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Proposed Rule2025-12124

Amendments to the Federal Railroad Administration's Procedures for Service of Documents in Railroad Safety Enforcement Proceedings

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Published

July 1, 2025

Issuing agencies

Transportation DepartmentFederal Railroad Administration

Abstract

This proposed rule would update FRA's railroad safety enforcement procedures and rules of practice to require electronic service of documents. This proposed rule would also establish procedures to implement new authority regarding civil penalties for alleged Federal railroad safety violations. Finally, this proposal would make other necessary administrative updates, such as correcting addresses.

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 28612-28622]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12124]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 209

[Docket No. FRA-2022-0085]
RIN 2130-AC93

Amendments to the Federal Railroad Administration's Procedures
for Service of Documents in Railroad Safety Enforcement Proceedings

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This proposed rule would update FRA's railroad safety
enforcement procedures and rules of practice to require electronic
service of documents. This proposed rule would also establish
procedures to implement new authority regarding civil penalties for
alleged Federal railroad safety violations. Finally, this proposal
would make other necessary administrative updates, such as correcting
addresses.

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-2022-0085 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-2022-0085), and Regulatory Identification Number (RIN) for
this rulemaking (2130-AC93). 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: Veronica Chittim, Senior Attorney,
Office of Safety Law, Office of the Chief Counsel, FRA, 1200 New Jersey
Avenue SE, Washington, DC 20590 (telephone 202-480-3410),
<a href="/cdn-cgi/l/email-protection#0771627568696e646629646f6e73736e6a4763687329606871"><span class="__cf_email__" data-cfemail="384e5d4a5756515b59165b50514c4c5155785c574c165f574e">[email&#160;protected]</span></a>; or Lucinda Henriksen, Senior Advisor, Office
of Railroad Safety, FRA (telephone 202-657-2842),
<a href="/cdn-cgi/l/email-protection#ee829b8d87808a8fc0868b809c87859d8b80ae8a819ac0898198"><span class="__cf_email__" data-cfemail="f09c8593999e9491de98959e82999b83959eb0949f84de979f86">[email&#160;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, and as described in more detail below, this
proposed rule would update FRA's railroad safety enforcement procedures
and rules of practice to require electronic service of documents;
establish procedures to implement new authority regarding civil
penalties for alleged Federal railroad safety violations; and make
other necessary administrative updates, such as correcting addresses.
In 1977, FRA established 49 CFR part 209, which set out certain
procedures for carrying out FRA's safety enforcement mission. 42 FR
56742 (Oct. 28, 1977). Part 209 currently provides procedures for the
assessment of civil penalties pursuant to the Federal hazardous
materials (hazmat) transportation safety laws, 49 U.S.C. chapter 51, in
subpart B; compliance orders pursuant to 49 U.S.C. 5121(a) and/or
20111(b) in subpart C; and administrative proceedings relating to the
determination of an individual's fitness for performing safety-
sensitive functions under 49 U.S.C. 20111(c) (individual liability) in
subpart D. Subpart A includes general provisions that apply to each of
these subparts.\1\
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\1\ Part 209 also includes subpart E, which sets forth
provisions regarding the submission of remedial action reports by
railroads, and subpart F, which deals with the review of rail
routing decisions.

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[[Page 28613]]

Part 209 divides procedures for the service of documents into two
sections, with Sec. 209.7 concerning the service of subpoenas, and
Sec. 209.5 concerning the service of all other documents in
proceedings governed by part 209. Id. at 56743. Among other things,
Sec. 209.5 regulates the service of documents in hazmat civil penalty
assessments, compliance orders, and individual liability proceedings.
While appendix A to part 209 details the procedures for non-hazmat
civil penalty assessments, those procedures do not include any specific
requirements for how documents may be transmitted to respondents.
FRA has updated part 209's service provisions only once, in 1989,
to prescribe procedures for disqualifying railroad employees from
performing safety-sensitive functions and permit service by first-class
mail of motions and requests for admissions. 54 FR 42894 (Oct. 18,
1989). To account for technological changes that have occurred since
then, conform FRA's procedures for hazmat and non-hazmat assessments,
align FRA's service provisions with those at other agencies,\2\ and
help agency operations to continue, without interruption, during
emergencies, this proposed rule would modernize part 209's provisions
and other FRA procedures regarding service to require service through
electronic methods of transmission. By serving documents
electronically, parties to proceedings under part 209 can expedite
document delivery and reduce printing and mailing costs.
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\2\ See, e.g., 49 CFR 535.9(b)(6)(ii) (providing that the
National Highway Transportation Safety Administration can serve
Notice of Violations with respect to its Medium- and Heavy-Duty
Vehicle Fuel Efficiency Program by electronic mail); 14 CFR 302.7
(allowing for service in aviation economic proceedings before DOT to
be performed by electronic mail); 18 CFR 385.2010(g) (requiring the
Federal Energy Regulatory Commission to serve all documents ``by
electronic means, unless such means are impractical, in which case
service shall be made by United States mail'').
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This proposal would also establish procedures in part 209 to
implement new authority regarding civil penalties provided in section
22418 of the Infrastructure Investment and Jobs Act, Public Law 117-58
(Nov. 15, 2021), codified at 49 U.S.C. 21301(a). This statutory
authority allows FRA to administratively resolve civil penalty
assessments alleging violations under FRA's railroad safety authority.
Congress provided FRA with the authority to resolve these civil
penalty matters with an administrative hearing, which: (1) aligns FRA's
authority and procedures with those of other DOT modal administrations,
such as the Federal Aviation Administration and the Pipeline and
Hazardous Materials Safety Administration (see, e.g., 49 U.S.C. 5123(b)
and 46301(c)(1)); (2) creates procedural and economic efficiencies in
civil penalty enforcement matters under the railroad safety laws that
are not otherwise paid or compromised; (3) ensures due process; (4)
encourages compliance and responsiveness from regulated entities; (5)
allows for the composition of an administrative record in the event of
litigation; and (6) promotes safety. To implement this authority, this
proposed rule would establish administrative procedures similar to
those for hazmat cases (49 CFR part 209, subpart B), in a new subpart G
of part 209.
This NPRM would also make miscellaneous updates to web and email
addresses to ensure they are accurate. Finally, the proposed rule would
adjust language in FRA regulations to ensure information gets to the
agency subject matter expert in the relevant technical discipline.

