Rule2026-08250
Prosecutorial Discretion of Enforcement Attorneys
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 28, 2026
Effective
May 28, 2026
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This final rule clarifies that FRA's Office of the Chief Counsel has discretion to decline or dismiss a violation, such as a technical violation where challenged conduct does not raise a practical safety issue.
Full Text
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<title>Federal Register, Volume 91 Issue 81 (Tuesday, April 28, 2026)</title>
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[Federal Register Volume 91, Number 81 (Tuesday, April 28, 2026)]
[Rules and Regulations]
[Pages 22727-22730]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08250]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2025-0077; Notice No. 2]
RIN 2130-AD11
Prosecutorial Discretion of Enforcement Attorneys
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule clarifies that FRA's Office of the Chief
Counsel has discretion to decline or dismiss a violation, such as a
technical violation where challenged conduct does not raise a practical
safety issue.
DATES: This rule is effective May 28, 2026.
FOR FURTHER INFORMATION CONTACT: Amanda Maizel, Attorney Adviser, FRA,
telephone: (202) 308-3753, email: <a href="/cdn-cgi/l/email-protection#7c3d111d12181d52311d150619103c181308521b130a"><span class="__cf_email__" data-cfemail="68290509060c0946250901120d04280c071c460f071e">[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), FRA is reviewing its regulatory requirements in
parts 200 through 299 of title 49, Code of Federal Regulations (CFR)
and updating requirements to reduce unnecessary burdens without
compromising transportation safety.
As part of this effort, on April 3, 2025, DOT issued a request for
information in which it asked the public to assist in identifying
existing regulations, guidance, paperwork requirements, and other
regulatory obligations that can be modified or repealed, consistent
with law, to ensure that DOT administrative actions do not undermine
the national interest and that DOT achieves meaningful burden reduction
while continuing to meet statutory obligations and ensure the safety of
the U.S. transportation system.\1\ DOT received 955 comments, including
some that were rail-related and specifically received a comment from
the Association of American Railroads (AAR). In addition to other
proposals, AAR requested that FRA clarify in 49 CFR part 209 that FRA's
Office of the Chief Counsel has discretion to dismiss a technical
violation where the challenged conduct does not raise a practical
safety issue.
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\1\ 90 FR 14593 (Apr. 3, 2025).
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On July 1, 2025, FRA published a notice of proposed rulemaking
(NPRM) that proposed to adopt this AAR comment and to clarify that
attorneys in the Office of the Chief Counsel have enforcement
discretion in all phases of a potential enforcement action.\2\ FRA has
broad discretion to enforce the Federal railroad safety laws and
regulations, including determining the appropriate method of addressing
any violation it finds.\3\ Accordingly, similar to the discretion that
FRA has in determining whether to transmit or decline an enforcement
action, FRA also has discretion to dismiss a violation, such as a
technical violation, where the challenged conduct does not raise a
practical safety issue. Even where FRA has transmitted a violation and
decides not to dismiss it, FRA continues to have the discretion to
reduce the civil penalty, but not below the respective statutory
minimum amount, adjusted annually for inflation.\4\ In the NPRM, FRA
noted that this clarification would streamline the enforcement process,
relieve enforcement burdens on regulated entities, and promote due
process and fairness. In addition, FRA noted the proposal was
consistent with the Mar. 11, 2025 DOT Memorandum, Procedural
Requirements for Enforcement Actions.\5\
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\2\ 90 FR 28609 (July 1, 2025).
\3\ Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1025
(9th Cir. 1985) (finding ``nothing in the railroad safety
legislation to indicate Congress intended to make prosecutorial
discretion subject to judicial review,'' and upholding the dismissal
of a challenge to the Secretary of Transportation's safety plan that
stressed cooperation with railroads in finding and remedying safety
problems).
\4\ See Federal Civil Penalties Inflation Adjustment Act of
1990, Public Law 101-410, as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public
Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note.
\5\ See Procedural Requirements for Enforcement Actions, Mar.
11, 2025, available at <a href="https://www.transportation.gov/sites/dot.gov/files/2025-03/Procedural%20Requirements%20for%20DOT%20Enforcement%20Actions.Cote%20Memo.Signed.03-11-2025.pdf">https://www.transportation.gov/sites/dot.gov/files/2025-03/Procedural%20Requirements%20for%20DOT%20Enforcement%20Actions.Cote%20Memo.Signed.03-11-2025.pdf</a>.
