Appendix A to Part 209 - Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws
49:4.1.1.1.4.8.5.1.1 : Appendix A
Appendix A to Part 209 - Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws
The Federal Railroad Administration (“FRA”) enforces the Federal
railroad safety statutes under delegation from the Secretary of
Transportation. See 49 CFR 1.49(c), (d), (f), (g), (m), and (oo).
Those statutes include 49 U.S.C. ch. 201-213 and uncodified
provisions of the Rail Safety Improvement Act of 2008 (Pub. L.
110-432, Div. A, 122 Stat. 4848). On July 4, 1994, the day before
the enactment of Public Law 103-272, 108 Stat. 745, the Federal
railroad safety statutes included the Federal Railroad Safety Act
of 1970 (“Safety Act”) (then codified at 45 U.S.C. 421 et
seq.), and a group of statutes enacted prior to 1970 referred
to collectively herein as the “older safety statutes”: the Safety
Appliance Acts (then codified at 45 U.S.C. 1-16); the Locomotive
Inspection Act (then codified at 45 U.S.C. 22-34); the Accident
Reports Act (then codified at 45 U.S.C. 38-43); the Hours of
Service Act (then codified at 45 U.S.C. 61-64b); and the Signal
Inspection Act (then codified at 49 App. U.S.C. 26). Effective July
5, 1994, Public Law 103-272 repealed certain general and permanent
laws related to transportation, including these rail safety laws
(the Safety Act and the older safety statutes), and reenacted them
as revised by that law but without substantive change in title 49
of the U.S. Code, ch. 201-213. Regulations implementing the Federal
rail safety laws are found at 49 CFR parts 209-244. The Rail Safety
Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988)
(“RSIA”) raised the maximum civil penalties available under the
railroad safety laws and made individuals liable for willful
violations of those laws. FRA also enforces the hazardous materials
transportation laws (49 U.S.C. ch. 51 and uncodified provisions)
(formerly the Hazardous Materials Transportation Act, 49 App.
U.S.C. 1801 et seq., which was also repealed by Public Law
103-272, July 5, 1994, and reenacted as revised but without
substantive change) as it pertains to the shipment or
transportation of hazardous materials by rail.
The Civil Penalty Process
The front lines in the civil penalty process are the FRA safety
inspectors: FRA employs over 300 inspectors, and their work is
supplemented by approximately 100 inspectors from states
participating in enforcement of the federal rail safety laws. These
inspectors routinely inspect the equipment, track, and signal
systems and observe the operations of the nation's railroads. They
also investigate hundreds of complaints filed annually by those
alleging noncompliance with the laws. When inspection or complaint
investigation reveals noncompliance with the laws, each
noncomplying condition or action is listed on an inspection report.
Where the inspector determines that the best method of promoting
compliance is to assess a civil penalty, he or she prepares a
violation report, which is essentially a recommendation to the FRA
Office of Chief Counsel to assess a penalty based on the evidence
provided in or with the report.
In determining which instances of noncompliance merit penalty
recommendations, the inspector considers:
(1) The inherent seriousness of the condition or action;
(2) The kind and degree of potential safety hazard the condition
or action poses in light of the immediate factual situation;
(3) Any actual harm to persons or property already caused by the
condition or action;
(4) The offending person's (i.e., railroad's or individual's)
general level of current compliance as revealed by the inspection
as a whole;
(5) The person's recent history of compliance with the relevant
set of regulations, especially at the specific location or division
of the railroad involved;
(6) Whether a remedy other than a civil penalty (ranging from a
warning on up to an emergency order) is more appropriate under all
of the facts; and
(7) Such other factors as the immediate circumstances make
relevant.
The civil penalty recommendation is reviewed at the regional
level by a specialist in the subject matter involved, who requires
correction of any technical flaws and determines whether the
recommendation is consistent with national enforcement policy in
similar circumstances. Guidance on that policy in close cases is
sometimes sought from Office of Safety headquarters. Violation
reports that are technically and legally sufficient and in accord
with FRA policy are sent from the regional office to the Office of
Chief Counsel.
The exercise of this discretion at the field and regional levels
is a vital part of the enforcement process, ensuring that the
exacting and time-consuming civil penalty process is used to
address those situations most in need of the deterrent effect of
penalties. FRA exercises that discretion with regard to individual
violators in the same manner it does with respect to railroads.
The Office of Chief Counsel's Safety Division reviews each
violation report it receives from the regional offices for legal
sufficiency and assesses penalties based on those allegations that
survive that review. Historically, the Division has returned to the
regional offices less than five percent of the reports submitted in
a given year, often with a request for further work and
resubmission.
Where the violation was committed by a railroad, penalties are
assessed by issuance of a penalty demand letter that summarizes the
claims, encloses the violation report with a copy of all evidence
on which FRA is relying in making its initial charge, and explains
that the railroad may pay in full or submit, orally or in writing,
information concerning any defenses or mitigating factors. The
railroad safety statutes, in conjunction with the Federal Claims
Collection Act, authorize FRA to adjust or compromise the initial
penalty claims based on a wide variety of mitigating factors. This
system permits the efficient collection of civil penalties in
amounts that fit the actual offense without resort to
time-consuming and expensive litigation. Over its history, FRA has
had to request that the Attorney General bring suit to collect a
penalty on only a very few occasions.
Once penalties have been assessed, the railroad is given a
reasonable amount of time to investigate the charges. Larger
railroads usually make their case before FRA in an informal
conference covering a number of case files that have been issued
and investigated since the previous conference. Thus, in terms of
the negotiating time of both sides, economies of scale are achieved
that would be impossible if each case were negotiated separately.
