[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20722]
[[Page Unknown]]
[Federal Register: August 24, 1994]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
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49 CFR Part 209
Remedial Actions Reporting; Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. RSEP-7, Notice No. 2]
RIN 2130-AA85
Remedial Actions Reporting
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: FRA is amending its railroad safety enforcement regulations to
require railroads to report actions taken to remedy certain alleged
violations of law. If a railroad receives notice from an FRA or State
safety inspector that (i) the inspector is recommending that a civil
penalty be assessed for an alleged violation of law and (ii) that a
remedial actions report must be submitted, the railroad shall report to
the inspector the actions that it took to remedy the alleged violation.
In such a case, the railroad is required to submit the remedial actions
report within 30 days after the end of the month in which the railroad
received the notice. The rule also provides that if appropriate
required remedial actions cannot be taken by the railroad within such
30-day period, it shall submit to the inspector (i) a written
explanation of the reasons for any delay and (ii) a final report upon
completion of the remedial actions.
EFFECTIVE DATE: This final rule will be effective January 1, 1995.
ADDRESSES: Any petition for reconsideration should reference Docket No.
RSEP-7, Notice No. 2, and be submitted in triplicate to the Docket
Clerk, Office of Chief Counsel, Federal Railroad Administration, 400
Seventh Street SW., Room 8201, Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Edward R. English, Director, Office of
Safety Enforcement (RRS-10), FRA, Office of Safety, 400 Seventh Street,
S.W., Washington, D.C. 20590 (telephone number: 202-366-9252), or David
H. Kasminoff, Trial Attorney (RCC-30), FRA, Office of Chief Counsel,
400 Seventh Street, S.W., Washington, D.C. 20590 (telephone number:
202-366-0635).
SUPPLEMENTARY INFORMATION:
Background
On June 18, 1993, FRA published in the Federal Register a notice of
proposed rulemaking (NPRM) to amend part 209, entitled ``Railroad
Safety Enforcement Procedures,'' by revising Sec. 209.3 and adding a
new ``Subpart E--Reporting of Remedial Actions.'' The proposed Subpart
E prescribed reporting procedures for railroads notified by an FRA or
State safety inspector both that assessment of a civil penalty would be
recommended against them for their alleged noncompliance with the
Federal railroad safety laws and that a remedial actions report must be
submitted to the inspector. 58 FR 33595.
In a study released on July 31, 1990 (GAO/RCED-90-194), the General
Accounting Office (GAO) concluded that FRA had no assurance that
railroads were correcting problems identified in FRA's routine
inspections because there were no requirements that railroads respond
in writing to indicate that an identified defect had been repaired. The
GAO report acknowledged that, even in the absence of requirements to
report corrective actions, railroads voluntarily responded in writing
to FRA concerning most track and signal defects indicating that
corrective actions have been taken. For example, in 1986 through 1988
FRA identified about 361,000 track defects, for which approximately
320,000, or 89 percent, had a railroad response recorded in the
``Action'' and ``Date'' columns of the railroad's copy of the Track
Inspection Report. In the same period, FRA identified about 35,000
signal defects, for which approximately 30,000, or 86 percent, had a
railroad response recorded in the ``Action'' and ``Date'' columns of
the railroad's copy of the Signal and Train Control Inspection Report.
The GAO report further noted that, although some railroads also
reported corrective actions for equipment and operating practices
defects, FRA maintained no record of these written responses and that
FRA did not reinspect in every case to verify the correction of a
safety defect. The GAO recommended that FRA establish an effective
inspection follow-up program that would include (i) requiring railroads
to report actions taken on FRA inspection findings, (ii) determining
what reinspection levels are needed to ensure that railroads are
responding to inspection findings, and (iii) assessing civil penalties
for failure to report corrective actions.
