective equipment

      (j)(2) Failure to submit list of

      9,500

      17,000

      ECP brake system repair locations...................... 232.611 Periodic maintenance:

      (a) Failure to ensure the

      9,500

      17,000 proper and safe condition of car............................

      (b)-(d) Failure to perform test

      9,500

      17,000 232.613 End-of-train devices:

      (a) Failure to meet design

      9,500

      17,000 standards for ECP-EOT devices..

      (b) Moving with an improper or

      9,500

      17,000 improperly connected ECP-EOT device.........................

      \1\ A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single unit of equipment that is placed or continued in service by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. Although the penalties listed for failure to perform the brake inspections and tests under Sec. 232.205 through Sec. 232.209 may be assessed for each train that is not properly inspected, failure to perform any of the inspections and tests required under those sections will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on the equipment contained in the train consist. Moreover, the

      Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

      Failure to observe any condition for movement of defective equipment set forth in Sec. 232.15(a) will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the equipment at the time of movement.

      Failure to provide any of the records or plans required by this part pursuant to Sec. 232.19 will be considered a failure to maintain or develop the record or plan and will make the railroad liable for penalty under the particular regulatory section(s) concerning the retention or creation of the document involved.

      Failure to properly perform any of the inspections specifically referenced in Sec. Sec. 232.209, 232.213, and 232.217 may be assessed under each section of this part or this chapter, or both, that contains the requirements for performing the referenced inspection.

      \2\ The penalty schedule uses section numbers from 49 CFR part 232. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 233--[AMENDED] 40. The authority citation for part 233 continues to read as follows:

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

      CFR 1.49. 41. Appendix A to part 233 is revised to read as follows:

      Appendix A to Part 233--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      233.5 Accidents resulting from

      $9,500

      $17,000 signal failure..................... 233.7 Signal failure reports........

      5,500

      10,000 233.9 Reports.......................

      2,500

      5,000

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 233. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 234--[AMENDED] 42. The authority citation for part 234 continues to read as follows:

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

      CFR 1.49. 43. Appendix A to part 234 is revised to read as follows:

      Page 57640

      Appendix A to Part 234--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Reports 234.7 Accidents involving grade

      $9,500

      $17,000 crossing signal failure............ 234.9 Grade crossing signal system

      5,500

      10,000 failure reports....................

      Subpart C--Response to Reports of

      Warning System Malfunction 234.101 Employee notification rules.

      5,500

      10,000 234.103 Timely response to report of

      13,000

      20,500 malfunction........................ 234.105 Activation failure:

      (a) Failure to notify--train

      19,500

      25,000 crews..........................

      Other railroads.................

      19,500

      25,000

      (b) Failure to notify law

      5,500

      10,000 enforcement agency.............

      (c) Failure to comply with--

      13,000

      20,500 flagging requirements..........

      Speed restrictions..............

      13,000

      20,500

      (d) Failure to activate horn or

      5,500

      10,000 whistle........................ 234.106 Partial activation:

      (a) Failure to notify--train

      9,500

      17,000 crews..........................

      Other railroads.................

      9,500

      17,000

      (b) Failure to notify law

      5,500

      10,000 enforcement agency............. 1 (c) Failure to comply with--

      9,500

      17,000 flagging requirements speed restrictions...................

      (d) Failure to activate horn or

      5,500

      10,000 whistle........................ 234.107 False activation:

      (a) Failure to notify--train

      13,000

      20,500 crews..........................

      Other railroads.................

      13,000

      20,500 1 (b) Failure to notify law

      5,500

      10,000 enforcement agency.............

      (c) Failure to comply with--

      9,500

      17,000 flagging requirements..........

      Speed restrictions..............

      9,500

      17,000

      (d) Failure to activate horn or

      5,500

      10,000 whistle........................ 234.109 Recordkeeping...............

      2,500

      5,000

      Subpart D--Maintenance, Inspection, and Testing

      Maintenance Standards 234.201 Location of plans...........

      5,500

      10,000 234.203 Control circuits............

      9,500

      17,000 234.205 Operating characteristics of

      13,000

      20,500 warning system apparatus........... 234.207 Adjustment, repair, or

      13,000

      20,500 replacement of component........... 234.209 Interference with normal

      19,500

      25,000 functioning of system.............. 234.211 Locking of warning system

      5,500

      10,000 apparatus.......................... 234.213 Grounds.....................

      9,500

      17,000 234.215 Standby power system........

      19,500

      25,000 234.217 Flashing light units........

      5,500

      10,000 234.219 Gate arm lights and light

      5,500

      10,000 cable.............................. 234.221 Lamp voltage................

      9,500

      17,000 234.223 Gate arm....................

      5,500

      10,000 234.225 Activation of warning system

      19,500

      25,000 234.227 Train detection apparatus...

      19,500

      25,000 234.229 Shunting sensitivity........

      19,500

      25,000 234.231 Fouling wires...............

      13,000

      20,500 234.233 Rail joints.................

      13,000

      20,500 234.235 Insulated rail joints.......

      19,500

      25,000 234.237 Switch equipped with circuit

      5,500

      10,000 controller......................... 234.239 Tagging of wires and

      5,500

      10,000 interference of wires or tags with signal apparatus................... 234.241 Protection of insulated

      9,500

      17,000 wire; splice in underground wire... 234.243 Wire on pole line and aerial

      9,500

      17,000 cable.............................. 234.245 Signs.......................

      5,500

      10,000

      Inspections and Tests 234.247 Purpose of inspections and

      13,000

      20,500 tests; removal from service of relay or device failing to meet test requirements.................. 234.249 Ground tests................

      13,000

      20,500 234.251 Standby power...............

      9,500

      17,000 234.253 Flashing light units and

      5,500

      10,000 lamp voltage....................... 234.255 Gate arm and gate mechanism.

      5,500

      10,000 234.257 Warning system operation....

      13,000

      20,500 234.259 Warning time................

      9,500

      17,000 234.261 Highway traffic signal pre-

      9,500

      17,000 emption............................ 234.263 Relays......................

      9,500

      17,000 234.265 Timing relays and timing

      9,500

      17,000 devices............................ 234.267 Insulation resistance tests,

      9,500

      17,000 wires in trunking and cables....... 234.269 Cut-out circuits............

      19,500

      25,000 234.271 Insulated rail joints, bond

      9,500

      17,000 wires, and track connections....... 234.273 Results of tests............

      2,500

      5,000

      Page 57641

      Requirements for Processor-Based

      Systems 234.275 Processor-Based Systems.....

      13,000

      20,500

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 234. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 235--[AMENDED] 44. The authority citation for part 235 continues to read as follows:

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

      CFR 1.49. 45. Appendix A to part 235 is revised to read as follows:

      Appendix A to Part 235--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      235.5 Changes requiring filing of

      $5,500

      $10,000 application

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 235. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 236--[AMENDED] 46. The authority citation for part 236 continues to read as follows:

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

      CFR 1.49. 47. Appendix A to part 236 is revised to read as follows:

      Appendix A to Part 236--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      236.0 Applicability, minimum

      $9,500

      $17,000 requirements.......................

      Subpart A--Rules and Instructions--

      All Systems

      General 236.1 Plans, where kept.............

      13,000

      20,500 236.2 Grounds.......................

      13,000

      20,500 236.3 Locking of signal apparatus housings:

      Power interlocking machine

      5,500

      10,000 cabinet not secured against unauthorized entry.............

      Other violations................

      5,500

      10,000 236.4 Interference with normal

      19,500

      25,000 functioning of device.............. 236.5 Design of control circuits on

      19,500

      25,000 closed circuit principle........... 236.6 Hand-operated switch equipped

      13,000

      20,500 with switch circuit controller..... 236.7 Circuit controller operated by

      13,000

      20,500 switch-and-lock movement........... 236.8 Operating characteristics of

      9,500

      17,000 electro-magnetic, electronic, or electrical apparatus............... 236.9 Selection of circuits through

      5,500

      10,000 indicating or annunciating instruments........................ 236.10 Electric locks, force drop

      5,500

      10,000 type; where required............... 236.11 Adjustment, repair, or

      13,000

      20,500 replacement of component........... 236.12 Spring switch signal

      9,500

      17,000 protection; where required......... 236.13 Spring switch; selection of

      9,500

      17,000 signal control circuits through circuit controller................. 236.14 Spring switch signal

      9,500

      17,000 protection; requirements........... 236.15 Timetable instructions.......

      5,500

      10,000 236.16 Electric lock, main track releasing circuit:

      Electric lock releasing circuit

      13,000

      20,500 on main track extends into fouling circuit where turnout not equipped with derail at clearance point either pipe- connected to switch or independently locked, electrically...................

      Other violations................

      13,000

      20,500 236.17 Pipe for operating

      5,500

      10,000 connections, requirements.......... 236.18 Software management control plan:

      (a) Failure to develop and adopt

      9,500

      17,000 a plan.........................

      (b) Failure to fully implement

      9,500

      17,000 plan...........................

      (c) Inadequate plan.............

      9,500

      17,000

      Page 57642

      Roadway Signals and Cab Signals 236.21 Location of roadway signals..

