Rule2026-08021
Amendments to the Federal Railroad Administration's Procedures for Service of Documents in Railroad Safety Enforcement Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 24, 2026
Effective
May 26, 2026
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This rule updates FRA's railroad safety enforcement procedures and rules of practice to require electronic service of documents. This rule also establishes procedures to implement new authority regarding civil penalties for alleged Federal railroad safety violations. Finally, this rule makes other necessary administrative updates, such as correcting addresses.
Full Text
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<title>Federal Register, Volume 91 Issue 79 (Friday, April 24, 2026)</title>
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[Federal Register Volume 91, Number 79 (Friday, April 24, 2026)]
[Rules and Regulations]
[Pages 22060-22069]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08021]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2022-0085; Notice No. 2]
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), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This rule updates FRA's railroad safety enforcement procedures
and rules of practice to require electronic service of documents. This
rule also establishes procedures to implement new authority regarding
civil penalties for alleged Federal railroad safety violations.
Finally, this rule makes other necessary administrative updates, such
as correcting addresses.
DATES: This rule is effective May 26, 2026.
FOR FURTHER INFORMATION CONTACT: Veronica Chittim, Assistant Chief
Counsel for Safety, Office of the Chief Counsel (RCC), FRA, (telephone
202-480-3410), <a href="/cdn-cgi/l/email-protection#d2a4b7a0bdbcbbb1b3fcb1babba6a6bbbf92b6bda6fcb5bda4"><span class="__cf_email__" data-cfemail="a3d5c6d1cccdcac0c28dc0cbcad7d7cacee3c7ccd78dc4ccd5">[email protected]</span></a>; or Lucinda Henriksen, Senior
Advisor, Office of Railroad Safety (RRS), FRA (telephone 202-657-2842),
<a href="/cdn-cgi/l/email-protection#28445d4b41464c4906404d465a41435b4d46684c475c064f475e"><span class="__cf_email__" data-cfemail="066a73656f686267286e6368746f6d7563684662697228616970">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Consistent with Executive Order (E.O.) 14192, Unleashing Prosperity
Through Deregulation (90 FR 9065, Feb. 6, 2025), and E.O. 14219,
Ensuring Lawful Governance and Implementing the President's
``Department of Government Efficiency'' Deregulatory Initiative (90 FR
10583, Feb. 25, 2025), and as described in more detail below, this rule
updates FRA's railroad safety enforcement procedures and rules of
practice to require electronic service of documents; establishes
procedures to implement new authority regarding civil penalties for
alleged Federal railroad safety violations; and makes other necessary
administrative updates, such as correcting addresses.
On July 1, 2025, FRA published a notice of proposed rulemaking
(NPRM) that proposed accounting for technological changes, conforming
FRA's procedures for hazardous materials (hazmat) and non-hazmat
assessments, aligning FRA's service provisions with those at other
agencies, and helping agency operations to continue, without
interruption, during emergencies. See 90 FR 28612.
As discussed in the NPRM, this rule also establishes procedures in
part 209 to implement new authority regarding civil penalties provided
in section 22418 of the Infrastructure Investment and Jobs Act, Pub. L.
117-58 (Nov. 15, 2021), codified at 49 U.S.C. 21301(a). This statutory
authority allows FRA to resolve administratively civil penalty
assessments alleging violations under FRA's railroad safety authority.
FRA received two comments in response to the NPRM that sought
[[Page 22061]]
clarification or changes to the proposed procedural requirements in
part 209.
The Transportation Division of the International Association of
Sheet Metal, Air, Rail and Transportation Workers (SMART-TD) asserted
that electronic communications ``cannot be relied upon for urgent
communications,'' and ``transmission'' should not be considered
``receipt.'' \1\ SMART-TD noted hurdles such as ``IT systems [that]
block or reroute email,'' ``addresses go stale when workers change
crafts or carriers,'' and ``spam filters bury critical notices.''
SMART-TD suggested that FRA retain personal or certified-mail service
for subpoenas and other documents. In response to these concerns, FRA
is not modifying the rule text but notes that issues pertaining to the
accuracy of addresses may exist regardless of the method of service and
emphasizes that personal or certified-mail service remain options if
electronic service is not available.
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\1\ <a href="https://www.regulations.gov/comment/FRA-2022-0085-0002">https://www.regulations.gov/comment/FRA-2022-0085-0002</a>.
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In addition, SMART-TD noted concern with the NPRM's discussion of
individual liability civil penalty actions. Though FRA acknowledges
these concerns, the policy stated in the proposal regarding FRA's
individual liability policy is almost entirely verbatim from the
existing appendix A. FRA did not propose to modify the standard for
individual liability actions in this rule, nor does FRA find modifying
this language appropriate.