II. Section-by-Section Analysis

Part 209

Sec. 209.1 Purpose
In Sec. 209.1, FRA proposes to update the relevant citations
regarding FRA's rail safety and hazardous materials authority. The
provisions previously found in 49 CFR 1.49 are now found in 49 CFR 1.88
and 1.89. FRA proposes to revise Sec. 209.1(a) and (b) and remove (c)
entirely, as the citations in Sec. 209.1 are obsolete.
Sec. 209.5 Service
This proposal would restructure 49 CFR 209.5, to update paragraph
(a) to require the service of documents through electronic methods of
delivery, such as email, whenever possible. FRA would expect all
documents to be served by electronic means, unless such means are
impossible or otherwise unavailable. FRA proposes that only in
circumstances where electronic methods of delivery are impossible,
would service be permitted by U.S. mail or in person. FRA proposes that
service will not be effective if the party making service receives
indication that the attempted service did not reach the person to be
served (e.g., an electronic transmission auto-reply message states the
electronic communication was undeliverable to the recipient). This
proposed rule would also reformat paragraph (a) for clarity and to
align with the proposed updated paragraph (c), which details when
service is effective.
FRA proposes to update paragraph (c) to make clear when service
will be deemed completed. This paragraph expands on existing paragraph
(c) to clearly delineate when service as listed in paragraph (a)
becomes effective. FRA proposes to require that the date of service by
an electronic method of transmission is the date of transmission. In
the event service is not made by an electronic method of transmission
and service is made by physical mail, FRA proposes that the date of
service would be the postmark date.
FRA proposes to move the language in existing paragraph (e) to
paragraph (d). FRA would add language in a revised paragraph (e) to
address how dates for service would be determined. This proposed
language is consistent with the language used in parts 240 and 242,
providing that when service must be effected within a particular
timeframe, the date certain when service must be completed will be
determined in accordance with the computation of time provisions in
Rule 6 of the Federal Rules of Civil Procedure (FRCP), as amended. The
``as amended'' after the reference to the FRCP would allow for the most
current version of the FRCP to be applied.
Sec. 209.6 Requests for Admission
In Sec. 209.6(a), FRA proposes to add subpart G to the list of
subparts to which this section applies.
Sec. 209.7 Subpoenas; Witness Fees
This NPRM would amend 49 CFR 209.7, which governs subpoenas issued
under part 209. In Sec. 209.7(a) and (j), FRA proposes to add subpart
G to the list of subparts to which this section applies. FRA would
modify paragraphs (c) and (d), which discuss methods of service of
subpoenas, to require service via the same method of electronic
transmission as the proposed amended Sec. 209.5 provides. FRA also
proposes to remove the methods of in-person service or service by mail
for subpoenas, except where electronic service is impossible.
Sec. 209.8 Depositions in Formal Proceedings
In Sec. 209.8(a), FRA proposes to add subpart G to the list of
subparts to which this section applies.
Sec. 209.9 Filing
This proposed rule would amend Sec. 209.9 to replace the physical
mailing address for the Assistant Chief Counsel for Safety with an
email address (<a href="/cdn-cgi/l/email-protection#531501121f3634323f13373c277d343c25"><span class="__cf_email__" data-cfemail="feb8acbfb29b999f92be9a918ad0999188">[email&#160;protected]</span></a>) to accommodate electronic submissions.
FRA would also add subpart G to the list of subparts to which this
section applies. Finally, to

[[Page 28614]]