      13,000

      20,500 236.22 Semaphore signal arm;

      5,500

      10,000 clearance to other objects......... 236.23 Aspects and indications......

      9,500

      17,000 236.24 Spacing of roadway signals...

      13,000

      20,500 236.26 Buffing device, maintenance..

      13,000

      20,500

      Track Circuits 236.51 Track circuit requirements:

      (a) Shunt fouling circuit used

      13,000

      20,500 where permissible speed through turnout greater than 45 m.p.h..

      (b) Track relay not in de-

      19,500

      25,000 energized position or device that functions as track relay not in its most restrictive state when train, locomotive, or car occupies any part of track circuit, except fouling section of turnout of hand- operated main-track crossover..

      Other violations................

      13,000

      20,500 236.52 Relayed cut-section..........

      13,000

      20,500 236.53 Track circuit feed at grade

      13,000

      20,500 crossing........................... 236.54 Minimum length of track

      13,000

      20,500 circuit............................ 236.55 Dead section; maximum length.

      13,000

      20,500 236.56 Shunting sensitivity.........

      13,000

      20,500 236.57 Shunt and fouling wires:

      (a) Shunt or fouling wires do

      13,000

      20,500 not consist of at least two discrete conductors............

      Other violations................

      9,500

      17,000 236.58 Turnout, fouling section:

      Rail joint in shunt fouling

      13,000

      20,500 section not bonded.............

      Other violations................

      9,500

      17,000 236.59 Insulated rail joints........

      13,000

      20,500 236.60 Switch shunting circuit; use

      13,000

      20,500 restricted.........................

      Wires and Cables 236.71 Signal wires on pole line and

      13,000

      20,500 aerial cable....................... 236.73 Open-wire transmission line;

      9,500

      17,000 clearance to other circuits........ 236.74 Protection of insulated wire;

      9,500

      17,000 splice in underground wire......... 236.76 Tagging of wires and

      5,500

      10,000 interference of wires or tags with signal apparatus...................

      Inspections and Tests; All Systems 236.101 Purpose of inspection and

      9,500

      17,000 tests; removal from service or relay or device failing to meet test requirements.................. 236.102 Semaphore or search-light

      13,000

      20,500 signal mechanism................... 236.103 Switch circuit controller or

      13,000

      20,500 point detector..................... 236.104 Shunt fouling circuit.......

      9,500

      17,000 236.105 Electric lock...............

      9,500

      17,000 236.106 Relays......................

      9,500

      17,000 236.107 Ground tests................

      9,500

      17,000 236.108 Insulation resistance tests, wires in trunking and cables:

      (c) Circuit permitted to

      13,000

      20,500 function on a conductor having insulation resistance value less than 200,000 ohms.........

      Other violations................

      9,500

      17,000 236.109 Time releases, timing relays

      9,500

      17,000 and timing devices................. 236.110 Results of tests............

      2,500

      5,000

      Subpart B--Automatic Block Signal

      Systems

      Standards 236.201 Track circuit control of

      13,000

      20,500 signals............................ 236.202 Signal governing movements

      13,000

      20,500 over hand-operated switch.......... 236.203 Hand-operated crossover

      13,000

      20,500 between main tracks; protection.... 236.204 Track signaled for movements

      13,000

      20,500 in both directions, requirements... 236.205 Signal control circuits;

      19,500

      25,000 requirements....................... 236.206 Battery or power supply with

      9,500

      17,000 respect to relay; location......... 236.207 Electric lock on hand- operated switch; control:

      Approach or time locking of

      13,000

      20,500 electric lock on hand-operated switch can be defeated by unauthorized use of emergency device which is not kept sealed in the non-release position....

      Other violations................

      9,500

      17,000

      Subpart C--Interlocking

      Standards 236.301 Where signals shall be

      9,500

      17,000 provided........................... 236.302 Track circuits and route

      13,000

      17,000 locking............................ 236.303 Control circuits for

      13,000

      20,500 signals, selection through circuit controller operated by switch points or by switch locking mechanism.......................... 236.304 Mechanical locking or same

      13,000

      20,500 protection effected by circuits.... 236.305 Approach or time locking....

      13,000

      20,500 236.306 Facing point lock or switch-

      9,500

      17,000 and-lock movement.................. 236.307 Indication locking:.........

      13,000

      20,500

      Page 57643

      236.308 Mechanical or electric

      13,000

      20,500 locking or electric circuits; requisites......................... 236.309 Loss of shunt protection; where required:

      Loss of shunt of five seconds or

      13,000

      20,500 less permits release of route locking of power-operated switch, movable point frog, or derail.........................

      Other violations................

      9,500

      17,000 236.310 Signal governing approach to

      9,500

      17,000 home signal........................ 236.311 Signal control circuits,

      13,000

      20,500 selection through track relays or devices functioning as track relays and through signal mechanism contacts and time releases at automatic interlocking............. 236.312 Movable bridge, interlocking of signal appliances with bridge devices:

      Emergency bypass switch or

      13,000

      20,500 device not locked or sealed....

      Other violations................

      13,000

      20,500 236.314 Electric lock for hand- operated switch or derail:

      Approach or time locking of

      13,000

      20,500 electric lock at hand-operated switch or derail can be defeated by unauthorized use of emergency device which is not kept sealed in non-release position.......................

      Other violations................

      13,000

      20,500

      Rules and Instructions 236.326 Mechanical locking removed

      9,500

      17,000 or disarranged; requirement for permitting train movements through interlocking....................... 236.327 Switch, movable-point frog

      13,000

      20,500 or split-point derail.............. 236.328 Plunger of facing-point.....

      9,500

      17,000 236.329 Bolt lock...................

      13,000

      20,500 236.330 Locking dog of switch and

      9,500

      17,000 lock movement...................... 236.334 Point detector..............

      13,000

      20,500 236.335 Dogs, stops and trunnions of

      5,500

      10,000 mechanical locking................. 236.336 Locking bed.................

      5,500

      10,000 236.337 Locking faces of mechanical

      5,500

      10,000 locking; fit....................... 236.338 Mechanical locking required

      5,500

      10,000 in accordance with locking sheet and dog chart...................... 236.339 Mechanical locking;

      5,500

      10,000 maintenance requirements........... 236.340 Electromechanical

      5,500

      10,000 interlocking machine; locking between electrical and mechanical levers............................. 236.341 Latch shoes, rocker links,

      5,500

      10,000 and quadrants...................... 236.342 Switch circuit controller...

      13,000

      20,500

      Inspection and Tests 236.376 Mechanical locking..........

      9,500

      17,000 236.377 Approach locking............

      9,500

      17,000 236.378 Time locking................

      9,500

      17,000 236.379 Route locking...............

      9,500

      17,000 236.380 Indication locking..........

      9,500

      17,000 236.381 Traffic locking.............

      9,500

      17,000 236.382 Switch obstruction test.....

      13,000

      20,500 236.383 Valve locks, valves, and

      9,500

      17,000 valve magnets...................... 236.384 Cross protection............

      9,500

      17,000 236.386 Restoring feature on power

      9,500

      17,000 switches........................... 236.387 Movable bridge locking......

      13,000

      20,500

      Subpart D--Traffic Control Systems

      Standards

      Standards 236.401 Automatic block signal system and interlocking standards applicable to traffic control systems: 236.402 Signals controlled by track

      19,500

      25,000 circuits and control operator...... 236.403 Signals at controlled point.

      19,500

      25,000 236.404 Signals at adjacent control

      19,500

      25,000 points............................. 236.405 Track signaled for movements

      19,500

      25,000 in both directions, change of direction of traffic............... 236.407 Approach or time locking;

      19,500

      25,000 where required..................... 236.408 Route locking...............

      19,500

      25,000 236.410 Locking, hand-operated switch; requirements:

      (a) Hand-operated switch on main

      13,000

      20,500 track not electrically or mechanically locked in normal position where signal not provided to govern movement to main track, movements made at speeds in excess of 20 m.p.h., or train and engine movements may clear main track...........

      Hand-operated switch on signaled

      13,000

      20,500 siding not electrically or mechanically locked in normal position where maximum authorized speed on the siding exceeds 30 m.p.h...............

      (b) Approach or time locking of

      13,000

      20,500 electric lock at hand-operated switch can be defeated by use of emergency release device of electric lock which is not kept sealed in non-release position.

      Other violations................

      9,500

      17,000

      Rules and Instructions 236.426 Interlocking rules and

      2,500

      5,000 instructions applicable to traffic control systems....................

      Inspection and Tests 236.476 Interlocking inspections and

      2,500

      5,000 tests applicable to traffic control systems............................

      Subpart E--Automatic Train Stop,

      Train Control and Cab Signal Systems

      Standards

      Standards 236.501 Forestalling device and

      9,500

      17,000 speed control......................