On September 3, 1992, the President signed into law the Rail Safety
Enforcement and Review Act (RSERA), Pub. L. 102-365, 106 Stat. 972,
which mandated in Sec. 3 the issuance of rules requiring submission of
remedial actions reports. On July 5, 1994, the general and permanent
provisions of the RSERA and of all the other Federal railroad safety
laws were simultaneously repealed, reenacted without substantive
change, and recodified as positive law in title 49 of the U.S. Code by
Public Law 103-272. See H.R. Rep. No. 103-180, 103d Cong., 1st Sess.
(1993). Section 3 of the RSERA provided as follows:
(a) Regulations.--The Secretary of Transportation (hereafter in
this Act referred to as the ``Secretary'') shall issue regulations to
require that any railroad notified by the Secretary that assessment of
a civil penalty will be recommended for a failure to comply with a
provision of the Federal railroad safety laws, as such term is defined
in section 212(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C.
441(e)), or any rule, regulation, order, or standard issued under such
provision, shall report to the Secretary, within 30 days after the end
of the month in which such notification is received, actions taken to
remedy that failure.
(b) Explanation of Delay.--Regulations issued under subsection (a)
shall provide that, if appropriate remedial actions cannot be taken by
a railroad within such 30-day period, such railroad shall submit to the
Secretary an explanation of the reasons for any delay.
(c) Schedule for Regulations.--The Secretary shall--(1) within 9
months after the date of enactment of this Act, issue a notice of
proposed rulemaking for regulations to implement this section; and (2)
within 2 years after the date of enactment of this Act, issue final
regulations to implement this section.
49 U.S.C. 20111(d), formerly codified at 45 U.S.C. 437 note. As
recodified at 49 U.S.C. 20111(d), the section now reads as follows:
(d) Regulations Requiring Reporting of Remedial actions.--(1) The
Secretary shall prescribe regulations to require that a railroad
carrier notified by the Secretary that imposition of a civil penalty
will be recommended for a failure to comply with this part, chapter 51
or 57 of this title, or a regulation prescribed or order issued under
any of those provisions, shall report to the Secretary, not later than
the 30th day after the end of the month in which the notification is
received--
(A) actions taken to remedy the failure; or
(B) if appropriate remedial actions cannot be taken by that 30th
day, an explanation of the reasons for the delay.
(2) The Secretary--
(A) not later than June 3, 1993, shall issue a notice of a
regulatory proceeding for proposed regulations to carry out this
subsection; and
(B) not later than September 3, 1994, shall prescribe final
regulations to carry out this subsection.
The Secretary has delegated these rulemaking responsibilities to
the Federal Railroad Administrator. 49 CFR 1.49 (c), (d), (f), (g),
(m), (s), (ee), (gg), and internal delegations.
The term ``Federal railroad safety laws'' in Sec. 3 of the RSERA
means the provisions of law that as a result of recodification are now,
generally, at 49 U.S.C. subtitle V, part A or 49 U.S.C. chap. 51 or 57
and the rules, regulations, orders, and standards issued under any of
those provisions. See Pub. L. 103-272 (1994). Before recodification,
these statutory provisions were contained in the following statutes:
(i) the Federal Railroad Safety Act of 1970 (Safety Act) (49 U.S.C.
20101-20117, 20131, 20133-20141, 20143, 21301, 21302, 21304, 21311,
24902, and 24905, and Secs. 4(b)(1), (i), and (t) of Pub. L. 103-272,
formerly codified at 45 U.S.C. 421, 431 et seq.); (ii) the Hazardous
Materials Transportation Act (Hazmat Act) (49 U.S.C. 5101 et seq.,
formerly codified at 49 App. U.S.C. 1801 et seq.); (iii) the Sanitary
Food Transportation Act of 1990 (SFTA) (49 U.S.C. 5713, formerly
codified at 49 App. U.S.C. 2801 (note)); and those laws transferred to
the jurisdiction of the Secretary of Transportation by subsection
(e)(1), (2), and (6)(A) of section 6 of the Department of
Transportation Act (DOT Act), as in effect on June 1, 1994 (49 U.S.C.