The settlement conferences, held either in Washington or another
mutually agreed on location, include technical experts from both
FRA and the railroad as well as lawyers for both parties. In
addition to allowing the two sides to make their cases for the
relative merits of the various claims, these conferences also
provide a forum for addressing current compliance problems. Smaller
railroads usually prefer to handle negotiations through the mail or
over the telephone, often on a single case at a time. Once the two
sides have agreed to an amount on each case, that agreement is put
in writing and a check is submitted to FRA's accounting division
covering the full amount agreed on.
Cases brought under the Hazardous Materials Transportation Act,
49 App. U.S.C. 1801 et seq., are, due to certain statutory
requirements, handled under more formal administrative procedures.
See 49 CFR part 209, subpart B.
Civil Penalties Against Individuals
The RSIA amended the penalty provisions of the railroad safety
statutes to make them applicable to any “person (including a
railroad and any manager, supervisor, official, or other employee
or agent of a railroad)” who fails to comply with the regulations
or statutes. E.g., section 3 of the RSIA, amending section 209 of
the Safety Act. However, the RSIA also provided that civil
penalties may be assessed against individuals “only for willful
violations.”
Thus, any individual meeting the statutory description of
“person” is liable for a civil penalty for a willful violation of,
or for willfully causing the violation of, the safety statutes or
regulations. Of course, as has traditionally been the case with
respect to acts of noncompliance by railroads, the FRA field
inspector exercises discretion in deciding which situations call
for a civil penalty assessment as the best method of ensuring
compliance. The inspector has a range of options, including an
informal warning, a more formal warning letter issued by the Safety
Division of the Office of Chief Counsel, recommendation of a civil
penalty assessment, recommendation of disqualification or
suspension from safety-sensitive service, or, under the most
extreme circumstances, recommendation of emergency action.
The threshold question in any alleged violation by an individual
will be whether that violation was “willful.” (Note that section
3(a) of the RSIA, which authorizes suspension or disqualification
of a person whose violation of the safety laws has shown him or her
to be unfit for safety-sensitive service, does not require a
showing of willfulness. Regulations implementing that provision are
found at 49 CFR part 209, subpart D.) FRA proposed this standard of
liability when, in 1987, it originally proposed a statutory
revision authorizing civil penalties against individuals. FRA
believed then that it would be too harsh a system to collect fines
from individuals on a strict liability basis, as the safety
statutes permit FRA to do with respect to railroads. FRA also
believed that even a reasonable care standard (e.g., the Hazardous
Materials Transportation Act's standard for civil penalty
liability, 49 U.S.C. 1809(a)) would subject individuals to civil
penalties in more situations than the record warranted. Instead,
FRA wanted the authority to penalize those who violate the safety
laws through a purposeful act of free will.
Thus, 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. Accordingly, neither a showing of evil
purpose (as is sometimes required in certain criminal cases) nor
actual knowledge of the law is necessary to prove a willful
violation, but a level of culpability higher than negligence must
be demonstrated. See Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111 (1985); Brock v. Morello
Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and
Donovan v. Williams Enterprises, Inc., 744 F.2d 170
(D.C. Cir. 1984).
Reckless disregard for the requirements of the law can be
demonstrated in many ways. Evidence that a person was trained on or
made aware of the specific rule involved - or, as is more likely,
its corresponding industry equivalent - would suffice. Moreover,
certain requirements are so obviously fundamental to safe
railroading (e.g., the prohibition against disabling an automatic
train control device) that any violation of them, regardless of
whether the person was actually aware of the prohibition, should be
seen as reckless disregard of the law. See Brock, supra, 809
F.2d 164. Thus, a lack of subjective knowledge of the law is no
impediment to a finding of willfulness. If it were, a mere denial
of the content of the particular regulation would provide a
defense. Having proposed use of the word “willful,” FRA believes it
was not intended to insulate from liability those who simply claim
- contrary to the established facts of the case - they had no
reason to believe their conduct was wrongful.
A willful violation entails knowledge of the facts constituting
the violation, but actual, subjective knowledge need not be
demonstrated. It will suffice to show objectively what the alleged
violator must have known of the facts based on reasonable
inferences drawn from the circumstances. For example, a person
shown to have been responsible for performing an initial terminal
air brake test that was not in fact performed would not be able to
defend against a charge of a willful violation simply by claiming
subjective ignorance of the fact that the test was not performed.
If the facts, taken as a whole, demonstrated that the person was
responsible for doing the test and had no reason to believe it was
performed by others, and if that person was shown to have acted
with actual knowledge of or reckless disregard for the law
requiring such a test, he or she would be subject to a civil
penalty.
This definition of “willful” fits squarely within the parameters
for willful acts laid out by Congress in the RSIA and its
legislative history. Section 3(a) of the RSIA amends the Safety Act
to provide:
For purposes of this section, an individual shall be deemed not
to have committed a willful violation where such individual has
acted pursuant to the direct order of a railroad official or
supervisor, under protest communicated to the supervisor. Such
individual shall have the right to document such protest.