      Page 57644

      236.502 Automatic brake application,

      13,000

      20,500 initiation by restrictive block conditions stopping distance in advance............................ 236.503 Automatic brake application;

      13,000

      20,500 initiation when predetermined rate of speed exceeded.................. 236.504 Operations interconnected

      9,500

      17,000 with automatic block-signal system. 236.505 Proper operative relation

      5,500

      10,000 between parts along roadway and parts on locomotive................ 236.506 Release of brakes after

      13,000

      20,500 automatic application.............. 236.507 Brake application; full

      9,500

      17,000 service............................ 236.508 Interference with

      9,500

      17,000 application of brakes by means of brake valve........................ 236.509 Two or more locomotives

      5,500

      10,000 coupled............................ 236.511 Cab signals controlled in

      9,500

      17,000 accordance with block conditions stopping distance in advance....... 236.512 Cab signal indication when

      13,000

      20,500 locomotive enters blocks........... 236.513 Audible indicator...........

      9,500

      17,000 236.514 Interconnection of cab

      5,500

      10,000 signal system with roadway signal system............................. 236.515 Visibility of cab signals...

      9,500

      17,000 236.516 Power supply................

      5,500

      10,000

      Rules and Instructions; Roadway 236.526 Roadway element not

      5,500

      10,000 functioning properly............... 236.527 Roadway element insulation

      5,500

      10,000 resistance......................... 236.528 Restrictive condition

      9,500

      17,000 resulting from open hand-operated switch; requirement................ 236.529 Roadway element inductor;

      5,500

      10,000 height and distance from rail...... 236.531 Trip arm; height and

      5,500

      10,000 distance from rail................. 236.532 Strap iron inductor; use

      5,500

      10,000 restricted......................... 236.534 Entrance to equipped

      9,500

      17,000 territory; requirements............

      Rules and Instructions; Locomotives 236.551 Power supply voltage........

      5,500

      10,000 236.552 Insulation resistance.......

      5,500

      10,000 236.553 Seal, where required........

      5,500

      10,000 236.554 Rate of pressure reduction;

      9,500

      17,000 equalizing reservoir or brake pipe. 236.555 Repaired or rewound receiver

      2,500

      5,000 coil............................... 236.556 Adjustment of relay.........

      5,500

      10,000 236.557 Receiver; location with

      5,500

      10,000 respect to rail.................... 236.560 Contact element, mechanical

      5,500

      10,000 trip type; location with respect to rail............................... 236.562 Minimum rail current

      5,500

      10,000 required........................... 236.563 Delay time..................

      9,500

      17,000 236.564 Acknowledging time..........

      5,500

      10,000 236.565 Provision made for

      5,500

      10,000 preventing operation of pneumatic brake-applying apparatus by double- heading clock; requirement......... 236.566 Locomotive of each train

      5,500

      10,000 operating in train stop, train control or cab signal territory; equipped........................... 236.567 Restrictions imposed when device fails and/or is cut out en route:

      Report not made to designated

      9,500

      17,000 officer at next available point of communication after automatic train stop, train control, or cab signal device fails and/or is cut en route...

      Trains permitted to proceed at

      9,500

      17,000 speed exceeding 79 m.p.h. where automatic train stop, train control, or cab signal device fails and/or is cut out en route when absolute block established in advance of train on which device is inoperative.

      Other violations................

      5,500

      10,000 236.568 Difference between speeds

      5,500

      10,000 authorized by roadway signal and cab signal; action.................

      Inspection and Tests; Roadway 236.576 Roadway element.............

      5,500

      10,000 236.577 Test, acknowledgement, and

      5,500

      10,000 cut-in circuits....................

      Inspection and Tests; Locomotive 236.586 Daily or after trip test....

      9,500

      17,000 236.587 Departure test:

      (b) Test of automatic train

      13,000

      20,500 stop, train control, or cab signal apparatus on locomotive not made on departure of locomotive from initial terminal if equipment on locomotive not cut out between initial terminal and equipped territory......................

      Test of automatic train stop,

      13,000

      20,500 train control, or cab signal apparatus on locomotive not made immediately on entering equipped territory, if equipment on locomotive cut out between initial terminal and equipped territory.............

      (c) Automatic train stop, train

      13,000

      20,500 control, or cab signal apparatus on locomotive making more than one trip within 24- hour period not given departure test within corresponding 24- hour period....................

      (d) Failure to certify, post,

      2,500

      5,000 or retain test results as required.......................

      Other violations................

      2,500

      5,000 236.588 Periodic test...............

      13,000

      20,500 236.589 Relays......................

      9,500

      17,000 236.590 Pneumatic apparatus:

      Automatic train stop, train

      9,500

      17,000 control, or cab signal apparatus not inspected and cleaned at least once every 736 days...........................

      Other violations................

      9,500

      17,000

      Page 57645

      Subpart F--Dragging Equipment and

      Slide Detectors and Other Similar

      Protective Devices; Standards

      Standards 236.601 Signals controlled by

      13,000

      20,500 devices; location..................

      Subpart H--Standards for Processor-

      Based Signal and Train Control

      Systems 236.905 Railroad Safety Program Plan

      (RSPP).............................

      (a) Failure to develop and

      9,500

      17,000 submit RSPP when required......

      (d) Failure to obtain FRA

      9,500

      17,000 approval for a modification to

      RSPP........................... 236.907 Product Safety Plan (PSP):

      (a) Failure to address required

      9,500

      17,000

      PSP elements...................

      (b) Failure to identify or

      9,500

      17,000 implement product configuration/ revision control measures......

      (d) Failure to communicate

      19,500

      25,000 identified safety critical hazard......................... 236.909 Minimum Performance

      Standard:

      (a) Failure to make analyses or

      9,500

      17,000 documentation available........

      (b) Failure to determine or

      13,000

      20,500 demonstrate that the minimum performance standard has been met............................ 236.913 Notification to FRA of PSPs:

      (a) Failure to prepare a PSP or

      9,500

      17,000

      PSP amendment as required......

      (b) Failure to submit a PSP or

      9,500

      17,000

      PSP amendment as required......

      (c) Failure to submit an

      9,500

      17,000 informational filing...........

      (j) Field testing without

      19,500

      25,000 authorization or approval...... 236.915 Implementation and operation:

      (a) Operation of product without

      19,500

      25,000 authorization or approval......

      (b) Failure to comply with PSP..

      9,500

      17,000

      (c) Interference with normal

      19,500

      25,000 functioning safety-critical product........................

      (d) Failure to determine cause

      9,500

      17,000 and adjust, repair or replace without undue delay or take appropriate action pending repair......................... 236.917 Retention of records:

      (a) Failure to maintain records

      9,500

      17,000 as required....................

      (b)(1) Failure to report

      13,000

      20,500 inconsistency..................

      (b)(2) Failure to take prompt

      5,500

      10,000 countermeasures................

      (b)(3) Failure to provide final

      5,500

      10,000 report......................... 236.919 Operations and Maintenance

      5,500

      10,000

      Manual............................. 236.921 Training and qualification

      9,500

      17,000 program, general................... 236.923 Task analysis and basic requirements:

      (a) Failure to develop an

      9,500

      17,000 acceptable training program....

      (a)(6) Failure to train persons

      9,500

      17,000 as required....................

      (a)(8) Failure to conduct

      5,500

      10,000 evaluation of training program as required....................

      (b) Failure to maintain records

      2,500

      5,000 as required.................... 236.925 Training specific to control

      9,500

      17,000 office personnel................... 236.927 Training specific to

      9,500

      17,000 locomotive engineers and other operating personnel................ 236.929 Training specific to roadway

      9,500

      17,000 workers............................

      Subpart I--Positive Train Control

      Systems 236.1005 Positive Train Control

      System Requirements:

      Failure to complete PTC system

      5,500

      10,000 installation on track segment where PTC is required prior to 12/31/2015.....................

      Commencement of revenue service

      13,000

      20,500 prior to obtaining PTC System

      Certification..................

      Failure of the PTC system to

      19,500

      25,000 perform a safety-critical function required by this section........................

      Failure to provide notice,

      13,000

      20,500 obtain approval, or follow a condition for temporary rerouting when required........

      Exceeding the allowed percentage

      2,500

      5,000 of controlling locomotives operating out of an initial terminal after receiving a failed initialization.......... 236.1006 Equipping locomotives operating in PTC territory:

      Operating in PTC territory a

      19,500

      25,000 controlling locomotive without a required and operative PTC onboard apparatus..............

      Failure to report as prescribed

      2,500

      5,000 by this section................

      Non-compliant operation of

      13,000

      20,500 unequipped trains in PTC territory...................... 236.1007 Additional requirements for high-speed service:

      Operation of passenger trains at

      9,500

      17,000 a speed equal to or greater than 60 m.p.h. on non-PTC- equipped territory where required.......................

      Operation of freight trains at a

      9,500

      17,000 speed equal to or greater than 50 m.p.h. on non-PTC-equipped territory where required.......

      Failure to fully implement

      9,500

      17,000 incursion protection where required....................... 236.1009 Procedural requirements:

      Failure to file PTCIP when

      2,500

      5,000 required.......................

      Failure to amend PTCIP when

      2,500

      5,000 required.......................

      Failure to obtain Type Approval

      2,500

      5,000 when required..................

      Failure to update NPI...........

      2,500

      5,000

      Operation of PTC system prior to

      13,000

      20,500 system certification........... 236.1011 PTCIP content requirements:

      Failure to install a PTC system

      2,500

      5,000 in accordance with subpart I when so required............... 236.1013 PTCDP content requirements and Type Approval:

      Page 57646

      Failure to maintain quality

      2,500

      5,000 control system.................

