Proposed Rule2025-12123
Prosecutorial Discretion of Enforcement Attorneys
Primary source
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Published
July 1, 2025
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This proposed rule would clarify that FRA's Office of the Chief Counsel has discretion to decline or dismiss a violation, such as a technical violation where challenged conduct does not raise a practical safety issue.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28609-28612]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12123]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2025-0077]
RIN 2130-AD11
Prosecutorial Discretion of Enforcement Attorneys
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
[[Page 28610]]
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This proposed rule would clarify that FRA's Office of the
Chief Counsel has discretion to decline or dismiss a violation, such as
a technical violation where challenged conduct does not raise a
practical safety issue.
DATES: Comments on the proposed rule must be received by September 2,
2025. FRA may consider comments received after that date, but only to
the extent practicable.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2025-0077 may be
submitted by going to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and following the
online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket
number (FRA-2025-0077), and Regulatory Identification Number (RIN) for
this rulemaking (2130-AD11). All comments received will be posted
without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>; this includes any
personal information. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the
online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT: Amanda Maizel, Attorney Adviser, FRA,
telephone: (202) 308-3753, email: <a href="/cdn-cgi/l/email-protection#07466a66696366294a666e7d626b4763687329606871"><span class="__cf_email__" data-cfemail="f4b599959a9095dab9959d8e9198b4909b80da939b82">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Consistent with the deregulatory agenda of President Donald J.
Trump and Secretary of Transportation Sean P. Duffy, which seeks to
unleash America's economic prosperity without compromising
transportation safety, FRA is reviewing its regulatory requirements in
parts 200 through 299 of title 49, Code of Federal Regulations (CFR).
As part of this effort, on Apr. 3, 2025, DOT issued a request for
information in which it asked the public to assist in identifying
existing regulations, guidance, paperwork requirements, and other
regulatory obligations that can be modified or repealed, consistent
with law, to ensure that DOT administrative actions do not undermine
the national interest and that DOT achieves meaningful burden reduction
while continuing to meet statutory obligations and ensure the safety of
the U.S. transportation system.\1\ DOT received 955 comments, including
some that were rail-related and specifically a comment from the
Association of American Railroads (AAR). In addition to other
proposals, AAR requested that FRA clarify in 49 CFR part 209 that FRA's
Office of the Chief Counsel has discretion to dismiss a technical
violation where the challenged conduct does not raise a practical
safety issue.
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\1\ 90 FR 14593 (Apr. 3, 2025).
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FRA intends to adopt this request and to clarify that attorneys in
the Office of the Chief Counsel have enforcement discretion in all
phases of a potential enforcement action. FRA has broad discretion to
enforce the Federal railroad safety laws and regulations, including
determining the appropriate method of addressing any violation it
finds.\2\ Accordingly, similar to the discretion that FRA has in
determining whether to transmit or decline an enforcement action, FRA
also has discretion to dismiss a violation, such as a technical
violation where the challenged conduct does not raise a practical
safety issue. Even where FRA has transmitted a violation and decides
not to dismiss it, FRA continues to have the discretion to reduce the
civil penalty, but not below the respective statutory minimum amount,
adjusted annually for inflation.\3\ This clarification would streamline
the enforcement process, relieve enforcement burdens on regulated
entities, and promote due process and fairness. In addition, this
proposal is consistent with the Mar. 11, 2025, DOT Memorandum,
Procedural Requirements for Enforcement Actions.\4\
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\2\ Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1025
(9th Cir. 1985) (finding ``nothing in the railroad safety
legislation to indicate Congress intended to make prosecutorial
discretion subject to judicial review,'' and upholding the dismissal
of a challenge to the Secretary of Transportation's safety plan that
stressed cooperation with railroads in finding and remedying safety
problems).
\3\ See Federal Civil Penalties Inflation Adjustment Act of
1990, Public Law 101-410, as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public
Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note.
\4\ See Procedural Requirements for Enforcement Actions, Mar.