As FRA made clear when it recommended legislation granting
individual penalty authority, a railroad employee should not have
to choose between liability for a civil penalty or insubordination
charges by the railroad. Where an employee (or even a supervisor)
violates the law under a direct order from a supervisor, he or she
does not do so of his or her free will. Thus, the act is not a
voluntary one and, therefore, not willful under FRA's definition of
the word. Instead, the action of the person who has directly
ordered the commission of the violation is itself a willful
violation subjecting that person to a civil penalty. As one of the
primary sponsors of the RSIA said on the Senate floor:
This amendment also seeks to clarify that the purpose of
imposing civil penalties against individuals is to deter those who,
of their free will, decide to violate the safety laws. The purpose
is not to penalize those who are ordered to commit violations by
those above them in the railroad chain of command. Rather, in such
cases, the railroad official or supervisor who orders the others to
violate the law would be liable for any violations his order caused
to occur. One example is the movement of railroad cars or
locomotives that are actually known to contain certain defective
conditions. A train crew member who was ordered to move such
equipment would not be liable for a civil penalty, and his
participation in such movements could not be used against him in
any disqualification proceeding brought by FRA.
133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator
Exon).
It should be noted that FRA will apply the same definition of
“willful” to corporate acts as is set out here with regard to
individual violations. Although railroads are strictly liable for
violations of the railroad safety laws and deemed to have knowledge
of those laws, FRA's penalty schedules contain, for each
regulation, a separate amount earmarked as the initial assessment
for willful violations. Where FRA seeks such an extraordinary
penalty from a railroad, it will apply the definition of “willful”
set forth above. In such cases - as in all civil penalty cases
brought by FRA - the aggregate knowledge and actions of the
railroad's managers, supervisors, employees, and other agents will
be imputed to the railroad. Thus, in situations that FRA decides
warrant a civil penalty based on a willful violation, FRA will have
the option of citing the railroad and/or one or more of the
individuals involved. In cases against railroads other than those
in which FRA alleges willfulness or in which a particular
regulation imposes a special standard, the principles of strict
liability and presumed knowledge of the law will continue to
apply.
The RSIA gives individuals the right to protest a direct order
to violate the law and to document the protest. FRA will consider
such protests and supporting documentation in deciding whether and
against whom to cite civil penalties in a particular situation.
Where such a direct order has been shown to have been given as
alleged, and where such a protest is shown to have been
communicated to the supervisor, the person or persons communicating
it will have demonstrated their lack of willfulness. Any
documentation of the protest will be considered along with all
other evidence in determining whether the alleged order to violate
was in fact given.
However, the absence of such a protest will not be viewed as
warranting a presumption of willfulness on the part of the employee
who might have communicated it. The statute says that a person who
communicates such a protest shall be deemed not to have acted
willfully; it does not say that a person who does not communicate
such a protest will be deemed to have acted willfully. FRA would
have to prove from all the pertinent facts that the employee
willfully violated the law. Moreover, the absence of a protest
would not be dispositive with regard to the willfulness of a
supervisor who issued a direct order to violate the law. That is,
the supervisor who allegedly issued an order to violate will not be
able to rely on the employee's failure to protest the order as a
complete defense. Rather, the issue will be whether, in view of all
pertinent facts, the supervisor intentionally and voluntarily
ordered the employee to commit an act that the supervisor knew
would violate the law or acted with reckless disregard for whether
it violated the law.
FRA exercises the civil penalty authority over individuals
through informal procedures very similar to those used with respect
to railroad violations. However, FRA varies those procedures
somewhat to account for differences that may exist between the
railroad's ability to defend itself against a civil penalty charge
and an individual's ability to do so. First, when the field
inspector decides that an individual's actions warrant a civil
penalty recommendation and drafts a violation report, the inspector
or the regional director informs the individual in writing of his
or her intention to seek assessment of a civil penalty and the fact
that a violation report has been transmitted to the Office of Chief
Counsel. This ensures that the individual has the opportunity to
seek counsel, preserve documents, or take any other necessary steps
to aid his or her defense at the earliest possible time.
Second, if the Office of Chief Counsel concludes that the case
is meritorious and issues a penalty demand letter, that letter
makes clear that FRA encourages discussion, through the mail, over
the telephone or in person, of any defenses or mitigating factors
the individual may wish to raise. That letter also advises the
individual that he or she may wish to obtain representation by an
attorney and/or labor representative. During the negotiation stage,
FRA considers each case individually on its merits and gives due
weight to whatever information the alleged violator provides.
Finally, in the unlikely event that a settlement cannot be
reached, FRA sends the individual a letter warning of its intention
to request that the Attorney General sue for the initially proposed
amount and giving the person a sufficient interval (e.g., 30 days)
to decide if that is the only alternative.
FRA believes that the intent of Congress would be violated if
individuals who agree to pay a civil penalty or are ordered to do
so by a court are indemnified for that penalty by the railroad or
another institution (such as a labor organization). Congress
intended that the penalties have a deterrent effect on individual
behavior that would be lessened, if not eliminated, by such
indemnification.
Although informal, face-to-face meetings are encouraged during
the negotiation of a civil penalty charge, the RSIA does not
require that FRA give individuals or railroads the opportunity for
a formal, trial-type administrative hearing as part of the civil
penalty process. FRA does not provide that opportunity because such
administrative hearings would be likely to add significantly to the
costs an individual would have to bear in defense of a safety claim
(and also to FRA's enforcement expenses) without shedding any more
light on what resolution of the matter is fair than would the
informal procedures set forth here. Of course, should an individual
or railroad decide not to settle, that person would be entitled to
a trial de novo when FRA, through the Attorney General, sued to
collect the penalty in the appropriate United States district
court.
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
Federal rail safety laws, regulations, or orders. Id., secs.