      Inappropriate use of Type

      2,500

      5,000

      Approval....................... 236.1015 PTCSP content requirements and PTC System Certification:

      Failure to implement PTC system

      9,500

      17,000 in accordance with the associated PTCSP and resultant system certification...........

      Failure to maintain PTC system

      9,500

      17,000 in accordance with the associated PTCSP and resultant system certification...........

      Failure to maintain required

      2,500

      5,000 supporting documentation....... 236.1017 Independent third party

      Verification and Validation:

      Failure to conduct independent

      13,000

      20,500 third party Verification and

      Validation when ordered........ 236.1019 Main line track exceptions:

      Revenue operations conducted in

      5,500

      10,000 non-compliance with the passenger terminal exception...

      Revenue operations conducted in

      5,500

      10,000 non-compliance with the limited operations exception...........

      Failure to request modification

      5,500

      10,000 of the PTCIP or PTCSP when required.......................

      Revenue operations conducted in

      9,500

      17,000 violation of (c)(2)............

      Revenue operations conducted in

      9,500

      17,000 violation of (c)(3)............ 236.1021 Discontinuances, material modifications, and amendments:

      Failure to update PTCDP when

      2,500

      5,000 required.......................

      Failure to update PTCSP when

      2,500

      5,000 required.......................

      Failure to immediately adopt and

      2,500

      5,000 comply with approved RFA.......

      Discontinuance or modification

      2,500

      5,000 of a PTC system without approval when required......... 236.1023 Errors and malfunctions:

      Railroad failure to provide

      2,500

      5,000 proper notification of PTC system error or malfunction....

      Failure to maintain PTCPVL......

      2,500

      5,000

      Supplier failure to provide

      2,500

      5,000 proper notification of previously identified PTC system error or malfunction....

      Failure to provide timely

      2,500

      5,000 notification...................

      Failure to provide appropriate

      5,500

      10,000 protective measures in the event of PTC system failure.... 236.1027 Exclusions:

      Integration of primary train

      9,500

      17,000 control system with locomotive electronic system without approval....................... 236.1029 PTC system use and en route failures:

      Failure to determine cause of

      5,500

      10,000

      PTC system component failure without undue delay............

      Failure to adjust, repair, or

      5,500

      10,000 replace faulty PTC system component without undue delay..

      Failure to take appropriate

      5,500

      10,000 action pending adjustment, repair, or replacement of faulty PTC system component....

      Non-compliant train operation

      9,500

      17,000 within PTC-equipped territory with inoperative PTC onboard apparatus......................

      Interference with the normal

      9,500

      17,000 functioning of safety-critical

      PTC system.....................

      Improper arrangement of the PTC

      5,500

      10,000 system onboard apparatus....... 236.1033 Communications and security requirements:

      Failure to provide cryptographic

      2,500

      5,000 message integrity and authentication.................

      Improper use of revoked

      2,500

      5,000 cryptographic key..............

      Failure to protect cryptographic

      2,500

      5,000 keys from unauthorized disclosure, modification, or substitution...................

      Failure to establish prioritized

      2,500

      5,000 service restoration and mitigation plan for communication services......... 236.1035 Field testing requirements:

      Field testing without

      5,500

      10,000 authorization or approval...... 236.1037 Records retention:

      Failure to maintain records and

      2,500

      5,000 databases as required..........

      Failure to report inconsistency.

      5,500

      10,000

      Failure to take prompt

      5,500

      10,000 countermeasures................

      Failure to provide final report.

      2,500

      5,000 236.1039 Operations and Maintenance

      Manual:

      Failure to implement and

      2,500

      5,000 maintain Operations and

      Maintenance Manual as required. 236.1043 Task analysis and basic requirements:

      Failure to develop and maintain

      5,500

      10,000 an acceptable training program.

      Failure to train persons as

      2,500

      5,000 required.......................

      Failure to conduct evaluation of

      2,500

      5,000 training program as required...

      Failure to maintain records as

      2,500

      5,000 required....................... 236.1045 Training specific to office control personnel:

      Failure to conduct training

      2,500

      5,000 unique to office control personnel...................... 236.1047 Training specific to locomotive engineers and other operations personnel:

      Failure to conduct training

      2,500

      5,000 unique to locomotive engineers and other operating personnel.. 236.1049 Training specific to roadway workers:

      Failure to conduct training

      2,500

      5,000 unique to roadway workers......

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 236. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      Page 57647

      PART 238--[AMENDED] 48. The authority citation for part 238 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303, 20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; 49 CFR 1.49. 49. Appendix A to part 238 is revised to read as follows:

      Appendix A to Part 238--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart A--General 238.15 Movement of power brake defects:

      (b) Improper movement from

      $13,000

      $20,500

      Class I or IA brake test.......

      (c) Improper movement of en

      9,500

      17,000 route defect...................

      (2), (3) Insufficient tag

      2,500

      5,000 or record..................

      (4) Failure to determine

      9,500

      17,000 percent operative brakes...

      (d) Failure to follow operating

      13,000

      20,500 restrictions...................

      (e) Failure to follow

      9,500

      17,000 restrictions for inoperative front or rear unit............. 238.17 Movement of other than power ................ ................ brake defects: \1\

      (c)(4), (5) Insufficient tag or

      2,500

      5,000 record.........................

      (d) Failure to inspect or

      9,500

      17,000 improper use of roller bearings

      (e) Improper movement of

      9,500

      17,000 defective safety appliances.... 238.19 Reporting and tracking defective equipment:

      (a) Failure to have reporting

      19,500

      25,000 or tracking system.............

      (b) Failure to retain records..

      5,500

      10,000

      (c) Failure to make records

      2,500

      5,000 available......................

      (d) Failure to list power brake

      5,500

      10,000 repair points..................

      Subpart B--Safety Planning and

      General Requirements 238.103 Fire protection plan/fire safety:

      (a) Failure to use proper

      13,000

      20,500 materials......................

      (b) Improper certification.....

      5,500

      10,000

      (c) Failure to consider fire

      13,000

      20,500 safety on new equipment........

      (d) Failure to perform fire

      13,000

      20,500 safety analysis................

      (e) Failure to develop, adopt

      13,000

      20,500 or comply with procedures...... 238.105 Train electronic hardware and software safety:

      (a), (b), (c) Failure to

      13,000

      20,500 develop and maintain hardware and software safety............

      (d) Failure to include required

      13,000

      20,500 design features................

      (e) Failure to comply with

      9,500

      17,000 hardware and software safety program........................ 238.107 Inspection, testing, and maintenance plan:

      (b) Failure to develop plan....

      13,000

      20,500

      (b)(1)-(5) Failure of plan to

      9,500

      17,000 address specific item..........

      (d) Failure to conduct annual

      9,500

      17,000 review......................... 238.109 Training, qualification, and designation program:

      (a) Failure to develop or adopt

      13,000

      20,500 program........................

      (b)(1)-(4) Failure of plan to

      9,500

      17,000 address specific item..........

      (b)(5)-(12) Failure to comply

      9,500

      17,000 with specific required provisions of the program......

      (b)(13) Failure to maintain

      5,500

      10,000 adequate records............... 238.111 Pre-revenue service acceptance testing plan:

      (a) Failure to properly test

      13,000

      20,500 previously used equipment......

      (b)(1) Failure to develop plan.

      13,000

      20,500

      (b)(2) Failure to submit plan

      9,500

      17,000 to FRA.........................

      (b)(3) Failure to comply with

      9,500

      17,000 plan...........................

      (b)(4) Failure to document

      5,500

      10,000 results of testing.............

      (b)(5) Failure to correct

      9,500

      17,000 safety deficiencies or impose operating limits...............

      (b)(6) Failure to maintain

      5,500

      10,000 records........................

      (b)(7) Failure to obtain FRA

      9,500

      17,000 approval....................... 238.113 Emergency window exits......

      9,500

      17,000 238.114 Rescue access windows.......

      9,500

      17,000 238.115 Emergency lighting..........

      9,500

      17,000 238.117 Protection against personal

      9,500

      17,000 injury............................. 238.119 Rim-stamped straight-plate

      9,500

      17,000 wheels............................. 238.121 Emergency communication.....

      9,500

      17,000 238.123 Emergency roof access.......

      9,500

      17,000

      Subpart C--Specific Requirements for

      Tier I Passenger Equipment 238.203 Static end strength.........

      9,500

      17,000 238.205 Anti-climbing mechanism.....

      9,500

      17,000 238.207 Link between coupling

      9,500

      17,000 mechanism and car body............. 238.209 Forward end structure of

      9,500

      17,000 locomotives........................ 238.211 Collision posts.............

      9,500

      17,000 238.213 Corner posts................

      9,500

      17,000 238.215 Rollover strength...........

      9,500

      17,000 238.217 Side structure..............

      9,500

      17,000 238.219 Truck-to-car-body attachment

      9,500

      17,000 238.221 Glazing.....................

      9,500

      17,000 238.223 Fuel tanks..................

      9,500

      17,000 238.225 Electrical system...........

      9,500

      17,000

      Page 57648

      238.227 Suspension system...........

      9,500

      17,000 238.229 Safety appliances--general:

      (e) Failure to properly

      9,500

      17,000 identify equipment (per car)...