Moreover, SMART-TD requested that FRA extend the amount of time to
respond to a demand letter, from 60 days, as proposed in subpart G, to
90 days, and that FRA provide the entire evidentiary record with the
demand letter. In response, FRA notes that as a matter of practice, FRA
has requested a response within 60 days to each notice of alleged
violation of railroad safety regulations and this rule merely
formalizes that period for response. In comparison, for hazmat
violations (part 209, subpart B) respondents are provided 30 days to
respond to a notice of probable violation (NOPV). FRA finds that the 60
days allotted in these procedures is sufficient time for a respondent
to acknowledge receipt of a letter of alleged violation, at a minimum,
and should additional time be necessary, the agency will allow an
extension of time for cause stated. See section 209.607(b). FRA also
notes that along with the demand letter, FRA will provide (as it has
always done) supporting evidence of the alleged violation(s), to
include a violation report, inspection report, and other relevant
exhibits, such as photographs and railroad records, as applicable.
SMART-TD took issue with FRA's proposal to have hearing officers
designated by the Office of the Chief Counsel, as the same office
prosecutes cases. FRA notes in response that the new subpart G
procedures regarding administrative hearings for rail safety cases
mimics the procedures currently located in subpart B regarding hazmat
cases. A hearing officer designated by the Office of the Chief Counsel
is independent from the personnel prosecuting the substantive
violation(s), and different Offices within the Office of the Chief
Counsel perform different functions (the Office of Safety Law handles
enforcement prosecution, whereas the Office of General Law handles the
hearing officer function for the Office). A designated hearing officer
in the Office of General Law is not involved in any rail safety
enforcement activity and operates independently from all Safety Law
functions, including enforcement activities. There is already
established Department of Transportation policy to ensure the
appropriate separation of functions during administrative enforcement
proceedings; ``[i]t is in the public interest and fundamental to good
government that the Department carry out its enforcement
responsibilities in a fair and just manner.'' \2\
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\2\ U.S. Department of Transportation, Memorandum to Secretarial
Officers and Heads of Operating Administrations: Procedural
Requirements for DOT Enforcement Actions (March 11, 2025), available
at: <a href="https://cms.dot.gov/mission/administrations/office-general-counsel/procedural-requirements-dot-enforcement-actions-0">https://cms.dot.gov/mission/administrations/office-general-counsel/procedural-requirements-dot-enforcement-actions-0</a>.
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Finally, SMART-TD asked FRA to provide ``secure, accessible systems
for electronic submissions.'' FRA notes that email is a standard method
of communication, and submissions can be protected through encryption,
in addition to routine technological safeguards. Any party making an
electronic filing under this rule is encouraged to do so through secure
means. For example, a party can select to encrypt and/or password
protect the filing using an email provider of the party's choice. FRA
does not find it necessary to modify the rule in response to this
concern.
Separately, the Association of American Railroads (AAR) submitted a
comment regarding the procedural requirements proposed in subpart G.\3\
Specifically, AAR stated that the NPRM ``(like the existing hazmat
civil penalty rule it mirrors) is ambiguous, and one possible
interpretation of the rule would complicate the process and place
additional burdens upon railroads by creating an unnecessary paperwork
requirement.'' To address this asserted ambiguity, AAR recommends that
FRA clarify that the written response and the request for a conference
are available independently and requests that FRA modify language in
section 209.611(b). Overall, AAR emphasized that FRA should ``allow for
continued use of consolidated annual submissions for penalty
mitigation'' and clarify the framework.
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\3\ <a href="https://www.regulations.gov/comment/FRA-2022-0085-0003">https://www.regulations.gov/comment/FRA-2022-0085-0003</a>.
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In response to AAR's comment, FRA has modified section 209.611 as
recommended and clarifies that with the new process outlined in part
209, FRA did not intend to alter the typical process for Class 1
railroad carriers and other larger respondents that discuss numerous
cases during consolidated annual settlement conferences. Moreover, FRA
did not intend to require a form letter to be submitted for each case
within 60 days to acknowledge receipt and deferring the informal
conference. FRA is not modifying the similar provisions in part 209,
subpart B, at this time, as changes to those hazmat procedures were not
previously proposed in this rulemaking.
For more information, please review the SECTION-BY-SECTION ANALYSIS
below.
II. Section-by-Section Analysis
Unless noted otherwise, please refer to the discussion in the NPRM,
as FRA has generally adopted the rule text as proposed. See 90 FR
28613-28615.