3, 13-15, 17. Pursuant to sec. 16 of RSIA, the penalty for a
violation of the Hours of Service Act 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, and regulations and
orders under those statutes, the maximum penalty was raised from
$2,500 to $10,000 per violation, except that where a grossly
negligent violation or a pattern of repeated violations has created
an imminent hazard of death or injury to persons, or has caused
death or injury, the penalty was raised to a maximum of $20,000 per
violation (“the aggravated maximum penalty”).
The Rail Safety Enforcement and Review Act (RSERA), Pub. L.
102-365, 106 Stat. 972, enacted in 1992, increased the maximum
penalty from $1,000 to $10,000, and provided for an aggravated
maximum penalty of $20,000 for a violation of the Hours of Service
Act, making these penalty amounts uniform with those of FRA's other
safety laws, regulations, and orders. RSERA also increased the
minimum civil monetary penalty from $250 to $500 for all of FRA's
safety regulatory provisions and orders. Id., sec. 4(a).
The Federal Civil Penalties Inflation Adjustment Act of 1990,
Pub. L. 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 periodically adjusted,
pursuant to the Inflation Act, through rulemaking.
The Rail Safety Improvement Act of 2008 (“RSIA of 2008”),
enacted October 16, 2008, raised 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. The December 30, 2008
final rule also adjusted the minimum civil penalty from $550 to
$650 pursuant to Inflation Act requirements. A correcting amendment
to the civil penalty provisions in 49 CFR part 232 was published on
April 6, 2009.
Effective June 25, 2012, the aggravated maximum penalty was
raised from $100,000 to $105,000 pursuant to the Inflation Act.
On November 2, 2015, President Barack Obama signed the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015
(the 2015 Inflation Act). Pub. L. 114-74, Sec. 701. Under the 2015
Inflation Act, agencies must make a catch-up adjustment for civil
monetary penalties with the new penalty levels published by July 1,
2016, to take effect no later than August 1, 2016. Moving forward,
agencies must make annual inflationary adjustments, starting
January 15, 2017, based on Office of Management and Budget
guidance. Under the 2015 Inflation Act, effective April 3, 2017,
the minimum civil monetary penalty was raised from $839 to $853,
the ordinary maximum civil monetary penalty was raised from $27,455
to $27,904, and the aggravated maximum civil monetary penalty was
raised from $109,819 to $111,616. Effective November 27, 2018, the
minimum civil monetary penalty was raised from $853 to $870, the
ordinary maximum civil monetary penalty was raised from $27,904 to
$28,474, and the aggravated maximum civil monetary penalty was
raised from $111,616 to $113,894. Effective July 31, 2019, the
minimum civil monetary penalty was raised from $870 to $892, the
ordinary maximum civil monetary penalty was raised from $28,474 to
$29,192, and the aggravated maximum civil monetary penalty was
raised from $113,894 to $116,766. Effective January 11, 2021, the
minimum civil monetary penalty was raised from $892 to $908, the
ordinary maximum civil monetary penalty was raised from $29,192 to
$29,707, and the aggravated maximum civil monetary penalty was
raised from $116,766 to $118,826.
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 was historically issued as an
appendix to the relevant part of the Code of Federal Regulations.
Schedules are now published on FRA's website at
www.fra.dot.gov. For each regulation in this part or order,
the schedule shows two amounts within the $908 to $29,707 range in
separate columns, the first for ordinary violations, the second for
willful violations (whether committed by railroads or individuals).
In one instance - 49 CFR 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.
The schedule amounts 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. The Senate report on the bill that became the RSIA
stated:
It is expected that the Secretary would act expeditiously to set
penalty levels commensurate with the severity of the violations,
with imposition of the maximum penalty reserved for violation of
any regulation where warranted by exceptional circumstances. S.
Rep. No. 100-153, 10th Cong., 2d Sess. 8 (1987).
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 $118,826 per
violation where a pattern of repeated violations or a grossly
negligent violation has created an imminent hazard of death or
injury or has caused death or injury. FRA indicates in the penalty
demand letter when it uses the higher penalty amount instead of the
penalty amount listed in the schedule.
The Extent And Exercise Of FRA's Safety Jurisdiction
The Safety Act and, as amended by the RSIA, the older safety
statutes apply to “railroads.” Section 202(e) of the Safety Act
defines railroad as follows:
The term “railroad” as used in this title means all forms of
non-highway ground transportation that run on rails or
electromagnetic guideways, including (1) commuter or other
short-haul rail passenger service in a metropolitan or suburban
area, as well as any commuter rail service which was operated by
the Consolidated Rail Corporation as of January 1, 1979, and (2)
high speed ground transportation systems that connect metropolitan
areas, without regard to whether they use new technologies not
associated with traditional railroads. Such term does not include
rapid transit operations within an urban area that are not
connected to the general railroad system of transportation.
Prior to 1988, the older safety statutes had applied only to
common carriers engaged in interstate or foreign commerce by rail.
The Safety Act, by contrast, was intended to reach as far as the
Commerce Clause of the Constitution (i.e., to all railroads that
affect interstate commerce) rather than be limited to common
carriers actually engaged in interstate commerce. In reporting out
the bill that became the 1970 Safety Act, the House Committee on
Interstate and Foreign Commerce stated:
The Secretary's authority to regulate extends to all areas of
railroad safety. This legislation is intended to encompass all
those means of rail transportation as are commonly included within
the term. Thus, “railroad” is not limited to the confines of
“common carrier by railroad” as that language is defined in the
Interstate Commerce Act.
H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970).