      (g) Failure to adopt or comply

      9,500

      17,000 with inspection plan...........

      (h) Failure to use qualified

      9,500

      17,000 person (per car)...............

      (i) Failure to properly conduct

      9,500

      17,000 initial or periodic inspection

      (per car)......................

      (j) Failure to take proper

      9,500

      17,000 remedial action (per car)......

      (k) Failure to maintain records

      5,500

      10,000

      (per car)...................... 238.230 Safety appliances--new equipment:

      (b)(2) Failure to identify

      9,500

      17,000 welded appliance (per car).....

      (b)(3) Failure to receive

      9,500

      17,000 approval for use (per car).....

      (c)(2) Failure to make proper

      9,500

      17,000 repair (per car)............... 238.231 Brake System (a)-(g), (i)-

      9,500

      17,000

      (n)

      (h)(1), (2) Hand or parking

      13,000

      20,500 brake missing or inoperative...

      (h)(3) Hand or parking brake

      5,500

      10,000 inspection or record (per car).

      (h)(4) Hand or parking brake

      13,000

      20,500 not applied to hold equipment unattended on grade or prematurely released........... 238.233 Interior fittings and

      9,500

      17,000 surfaces........................... 238.235 Doors.......................

      9,500

      17,000 238.237 Automated monitoring........

      9,500

      17,000

      Subpart D--Inspection, Testing, and

      Maintenance Requirements for Tier I

      Passenger Equipment 238.303 Exterior mechanical inspection of passenger equipment:

      (a)(1) Failure to perform

      \1\ 9,500

      17,000 mechanical inspection..........

      (a)(2) Failure to inspect

      9,500

      17,000 secondary brake system.........

      (b) Failure to perform

      \1\ 9,500

      17,000 inspection on car added to train..........................

      (c) Failure to utilize properly

      9,500

      17,000 qualified personnel............

      (e)(1) Products of combustion

      9,500

      17,000 not released outside cab.......

      (e)(2) Battery not vented or

      9,500

      17,000 gassing excessively............

      (e)(3) Coupler not in proper

      9,500

      17,000 condition......................

      (e)(4) No device under drawbar

      9,500

      17,000 pins or connection pins........

      (e)(5) Suspension system and

      9,500

      17,000 spring rigging not in proper condition......................

      (e)(6) Truck not in proper

      9,500

      17,000 condition......................

      (e)(7) Side bearing not in

      9,500

      17,000 proper condition...............

      (e)(8) Wheel not in proper

      ................ ................ condition:

      (i), (iv) Flat spot(s) and ................ ................ shelled spot(s):

      (A) One spot 2\1/2\''

      9,500

      17,000 or more but less than 3'' in length..........

      (B) One spot 3'' or

      13,000

      20,500 more in length.........

      (C) Two adjoining spots

      9,500

      17,000 each of which is 2'' or more in length but less than 2\1/2\'' in length

      (D) Two adjoining spots

      13,000

      20,500 each of which are at least 2'' in length, if either spot is 2\1/2\'' or more in length......

      (ii) Gouge or chip in flange:

      (A) More than 1\1/2\''

      9,500

      17,000 but less than 1\5/8\'' in length; and more than \1/2\'' but less than \5/8\'' in width..

      (B) 1\5/8\'' or more in

      13,000

      20,500 length and \5/8\'' or more in width..........

      (iii) Broken rim...........

      13,000

      20,500

      (v) Seam in tread..........

      9,500

      17,000

      (vi) Flange thickness of:

      ................ ................

      (A) \7/8\'' or less but

      9,500

      17,000 more than..............

      (B) \13/16\'' or less..

      13,000

      20,500

      (vii) Tread worn hollow....

      9,500

      17,000

      (viii) Flange height of:

      (A) 1\1/2\'' or greater

      9,500

      17,000 but less than 1\5/8\''.

      (B) 1\5/8\'' or more...

      13,000

      20,500

      (ix) Rim thickness:

      ................ ................

      (A) Less than 1''......

      9,500

      17,000

      (B) \15/16\'' or less..

      13,000

      20,500

      (x) Crack or break in flange, tread, rim, plate, or hub:

      (A) Crack of less than

      9,500

      17,000 1''....................

      (B) Crack of 1'' or

      13,000

      20,500 more...................

      (C) Break..............

      13,000

      20,500

      (xi) Loose wheel...........

      13,000

      20,500

      (xii) Welded wheel.........

      13,000

      20,500

      (e)(10) Improper grounding or

      13,000

      20,500 insulation.....................

      (e)(11) Jumpers or cable

      9,500

      17,000 connections not in proper condition......................

      (e)(12) Door or cover plate not

      9,500

      17,000 properly marked................

      (e)(13) Buffer plate not

      9,500

      17,000 properly placed................

      (e)(14) Diaphragm not properly

      9,500

      17,000 placed or aligned..............

      (e)(15) Secondary braking

      9,500

      17,000 system not in operating mode or contains known defect..........

      (e)(16) Roller bearings:

      (i) Overheated.............

      13,000

      20,500

      (ii) Cap screw loose or

      9,500

      17,000 missing....................

      Page 57649

      (iii) Cap screw lock broken

      5,500

      10,000 or missing.................

      (iv) Seal loose, damaged,

      9,500

      17,000 or leaks lubricant.........

      (e)(17) Air compressor

      9,500

      17,000 inoperative....................

      (g) Record of inspection:

      (1), (4) Failure to

      5,500

      10,000 maintain record of inspection.................

      (2) Record contains

      2,500

      5,000 insufficient information... 238.305 Interior mechanical inspection of passenger cars:

      (a) Failure to perform

      \1\ 5,500

      10,000 inspection.....................

      (b) Failure to utilize properly

      5,500

      10,000 qualified personnel............

      (c)(1) Failure to protect

      9,500

      17,000 against personal injury........

      (c)(2) Floors not free of

      9,500

      17,000 condition that creates hazard..

      (c)(3) Access to manual door

      5,500

      10,000 release not in place...........

      (c)(4) Emergency equipment not

      5,500

      10,000 in place.......................

      (c)(5) Emergency brake valve

      5,500

      10,000 not stenciled or marked........

      (c)(6) Door or cover plates not

      5,500

      10,000 properly marked................

      (c)(7) Safety signage not in

      5,500

      10,000 place or legible...............

      (c)(8) Trap door unsafe or

      9,500

      17,000 improperly secured.............

      (c)(9) Vestibule steps not

      5,500

      10,000 illuminated....................

      (c)(10) Door does not safely

      9,500

      17,000 operate as intended............

      (c)(11) Seat broken, loose, or

      9,500

      17,000 not properly attached..........

      (e) Record of inspection:

      (1), (4) Failure to

      5,500

      10,000 maintain record of inspection.................

      (2) Record contains

      2,500

      5,000 insufficient information...

      (f) Record of inspection:

      (1), (4) Failure to

      5,500

      10,000 maintain record of inspection.................

      (2) Record contains

      2,500

      5,000 insufficient information... 238.307 Periodic mechanical inspection of passenger cars and unpowered vehicles:

      (a) Failure to perform periodic

      \1\ 9,500

      17,000 mechanical inspection..........

      (b) Failure to utilize properly

      9,500

      17,000 qualified personnel............

      (c)(1) Seat or seat attachment

      9,500

      17,000 broken or loose................

      (c)(2) Luggage rack broken or

      9,500

      17,000 loose..........................

      (c)(3) Bed, bunks, or

      9,500

      17,000 restraints broken or loose.....

      (c)(4) Emergency window exit

      9,500

      17,000 does not properly operate......

      (c)(5) Emergency lighting not

      9,500

      17,000 operational....................

      (c)(6) Switches not in proper

      9,500

      17,000 condition......................

      (c)(7) Coupler not in proper

      9,500

      17,000 condition......................

      (c)(8) Truck not equipped with

      9,500

      17,000 securing arrangement...........

      (c)(9) Truck center casting

      13,000

      20,500 cracked or broken..............

      (c)(10) General conditions

      9,500

      17,000 endangering crew, passengers...

      (c)(13) Hand or parking brake

      9,500

      17,000 test not performed.............

      (d)(1) Manual door release does

      9,500

      17,000 not operate as intended........

      (d)(2) Hand or parking brake

      9,500

      17,000 inspection not performed.......

      (e)(1) Failure to maintain

      5,500

      10,000 record of inspection...........

      (i)-(iv) Record contains

      2,500

      5,000 insufficient information...

      (f)(1) Record of inspection:

      (i) Failure to maintain

      5,500

      10,000 record of inspection.......

      (ii) Record contains

      2,500

      5,000 insufficient information... 238.309 Periodic brake equipment maintenance:

      (b) Failure to perform on MU

      9,500

      17,000 locomotive.....................

      (c) Failure to perform on

      9,500

      17,000 conventional locomotive........

      (d) Failure to perform on

      9,500

      17,000 passenger coaches or other unpowered vehicle..............

      (e) Failure to perform on cab

      9,500

      17,000 car............................

      (f) Record of periodic maintenance:

      (1), (2) Failure to

      5,500

      10,000 maintain record or stencil. 238.311 Single car tests:

      (a) Failure to test in accord

      9,500

      17,000 with required procedure........