Part 209
Sec. 209.1 Purpose; Sec. 209.5 Service; and Sec. 209.6 Requests for
Admission
FRA adopts these provisions as proposed in the NPRM. 90 FR 28613.
Sec. 209.7 Subpoenas; Witness Fees
FRA adopts this provision as proposed in the NPRM. 90 FR 28613.
Though SMART-TD suggested that FRA should retain the ``in person''
method of service, FRA notes that ``in person'' service remains
available for subpoenas. FRA has determined that electronic service
should be sufficient in most cases, and ``in person'' service should
only be relied on in rare circumstances (i.e., when electronic service
is impossible).
Sec. 209.8 Depositions in Formal Proceedings; Sec. 209.9 Filing;
Sec. 209.13 Consolidation; Sec. 209.15 Rules of Evidence
FRA adopts these provisions as proposed in the NPRM. 90 FR 28613,
28614.
[[Page 22062]]
Sec. 209.105 Notice of Probable Violation
FRA adopts this provision as proposed in the NPRM. 90 FR 28614.
Sec. 209.109 Payment of Penalty; Compromise
While FRA generally adopts Sec. 209.109(b) as proposed in the
NPRM, 90 FR 28614, subsequent to the publication of the NPRM, FRA moved
to electronic-only methods for payments and receipts made to or from
FRA consistent with E.O. 14247, ``Modernizing Payments To and From
America's Bank Account,'' issued on March 25, 2025. Thus, FRA is
amending Sec. 209.109(a) to remove the mailing and overnight delivery
addresses for payments and directs payment to be made through <a href="https://www.pay.gov/">https://www.pay.gov/</a> instead.
Sec. 209.303 Coverage; Sec. 209.335 Penalties; Sec. 209.405
Reporting of Remedial Actions; Sec. 209.407 Delayed Reports
FRA adopts these provisions as proposed in the NPRM. 90 FR 28614.
Part 209, Subpart G Enforcement, Hearing, and Appeal Procedures for
Rail Safety Violations
FRA amends 49 CFR part 209 by adding a new subpart G, Enforcement,
Hearing, and Appeal Procedures for Rail Safety Violations, generally as
proposed in the NPRM, 90 FR 28614, but with minor modifications as
described below.
Sec. 209.601 Civil Penalties Generally
FRA adopts this provision as proposed in the NPRM. 90 FR 28614.
Sec. 209.603 Minimum and Maximum Penalties; Sec. 209.605 Demand
Letter
FRA adopts these provisions generally as proposed in the NPRM. 90
FR 28614. FRA is making minor formatting changes in Sec. 209.603 and
Sec. 209.605(c) to reflect comments from the Office of the Federal
Register on similar language in other penalty provisions in other parts
of the CFR.
Sec. 209.607 Reply
FRA adopts this provision as proposed in the NPRM. 90 FR 28614.
Sec. 209.609 Payment of Penalty; Compromise
FRA adopts Sec. 209.609(b) as proposed in the NPRM but modifies
Sec. 209.609(a) to mirror the changes to Sec. 209.109(a) in this rule
to remove the mailing and overnight delivery addresses for payments
originally proposed and directs payment to be made through <a href="https://www.pay.gov/">https://www.pay.gov/</a> instead.
Sec. 209.611 Informal Response and Assessment
Section 209.611 explains the process for how a respondent may
respond informally to a demand letter. As discussed above, in response
to AAR's comment, FRA is modifying the language in this section to
clarify that the written response and the request for a conference are
available independently. FRA is adding the word ``written'' in the
phrase ``informal written response'' in paragraph (a). FRA is striking
the sentence in proposed section 209.611(b) ``[u]pon receipt of such a
request, the Office of the Chief Counsel arranges for a conference as
soon as practicable,'' and is modifying the language to read ``Instead
of or in addition to an informal written response as described in
paragraph (a), an informal response may consist of a request for a
conference.'' Overall, FRA expresses its intent to continue use of
consolidated annual submissions for penalty mitigation and conferences
with railroads covering more than one case.
Sec. 209.613 Request for Hearing; Sec. 209.615 Hearing; Sec. 209.617
Presiding Officer's Decision; Sec. 209.619 Assessment Considerations;
Sec. 209.621 Appeal; Part 209, Appendix
A, Statement of Agency Policy Concerning Enforcement of the Federal
Railroad Safety Laws; Part 209, Appendix B, Federal Railroad
Administration Guidelines for Initial Hazardous Materials Assessments;
Part 209, Appendix C, FRA's Policy Statement Concerning Small Entities
FRA adopts these provisions and language as proposed in the NPRM.