FRA's jurisdiction was bifurcated until, in 1988, the RSIA
amended the older safety statutes to make them coextensive with the
Safety Act by making them applicable to railroads and incorporating
the Safety Act's definition of the term (e.g.,45 U.S.C. 16, as
amended). The RSIA also made clear that FRA's safety jurisdiction
is not confined to entities using traditional railroad technology.
The new definition of “railroad” emphasized that all non-highway
high speed ground transportation systems - regardless of technology
used - would be considered railroads.
Thus, with the exception of self-contained urban rapid transit
systems, FRA's statutory jurisdiction extends to all entities that
can be construed as railroads by virtue of their providing
non-highway ground transportation over rails or electromagnetic
guideways, and will extend to future railroads using other
technologies not yet in use. For policy reasons, however, FRA does
not exercise jurisdiction under all of its regulations to the full
extent permitted by statute. Based on its knowledge of where the
safety problems were occurring at the time of its regulatory action
and its assessment of the practical limitations on its role, FRA
has, in each regulatory context, decided that the best option was
to regulate something less than the total universe of
railroads.
For example, all of FRA's regulations exclude from their reach
railroads whose entire operations are confined to an industrial
installation (i.e., “plant railroads”), such as those in steel
mills that do not go beyond the plant's boundaries. E.g., 49 CFR
225.3(a)(1) (accident reporting regulations). Some rules exclude
passenger operations that are not part of the general railroad
system (such as some tourist railroads) only if they meet the
definition of “insular.” E.g., 49 CFR 225.3(a)(3) (accident
reporting) and 234.3(c) (grade crossing signal safety). Other
regulations exclude not only plant railroads but all other
railroads that are not operated as a part of, or over the lines of,
the general railroad system of transportation. E.g., 49 CFR 214.3
(railroad workplace safety).
By “general railroad system of transportation,” FRA refers to
the network of standard gage track over which goods may be
transported throughout the nation and passengers may travel between
cities and within metropolitan and suburban areas. Much of this
network is interconnected, so that a rail vehicle can travel across
the nation without leaving the system. However, mere physical
connection to the system does not bring trackage within it. For
example, trackage within an industrial installation that is
connected to the network only by a switch for the receipt of
shipments over the system is not a part of the system.
Moreover, portions of the network may lack a physical connection
but still be part of the system by virtue of the nature of
operations that take place there. For example, the Alaska Railroad
is not physically connected to the rest of the general system but
is part of it. The Alaska Railroad exchanges freight cars with
other railroads by car float and exchanges passengers with
interstate carriers as part of the general flow of interstate
commerce. Similarly, an intercity high speed rail system with its
own right of way would be part of the general system although not
physically connected to it. The presence on a rail line of any of
these types of railroad operations is a sure indication that such
trackage is part of the general system: the movement of freight
cars in trains outside the confines of an industrial installation,
the movement of intercity passenger trains, or the movement of
commuter trains within a metropolitan or suburban area. Urban rapid
transit operations are ordinarily not part of the general system,
but may have sufficient connections to that system to warrant
exercise of FRA's jurisdiction (see discussion of passenger
operations, below). Tourist railroad operations are not inherently
part of the general system and, unless operated over the lines of
that system, are subject to few of FRA's regulations.
The boundaries of the general system are not static. For
example, a portion of the system may be purchased for the exclusive
use of a single private entity and all connections, save perhaps a
switch for receiving shipments, severed. Depending on the nature of
the operations, this could remove that portion from the general
system. The system may also grow, as with the establishment of
intercity service on a brand new line. However, the same trackage
cannot be both inside and outside of the general system depending
upon the time of day. If trackage is part of the general system,
restricting a certain type of traffic over that trackage to a
particular portion of the day does not change the nature of the
line - it remains the general system.
Of course, even where a railroad operates outside the general
system, other railroads that are definitely part of that system may
have occasion to enter the first railroad's property (e.g., a major
railroad goes into a chemical or auto plant to pick up or set out
cars). In such cases, the railroad that is part of the general
system remains part of that system while inside the installation;
thus, all of its activities are covered by FRA's regulations during
that period. The plant railroad itself, however, does not get swept
into the general system by virtue of the other railroad's activity,
except to the extent it is liable, as the track owner, for the
condition of its track over which the other railroad operates
during its incursion into the plant. Of course, in the opposite
situation, where the plant railroad itself operates beyond the
plant boundaries on the general system, it becomes a railroad with
respect to those particular operations, during which its equipment,
crew, and practices would be subject to FRA's regulations.
In some cases, the plant railroad leases track immediately
adjacent to its plant from the general system railroad. Assuming
such a lease provides for, and actual practice entails, the
exclusive use of that trackage by the plant railroad and the
general system railroad for purposes of moving only cars shipped to
or from the plant, the lease would remove the plant railroad's
operations on that trackage from the general system for purposes of
FRA's regulations, as it would make that trackage part and parcel
of the industrial installation. (As explained above, however, the
track itself would have to meet FRA's standards if a general system
railroad operated over it. See 49 CFR 213.5 for the rules on how an
owner of track may assign responsibility for it.) A lease or
practice that permitted other types of movements by general system
railroads on that trackage would, of course, bring it back into the
general system, as would operations by the plant railroad
indicating it was moving cars on such trackage for other than its
own purposes (e.g., moving cars to neighboring industries for
hire).
FRA exercises jurisdiction over tourist, scenic, and excursion
railroad operations whether or not they are conducted on the
general railroad system. There are two exceptions: (1) operations
of less than 24-inch gage (which, historically, have never been
considered railroads under the Federal railroad safety laws); and
(2) operations that are off the general system and “insular”
(defined below).