reduce burdens, FRA would remove the requirement that any materials be
submitted ``in duplicate.''
Sec. 209.13 Consolidation
In Sec. 209.13, FRA proposes to add subpart G to the list of
subparts to which this section applies.
Sec. 209.15 Rules of Evidence
In Sec. 209.15, FRA would add subpart G to the list of subparts to
which this section applies.
Sec. 209.105 Notice of Probable Violation
FRA proposes to update the web address in Sec. 209.105(a) from
<a href="http://www.fra.dot.gov">www.fra.dot.gov</a> to <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>. FRA also proposes to
update the references from ``Chief Counsel'' to ``Office of the Chief
Counsel.''
Sec. 209.109 Payment of Penalty; Compromise
FRA proposes to amend Sec. 209.109(a) to update the mailing and
overnight delivery addresses for payments. FRA would also correct a
typographical error in Sec. 209.109(b), updating the word
``contracting'' to ``contacting,'' and update the reference to the
``Office of the Chief Counsel'' rather than the ``Chief Counsel.''
Sec. 209.303 Coverage
FRA proposes to amend Sec. 209.303(c)(3) to account for
regulations issued since the provision was last revised in 2009, and a
comparable change was made.\3\ FRA proposes to change the language from
``parts 213 through 241 of this title'' to ``parts 213 through 299 of
this title.'' This change would now expressly include regulations found
in additional parts, such as parts 242, 243, 245, 246, 270, 271, and
272.
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\3\ See 74 FR 23329, 23331 (``The existing provision only refers
to parts 213 through 236. Because parts 238 through 241 have been
added to the Code of Federal Regulations since the last amendment of
this provision, it is necessary to make this technical amendment for
accuracy and clarity'').
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Sec. 209.335 Penalties
To avoid the need to update this section every time the civil
penalty amounts are adjusted for inflation, FRA proposes to change
Sec. 209.335(a) and (b) by replacing references to specific penalty
amounts with general references to the minimum civil monetary penalty
and ordinary maximum civil monetary penalty. FRA would add language to
this section referring readers to 49 CFR part 209, appendix A, where
FRA will continue to specify statutorily provided civil penalty amounts
updated for inflation.
Sec. 209.405 Reporting of Remedial Actions
This proposed rule would amend Sec. 209.405(a)(3) to require
railroads to submit a required remedial action report electronically
via email to the FRA inspector, instead of by first-class mail.
Sec. 209.407 Delayed Reports
This proposed rule would amend Sec. 209.407(a)(2) to require
railroads to submit an explanation of a delayed remedial action report
electronically to the FRA inspector, instead of by first-class mail.

Part 209, Subpart G--Enforcement, Hearing, and Appeal Procedures for
Rail Safety Violations

FRA proposes to amend 49 CFR part 209 to add a new subpart G,
Enforcement, Hearing, and Appeal Procedures for Rail Safety Violations.
The proposed language mirrors the procedures in part 209, subpart B,
Hazardous Materials, but would apply the procedures to railroad safety
violations, rather than hazardous materials violations. As described in
the background section above, these proposed procedures would implement
new statutory authority in 49 U.S.C. 21301(a) regarding railroad safety
civil penalty assessments.
Sec. 209.601 Civil Penalties Generally
The proposed language in section 209.601 would describe the purpose
of subpart G generally, as prescribing rules of procedure for the
assessment of civil penalties per the Federal railroad safety laws, 49
U.S.C. chapters 201 through 213.
Sec. 209.603 Minimum and Maximum Penalties
Section 209.603 would refer to the minimum and maximum civil
penalties for railroad safety violations. These penalties are set by
statute (49 U.S.C. ch. 213) and are subject to annual inflation
adjustments.
Sec. 209.605 Demand Letter
Section 209.605 would outline the required content for each demand
letter.
Sec. 209.607 Reply
Section 209.607 is proposed to contain procedures for a
respondent's reply to a demand letter, to include payment, informal
response, and hearing options.
Sec. 209.609 Payment of Penalty; Compromise
This section would contain instructions for making a payment and
allowing for compromise of a civil penalty assessment.
Sec. 209.611 Informal Response and Assessment
Section 209.611 proposes to explain the process for how a
respondent may respond informally to a demand letter.
Sec. 209.613 Request for Hearing
Section 209.613 proposes to explain the process for how a
respondent may request a hearing in response to a demand letter.
Sec. 209.615 Hearing
Section 209.615 would contain the hearing procedures should a
respondent request a hearing in response to a demand letter.
Sec. 209.617 Presiding Officer's Decision
Section 209.617 would contain the procedures for the presiding
officer's decision following a hearing.
Sec. 209.619 Assessment Considerations
FRA proposes section 209.619 to provide the list of considerations
when assessing a civil penalty, as provided in 49 U.S.C. 21301(a)(3).
Sec. 209.621 Appeal
Section 209.621 would describe the procedures for appealing the
presiding officer's decision or order issued under proposed Sec.
209.617.
Part 209, Appendix A Statement of Agency Policy Concerning Enforcement
of the Federal Railroad Safety Laws
This proposed rule would amend 49 CFR part 209, appendix A, to
incorporate a variety of minor administrative changes. For example, FRA
would update previous references in the appendix from ``regions'' to
``districts'' to ensure information gets to the agency subject matter
expert in the relevant technical discipline. FRA would also update this
appendix for outdated web addresses and citations, and make other
miscellaneous revisions, including updating citations for DOT's
delegations to FRA. FRA also proposes to add language discussing the
new proposed procedures in subpart G of part 209 for resolving railroad
safety civil penalty assessments.
Part 209, Appendix B Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments
FRA proposes to amend 49 CFR part 209, appendix B, to update the
web

[[Page 28615]]

address from <a href="http://www.fra.dot.gov">www.fra.dot.gov</a> to <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>.
Part 209, Appendix C FRA's Policy Statement Concerning Small Entities
FRA proposes to amend 49 CFR part 209, appendix C, to update the
web address from <a href="http://www.fra.dot.gov">www.fra.dot.gov</a> to <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>. FRA
proposes to adjust language under the heading ``Small Entity
Communication Policy'' to ensure information gets to the agency subject
matter expert in the relevant technical discipline. Finally, FRA
proposes to amend language under the heading ``Small Entity Enforcement
Policy'' to remove the reference to the Safety Assurance and Compliance
Program and to clarify how FRA assists small entities.