20302, 21302, 20701-20703, 20305, 20502-20505, 20901, 20902, and 80504,
formerly codified at 49 App. U.S.C. 1655(e)(1), (2), and (6)(A)). 49
U.S.C. 20111 and 20109, formerly codified at 45 U.S.C. 437 (note) and
441(e). Those laws transferred by the DOT Act include, but are not
limited to, the following statutes: (i) the Safety Appliance Acts (49
U.S.C. 20102, 20301, 20302, 20304, 21302, and 21304, formerly codified
at 45 U.S.C. 1-14, 16); (ii) the Locomotive Inspection Act (49 U.S.C.
20102, 20701-20703, 21302, and 21304, formerly codified at 45 U.S.C.
22-34); (iii) the Accident Reports Act (49 U.S.C. 20102, 20701, 20702,
20901-20903, 21302, 21304, and 21311, formerly codified at 45 U.S.C.
38-43); (iv) the Hours of Service Act (49 U.S.C. 20102, 21101-21107,
21303, and 21304, formerly codified at 45 U.S.C. 61-64b); and (v) the
Signal Inspection Act (49 U.S.C. 20102, 20502-20505, 20902, 21302, and
21304, formerly codified at 49 App. U.S.C. 26).
FRA performs its safety inspections in order to monitor and enforce
compliance with the Federal railroad safety laws by all entities
subject to its jurisdiction, not simply by railroads. The entities
themselves still retain ultimate responsibility for detecting,
repairing, and avoiding violations of those laws. Nevertheless, the
reporting requirement will assist FRA in monitoring followup actions by
railroads with respect to conditions sufficiently serious to warrant
possible future civil penalty actions.
If an FRA inspector, State inspector participating in investigative
and surveillance activities under 49 C.F.R. Part 212, or other duly
authorized official performing a railroad safety inspection
(hereinafter referred to collectively as ``FRA Safety Inspector'')
determines that a railroad has not complied with a provision of the
Federal railroad safety laws and if the inspector decides to recommend
the assessment of a civil penalty against the railroad for the
noncompliance, the inspector will first prepare an inspection report.
This report includes the following information: the name of the FRA
Safety Inspector, his or her identification number, the report number,
the name and job title of the railroad representative served with the
report, the railroad's name and computer code, the railroad division
and subdivision (if applicable), and the inspection report date.
Further, the inspection report also indicates if the FRA Safety
Inspector has checked the box specifying ``Violation Recommended.'' If
a violation is recommended, the FRA Safety Inspector will prepare a
violation report including a recommendation for the assessment of a
civil penalty.
The central requirement of the final regulations is that any
railroad receiving notification on the new version of the inspection
report that (i) the FRA Safety Inspector is recommending the assessment
of a civil penalty for a failure by that railroad to comply with a
provision of the Federal railroad safety laws and (ii) a report of
remedial actions must be filed, shall fill out the ``Railroad
Followup'' section of the railroad copy of the inspection report. The
railroad must then return the form to the designated FRA Safety
Inspector within 30 days after the end of the month in which such
notification is received. The remedial actions report must include the
name and job title of the individual completing the form on behalf of
the railroad and indicate the date(s) on which the remedial actions
occurred. A copy of the new inspection report on which to report to FRA
remedial actions taken is appended to this final rule.