Insularity is an issue only with regard to tourist operations
over trackage outside of the general system used exclusively for
such operations. FRA considers a tourist operation to be insular if
its operations are limited to a separate enclave in such a way that
there is no reasonable expectation that the safety of any member of
the public'except a business guest, a licensee of the tourist
operation or an affiliated entity, or a trespasser'would be
affected by the operation. A tourist operation will not be
considered insular if one or more of the following exists on its
line:
•A public highway-rail crossing that is in use;
•An at-grade rail crossing that is in use;
•A bridge over a public road or waters used for commercial
navigation; or
•A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
When tourist operations are conducted on the general system, FRA
exercises jurisdiction over them, and all of FRA's pertinent
regulations apply to those operations unless a waiver is granted or
a rule specifically excepts such operations (e.g., the passenger
equipment safety standards contain an exception for these
operations, 49 CFR 238.3(c)(3), even if conducted on the general
system). When a tourist operation is conducted only on track used
exclusively for that purpose it is not part of the general system.
The fact that a tourist operation has a switch that connects it to
the general system does not make the tourist operation part of the
general system if the tourist trains do not enter the general
system and the general system railroad does not use the tourist
operation's trackage for any purpose other than delivering or
picking up shipments to or from the tourist operation itself.
If a tourist operation off the general system is insular, FRA
does not exercise jurisdiction over it, and none of FRA's rules
apply. If, however, such an operation is not insular, FRA exercises
jurisdiction over the operation, and some of FRA's rules (i.e.,
those that specifically apply beyond the general system to such
operations) will apply. For example, FRA's rules on accident
reporting, steam locomotives, and grade crossing signals apply to
these non-insular tourist operations (see 49 CFR 225.3, 230.2 amd
234.3), as do all of FRA's procedural rules (49 CFR parts 209, 211,
and 216) and the Federal railroad safety statutes themselves.
In drafting safety rules, FRA has a specific obligation to
consider financial, operational, or other factors that may be
unique to tourist operations. 49 U.S.C. 20103(f). Accordingly, FRA
is careful to consider those factors in determining whether any
particular rule will apply to tourist operations. Therefore,
although FRA asserts jurisdiction quite broadly over these
operations, we work to ensure that the rules we issue are
appropriate to their somewhat special circumstances.
It is important to note that FRA's exercise of its regulatory
authority on a given matter does not preclude it from subsequently
amending its regulations on that subject to bring in railroads
originally excluded. More important, the self-imposed restrictions
on FRA's exercise of regulatory authority in no way constrain its
exercise of emergency order authority under section 203 of the
Safety Act. That authority was designed to deal with imminent
hazards not dealt with by existing regulations and/or so dangerous
as to require immediate, ex parte action on the government's part.
Thus, a railroad excluded from the reach of any of FRA's
regulations is fully within the reach of FRA's emergency order
authority, which is coextensive with FRA's statutory jurisdiction
over all railroads.
FRA's Policy on Jurisdiction Over Passenger Operations
Under the Federal railroad safety laws, FRA has jurisdiction
over all railroads except “rapid transit operations in an urban
area that are not connected to the general railroad system of
transportation.” 49 U.S.C. 20102. Within the limits imposed by this
authority, FRA exercises jurisdiction over all railroad passenger
operations, regardless of the equipment they use, unless FRA has
specifically stated below an exception to its exercise of
jurisdiction for a particular type of operation. This policy is
stated in general terms and does not change the reach of any
particular regulation under its applicability section. That is,
while FRA may generally assert jurisdiction over a type of
operation here, a particular regulation may exclude that kind of
operation from its reach. Therefore, this statement should be read
in conjunction with the applicability sections of all of FRA's
regulations.
Intercity Passenger Operations
FRA exercises jurisdiction over all intercity passenger
operations. Because of the nature of the service they provide,
standard gage intercity operations are all considered part of the
general railroad system, even if not physically connected to other
portions of the system. Other intercity passenger operations that
are not standard gage (such as a magnetic levitation system) are
within FRA's jurisdiction even though not part of the general
system.
Commuter Operations
FRA exercises jurisdiction over all commuter operations.
Congress apparently intended that FRA do so when it enacted the
Federal Railroad Safety Act of 1970, and made that intention very
clear in the 1982 and 1988 amendments to that act. FRA has
attempted to follow that mandate consistently. A commuter system's
connection to other railroads is not relevant under the rail safety
statutes. In fact, FRA considers commuter railroads to be part of
the general railroad system regardless of such connections.
FRA will presume that an operation is a commuter railroad if
there is a statutory determination that Congress considers a
particular service to be commuter rail. For example, in the
Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress
listed specific commuter authorities. If that presumption does not
apply, and the operation does not meet the description of a system
that is presumptively urban rapid transit (see below), FRA will
determine whether a system is commuter or urban rapid transit by
analyzing all of the system's pertinent facts. FRA is likely to
consider an operation to be a commuter railroad if:
•The system serves an urban area, its suburbs, and more distant
outlying communities in the greater metropolitan area,
•The system's primary function is moving passengers back and
forth between their places of employment in the city and their
homes within the greater metropolitan area, and moving passengers
from station to station within the immediate urban area is, at
most, an incidental function, and
•The vast bulk of the system's trains are operated in the
morning and evening peak periods with few trains at other
hours.