      (b) Failure to utilize properly

      9,500

      17,000 qualified personnel............

      (c), (e) Failure to perform

      9,500

      17,000 single car test................

      (f) Improper movement of car

      5,500

      10,000 for testing....................

      (g) Failure to test after

      5,500

      10,000 repair or replacement of component...................... 238.313 Class I brake test:

      (a) Failure to perform on

      \1\ 19,500

      25,000 commuter or short-distance intercity passenger train......

      (b) Failure to perform on long-

      \1\ 19,500

      25,000 distance intercity passenger train..........................

      (c) Failure to perform on cars

      \1\ 13,000

      20,500 added to passenger train.......

      (d) Failure to utilized

      13,000

      20,500 properly qualified personnel...

      (f) Passenger train used from

      13,000

      20,500

      Class I brake test with less than 100% operative brakes.....

      (g) Partial failure to perform

      13,000

      20,500 inspection on a passenger train

      (3) Failure to adjust

      9,500

      17,000 piston travel (per car)....

      (h) Failure to maintain record.

      5,500

      10,000

      (j) Failure to perform

      13,000

      20,500 additional Class I brake test.. 1 (j)(3) Failure to maintain

      5,500

      10,000 record......................... 238.315 Class IA brake test:

      Page 57650

      (a) Failure to perform

      \1\ 13,000

      20,500 inspection.....................

      (d) Failure to utilize properly

      9,500

      17,000 qualified personnel............

      (e) Passenger train used from

      13,000

      20,500

      Class IA brake test with improper percentage of operative brakes...............

      (f) Partial failure to perform

      9,500

      17,000 inspection on passenger train.. 238.317 Class II brake test:

      (a) Failure to perform

      \1\ 9,500

      17,000 inspection.....................

      (b) Failure to utilize properly

      9,500

      17,000 qualified personnel............

      (c) Improper use of defective

      9,500

      17,000 equipment from Class II brake test........................... 238.319 Running brake test:

      (a), (b) Failure to perform

      5,500

      10,000 test........................... 238.321 Out-of-service credit

      5,500

      10,000

      Subpart E--Specific Requirements for

      Tier II Passenger Equipment 238.403 Crash energy management.....

      9,500

      17,000 238.405 Longitudinal static

      9,500

      17,000 compressive strength............... 238.407 Anti-climbing mechanism.....

      9,500

      17,000 238.409 Forward end structures of power car cabs:

      (a) Center collision post......

      9,500

      17,000

      (b) Side collision posts.......

      9,500

      17,000

      (c) Corner posts...............

      9,500

      17,000

      (d) Skin.......................

      9,500

      17,000 238.411 Rear end structures of power car cabs:

      (a) Corner posts...............

      9,500

      17,000

      (b) Collision posts............

      9,500

      17,000 238.413 End structures of trailer

      9,500

      17,000 cars............................... 238.415 Rollover strength...........

      9,500

      17,000 238.417 Side loads..................

      9,500

      17,000 238.419 Truck-to-car-body and truck

      9,500

      17,000 component attachment............... 238.421 Glazing:

      (b) End-facing exterior glazing

      9,500

      17,000

      (c) Alternate glazing

      9,500

      17,000 requirements...................

      (d) Glazing securement.........

      9,500

      17,000

      (e) Stenciling.................

      5,500

      10,000 238.423 Fuel tanks:

      (a) External fuel tanks........

      9,500

      17,000

      (b) Internal fuel tanks........

      9,500

      17,000 238.425 Electrical system:

      (a) Circuit protection.........

      9,500

      17,000

      (b) Main battery system........

      9,500

      17,000

      (c) Power dissipation resistors

      9,500

      17,000

      (d) Electromagnetic

      9,500

      17,000 interference and compatibility. 238.427 Suspension system

      9,500

      17,000 238.429 Safety Appliances:

      (a) Couplers...................

      13,000

      20,500

      (b) Hand/parking brakes........

      13,000

      20,500

      (d) Handrail or handhold

      9,500

      17,000 missing........................

      (d)(1)-(8) Handrail or

      9,500

      17,000 handhold improper design...

      (e) Sill step missing..........

      13,000

      20,500

      (e)(1)-(11) Sill step

      9,500

      17,000 improper design............

      (g) Optional safety appliances.

      9,500

      17,000 238.431 Brake system................

      9,500

      17,000 238.433 Draft System................

      9,500

      17,000 238.435 Interior fittings and

      9,500

      17,000 surfaces........................... 238.437 [Reserved].................. 238.439 Doors:

      (a) Exterior side doors........

      9,500

      17,000

      (b) Manual override feature....

      9,500

      17,000

      (c) Notification to crew of

      9,500

      17,000 door status....................

      (d) Emergency back-up power....

      9,500

      17,000

      (f) End door kick-out panel or

      9,500

      17,000 pop-out window................. 238.441 Emergency roof access.......

      9,500

      17,000 238.443 Headlights..................

      9,500

      17,000 238.445 Automated monitoring........

      9,500

      17,000 238.447 Train operator's controls

      9,500

      17,000 and power car cab layout...........

      Subpart F--Inspection, Testing, and

      Maintenance Requirements for Tier II

      Passenger Equipment 238.503 Inspection, testing, and maintenance requirements:

      (a) Failure to develop

      19,500

      25,000 inspection, testing, and maintenance program or obtain

      FRA approval...................

      (b) Failure to comply with

      13,000

      20,500 provisions of the program......

      (c) Failure to ensure equipment

      9,500

      17,000 free of conditions which endanger safety of crew, passengers, or equipment.......

      (d) Specific safety inspections:

      (1)(i) Failure to perform

      19,500

      25,000

      Class I brake test or equivalent.................

      Page 57651

      (1)(ii) Partial failure to

      13,000

      20,500 perform Class I brake test or equivalent..............

      (2)(i) Failure to perform

      \1\ 9,500

      17,000 exterior mechanical inspection.................

      (2)(ii) Failure to perform

      \1\ 5,500

      10,000 interior mechanical inspection.................

      (g) Failure to perform

      9,500

      17,000 scheduled maintenance as required in program............

      (h) Failure to comply with

      13,000

      20,500 training, qualification and designation program............

      (i) Failure to develop or

      9,500

      17,000 comply with standard procedures for performing inspection, tests, and maintenance.........

      (j) Failure to conduct annual

      13,000

      20,500 review.........................

      (k) Failure to establish or

      13,000

      20,500 utilize quality control program

      Subpart G--Specific Safety Planning

      Requirements for Tier II Passenger

      Equipment 238.603 Safety plan:

      (a) Failure to develop safety

      13,000

      20,500 operating plan.................

      (b) Failure to develop

      13,000

      20,500 procurement plan...............

      (1)-(7) Failure to develop

      9,500

      17,000 portion of plan............

      (c) Failure to maintain

      5,500

      10,000 documentation..................

      \1\ A penalty may be assessed against an individual only for a willful violation. Generally when two or more violations of these regulations are discovered with respect to a single unit of passenger equipment that is placed or continued in service by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. However, failure to perform, with respect to a particular unit of passenger equipment, any of the inspections and tests required under subparts D and F of this part will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on that unit of passenger equipment.

      Moreover, the Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A. Failure to observe any condition for movement of defective equipment set forth in Sec. 238.17 will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the unit of passenger equipment at the time of movement. Failure to observe any condition for the movement of passenger equipment containing defective safety appliances, other than power brakes, set forth in Sec. 238.17(e) will deprive the railroad of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) contained in part 231 of this chapter or Sec. 238.429 concerning the substantive defective condition. The penalties listed for failure to perform the exterior and interior mechanical inspections and tests required under Sec. 238.303 and Sec. 238.305 may be assessed for each unit of passenger equipment contained in a train that is not properly inspected.

      Whereas, the penalties listed for failure to perform the brake inspections and tests under Sec. 238.313 through Sec. 238.319 may be assessed for each train that is not properly inspected.

      \2\ The penalty schedule uses section numbers from 49 CFR part 238. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 239--[AMENDED] 50. The authority citation for part 239 continues to read as follows:

      Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301, 21304, and 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(c), (g),

      (m). 51 Appendix A to Part 239 is advised to read as follows:

      Appendix A to part 239--Schedule of Civil Penalities \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Specific Requirements 239.101:

      (a) Failure of a railroad to

      $19,500

      $25,000 adopt\3\ a written emergency preparedness plan..............

      (a)(1) Failure of the plan to provide for:

      (i) Initial or on-board

      9,500

      17,000 notifications by an on- board crewmember...........

      (ii) Notification of outside

      9,500

      17,000 emergency responders by control center.............

      (a)(2) Failure of the plan to provide for:

      (i) Initial or periodic

      9,500

      17,000 training of on-board personnel..................

      (ii) Initial or periodic

      9,500

      17,000 training of control center personnel..................

      (iii) Completion of initial

      9,500

      17,000 training of all on-board and control center personnel by the specified date.......................

      (iv) Completion of initial

      9,500

      17,000 training of all newly hired on-board and control center personnel by the specified date.......................