90 FR 28614, 28615.
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 final rule 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 Office of Management and Budget (OMB)
determined that this final rule is not a significant regulatory action
under section 3(f) of E.O. 12866.
FRA analyzed the potential costs and benefits of this final rule.
This final rule will allow electronic methods of serving documents,
such as email, whenever possible. This will expedite the speed at which
documents are delivered while also reducing costs that would otherwise
exist from having to print and mail documents. In addition, this rule
makes miscellaneous changes such as reflecting updated web and email
addresses. This rule will reduce burdens on regulated entities and
provide some qualitative benefits to regulated entities and the U.S.
government, by clarifying, simplifying, and updating the language of
part 209.
B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)
E.O. 14192, Unleashing Prosperity Through Deregulation, 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, March 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 final
rule will have total costs less than zero, and therefore it will be
considered an E.O. 14192 deregulatory action upon issuance of this
final rule. FRA affirms that each amendment proposed in this final rule
has a cost that is negligible or ``less than zero'' consistent with
E.O. 14192.
C. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act of 1980 ((RFA), 5 U.S.C. 601 et
seq.) and E.O. 13272 (67 FR 53461, Aug. 16, 2002), Proper Consideration
of Small Entities in Agency Rulemaking, requires an agency to prepare
and make available to the public a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
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 final rule will not preclude small entities from
continuing existing practices that comply with part 209; it merely
offers clarification that could result in cost savings, if a small
entity
[[Page 22063]]
or other regulated entity chooses to utilize the flexibilities.
Consequently, FRA certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
This final rule offers regulatory flexibilities, and it contains no
new collection of information requirements 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.
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 5610.1D, FRA has determined that this rule is
categorically excluded pursuant to 23 CFR 771.116(c)(15). 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.
F. Federalism Implications
This final 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 final 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 (66 FR 28355, May 22, 2001), Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use, requires Federal agencies to prepare a Statement of Energy Effects
for any ``significant energy action.'' \6\ FRA has evaluated this final
rule in accordance with E.O. 13211 and determined that this final rule
is not a ``significant energy action'' within the meaning of E.O.
13211.
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\6\ 66 FR 28355 (May 22, 2001).
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I. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this final rule in accordance with the principles
and criteria contained in E.O. 13175, Consultation and Coordination
with Indian Tribal Governments (65 FR 67249, Nov. 6, 2000). The final
rule will not have a substantial direct effect on one or more Indian
tribes, will not impose substantial direct compliance costs on Indian
tribal governments, and will 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 United States. 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 final rule 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 United States.
List of Subjects in 49 CFR Part 209
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Final Rule
For the reasons discussed in the preamble, FRA amends 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
[[Page 22064]]
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 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#3c7a6e7d70595b5d507c585348125b534a"><span class="__cf_email__" data-cfemail="a2e4f0e3eec7c5c3cee2c6cdd68cc5cdd4">[email 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 must be made via the internet at
<a href="https://www.pay.gov/paygov/">https://www.pay.gov/paygov/</a>. Instructions for online payment are found
on the website.
(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) * * *
[[Page 22065]]
(2) Sign, date, and submit such written explanation and estimate
via 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. Add 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 a
grossly negligent violation, or a pattern of repeated violations, has
created an imminent hazard of death or injury to persons, or 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 a grossly negligent violation,
or a pattern of repeated violations, that has caused an imminent hazard
of death or injury to individuals, or 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.
(a) Payment of a civil penalty must be made via the internet at
<a href="https://www.pay.gov/paygov/">https://www.pay.gov/paygov/</a>. Instructions for online payment are found
on the website.
(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.
Sec. 209.611 Informal response and assessment.
(a) If a respondent elects to make an informal written 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) Instead of or in addition to an informal written response as
described in paragraph (a), an informal response may consist of a
request for a conference.
(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, 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
[[Page 22066]]
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 to inform the presiding officer fully
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 herein collectively 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.C., ch. 201-213.
Regulations implementing the Federal rail safety laws are found at
49 CFR parts 209-299. 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 Public Law
103-272, July 5, 1994, and reenacted as revised but without
substantive change) as it pertains
[[Page 22067]]
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 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
[[Page 22068]]
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. Though 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 issued historically 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.
* * * * *
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,
[[Page 22069]]
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, under authority delegated in 49 CFR
1.89.
David A. Fink,
Administrator.
[FR Doc. 2026-08021 Filed 4-23-26; 8:45 am]
BILLING CODE 4910-06-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.