Under the terms of the final regulations, the duty to submit a
remedial actions report does not arise merely upon notification that a
recommendation for the assessment of a civil penalty will be made
(i.e., in the box stating ``Violation Recommended,'' the word ``yes''
is selected). It arises only if notification is also provided to the
railroad on the inspection report itself that submission of a remedial
actions report for that specific failure is required (i.e., in the box
stating ``Written Notification to FRA of Remedial Action is:'' the word
``Required'' is selected). Broadly construed, under one permissible
interpretation of the reporting requirement of Sec. 3 of the RSERA, the
requirement could apply to all violations for which the assessment of a
civil penalty is recommended. This reading of Sec. 3 would, of course,
include all violations involving physical defects (e.g., in track,
equipment, and signals) where, absent remedial actions, the physical
defect continues to pose a safety hazard, e.g., a defective wheel on a
freight car. However, this interpretation would also include violations
involving a defect in human performance, such as permitting a
locomotive engineer to work in excess of 12 hours in violation of the
Federal hours of service laws. In that instance, the excess service
creates a risk during the period of the excess service itself, but does
not carry a continuing threat to safety.
FRA concludes that the intent of Congress in enacting Sec. 3 of the
RSERA was to require the reporting of remedial actions only for a
failure to comply that, in the judgment of the FRA Safety Inspector,
could literally and specifically be corrected by the specific railroad
notified. In other words, we think that Congress required remedial
actions reports only for violations that could still pose an ongoing
risk to rail safety if not corrected (e.g., operation of a freight car
that the railroad received in interchange in revenue service with a
defective wheel). In light of FRA's interpretation of Sec. 3 of the
RSERA and in an effort to develop meaningful compliance data, the final
regulations apply remedial actions reporting to only three general
categories of failures to comply with a provision of the Federal
railroad safety laws for which the assessment of a civil penalty is
recommended. The three general categories consist of (i) physical
defects, (ii) recordkeeping and reporting violations, and (iii) filing
violations.
The final regulations neither compel nor permit any affected
railroad to decide for itself whether a particular recommendation to
FRA for the assessment of a civil penalty falls under one of the three
general categories, and thus results in the need to submit a remedial
actions report. Consider, for example, a situation in which a railroad
is informed that because of its operation of a box car with a plain
bearing box having no visible free oil, in violation of 49 CFR 215.107,
a recommendation will be made for the assessment of a civil penalty.
However, the safety inspector neglects to include the requisite
notification on the inspection report that submission of a remedial
actions report is required. Although the inspector's omission would not
affect the railroad's underlying obligation to pay any civil penalty
assessed for the substantive freight car violation, FRA's failure to
provide the required notification would, under this rule, mean that the
railroad had no duty to file a remedial actions report regarding the
substantive violation.
After a railroad returns the completed remedial actions report to
the FRA Safety Inspector, he or she will first determine if the
remedial actions taken were proper and adequate under the circumstances
of the violation. If not, he or she will contact the representative of
the railroad who completed the report form to obtain additional
information. If necessary, the FRA Safety Inspector will return a
deficient report to the appropriate railroad representative for
revision. Once the remedial actions report is sufficient, the FRA
Safety Inspector will submit a copy of this report to FRA's Office of
Chief Counsel, which may make use of it during the penalty assessment
and negotiation process. FRA's Office of Safety will then correlate the
data representing the different types of remedial actions that entities
affected by the reporting requirement have undertaken. This
computerized data will assist FRA in systematically targeting
inspections by integrating available accident and injury data with
inspection and compliance data, so as to better determine if affected
entities are minimizing and correcting safety problems.
Under certain unusual circumstances, a railroad may be notified
that assessment of a civil penalty will be recommended for a failure of
that railroad to comply with a provision of the Federal railroad safety
laws unless the company undertakes a specific programmatic response to
the compliance problem. In such cases, although penalty action may be
withheld, it will be treated as if the penalty has already been
recommended, that is submission of a remedial actions report would be
required. Further, there are instances where a recommendation for the
assessment of a civil penalty may be made, but later overturned by
regional officials for technical or policy reasons or declined by FRA's
Office of Chief Counsel for evidentiary or other legal deficiencies.
FRA considers the phrase `` * * * that has received written
notification * * * from an FRA Safety Inspector both that assessment of
a civil penalty will be recommended * * * and that it must submit a
remedial actions report * * * ``as the triggering language that
requires a railroad to report its remedial actions to FRA within 30
days after the end of the month in which such notification is received.