11, 2025, available at <a href="https://www.transportation.gov/sites/dot.gov/files/2025-03/Procedural%20Requirements%20for%20DOT%20Enforcement%20Actions.Cote%20Memo.Signed.03-11-2025.pdf">https://www.transportation.gov/sites/dot.gov/files/2025-03/Procedural%20Requirements%20for%20DOT%20Enforcement%20Actions.Cote%20Memo.Signed.03-11-2025.pdf</a>.
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II. Section-by-Section Analysis
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of Federal Railroad Safety Laws
As discussed above, FRA proposes to clarify that the Office of the
Chief Counsel has discretion to decline to enforce a violation, such as
a technical violation where the challenged conduct does not raise a
practical safety issue. FRA proposes to add this statement to the
discussion of FRA's Civil Penalty Process in appendix A to part 209.
III. Regulatory Impact and Notices
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
FRA has considered the impact of this NPRM under E.O. 12866 (58 FR
51735, Oct. 4, 1993), Regulatory Planning and Review and DOT Regulatory
Policies and Procedures. The Office of Information and Regulatory
Affairs within the Office of Management and Budget (OMB) determined
that this NPRM is not a significant regulatory action under section
3(f) of E.O. 12866.
FRA analyzed the potential costs and benefits of this proposed
rule. This proposed rule would clarify that FRA's Office of the Chief
Counsel has discretion to decline or dismiss a violation, such as when
the challenged conduct does not raise a practical safety issue. By
providing this clarification, regulated entities would benefit from a
streamlined enforcement process, relief from enforcement burdens, and
the promotion of due process and fairness. This clarification would
also help to eliminate any confusion on the Office of the Chief
Counsel's discretionary authority to decline to enforce or to dismiss a
technical violation where the challenged conduct does not raise a
practical safety issue. FRA does not anticipate any costs from this
proposed rule, but welcomes comments from the public on the impacts of
this proposal.
B. E.O. 14192 (Unleashing Prosperity Through Deregulation)
E.O. 14192 (90 FR 9065, Jan. 31, 2025), Unleashing Prosperity
Through Deregulation, requires that for ``each new [E.O. 14192
regulatory action] issued, at least ten prior regulations be identified
for elimination.'' \5\ Implementation guidance for E.O. 14192 issued by
OMB (Memorandum M-25-20, Mar. 26, 2025) defines two different types of
E.O. 14192 actions: an E.O.
[[Page 28611]]
14192 deregulatory action, and an E.O. 14192 regulatory action.\6\
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\5\ Executive Office of the President. Executive Order 14192 of
January 31, 2025. Unleashing Prosperity Through Deregulation. 90 FR
9065-9067 (Feb. 6, 2025).
\6\ Executive Office of the President. Office of Management and
Budget. Guidance Implementing Section 3 of Executive Order 14192,
Titled ``Unleashing Prosperity Through Deregulation.'' Memorandum M-
25-20. Mar. 26, 2025.
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An E.O. 14192 deregulatory action is defined as ``an action that
has been finalized and has total costs less than zero.'' This proposed
rulemaking is expected to have total costs less than zero, and
therefore it would be considered an E.O. 14192 deregulatory action upon
issuance of a final rule. While FRA affirms that each amendment
proposed in this NPRM has a cost that is negligible or ``less than
zero'' consistent with E.O. 14192, FRA still requests comment on the
extent of the cost savings for the changes proposed in this NPRM.
C. Regulatory Flexibility Act and E.O. 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996,\7\
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. Accordingly, DOT policy requires an
analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
businesses. The term small entities comprises small businesses and not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000 (5 U.S.C. 601(6)).
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\7\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
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No regulatory flexibility analysis is required, however, if the
head of an Agency or an appropriate designee certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This proposed rule would not preclude small entities
from continuing practices that comply with part 209; it merely offers
clarity that could result in some benefits. By extending this
regulatory relief, many regulated entities, including small entities,
would experience benefits. Consequently, FRA certifies that the
proposed action would not have a significant economic impact on a
substantial number of small entities.
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FRA
wants to assist small entities in understanding this proposed rule so
they can better evaluate its effects on themselves and participate in
the rulemaking initiative. If the proposed rule would affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
consult the person listed under FOR FURTHER INFORMATION CONTACT.
D. Paperwork Reduction Act
This proposed rule offers regulatory flexibilities, and it contains
no new information collection requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520).