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FRA received three comments. The American Short Line and Regional
Railroad Association (ASLRRA) submitted a comment in support of this
proposal \6\ but requests that FRA add a reference to its Small Entity
Enforcement Policy, found in FRA's Policy Statement Concerning Small
Entities at 49 CFR part 209, appendix C. The Transportation Division of
the International Association of Sheet Metal, Air, Rail and
Transportation Workers (SMART-TD) and Brotherhood of Locomotive
Engineers and Trainmen (BLET) submitted comments both in opposition to
this proposal. Concerned that increased Office of the Chief Counsel
discretion could diminish worker safety as Class I carriers could
``argue away infractions as `not a practical safety issue,' '' SMART-TD
strongly recommended that FRA provide a clear, narrow definition of a
technical violation and publicly report each dismissal, and that rail
labor should be permitted to review violation categories considered for
dismissal.\7\ Recognizing that FRA has discretion in determining and
enforcing violations, BLET is concerned that using the term ``practical
safety issue'' as a test of when expanded discretion may be utilized
will create unnecessary confusion and
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uneven enforcement.\8\ If FRA chooses to move forward with this rule,
BLET stated that the term ``practical safety issue'' must be defined
for consistency.
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\6\ <a href="https://www.regulations.gov/comment/FRA-2025-0077-0004">https://www.regulations.gov/comment/FRA-2025-0077-0004</a>.
\7\ <a href="https://www.regulations.gov/comment/FRA-2025-0077-0002">https://www.regulations.gov/comment/FRA-2025-0077-0002</a>.
\8\ <a href="https://www.regulations.gov/comment/FRA-2025-0077-0003">https://www.regulations.gov/comment/FRA-2025-0077-0003</a>.
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In response to ASLRRA's feedback, FRA notes that it recently
addressed the civil penalty concerns ASLRRA raised through another
mechanism. Specifically, on FRA's website, FRA describes its Small
Entity Consideration,\9\ as follows:
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\9\ <a href="https://railroads.dot.gov/legislation-regulations/civil-penalties-schedules-guidelines">https://railroads.dot.gov/legislation-regulations/civil-penalties-schedules-guidelines</a>.
FRA understands that small entities in the railroad industry
have significantly different characteristics than larger carriers
and shippers. FRA believes that these differences necessitate
careful consideration to ensure that small entities receive
appropriate treatment on compliance and enforcement matters, and
such treatment enhances the safety of railroad operations. FRA has
discretion in determining which instances of noncompliance by small
entities merit penalty recommendations and the amounts for
recommended civil monetary penalties. See 49 CFR part 209, appendix
C. Consistent with this policy, FRA will typically reduce an initial
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assessed guideline penalty by 50% for small entities.
FRA declines to adopt SMART-TD's recommendation to include a public
report of each dismissal, due to resource constraints. However, any
dismissal will be reported in FRA's Annual Enforcement Report (issued
on its website for each fiscal year).
FRA also declines to adopt the recommendations of both SMART-TD and
BLET to define a ``technical violation'' or ``practical safety issue,''
as what may be considered ``technical'' is a matter within FRA's
discretion and FRA has determined that this flexibility is desirable to
maintain, and FRA makes this determination on a case-by-case basis. For
example, FRA could cite a railroad with an alleged violation of a
railroad safety regulation, but during settlement discussions, the
railroad may contend that while a violation occurred in a technical
sense, the violation cited did not raise a practical safety issue based
on the facts presented in the case, and if FRA agrees, FRA could
dismiss the violation as a matter of the Office of the Chief Counsel's
prosecutorial discretion.\10\
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\10\ Similarly, FRA's Office of Railroad Safety could observe
and recommend a violation of an FRA regulation, and FRA's Office of
the Chief Counsel could decline to prosecute the violation, in its
discretion. As discussed in a report on FRA's use of civil
penalties, the operative principle inherent in the administration of
FRA's safety regulatory program is discretion, discretion by which
FRA's response to deviations from Federal safety standards, whether
major or minor, can be calibrated to achieve a proportionality that
both serves the agency's purpose and inspires the respect of the
regulated community. See The Federal Railroad Administration's Use
of Civil Penalties in the Federal Railroad Safety Program, The
Ventura Group (2009), p.6, available as appendix B to FRA's Fiscal
Year 2009 Enforcement Report, at <a href="https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/282/Annual_Enforcement_Report_2009.pdf">https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/282/Annual_Enforcement_Report_2009.pdf</a>.
This informed discretion, exercised at each level of FRA's safety
structure permits small or large steps up or down the ladder of
enforcement tools, as well as calibration within the application of
each tool, depending on the particular rule and particular facts at
issue in a given case. Id.
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FRA proposed adding language that simply memorializes existing
practice in FRA's Statement of Agency Policy Concerning Enforcement of
Federal Railroad Safety Laws. However, in an effort to provide guidance
and clarity, FRA notes the following example of what it may find to be
a ``technical violation.'' Specifically, FRA may cite a railroad for an
alleged violation of 49 CFR 218.101 for an unattended car left fouling
an adjacent track. Though a fouling violation often presents a critical
safety issue, during settlement discussions, a railroad could argue
that the adjacent track being fouled had been out of service for years,
with the switch accessing the track lined, locked, and spiked,
suggesting that there was little practical safety impact from the
observed fouling equipment in this situation. As such, in this example,
the Office of the Chief Counsel could determine that this alleged
violation, given these particular facts, is ``technical'' in nature and
may not merit further prosecution.