See 49 CFR 209.405.
Discussion of Comments and Conclusions
A total of 11 responses were received concerning the NPRM. At the
public hearing held in Washington, D.C. on October 19, 1993, six
organizations were represented: the Association of American Railroads
(AAR); The American Short Line Railroad Association (ASLRA);
Consolidated Rail Corporation (Conrail); National Railroad Passenger
Railroad Corporation (Amtrak); Union Pacific Railroad Company (UP); and
Brotherhood Railway Carmen Division, Transportation Communications
International Union (BRC). Prepared statements were provided by the
AAR, the ASLRA, and the BRC, and written comments were received from
the AAR, the ASLRA, the UP, the BRC, the American Public Transit
Association (APTA), Akzo Chemicals Inc. (Akzo), Chemical Manufacturers
Association (CMA), and Southeastern Pennsylvania Transportation
Authority (SEPTA). Discussions follow with respect to the primary
issues raised by the commenters. In light of the comments received, FRA
has reconsidered some of its proposals.
1. Should the final rule require remedial actions reports for all
categories of failures to comply with provisions of the Federal
railroad safety laws for which assessment of civil penalties have been
recommended, or just for failures that can literally and specifically
be corrected?
The NPRM set forth FRA's belief that the intent of Congress in
enacting Sec. 3 of the RSERA was to require reporting of remedial
actions only for failures to comply that could literally and
specifically be corrected. FRA, however, acknowledged that one
permissible reading of the statute is that remedial actions reports are
required for all categories of alleged violations, and encouraged
commenters to submit their views on FRA's interpretation of Sec. 3 of
the RSERA. Specifically, FRA asked any commenter believing that
expansive reporting is required by the statute, or inherently useful,
to recommend specific ways that generally responsive measures taken to
prevent violations similar to those involved in completed or past
transactions could usefully be reported to FRA.
Five commenters agreed with FRA's position that the rule should
apply to only three general categories of failures to comply with a
provision of the Federal railroad safety laws for which the assessment
of a civil penalty is recommended. The three general categories consist
of (i) physical defects, (ii) recordkeeping and reporting violations,
and (iii) filing violations.
The AAR believed that to require more expansive reporting would
expand the scope of the rule beyond FRA's statutory authority, since in
Sec. 3(a) of the RSERA Congress ordered remedial actions reports only
on ``actions taken to remedy that failure,'' referring to the
particular ``failure'' to comply for which a civil penalty would be
sought. The AAR also stated that there is no policy or safety reason
for FRA to expand the scope of the rule and that FRA already has
sufficient information available to assist it in allocating agency
resources. The ASLRA opined that to require reporting of actions not
susceptible to physical change or administrative correction would be
counterproductive, leading to unnecessary paperwork and costs. The CMA
believed that FRA should be more selective in determining when a
remedial actions report must be filed and that FRA Safety Inspectors
(as that term is now defined in the final rule) should have discretion
to decide if safety concerns warrant the submission of a report even
for failures involving physical defects, recordkeeping and reporting
violations, and filing violations.
In contrast, the BRC believed that FRA's proposed restrictive
approach runs contrary to the legislative history and does not comport
with Congressional intent, and that Congress specifically intended to
limit FRA's discretion in implementation of the RSERA. The BRC stated
that completed or past transactions in violation of the law and
regulations are not usually isolated instances, but are indicative of
an ongoing pattern of violations which can be remedied by additional
instruction, education, or discipline. The BRC also indicated that even
if the rule is applied to all categories of violations, remedial
actions reporting would still address only violations that FRA Safety
Inspectors could confirm with sufficient evidence to warrant the
recommendation of assessment of a civil penalty.