Examples of commuter railroads include Metra and the Northern
Indiana Commuter Transportation District in the Chicago area;
Virginia Railway Express and MARC in the Washington area; and
Metro-North, the Long Island Railroad, New Jersey Transit, and the
Port Authority Trans Hudson (PATH) in the New York area.
Other Short Haul Passenger Service
The federal railroad safety statutes give FRA authority over
“commuter or other short-haul railroad passenger service in a
metropolitan or suburban area.” 49 U.S.C. 20102. This means that,
in addition to commuter service, there are other short-haul types
of service that Congress intended that FRA reach. For example, a
passenger system designed primarily to move intercity travelers
from a downtown area to an airport, or from an airport to a resort
area, would be one that does not have the transportation of
commuters within a metropolitan area as its primary purpose. FRA
would ordinarily exercise jurisdiction over such a system as “other
short-haul service” unless it meets the definition of urban rapid
transit and is not connected in a significant way to the general
system.
Urban Rapid Transit Operations
One type of short-haul passenger service requires special
treatment under the safety statutes: “rapid transit operations in
an urban area.” Only these operations are excluded from FRA's
jurisdiction, and only if they are “not connected to the general
railroad system.” FRA will presume that an operation is an urban
rapid transit operation if the system is not presumptively a
commuter railroad (see discussion above) the operation is a subway
or elevated operation with its own track system on which no other
railroad may operate, has no highway-rail crossings at grade,
operates within an urban area, and moves passengers from station to
station within the urban area as one of its major functions.
Where neither the commuter railroad nor urban rapid transit
presumptions applies, FRA will look at all of the facts pertinent
to a particular operation to determine its proper characterization.
FRA is likely to consider an operation to be urban rapid transit
if:
•The operation serves an urban area (and may also serve its
suburbs),
•Moving passengers from station to station within the urban
boundaries is a major function of the system and there are multiple
station stops within the city for that purpose (such an operation
could still have the transportation of commuters as one of its
major functions without being considered a commuter railroad),
and
•The system provides frequent train service even outside the
morning and evening peak periods.
Examples of urban rapid transit systems include the Metro in the
Washington, D.C. area, CTA in Chicago, and the subway systems in
New York, Boston, and Philadelphia. The type of equipment used by
such a system is not determinative of its status. However, the
kinds of vehicles ordinarily associated with street railways,
trolleys, subways, and elevated railways are the types of vehicles
most often used for urban rapid transit operations.
FRA can exercise jurisdiction over a rapid transit operation
only if it is connected to the general railroad system, but need
not exercise jurisdiction over every such operation that is so
connected. FRA is aware of several different ways that rapid
transit operations can be connected to the general system. Our
policy on the exercise of jurisdiction will depend upon the nature
of the connection(s). In general, a connection that involves
operation of transit equipment as a part of, or over the lines of,
the general system will trigger FRA's exercise of jurisdiction.
Below, we review some of the more common types of connections and
their effect on the agency's exercise of jurisdiction. This is not
meant to be an exhaustive list of connections.
Rapid Transit Connections Sufficient To Trigger FRA's Exercise of
Jurisdiction
Certain types of connections to the general railroad system will
cause FRA to exercise jurisdiction over the rapid transit line
to the extent it is connected. FRA will exercise
jurisdiction over the portion of a rapid transit operation that is
conducted as a part of or over the lines of the general system. For
example, rapid transit operations are conducted on the lines of the
general system where the rapid transit operation and other railroad
use the same track. FRA will exercise its jurisdiction over the
operations conducted on the general system. In situations involving
joint use of the same track, it does not matter that the rapid
transit operation occupies the track only at times when the
freight, commuter, or intercity passenger railroad that shares the
track is not operating. While such time separation could provide
the basis for waiver of certain of FRA's rules (see 49 CFR part
211), it does not mean that FRA will not exercise jurisdiction.
However, FRA will exercise jurisdiction over only the portions of
the rapid transit operation that are conducted on the general
system. For example, a rapid transit line that operates over the
general system for a portion of its length but has significant
portions of street railway that are not used by conventional
railroads would be subject to FRA's rules only with respect to the
general system portion. The remaining portions would not be subject
to FRA's rules. If the non-general system portions of the rapid
transit line are considered a “rail fixed guideway system” under 49
CFR part 659, those rules, issued by the Federal Transit
Administration (FTA), would apply to them.
Another connection to the general system sufficient to warrant
FRA's exercise of jurisdiction is a railroad crossing at grade
where the rapid transit operation and other railroad cross each
other's tracks. In this situation, FRA will exercise its
jurisdiction sufficiently to assure safe operations over the
at-grade railroad crossing. FRA will also exercise jurisdiction to
a limited extent over a rapid transit operation that, while not
operated on the same tracks as the conventional railroad, is
connected to the general system by virtue of operating in a shared
right-of-way involving joint control of trains. For example, if a
rapid transit line and freight railroad were to operate over a
movable bridge and were subject to the same authority concerning
its use (e.g., the same tower operator controls trains of both
operations), FRA will exercise jurisdiction in a manner sufficient
to ensure safety at this point of connection. Also, where transit
operations share highway-rail grade crossings with conventional
railroads, FRA expects both systems to observe its signal rules.
For example, FRA expects both railroads to observe the provision of
its rule on grade crossing signals that requires prompt reports of
warning system malfunctions. See 49 CFR part 234. FRA believes
these connections present sufficient intermingling of the rapid
transit and general system operations to pose significant hazards
to one or both operations and, in the case of highway-rail grade
crossings, to the motoring public. The safety of highway users of
highway-rail grade crossings can best be protected if they get the
same signals concerning the presence of any rail vehicles at the
crossing and if they can react the same way to all rail
vehicles.