This final rule is also consistent with a DOT NPRM published May
16, 2025, titled Administrative Rulemaking, Guidance, and Enforcement
Procedures. In this NPRM, DOT proposes to affirm that attorneys and
policy makers have broad discretion in deciding whether to initiate an
enforcement action as long as the decision is based upon a reasonable
interpretation of the law about which the public has received fair
notice and should be made with due regard for fairness, the facts and
evidence adduced through an appropriate investigation or compliance
review, the availability of scarce resources, the administrative needs
of the responsible DOT agency or DOT component, Administration policy,
and the importance of the issues involved to the fulfillment of the
DOT's statutory responsibilities.\11\
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\11\ See 90 FR 20956 (May 16, 2025).
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For these reasons, FRA is finalizing the revision to appendix A to
part 209 as proposed.
II. Section-by-Section Analysis
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of Federal Railroad Safety Laws
As discussed above, this final rule clarifies that FRA's Office of
the Chief Counsel has discretion to decline to enforce a violation,
such as a technical violation where the challenged conduct does not
raise a practical safety issue. FRA adds this statement to the
discussion of FRA's Civil Penalty Process in appendix A to part 209.
FRA also makes minor revisions, as proposed, to the Civil Penalty
Process discussion, including removing a description of where
settlement conferences are held and updating the discussion of how
smaller railroads usually prefer to handle negotiations to reference
``email'' rather than ``mail.''
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 the 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 rule clarifies that FRA's Office of the Chief Counsel has
discretion to decline or dismiss a violation, such as when the
challenged conduct does not raise a practical safety issue. By
providing this clarification, regulated entities will benefit from a
streamlined enforcement process, relief from enforcement burdens, and
the promotion of due process and fairness. This clarification will also
help to eliminate any confusion on the Office of the Chief Counsel's
discretionary authority to decline to enforce or to dismiss a technical
violation where the challenged conduct does not raise a practical
safety issue. FRA requested comments on any potential costs from this
rule during the NPRM comment period and received none.
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
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elimination.'' \12\ 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.\13\
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\12\ Executive Office of the President, Executive Order 14192 of
January 31, 2025, Unleashing Prosperity Through Deregulation, 90 FR
9065-9067 (Feb. 6, 2025).
\13\ Executive Office of the President, OMB. 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 will be
considered an E.O. 14192 deregulatory action upon issuance of this
final rule.
C. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996,\14\
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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\14\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
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In the NPRM, FRA certified that this rule would not have a
significant economic impact on a substantial number of small entities.
No comments were received on this certification.
This final rule will not preclude small entities from continuing
practices that comply with part 209. By extending this regulatory
relief, many regulated entities, including small entities, will
experience benefits. Consequently, FRA holds to its previous
certification that the 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 information collection requirements under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520).
E. Environmental Assessment
FRA has analyzed this rule for the purposes of the National
Environmental Policy Act of 1969 (NEPA). In accordance with 42 U.S.C.
4336 and DOT NEPA Order 5610.1D, 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 requires Federal agencies to prepare a Statement of
Energy Effects for any ``significant energy action.'' \15\ 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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\15\ 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. In appendix A to part 209 in the section under the heading ``The
Civil Penalty Process,'' revise the second-to-last paragraph, to read
as follows:
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws
* * * * *
The Civil Penalty Process
* * * * *
Once penalties have been assessed, the railroad is given a
reasonable amount of time to investigate the charges. Larger
railroads usually make their case before FRA in an informal
conference covering a number of case files that have been issued and
investigated since the previous conference. Thus, in terms of the
negotiating time of both sides, economies of scale are achieved that
would be impossible if each case were negotiated separately. The
settlement conferences include technical experts from
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both FRA and the railroad as well as lawyers for both parties.
Similar to the discretion that the Office of the Chief Counsel has
in determining whether to transmit an enforcement action or to
decline to prosecute a recommended violation, the Office also has
discretion to dismiss a violation, such as a technical violation
where the challenged conduct does not raise a practical safety
issue. Even if FRA determines not to dismiss the violation, FRA
continues to have the discretion to reduce the penalty, but not
below the relevant statutory minimum amount. In addition to allowing
the two sides to make their cases for the relative merits of the
various claims, these conferences also provide a forum for
addressing current compliance problems. Smaller railroads usually
prefer to handle negotiations through email or over the phone, often
on a single case at a time. Once the two sides have agreed to an
amount on each case, that agreement is put in writing and a payment
is submitted to FRA's accounting division covering the full amount
agreed on.
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Issued in Washington, DC, under authority delegated in 49 CFR
1.89.
David A. Fink,
Administrator.
[FR Doc. 2026-08250 Filed 4-27-26; 8:45 am]
BILLING CODE 4910-06-P
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