III. Regulatory Impact and Notices

A. Executive Orders (E.O.) 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures

FRA has evaluated this proposed rule in accordance with E.O. 12866,
Regulatory Planning and Review (58 FR 51735, Oct. 4, 1993), and DOT
Order 2100.6B, Policies and Procedures for Rulemaking (Mar. 10, 2025).
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.
This proposed rule would allow electronic methods of serving
documents, such as email, whenever possible. This would expedite the
speed at which documents are delivered while also reducing costs that
would otherwise exist from having to physically print and mail
documents. Additionally, this proposed rule would make miscellaneous
changes such as reflecting updated web and email addresses. FRA expects
this proposed rule would reduce burdens on regulated entities.
Moreover, this proposed rule would provide some qualitative benefits to
regulated entities and the U.S. government, by clarifying, simplifying,
and updating the language of part 209.

B. E.O. 14192 (Unleashing Prosperity Through Deregulation)

E.O. 14192, Unleashing Prosperity Through Deregulation (90 FR 9065,
Jan. 31, 2025), requires that for ``each new [E.O. 14192 regulatory
action] issued, at least ten prior regulations be identified for
elimination.'' \4\ 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. 14192 deregulatory action, and an E.O. 14192
regulatory action.\5\
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\4\ Executive Office of the President. Executive Order 14192 of
January 31, 2025. Unleashing Prosperity Through Deregulation. 90 FR
9065-9067. Feb. 6, 2025.
\5\ 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
rule 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,\6\
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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\6\ 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 offer clarity, and would
expedite the speed at which documents are delivered while also reducing
costs that would otherwise exist from having to physically print and
mail documents, 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

There is no new collection of information requirements contained in
this proposed rule, and in accordance with the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq., therefore, an information collection
submission to OMB is not required. The recordkeeping and reporting
requirements already contained in part 209 became effective when they
were approved by OMB in 2022. The OMB approval numbers are OMB No.
2130-0529, which expires on July 31, 2025, and OMB No. 2130-0509, which
expires on November 30, 2025.

E. Environmental Assessment

FRA has analyzed this proposed 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
proposed 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 proposed rulemaking is not
anticipated to result in any environmental impacts, and there are no
unusual or extraordinary circumstances present in connection with this
rulemaking.

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.

[[Page 28616]]

G. Unfunded Mandates Reform Act of 1995

This proposed rule will 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, Actions Concerning Regulations that Significantly
Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001),
requires Federal agencies to prepare a Statement of Energy Effects for
any ``significant energy action.'' 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.

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 (Nov. 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 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.

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
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, 5 U.S.C. 553(b)(4)

As required by 5 U.S.C. 553(b)(4), a summary of this rulemaking can
be found in the Abstract section of the Department's Unified Agenda
entry for this rulemaking at <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2130-AC93">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2130-AC93</a>.

List of Subjects

49 CFR Part 209

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

The Proposed Rule

In consideration of the foregoing, 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 Sec. 209.1 to read as follows:

Sec. 209.1 Purpose.

Appendix A to this part contains a statement of agency policy
concerning enforcement of those laws. This part describes certain
procedures employed by the Federal Railroad Administration in its
enforcement of statutes and regulations related to railroad safety. By
delegation from the Secretary of Transportation, the Administrator has
responsibility for:
(a) Enforcement of subchapters B and C of chapter I, subtitle B,
title 49, CFR, and 49 U.S.C. ch. 51 and uncodified provisions, with
respect to the transportation or shipment of hazardous materials by
railroad (49 CFR 1.89(j)); and
(b) Exercise of the authority vested in the Secretary by 49 U.S.C.
Subtitle V, Part A (Safety, chapter 201 et seq.) and uncodified
provisions of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432,
Div. A, 122 Stat. 4848) (49 CFR 1.89(a), (b)).
0
3. Revise Sec. 209.5 to read as follows:

Sec. 209.5 Service.

(a) Each order, notice, or other document required to be served
under ch. II of subtitle B of title 49 of the Code of Federal
Regulations must be served by the following method:
(1) Any electronic method of delivery so long as there was no
indication received that any transmission had failed; or
(2) In the event an electronic method of delivery is impossible,
service may be made by U.S. mail.
(b) Service upon a person's duly authorized representative
constitutes service upon that person.
(c) The date of service will be:
(1) If sent by an electronic method of delivery, the date of
electronic transmission to the party to be served.
(2) In the event an electronic method of delivery is impossible,
and mailing is used, the postmark date. An official U.S. Postal Service
receipt from a registered or certified mailing constitutes prima facie
evidence of service.
(d) Each pleading must be accompanied by a certificate of service
specifying how and when service was made.
(e) When service must occur within a particular timeframe, the date
certain when service must be completed will be determined in accordance
with the computation of time provisions in Rule 6 of the Federal Rules
of Civil Procedure, as amended.
0
4. Revise Sec. 209.6(a) to read as follows:

Sec. 209.6 Requests for admission.

(a) A party to any proceeding under subpart B, C, D, or G of this
part may serve upon any other party written requests for the admission
of the genuineness of any relevant documents identified within the
request, the truth of any relevant matters of fact, and the application
of law to the facts as set forth in the request.
* * * * *
0
5. Amend Sec. 209.7 by revising paragraphs (a), (c), (d)(1), (d)(2),
and (j) to read as follows:

Sec. 209.7 Subpoenas; witness fees.