E. Environmental Assessment
FRA has analyzed this rule for the purposes of the National
Environmental Policy Act of 1969 (NEPA). In accordance with 42 U.S.C.
4336 and DOT NEPA Order 5610.1C, FRA has determined that this rule is
categorically excluded pursuant to 23 CFR 771.118(c)(4), ``[p]lanning
and administrative activities that do not involve or lead directly to
construction, such as: [p]romulgation of rules, regulations, and
directives.'' This rulemaking is not anticipated to result in any
environmental impacts, and there are no unusual or extraordinary
circumstances present in connection with this rulemaking.
Pursuant to section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties. FRA has also determined
that this rulemaking does not approve a project resulting in a use of a
resource protected by section 4(f).
F. Federalism Implications
This proposed rule will not have a substantial effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Thus, in accordance with E.O. 13132,
``Federalism'' (64 FR 43255, Aug. 10, 1999), preparation of a
Federalism Assessment is not warranted.
G. Unfunded Mandates Reform Act of 1995
This proposed rule would not result in the expenditure, in the
aggregate, of $100,000,000 or more, adjusted for inflation, in any one
year by State, local, or Indian Tribal governments, or the private
sector. Thus, consistent with section 202 of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1532), FRA is not required
to prepare a written statement detailing the effect of such an
expenditure.
H. Energy Impact
E.O. 13211 requires Federal agencies to prepare a Statement of
Energy Effects for any ``significant energy action.'' \8\ FRA has
evaluated this proposed rule in accordance with E.O. 13211 and
determined that this proposed rule is not a ``significant energy
action'' within the meaning of E.O. 13211.
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\8\ 66 FR 28355 (May 22, 2001).
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I. E.O. 13175 (Tribal Consultation)
FRA has evaluated this proposed rule in accordance with the
principles and criteria contained in E.O. 13175, Consultation and
Coordination with Indian Tribal Governments, dated November 6, 2000.
The proposed rule would not have a substantial direct effect on one or
more Indian tribes, would not impose substantial direct compliance
costs on Indian tribal governments, and would not preempt tribal laws.
Therefore, the funding and consultation requirements of E.O. 13175 do
not apply, and a tribal summary impact statement is not required.
J. International Trade Impact Assessment
The Trade Agreement Act of 1979 \9\ prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the U.S. Legitimate domestic
objectives, such as safety, are not considered unnecessary obstacles.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards. This
rulemaking is purely domestic in nature and is not expected to affect
trade opportunities for U.S. firms doing business overseas or for
foreign firms doing business in the U.S.
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\9\ 19 U.S.C. ch. 13.
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K. Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, as described in
the system of records notice, DOT/ALL-14 FDMS, accessible through
<a href="http://www.transportation.gov/privacy">www.transportation.gov/privacy</a>. To facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
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optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
L. Rulemaking Summary
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found at <a href="http://regulations.gov">regulations.gov</a>, Docket No. FRA-2025-0077, in the SUMMARY
section of this proposed rule.
List of Subjects in 49 CFR Part 209
Administrative practice and procedure, Enforcement, Hazardous
materials transportation, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
part 209 of chapter II, subtitle B of title 49, Code of Federal
Regulations as follows:
PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES
0
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 1.89.
0
2. Revise appendix A to part 209 in the section under the heading ``The
Civil Penalty Process'' to read as follows:
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws.
* * * * *
The Civil Penalty Process
* * * 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 include technical experts from both FRA and
the railroad as well as lawyers for both parties. Similar to the
discretion that the Office of the Chief Counsel has in determining
whether to transmit an enforcement action or to decline to prosecute
a recommended violation, the Office also has discretion to dismiss a
violation, such as a technical violation where the challenged
conduct does not raise a practical safety issue. Even if FRA
determines not to dismiss the violation, FRA continues to have the
discretion to reduce the penalty, but not below the relevant
statutory minimum amount. 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 email or over the phone, 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 payment is submitted to FRA's
accounting division covering the full amount agreed on.
* * * * *
Issued in Washington, DC.
Kyle D. Fields,
Chief Counsel.
[FR Doc. 2025-12123 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-06-P
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