Appendix C to Part 218 - Statement of Agency Enforcement Policy on Tampering
49:4.1.1.1.13.8.11.1.16 : Appendix C
Appendix C to Part 218 - Statement of Agency Enforcement Policy on
Tampering
The Rail Safety Improvement Act of 1988 (Pub. L. 100-342,
enacted June 22, 1988) (“RSIA”) raised the maximum civil penalties
available under the railroad safety laws and made individuals
liable for willful violations of those laws. Section 21 of the RSIA
requires that FRA adopt regulations addressing three related but
distinct aspects of problems that can occur when safety devices are
tampered with or disabled. It requires that FRA make it unlawful
for (i) any individual to willfully tamper with or disable a
device; (ii) any individual to knowingly operate or permit to be
operated a train with a tampered or disabled device; and (iii) any
railroad to operate such a train.
Because the introduction of civil penalties against individuals
brings FRA's enforcement of the rail safety laws into a new era and
because the changes being introduced by this regulation are so
significant, FRA believes that it is advisable to set forth the
manner in which it will exercise its enforcement authority under
this regulation.
Safety Devices Covered by This Rule
FRA has employed a functional description of what constitutes a
safety device under this rule. FRA's wording effectively identifies
existing equipment and is sufficiently expansive to cover equipment
that may appear in the future, particularly devices associated with
advanced train control systems currently undergoing research
testing.
FRA has been advised by portions of the regulated community that
its functional definition has some potential for confusing people
who read the rule without the benefit of the preamble discussions
concerning the meaning of this definition. Since this rule is
specifically intended to preclude misconduct by individuals, FRA
wants this rule to be easily comprehended by all who read it. To
achieve that clarity, FRA has decide to specify which types of
equipment it considers to be within the scope of this rule and
provide some examples of equipment that is not covered. In
addition, FRA is ready and willing to respond in writing to any
inquiry about any other devices that a party believes are treated
ambiguously under this rule. This regulation applies to a variety
of devices including equipment known as “event recorders,”
“alerters,” “deadman controls,” “automatic cab signals,” “cab
signal whistles,” “automatic train stop equipment,” and “automatic
train control equipment.” FRA does not consider the following
equipment to be covered by this rule: Radios; monitors for
end-of-train devices; bells or whistles that are not connected to
alerters, deadman pedals, or signal system devices; fans for
controlling interior temperature of locomotive cabs; and locomotive
performance monitoring devices, unless they record data such as
train speed and air brake operations. Although FRA considers such
devices beyond the scope of the regulation, this does not imply
that FRA condones the disabling of such devices. FRA will not
hesitate to include such devices at a later date should instances
of tampering with these devices be discovered. FRA does not
currently perceive a need to directly proscribe tampering with such
devices because there is no history of these devices being
subjected to tampering.
Subsequent Operators of Trains With Disabled Devices
Section 218.57 addresses instances in which one individual has
tampered with a safety device and a second individual (a
“subsequent operator”) knowingly operates a train or permits it to
be operated, notwithstanding the presence of the disabled or
tampered-with unit. The most common occurrence addressed by this
provision is the situation in which a train crew encounters a
locomotive with a safety device that has been tampered with prior
to the crew's assuming responsibility for the locomotive. FRA has
structured this provision and its attendant enforcement policy to
reflect the fact that instances in which one individual encounters
a locomotive that someone else has tampered with are relatively
infrequent occurrences.
FRA's regulatory prohibition for subsequent operator conduct
reflects the legal standard for individual culpability set forth in
the RSIA. Under the relevant statutory standard (“knowingly
operates or permits to be operated a train on which such devices
have been tampered with or disabled by another person”) - now
incorporated into § 218.57 - individuals could be held to a simple
negligence standard of conduct, i.e., a standard of reasonable care
under the circumstances. FRA's conclusion about the proper
interpretation of the word “knowingly” stems from both normal
canons of statutory construction and analysis of decisional law
concerning the use of similar statutory constructs in the civil
penalty context. It is also consistent with other Departmental
interpretations of the word as used in similar contexts. (See 49
CFR 107.299, defining “knowingly” under the Hazardous Materials
Transportation Act, 49 App. U.S.C. 1801 et seq.)
Under that statutory language, the responsible members of the
crew could be culpable if either (1) due to their failure to
exercise reasonable care, they failed to determine that the safety
device was not functioning, or (2) having ascertained that the
device was not functioning, still elected to operate the train.
Similarly, railroad supervisors who permit or direct that a train
with a disabled device be operated after having learned that the
safety device is not functioning or after having failed to use
reasonable care in the performance of their duties could also be
subject to sanction.
However, as a matter of enforcement policy, application of a
negligence standard in this particular context presently appears
unwarranted. We have seen no evidence of an employee's negligent
failure to detect another employee's tampering having caused a
safety problem. FRA can effectively attack the known dimensions of
the tampering problem by employing an enforcement policy that
limits its enforcement actions to situations where individuals
clearly had actual knowledge of the disabled device and
intentionally operated the train notwithstanding that
knowledge.
Therefore, FRA will not take enforcement action against an
individual under § 218.57 absent a showing of such actual knowledge
of the facts. Actual, subjective knowledge need not be
demonstrated. It will suffice to show objectively that the alleged
violator must have known the facts based on reasonable inferences
drawn from the circumstances. For example, it is reasonable to
infer that a person knows about something plainly in sight on the
locomotive he is operating. Also, unlike the case where willfulness
must be shown (see FRA's statement of policy at 49 CFR part 209,
appendix A), knowledge of or reckless disregard for the law need
not be shown to make out a violation of § 218.57. The knowledge
relevant here is knowledge of the facts constituting the violation,
not knowledge of the law.
Should FRA receive evidence indicating that a stricter
enforcement policy is necessary to address the tampering problem,
it will revise its enforcement policy to permit enforcement actions
based only on a showing of the subsequent operator's negligent
failure to detect the tampering, as the relevant provision of the
RSIA permits it to do now. Any such change in enforcement policy
will become effective only after publication of a revised version
of this appendix.
[54 FR 5492, Feb. 3, 1989. Redesignated and amended at 58 FR 43293,
Aug. 16, 1993]