(a) The Chief Counsel may issue a subpoena on the Chief Counsel's
own initiative in any matter related to enforcement of the railroad
safety laws. However, where a proceeding under

[[Page 28617]]

subpart B, C, D, or G of this part has been initiated, only the
presiding officer may issue subpoenas, and only upon the written
request of any party to the proceeding who makes an adequate showing
that the information sought will materially advance the proceeding.
* * * * *
(c) A subpoena may be served by any electronic method of delivery
so long as there was no indication received that any transmission had
failed. In the event an electronic method of delivery is impossible,
service may be made by U.S. mail or in person.
(d) * * *
(1) To a natural person by:
(i) Any electronic method of delivery so long as there was no
indication received that the transmission failed; or
(ii) Any method whereby actual notice of the issuance and content
is given (and the fees are made available) prior to the return date.
(2) To an entity other than a natural person by:
(i) Any electronic method of delivery so long as there was no
indication received that the transmission failed; or
(ii) Any method whereby actual notice of the issuance and content
is given (and the fees are made available) to a registered agent for
service or to any officer, director, or agent in charge of any office
of the person, prior to the return date.
* * * * *
(j) Attendance of any FRA employee engaged in an investigation
which gave rise to a proceeding under subpart B, C, or G of this part
for the purpose of eliciting factual testimony may be assured by filing
a request with the Chief Counsel at least fifteen (15) days before the
date of the hearing. The request must indicate the present intent of
the requesting person to call the employee as a witness and state
generally why the witness will be required.
0
6. Revise Sec. 209.8(a) to read as follows:

Sec. 209.8 Depositions in formal proceedings.

(a) Any party to a proceeding under subpart B, C, D, or G of this
part may take the testimony of any person, including a party, by
deposition upon oral examination on order of the presiding officer
following the granting of a motion under paragraph (b) of this section.
Depositions may be taken before any disinterested person who is
authorized by law to administer oaths. The attendance of witnesses may
be compelled by subpoena as provided in Sec. 209.7 and, for
proceedings under subpart D of this part, Sec. 209.315.
* * * * *
0
7. Revise Sec. 209.9 to read as follows:

Sec. 209.9 Filing.

All materials filed with FRA or any FRA officer in connection with
a proceeding under subpart B, C, D, or G of this part shall be
submitted to the Assistant Chief Counsel for Safety, Office of the
Chief Counsel, Federal Railroad Administration, to <a href="/cdn-cgi/l/email-protection#25637764694042444965414a510b424a53"><span class="__cf_email__" data-cfemail="084e5a49446d6f6964486c677c266f677e">[email&#160;protected]</span></a>,
except that documents produced in accordance with a subpoena shall be
presented at the place and time specified by the subpoena.
0
8. Revise Sec. 209.13 to read as follows:

Sec. 209.13 Consolidation.

At the time a matter is set for hearing under subpart B, C, D, or G
of this part, the Chief Counsel may consolidate the matter with any
similar matter(s) pending against the same respondent or with any
related matter(s) pending against other respondent(s) under the same
subpart. However, on certification by the presiding officer that a
consolidated proceeding is unmanageable or otherwise undesirable, the
Chief Counsel will rescind or modify the consolidation.
0
9. Revise Sec. 209.15 to read as follows:

Sec. 209.15 Rules of evidence.

The Federal Rules of Evidence for United States Courts and
Magistrates shall be employed as general guidelines for proceedings
under subparts B, C, D, and G of this part. However, all relevant and
material evidence shall be received into the record.
0
10. Revise Sec. 209.105(a) to read as follows:

Sec. 209.105 Notice of probable violation.

(a) FRA, through the Office of the Chief Counsel, begins a civil
penalty proceeding by serving a notice of probable violation on a
person charging him or her with having violated one or more provisions
of subchapter A or C of chapter I, subtitle B of this title. FRA's
website at <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a> contains guidelines used by the
Office of the Chief Counsel in making initial penalty assessments.
* * * * *
0
11. Revise Sec. 209.109 to read as follows:

Sec. 209.109 Payment of penalty; compromise.

(a) Payment of a civil penalty may be made by credit card,
certified check, money order, or wire transfer. Payment by credit card
must be made via the internet at <a href="https://www.pay.gov/paygov/">https://www.pay.gov/paygov/</a> paygov/.
Instructions for online payment are found on the website. Payments made
by certified check or money order should be made payable to the Federal
Railroad Administration and sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM
181, P.O. Box 25082, Oklahoma City, OK 73125. Overnight express
payments may be sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM 181, 6500
South MacArthur Blvd., Oklahoma City, OK 73169.
(b) At any time before an order assessing a penalty is referred to
the Attorney General for collection, the respondent may offer to
compromise for a specific amount by contacting the Office of the Chief
Counsel.
0
12. Amend Sec. 209.303 by revising paragraph (c)(3) to read as
follows:

Sec. 209.303 Coverage.

* * * * *
(c) * * *
(3) Are in a position to direct the commission of violations of any
of the requirements of parts 213 through 299 of this title, or any of
the requirements of 49 U.S.C. ch. 51, or any regulation or order
prescribed thereunder.
0
13. Revise Sec. 209.335 to read as follows:

Sec. 209.335 Penalties.