      (v) Adequate procedures to

      9,500

      17,000 evaluate and test on-board and control center personnel for qualification under the emergency preparedness plan..........

      (vi) Adequate on-board

      9,500

      17,000 staffing...................

      (a)(3) Failure of a host

      9,500

      17,000 railroad involved in joint operations to coordinate applicable portions of the emergency preparedness plan with the railroad or railroads providing or operating a passenger train service operation......................

      (a)(4) Failure of the plan to address:

      (i) Readiness procedures for

      9,500

      17,000 emergencies in tunnels.....

      (ii) Readiness procedures

      9,500

      17,000 for emergencies on an elevated structure or in electrified territory......

      (iii) Coordination efforts

      9,500

      17,000 involving adjacent rail modes of transportation....

      (a)(5) Failure of the plan to

      ................ ................ address relationships with on- line emergency responders by providing for:

      (i) The development and

      9,500

      17,000 availability of training programs...................

      Page 57652

      (ii) Invitations to

      9,500

      17,000 emergency responders to participate in emergency simulations................

      (iii) Distribution of

      9,500

      17,000 applicable portions of the current emergency preparedness plan..........

      (a)(6) Failure of the plan to

      ................ ................ provide for, or the railroad to include on board each train and maintain and replace:

      (i) Emergency equipment.....

      9,500

      17,000

      (ii) First-aid kits.........

      9,500

      17,000

      (iii) Emergency lighting....

      9,500

      17,000

      (a)(7) Failure of the plan to

      9,500

      17,000 provide for emergency instructions inside each passenger car or to include additional safety awareness information.................... 239.103 Failure to conduct a

      9,500

      17,000 required full-scale simulation in accordance with the frequency schedule........................... 239.105 Debriefing and critique:

      (a) Failure to conduct a

      9,500

      17,000 debriefing and critique session after an emergency or full- scale simulation...............

      (d)(1) Failure to maintain a

      5,500

      10,000 record.........................

      (i) Failure to include date or

      2,500

      5,000 location of the emergency or simulation.....................

      (ii) Failure to include date

      2,500

      5,000 or location of the debriefing and critique session....................

      (iii) Failure to include

      2,500

      5,000 names of participants in the debriefing and critique session....................

      (d)(2) Failure to make record

      2,500

      5,000 available...................... 239.107 Emergency exits:

      (a)(1), (a)(2):

      ................ ................

      (i) Door not marked or

      9,500

      17,000 instructions not posted....

      (ii) Door improperly marked

      9,500

      17,000 or instructions improperly posted.....................

      (b)(1) Failure to provide for

      9,500

      17,000 scheduled inspection, maintenance, and repair of emergency windows and doors....

      (b)(2):

      (i) Failure to test a

      9,500

      17,000 representative sample of emergency windows..........

      (ii) Emergency windows

      5,500

      10,000 tested too infrequently....

      (b)(3) Failure to repair an

      9,500

      17,000 inoperative emergency window or door exit......................

      (c):

      (i) Failure to maintain a

      5,500

      10,000 record.....................

      (ii) Failure to make record

      2,500

      5,000 available..................

      (d)(1) Insufficient limits or

      5,500

      10,000 controls on accessibility to records........................

      (d)(2) Missing terminal.........

      2,500

      5,000

      (d)(3) Inability of railroad to

      2,500

      5,000 produce information in a usable format for immediate review....

      (d)(4) Failure by railroad to

      2,500

      5,000 designate an authorized representative.................

      (d)(5) Failure to make record

      2,500

      5,000 available......................

      Subpart C--Review, Approval, and

      Retention of Emergency Preparedness

      Plans 239.201 Filing and approval:

      (a):

      (i) Failure of a railroad to

      13,000

      20,500 file a written emergency preparedness plan..........

      (ii) Failure to designate a

      2,500

      5,000 primary person to contact for plan review............

      (iii) Failure of a railroad

      2,500

      5,000 to file an amendment to its plan.......................

      (b)(1), (b)(2):

      (i) Failure of a railroad to

      9,500

      17,000 correct a plan deficiency..

      (ii) Failure to provide FRA

      2,500

      5,000 with a corrected copy of the plan...................

      (b)(3):

      (i) Failure of a railroad to

      9,500

      17,000 correct an amendment deficiency.................

      (ii) Failure to file a

      2,500

      5,000 corrected plan amendment with FRA................... 239.203 Retention of emergency preparedness plan:

      (1) Failure to retain a copy

      9,500

      17,000 of the plan or an amendment to the plan................

      (2) Failure to make record

      2,500

      5,000 available..................

      Subpart D--Operational (Efficiency)

      Tests; Inspection of Records and

      Recordkeeping 239.301 Operational (efficiency) tests:

      (a) Failure to periodically

      9,500

      17,000 conduct operational

      (efficiency) tests of its on- board and control center employees......................

      (b)(1) Failure to maintain a

      5,500

      10,000 record.........................

      (b)(2) Record improperly

      2,500

      5,000 completed......................

      (c)(1) Failure to retain a copy

      2,500

      5,000 of the record..................

      (c)(2) Failure to make record

      2,500

      5,000 available...................... 239.303 Electronic recordkeeping:

      (a) Insufficient limits or

      5,500

      10,000 controls on accessibility to records........................

      (b) Missing terminal............

      2,500

      5,000

      (c) Inability of railroad to

      2,500

      5,000 produce information in a usable format for immediate review....

      (d) Failure by railroad to

      2,500

      5,000 designate an authorized representative.................

      (e) Failure to make record

      2,500

      5,000 available......................

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

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

      \2\ The penalty schedule uses section numbers from 49 CFR part 239. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      Page 57653

      \3\ This section also requires each railroad (subject to part 239) to comply with the adopted emergency preparedness plan. As the severity of a violation for a railroad's failure to comply with an emergency preparedness plan varies depending upon the provision with which the railroad failed to comply, please see the guideline penalty for the particular section of the regulation requiring that provision.

      PART 240--[AMENDED] 52. The authority citation for part 240 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49. 53. Appendix A to part 240 is revised to read as follows:

      Appendix A to Part 240--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      Subpart B--Component Elements of the

      Certification Process 240.101 Program failures:

      (a) Failure to have program.....

      $19,500

      $25,000

      (b) Program that fails to

      9,500

      17,000 address a subject.............. 240.103 Failure to:

      (a) Follow Appendix B...........

      2,500

      5,000

      (d) Resubmit, when directed by

      2,500

      5,000

      FRA............................ 240.104 Allowing uncertified person

      13,000

      20,500 to operate nontraditional locomotives........................ 240.105 Failure to have or execute

      9,500

      17,000 adequate procedure for selection of supervisors........................ 240.107 Classes of service:

      (a) Failure to designate classes

      9,500

      17,000 of service..................... 240.109 Limitations on considering prior conduct records:

      (a) Failure to have procedure

      9,500

      17,000 for determining eligibility....

      (e) Considering excluded data...

      9,500

      17,000

      (f), (g) Failure to provide

      9,500

      17,000 timely review opportunity...... 240.111 Furnishing motor vehicle records:

      (a) Failure to action required

      2,500

      5,000 to make information available..

      (b) Failure to request:.........

      (1) Local record............

      2,500

      5,000

      (2) NDR record..............

      2,500

      5,000

      (f) Failure to request

      2,500

      5,000 additional record..............

      (g) Failure to notify of absence

      2,500

      5,000 of license.....................

      (h) Failure to submit request in

      2,500

      5,000 timely manner..................

      (i) Failure to report within 48

      2,500

      5,000 hours or railroad taking certification action for not reporting earlier than 48 hours 240.113 Furnishing prior employment information:

      (a) Failure to take action

      2,500

      5,000 required to make information available......................

      (b) Failure to request record...

      2,500

      5,000 240.115 Criteria for considering prior motor vehicle conduct:

      (b) Considering excluded data...

      9,500

      17,000

      (c) Failure to:

      (1) Consider data..........

      19,500

      25,000

      (3)-(4) Properly act in

      5,500

      10,000 response to data........... 240.117 Consideration of operational rules compliance records:

      (a) Failure to have program and

      19,500

      25,000 procedures.....................

      (b)-(j) Failure to have adequate

      9,500

      17,000 program or procedure........... 240.119 Consideration of substance abuse/rules compliance records:

      (a) Failure to have program and

      19,500

      25,000 procedures.....................

      (b)-(e) Failure to have adequate

      9,500

      17,000 program or procedure........... 240.121 Failure to have adequate

      9,500

      17,000 procedure for determining acuity...

      (f) Failure of engineer to

      9,500

      17,000 notify......................... 240.123 Failure to have:

      (b) Adequate procedures for

      9,500

      17,000 continuing education...........

      (c) Adequate procedures for

      9,500

      17,000 training new engineers......... 240.125 Failure to have:

      (a) Adequate procedures for

      9,500

      17,000 testing knowledge..............

      (d) Adequate procedures for

      9,500

      17,000 documenting testing............ 240.127 Failure to have:

      (a) Adequate procedures for

      9,500

      17,000 evaluating skill performance...

      (c) Adequate procedures for

      9,500

      17,000 documenting skills testing..... 240.129 Failure to have:

      (a)-(b) Adequate procedures for

      9,500

      17,000 monitoring performance.........