Rapid Transit Connections Not Sufficient To Trigger FRA's Exercise
of Jurisdiction
Although FRA could exercise jurisdiction over a rapid transit
operation based on any connection it has to the general railroad
system, FRA believes there are certain connections that are too
minimal to warrant the exercise of its jurisdiction. For example, a
rapid transit system that has a switch for receiving shipments from
the general system railroad is not one over which FRA would assert
jurisdiction. This assumes that the switch is used only for that
purpose. In that case, any entry onto the rapid transit line by the
freight railroad would be for a very short distance and solely for
the purpose of dropping off or picking up cars. In this situation,
the rapid transit line is in the same situation as any shipper or
consignee; without this sort of connection, it cannot receive or
offer goods by rail.
Mere use of a common right-of-way or corridor in which the
conventional railroad and rapid transit operation do not share any
means of train control, have a rail crossing at grade, or operate
over the same highway-rail grade crossings would not trigger FRA's
exercise of jurisdiction. In this context, the presence of
intrusion detection devices to alert one or both carriers to
incursions by the other one would not be considered a means of
common train control. These common rights of way are often designed
so that the two systems function completely independently of each
other. FRA and FTA will coordinate with rapid transit agencies and
railroads wherever there are concerns about sufficient intrusion
detection and related safety measures designed to avoid a collision
between rapid transit trains and conventional equipment.
Where these very minimal connections exist, FRA will not
exercise jurisdiction unless and until an emergency situation
arises involving such a connection, which is a very unlikely event.
However, if such a system is properly considered a rail fixed
guideway system, FTA's rules (49 CFR part 659) will apply to
it.
Coordination of the FRA and FTA Programs
FTA's rules on rail fixed guideway systems (49 CFR part 659)
apply to any rapid transit systems or portions thereof not subject
to FRA's rules. On rapid transit systems that are not sufficiently
connected to the general railroad system to warrant FRA's exercise
of jurisdiction (as explained above), FTA's rules will apply
exclusively. On those rapid transit systems that are connected to
the general system in such a way as warrant exercise of FRA's
jurisdiction, only those portions of the rapid transit system that
are connected to the general system will generally be subject to
FRA's rules.
A rapid transit railroad may apply to FRA for a waiver of any
FRA regulations. See 49 CFR part 211. FRA will seek FTA's views
whenever a rapid transit operation petitions FRA for a waiver of
its safety rules. In granting or denying any such waiver, FRA will
make clear whether its rules do not apply to any segments of the
operation so that it is clear where FTA's rules do apply.
Extraordinary Remedies
While civil penalties are the primary enforcement tool under the
federal railroad safety laws, more extreme measures are available
under certain circumstances. FRA has authority to issue orders
directing compliance with the Federal Railroad Safety Act, the
Hazardous Materials Transportation Act, the older safety statutes,
or regulations issued under any of those statutes. See 45 U.S.C.
437(a) and (d), and 49 App. U.S.C. 1808(a). Such an order may issue
only after notice and opportunity for a hearing in accordance with
the procedures set forth in 49 CFR part 209, subpart C. FRA
inspectors also have the authority to issue a special notice
requiring repairs where a locomotive or freight car is unsafe for
further service or where a segment of track does not meet the
standards for the class at which the track is being operated. Such
a special notice may be appealed to the regional director and the
FRA Administrator. See 49 CFR part 216, subpart B.
FRA may, through the Attorney General, also seek injunctive
relief in federal district court to restrain violations or enforce
rules issued under the railroad safety laws. See 45 U.S.C. 439 and
49 App. U.S.C. 1810.
FRA also has the authority to issue, after notice and an
opportunity for a hearing, an order prohibiting an individual from
performing safety-sensitive functions in the rail industry for a
specified period. This disqualification authority is exercised
under procedures found at 49 CFR part 209, subpart D.
Criminal penalties are available for knowing violations of 49
U.S.C. 5104(b), or for willful or reckless violations of the
Federal hazardous materials transportation law or a regulation
issued under that law. See 49 U.S.C. Chapter 51, and 49 CFR
209.131, 133. The Accident Reports Act, 45 U.S.C. 39, also contains
criminal penalties.
Perhaps FRA's most sweeping enforcement tool is its authority to
issue emergency safety orders “where an unsafe condition or
practice, or a combination of unsafe conditions or practices, or
both, create an emergency situation involving a hazard of death or
injury to persons * * *” 45 U.S.C. 432(a). After its issuance, such
an order may be reviewed in a trial-type hearing. See 49 CFR 211.47
and 216.21 through 216.27. The emergency order authority is unique
because it can be used to address unsafe conditions and practices
whether or not they contravene an existing regulatory or statutory
requirement. Given its extraordinary nature, FRA has used the
emergency order authority sparingly.
[53 FR 52920, Dec. 29, 1988, as amended at 63 FR 11619, Mar. 10,
1998; 64 FR 62864, Nov. 17, 1999; 65 FR 42544, July 10, 2000; 69 FR
30592, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 72 FR 51196, Sept.
6, 2007; 73 FR 79701, Dec. 30, 2008; 77 FR 24418, Apr. 24, 2012; 81
FR 43108, July 1, 2016; 82 FR 16131, Apr. 3, 2017; 83 FR 60745,
Nov. 27, 2018; 84 FR 23733, May 23, 2019; 84 FR 37072, July 31,
2019; 86 FR 1757, Jan. 11, 2021]