(a) Any individual who violates Sec. 209.331(c) or Sec.
209.333(a) may be permanently disqualified from performing the safety-
sensitive functions described in Sec. 209.303. Any individual who
willfully violates Sec. 209.331(c) or Sec. 209.333(a) may also be
assessed a civil penalty of at least the minimum civil monetary penalty
and not more than the ordinary maximum civil monetary penalty per
violation. See 49 CFR part 209, appendix A.
(b) Any railroad that violates Sec. 209.331(a) or (b) or Sec.
209.333(b) may be assessed a civil penalty of at least the minimum
civil monetary penalty and not more than the ordinary maximum civil
monetary penalty per violation. See 49 CFR part 209, appendix A.
(c) Each day a violation continues shall constitute a separate
offense.
0
14. Revise Sec. 209.405(a)(3) to read as follows:

Sec. 209.405 Reporting of remedial actions.

(a) * * *
(3) Submission of Form FRA F 6180.96. The railroad must return the
form via email to the FRA Safety Inspector whose name and email address
appear on the form.
* * * * *
0
15. Revise Sec. 209.407(a)(2) to read as follows:

Sec. 209.407 Delayed reports.

(a) * * *
(2) Sign, date, and submit such written explanation and estimate
via

[[Page 28618]]

email, to the FRA Safety Inspector whose name and email address appear
on the notification, within 30 days after the end of the calendar month
in which the notification is received.
* * * * *
0
16. Amend part 209 to add a new subpart G, consisting of Sec. Sec.
209.601 through 209.621, to read as follows:

Subpart G--Enforcement, Hearing, and Appeal Procedures for Rail
Safety Violations

Sec.
209.601 Civil penalties generally.
209.603 Minimum and maximum penalties.
209.605 Demand letter.
209.607 Reply.
209.609 Payment of penalty; compromise.
209.611 Informal response and assessment.
209.613 Request for hearing.
209.615 Hearing.
209.617 Presiding officer's decision.
209.619 Assessment considerations.
209.621 Appeal.

Sec. 209.601 Civil penalties generally.

(a) Sections 209.601 through 209.621 prescribe rules of procedure
for the assessment of civil penalties pursuant to the Federal railroad
safety laws, 49 U.S.C. Chapters 201 through 213.
(b) When FRA has reason to believe that a person has committed an
act which is a violation of any provision of chapter II, subtitle B of
this title, or title 49, subtitle V, part A, of the United States Code,
for which FRA exercises enforcement responsibility or any waiver or
order issued thereunder, it may conduct a proceeding to assess a civil
penalty.

Sec. 209.603 Minimum and maximum penalties.

A person who violates a requirement of the Federal railroad safety
laws, an order issued thereunder, chapter II, subtitle B, of this
title, or title 49, subtitle V, part A, of the United States Code, is
subject to a civil penalty of at least the minimum civil monetary
penalty and not more than the ordinary maximum civil monetary penalty
per violation. However, penalties may be assessed against individuals
only for willful violations, and a penalty not to exceed the aggravated
maximum civil monetary penalty per violation may be assessed, where:
(1) a grossly negligent violation, or a pattern of repeated violations,
has created an imminent hazard of death or injury to persons; or (2) a
death or injury has occurred. See 49 CFR part 209, appendix A. Each day
a violation continues shall constitute a separate offense. See FRA's
website at <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a> for a statement of agency civil
penalty policy.

Sec. 209.605 Demand letter.

(a) FRA, through the Office of the Chief Counsel, begins a civil
penalty proceeding by serving a demand letter on a person charging the
person with having violated one or more provisions of chapter II,
subtitle B of this title, or title 49, subtitle V, part A, of the
United States Code. FRA's website at <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>
contains guidelines used by the Office of the Chief Counsel in making
initial penalty assessments.
(b) A demand letter issued under this section includes:
(1) A statement of the provision(s) which the respondent is
believed to have violated;
(2) A statement of the factual allegations upon which the proposed
civil penalty is being sought;
(3) Notice of the maximum amount of civil penalty for which the
respondent may be liable;
(4) Notice of the amount of the civil penalty proposed to be
assessed;
(5) A description of the manner in which the respondent should make
payment of any money to the United States;
(6) A statement of the respondent's right to present written
explanations, information or any materials in answer to the charges or
in mitigation of the penalty; and
(7) A statement of the respondent's right to request a hearing and
the procedures for requesting a hearing.
(c) FRA may amend the demand letter at any time prior to completion
of a fully executed settlement agreement or the entry of an order
assessing a civil penalty. If the amendment contains any new material
allegation of fact, the respondent is given an opportunity to respond.
In an amended demand letter, FRA may change the civil penalty amount
proposed to be assessed, up to the maximum penalty amount for each
violation. However, if the violation is: (1) a grossly negligent
violation, or a pattern of repeated violations, that has caused an
imminent hazard of death or injury to individuals; or (2) has caused
death or injury, FRA may change the penalty amount proposed to be
assessed up to the aggravated maximum penalty amount.

Sec. 209.607 Reply.