      Subpart C--Implementation of the

      Certification Process 240.201 Schedule for implementation:

      (a) Failure to select

      2,500

      5,000 supervisors by specified date..

      (c) Failure to issue certificate

      2,500

      5,000 to engineer....................

      (d) Allowing uncertified person

      19,500

      25,000 to operate.....................

      (e)-(g) Certifying without

      9,500

      17,000 complying with subpart C.......

      (h)-(i) Failure to issue

      2,500

      5,000 certificate to engineer........ 240.203

      Page 57654

      (a) Designating a person as a supervisor without determining that

      (1) Person knows and

      9,500

      17,000 understands this part......

      (2) Person can test and

      19,500

      25,000 evaluate engineers.........

      (3) Person has experience to

      9,500

      17,000 prescribe remedies.........

      (b) Certifying a person without determining that:

      (1) Person meets the

      19,500

      25,000 eligibility criteria.......

      (2) Person meets the medical

      9,500

      17,000 criteria...................

      (3) Person has demonstrated

      9,500

      17,000 knowledge..................

      (4) Person has demonstrated

      9,500

      17,000 skills.....................

      (c) Certifying a person without determining that:

      (1) Person has completed

      9,500

      17,000 training program...........

      (2) Person meets the

      9,500

      17,000 eligibility criteria.......

      (3) Time has elapsed........

      9,500

      17,000 240.205 Procedures for determining eligibility based on prior safety conduct:

      (a) Selecting person lacking

      19,500

      25,000 eligibility....................

      (d) Failure to have basis for

      9,500

      17,000 taking action.................. 240.207 Ineligibility based on medical condition:

      (a) Selecting person lacking

      13,000

      20,500 proper acuity..................

      (b) Failure to have basis for

      2,500

      5,000 finding of proper acuity.......

      (c) Acuity examinations

      2,500

      5,000 performed by unauthorized person.........................

      (d) Failure to note need for

      2,500

      5,000 device to achieve acuity.......

      (e) Failure to use device needed

      2,500

      5,000 for proper acuity.............. 240.209 Demonstrating knowledge:

      (b) Failure to properly

      13,000

      20,500 determine knowledge............

      (c) Improper test procedure.....

      9,500

      17,000

      (d) Failure to document test

      2,500

      5,000 results........................

      (e) Allowing person to operate

      9,500

      17,000 despite test failure........... 240.211 Demonstrating skills:

      (b) Failure to properly

      9,500

      17,000 determine knowledge............

      (c) Improper test procedure.....

      5,500

      10,000

      (d) Failure to document test

      2,500

      5,000 results........................

      (e) Allowing person to operate

      9,500

      17,000 despite test failure........... 240.213 Completion of approved training program:

      (a) Failure to properly

      9,500

      17,000 determine......................

      (b) Failure to document

      5,500

      10,000 successful program completion.. 240.215 Supporting information:

      (a), (f)-(h) Failure to have a

      2,500

      5,000 record.........................

      (b) Failure to have complete

      2,500

      5,000 record.........................

      (i) Falsification of record. ................

      25,000 240.217 Time limits for making determinations:

      (a), (c) Exceeding time limit...

      5,500

      10,000 240.219 Denial of certification:

      (a) Failure to notify or provide

      5,500

      10,000 opportunity for comment........

      (c) Failure to notify, provide

      5,500

      10,000 data, or untimely notification. 240.221 Identification of persons:

      (a)-(c) Failure to have a record

      5,500

      10,000

      (d) Failure to update a record..

      5,500

      10,000

      (e)-(f) Failure to make a record

      2,500

      5,000 available...................... 240.223 Certificate criteria:

      (a) Improper certificate........

      2,500

      5,000

      (b) Failure to designate those

      2,500

      5,000 with signatory authority.......

      (d) Falsification of certificate ................

      25,000 240.225 Railroad relying on determination of another:

      (a) Failure to address in

      19,500

      25,000 program or failure to require newly hired engineer to take entire training program........

      (2) Reliance on wrong class

      5,500

      10,000 of service.................

      (3) Failure to familiarize

      5,500

      10,000 person with new operational territory..................

      (4) Failure to determine

      5,500

      10,000 knowledge..................

      (5) Failure to determine

      5,500

      10,000 performance skills......... 240.227 Railroad relying on requirements of a different country:

      (a) Joint operator reliance:

      (1) On person not employed..

      2,500

      5,000

      (2) On person who fails to

      2,500

      5,000 meet Canadian requirements.

      (b) Canadian railroad reliance:

      (1) On person not employed..

      2,500

      5,000

      (2) On person who fails to

      2,500

      5,000 meet Canadian requirements. 240.229 Requirements for joint operations territory:

      (a) Allowing uncertified person

      5,500

      10,000 to operate.....................

      (b) Certifying without making

      13,000

      20,500 determinations or relying on another railroad...............

      (c) Failure of

      (1) Controlling railroad

      19,500

      25,000 certifying without determining certification status, knowledge, skills, or familiarity with physical characteristics...

      Page 57655

      (2) Employing railroad to

      19,500

      25,000 determine person's certified and qualified status for controlling railroad...................

      (3) Person to notify

      19,500

      25,000 employing railroad of lack of qualifications..........

      (d) Failure to provide qualified

      5,500

      10,000 person......................... 240.231 Persons qualified on physical characteristics in other than joint operations:

      (a) Person unqualified, no

      19,500

      25,000 exception applies or railroad does not adequately address in program........................

      (b) Failure to have a pilot:

      (1) For engineer who has

      19,500

      25,000 never been qualified.......

      (2) For engineer previously

      9,500

      17,000 qualified..................

      Subpart D--Administration of the

      Certification Programs 240.301 Failure to have system for

      5,500

      10,000 certificate replacement............ 240.303 Monitoring operations:

      (a) Failure to have program.....

      19,500

      25,000

      (b) Failure to observe each

      2,500

      5,000 person annually................

      (c) Failure to test each person

      2,500

      5,000 annually.......................

      (d) Failure to test properly....

      2,500

      5,000 240.305 Prohibited conduct:

      (a) Unlawful:

      (1) Passing of stop signal..

      19,500

      25,000

      (2) Control of speed........

      19,500

      25,000

      (3) Brake tests.............

      19,500

      25,000

      (4) Occupancy of main track.

      19,500

      25,000

      (5) Tampering or operation

      19,500

      25,000 with disabled safety device

      (6) Supervisor, pilot, or

      19,500

      25,000 instructor fails to take appropriate action.........

      (b) Failure of engineer to:

      (1) Carry certificate.......

      2,500

      5,000

      (2) Display certificate when

      2,500

      5,000 requested..................

      (c) Failure of engineer to

      19,500

      25,000 notify railroad of limitations or railroad requiring engineer to exceed limitations..........

      (d) Failure of engineer to

      19,500

      25,000 notify railroad of denial or revocation..................... 240.307 Revocation of certification:

      (a) Failure to withdraw person

      13,000

      20,500 from service...................

      (b) Failure to notify, provide

      5,500

      10,000 hearing opportunity, or untimely procedures............

      (c)-(h) Failure of railroad to

      5,500

      10,000 comply with hearing or waiver procedures.....................

      (j) Failure of railroad to make

      5,500

      10,000 record.........................

      (k) Failure of railroad to

      13,000

      20,500 conduct reasonable inquiry or make good faith determination.. 240.309 Oversight Responsibility

      Report:

      (a) Failure to report or to

      2,500

      5,000 report on time.................

      (b)-(h) Incomplete or inaccurate

      5,500

      10,000 report.........................

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

      CFR part 209, appendix A.

      \2\ The penalty schedule uses section numbers from 49 CFR part 240. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

      PART 241--[AMENDED] 54. The authority citation for part 241 continues to read as follows:

      Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311; 28

      U.S.C. 2461, note; 49 CFR 1.49. 55. Appendix B to part 241 is revised to read as follows:

      Appendix B to Part 241--Schedule of Civil Penalties \1\

      Willful

      Section \2\

      Violation

      violation

      241.9:

      (a) Requiring or permitting

      $9,500

      $17,000 extraterritorial dispatching of a railroad operation...........

      (c) Failing to notify FRA about

      5,500

      10,000 extraterritorial dispatching of a railroad operation in an emergency situation............ 241.11 Conducting a railroad operation that is extraterritorially dispatched:

      (a)(1) Generally................

      9,500

      17,000

      (c) In an emergency situation--

      2,500

      5,000 where dispatching railroad fails to notify FRA of the extraterritorial dispatching... 241.13 Requiring or permitting track to be used for the conduct of a railroad operation that is extraterritorially dispatched:

      (a)(1) Generally................

      9,500

      17,000

      Page 57656

      (c) In an emergency situation--

      2,500

      5,000 where dispatching railroad fails to notify FRA of the extraterritorial dispatching...

      \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49

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

      \2\ The penalty schedule uses section numbers from 49 CFR part 241. If more than one item is listed as a type of violation of a given section, each item is also designated by a ``penalty code,'' which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined

      CFR and penalty code citation, should they differ.

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

      Karen J. Rae,

      Deputy Administrator.

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

      BILLING CODE 4910-06-P