(a) Within sixty (60) days of the service of a demand letter issued
under Sec. 209.605, the respondent may--
(1) Pay as provided in Sec. 209.609(a) and thereby close the case;
(2) Make an informal response as provided in Sec. 209.611; or
(3) Request a hearing as provided in Sec. 209.613.
(b) The Office of the Chief Counsel may extend the sixty (60) days
period for good cause shown.
(c) Failure of the respondent to reply by taking one of the three
actions described in paragraph (a) of this section, within the period
provided, constitutes a waiver of the right to appear and contest the
allegations, and authorizes the Office of the Chief Counsel, without
further notice to the respondent, to find the facts to be as alleged in
the demand letter and to assess an appropriate civil penalty.

Sec. 209.609 Payment of penalty; compromise.

Sec. 209.611 Informal response and assessment.

(a) If a respondent elects to make an informal response to a demand
letter, respondent must submit to the Office of the Chief Counsel such
written explanations, information, or other materials as respondent may
desire in answer to the charges or in mitigation of the proposed
penalty.
(b) The respondent may include in the informal written response a
request for a conference. Upon receipt of such a request, the Office of
the Chief Counsel arranges for a conference as soon as practicable.
(c) Written explanations, information, or materials submitted by
the respondent, and relevant information presented during any
conference held under this section, are considered by the Office of the
Chief Counsel in reviewing the demand letter and determining the fact
of violation and the amount of any penalty to be assessed.
(d) After consideration of an informal response, including any
relevant information presented at a conference,

[[Page 28619]]

the Office of the Chief Counsel may dismiss the demand letter in whole
or in part. If the Office of the Chief Counsel does not dismiss it in
whole, the Office of the Chief Counsel may enter into a settlement
agreement or enter an order assessing a civil penalty.

Sec. 209.613 Request for hearing.

(a) If a respondent elects to request a hearing, the respondent
must submit a written request to the Office of the Chief Counsel
referring to the case number which appeared on the demand letter. The
request must--
(1) State the name and email address of the respondent and of the
person signing the request, if different from the respondent;
(2) State with respect to each allegation whether it is admitted or
denied; and
(3) State with particularity the issues to be raised by the
respondent at the hearing.
(b) After a request for hearing that complies with the requirements
of paragraph (a) of this section, the Office of the Chief Counsel
schedules a hearing for the earliest practicable date.
(c) The Office of the Chief Counsel, or the hearing officer
appointed under Sec. 209.615, may grant extensions of the time of the
commencement of the hearing for good cause shown.

Sec. 209.615 Hearing.

(a) When a hearing is requested and scheduled under Sec. 209.613,
a hearing officer designated by the Office of the Chief Counsel
convenes and presides over the hearing. If requested by respondent, and
if practicable, the hearing is held in the general vicinity of the
place where the alleged violation occurred, at a place convenient to
the respondent, or virtually. Testimony by witnesses shall be given
under oath and the hearing shall be recorded verbatim.
(b) The presiding official may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by Sec. 209.7;
(3) Adopt procedures for the submission of evidence in written
form;
(4) Take or cause depositions to be taken;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, and adjourn and otherwise regulate
the course of the hearing;
(8) Hold conferences for settlement, simplification of the issues
or any other proper purpose; and
(9) Take any other action authorized by, or consistent with, the
provisions of this subpart pertaining to civil penalties and permitted
by law that may expedite the hearing or aid in the disposition of an
issue raised, therein.
(c) The Office of the Chief Counsel has the burden of providing the
facts alleged in the demand letter and may offer such relevant
information as may be necessary fully to inform the presiding officer
as to the matter concerned.
(d) The respondent may appear and be heard on the respondent's own
behalf or through counsel of the respondent's choice. The respondent or
respondent's counsel may offer relevant information, including
testimony, which they believe should be considered in defense of the
allegations, or that may bear on the penalty proposed to be assessed,
and conduct such cross-examination as may be required for a full
disclosure of the material facts.
(e) At the conclusion of the hearing, or as soon thereafter as the
hearing officer shall provide, the parties may file proposed findings
and conclusions, together with supporting reasons.

Sec. 209.617 Presiding officer's decision.

(a) After consideration of the evidence of record, the presiding
officer may dismiss the demand letter in whole or in part. If the
presiding officer does not dismiss it in whole, the presiding officer
will issue and serve on the respondent an order assessing a civil
penalty. The decision of the presiding officer will include a statement
of findings and conclusions as well as the reasons therefor on all
material issues of fact, law, and discretion.
(b) If, within twenty (20) days after service of an order assessing
a civil penalty, the respondent does not pay the civil penalty or file
an appeal as provided in Sec. 209.621, the case may be referred to the
Attorney General with a request that an action to collect the penalty
be brought in the appropriate United States District Court. In the
civil action, the amount and appropriateness of the civil penalty shall
not be subject to review.

Sec. 209.619 Assessment considerations.

The assessment of a civil penalty under Sec. 209.617 is made only
after considering:
(a) the nature, circumstances, extent, and gravity of the
violation;
(b) with respect to the violator, the degree of culpability, any
history of violations, the ability to pay, and any effect on the
ability to continue to do business; and
(c) other matters that justice requires.

Sec. 209.621 Appeal.

(a) Any party aggrieved by a presiding officer's decision or order
issued under Sec. 209.617 assessing a civil penalty may file an appeal
with the Administrator. The appeal must be filed within twenty (20)
days of service of the presiding officer's order.
(b) Prior to rendering a final determination on an appeal, the
Administrator may remand the case for further proceedings before the
hearing officer.
(c) In the case of an appeal by a respondent, if the Administrator
affirms the assessment and the respondent does not pay the civil
penalty within twenty (20) days after service of the Administrator's
decision on appeal, the matter may be referred to the Attorney General
with a request that an action to collect the penalty be brought in the
appropriate United States District Court. In the civil action, the
amount and appropriateness of the civil penalty shall not be subject to
review.
0
17. Amend appendix A to part 209 by:
0
a. Revising the first paragraph;
0
b. Revising the section under the heading ``The Civil Penalty
Process;''
0
c. Revising the section under the heading ``Civil Penalties Against
Individuals;''
0
d. Revising the seventh paragraph under the heading ``Penalty
Schedules; Assessment of Maximum Penalties''; and
0
e. Revising the section under the heading ``Extraordinary Remedies.''
The revisions read as follows:

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 1.88 and 1.89. 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),
the Fixing America's Surface Transportation Act (Pub. L. 114-94,
Dec. 4, 2015), and the Infrastructure Investment and Jobs Act (Pub.
L. 117-58, Nov. 15, 2021). 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''), and a group of statutes enacted prior to 1970
referred to collectively herein as the ``older safety statutes'':
the Safety Appliance Acts; the Locomotive Inspection Act; the
Accident Reports Act; the Hours of Service Act; and the Signal
Inspection Act. 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-

[[Page 28620]]

299. 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, which was also repealed by Pub. L.
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 200 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 an 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, the inspector prepares a
violation report, which is essentially a recommendation to the FRA
Office of the 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 district
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 Railroad Safety headquarters.
Violation reports that are technically and legally sufficient and in
accord with FRA policy are sent from the district office to the
Office of the Chief Counsel.
The exercise of this discretion at the field and headquarters
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 the Chief Counsel's Office of Safety Law reviews
each violation report it receives from the district offices for
legal sufficiency and assesses penalties based on those allegations
that survive that review.
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.
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. 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.

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 Office
of the 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 the person 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.
5123) 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 knowledge of the content
of the particular regulation would provide a defense. Having
proposed use of the word ``willful,'' FRA believes it was not
intended

[[Page 28621]]

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, the person 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, the
employee does not do so of the employee's 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 that 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 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 Office of Railroad
Safety informs the individual in writing of its intention to seek
assessment of a civil penalty and the fact that a violation report
has been transmitted to the Office of the Chief Counsel. This
ensures that the individual has the opportunity to seek counsel,
preserve documents, or take any other necessary steps to aid the
individual's defense at the earliest possible time.
Second, if the Office of the Chief Counsel concludes that the
case is meritorious and issues a penalty demand letter, that letter
makes clear that FRA encourages discussion of any defenses or
mitigating factors the individual may wish to raise. That letter
also advises the individual that the individual 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, the individual may request an administrative hearing, or
FRA may issue an order assessing civil penalty, per the enforcement,
hearing, and appeal procedures for rail safety violations in part
209, subpart G.
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.

Penalty Schedules; Assessment of Maximum Penalties

* * * * *
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 <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>, and they are adjusted yearly for inflation. As
of December 30, 2024, for each regulation in this part or order, the
schedule shows two amounts within the $1,114 to $36,439 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.
* * * * *

[[Page 28622]]

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. 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 in accordance with 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 49 U.S.C. 20112.
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. ch. 51, and 49 CFR 209.131, 209.133.
Criminal penalties may also be available for certain record and
report violations. 49 U.S.C. 21311.
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, causes
an emergency situation involving a hazard of death, personal injury,
or significant harm to the environment . . . .'' See 49 U.S.C.
20104. 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.

0
18. Amend appendix B to part 209 by revising the sixth sentence of the
third paragraph. The revisions read as follows:

Appendix B to Part 209--Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments

* * * * *
* * * FRA periodically makes minor updates and revisions to
these guidelines, and the most current version may be found on FRA's
website at <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a> gov/.

0
19. Amend appendix C to part 209, by:
0
a. Under the heading ``Small Entity Communication Policy,''
0
i. Revising the third paragraph; and
0
ii. Revising the last sentence of the fourth paragraph.
0
b. Under the heading ``Small Entity Enforcement Policy,'' revising the
third paragraph.
The revisions read as follows:

Appendix C to Part 209--FRA's Policy Statement Concerning Small
Entities

* * * * *

Small Entity Communication Policy

* * * * *
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's Office of Railroad Safety has two
Safety Management Teams dedicated to short line railroads and staff
from those Safety Management Teams regularly meet with short line
railroads that meet FRA's definition of ``small entities'' to
discuss new regulations, persistent safety concerns, emerging
technology, compliance issues, and any other relevant issues related
to railroad safety. Contact information for each of FRA's Safety
Management Teams is available online at <a href="https://railroads.dot.gov">https://railroads.dot.gov</a>.
* * * Finally, FRA's website (<a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>) makes
pertinent agency information available to the public.
* * * * *

Small Entity Enforcement Policy

* * * * *
Finally, FRA works to identify systemic safety hazards that
continue to occur in carrier or shipper operations, including small
business operations. Often FRA personnel will work to assist the
subject operations to develop a plan to address those hazards and
often, the plan provides small entities with a reasonable timeframe
in which to make improvements without the threat of civil penalty.
If FRA determines that the entity has failed to comply with the
improvement plan, however, enforcement action is initiated.
* * * * *

Issued in Washington, DC.
Kyle D. Fields,
Chief Counsel.
[FR Doc. 2025-12124 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-06-P

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