While FRA disagrees with the AAR's conclusion that it would lack
the statutory authority to expand the scope of the rule, FRA also
disagrees with the BRC's conclusion that the legislative history,
including House Report No. 102-205, establishes a Congressional intent
to subject all violations to the reporting requirement. Section 3 of
the RSERA required remedial actions reports for ``actions taken to
remedy that failure'' (emphasis added), and FRA concludes that Congress
was referring to actions taken to remedy the particular ``failure'' to
comply for which a civil penalty would be sought (i.e., to the specific
instance that constituted a violation), not to the generic failure on
other occasions to comply with the same regulatory or statutory
provision.
After careful consideration of all of the comments, FRA has decided
to require the reporting of remedial actions only for failures to
comply that can literally and specifically be corrected, as set forth
in the NPRM. In response to the concerns raised by the BRC, FRA
emphasizes that for violations involving completed or past transactions
that can no longer be remedied by the given railroad (e.g., permitting
a locomotive engineer to work in excess of 12 hours in violation of the
Federal hours of service laws or offering a freight car in interchange
with a defective wheel that FRA identified to the receiving railroad as
requiring repair), FRA will expect the railroad against whom a civil
penalty is recommended (or even against whom only a written warning is
issued) to reassess its own overall policy and attitude toward future
compliance, such as by reallocating its resources or providing
additional employee training. Moreover, since the civil penalty that
will be recommended is expected to serve as an incentive toward
generally responsive actions, to require a remedial actions report for
violations that can no longer be remedied by that railroad would be
superfluous.
2. Should the reporting requirement apply to all entities over
which FRA has enforcement authority, e.g., shippers of hazardous
materials, or just to railroads?
The only two organizations that commented on this issue favored the
proposed expanded coverage of the rule. The BRC believed that expanded
coverage would promote better accountability and permit FRA to fully
monitor compliance with the law and regulations. CMA generally
supported the proposed reporting requirement, including expansion of
the proposed definition of ``responsible company'' to include shippers,
if improved safety in the shipment of hazardous materials by rail can
be realized. However, CMA noted that a discussion of the rule's
economic impact on shippers was omitted from FRA's regulatory impact
analysis.
As acknowledged in the NPRM, Sec. 3 of the RSERA mandated issuance
of rules requiring remedial actions reports only from railroads. FRA
proposed making the rule applicable to all persons other than
individuals under our rulemaking authority under Sec. 202 of the Safety
Act, in furtherance of our enforcement authority under the Hazardous
Materials Transportation Act, in order to develop more comprehensive
safety data, better utilize its limited resources, and consistently
treat all similarly situated violators of the Federal railroad safety
laws.
FRA has reconsidered its proposal and decided to limit the
applicability of the final rule to only railroads. First, FRA believes
that if Congress had intended for all persons besides railroads to be
included under Sec. 3 of the RSERA, Congress would have expanded the
scope of the rule. Second, FRA now concludes that in most instances in
which FRA Safety Inspectors choose to cite shippers of hazardous
materials for violations of the Hazardous Materials Regulations, the
tank cars or shipping papers that are the subjects of the civil penalty
recommendations are no longer under the control of the shipper.
Accordingly, the majority of these violations are for completed or past
transactions and thus would not subject shippers to the reporting
requirement even under the proposed expanded approach.
The shippers would still, however, be expected to reevaluate their
future compliance policies and procedures. For example, a shipper
receives written notification from an FRA Safety Inspector that a
recommendation for the assessment of a civil penalty is being made
pursuant to 49 CFR 173.29 for failure to properly secure all of the
closures on a residue tank car, but the car is found in a rail yard
hundreds of miles from the shipper's facility. Although this failure
would fall within one of the three general categories of correctable
violations, under ordinary circumstances the required remedial actions
(e.g., securement of the car's closures) would be performed exclusively
by the railroad. The shipper might investigate the circumstances
surrounding the tank car's preparation and then implement new
procedures, but under the terms of the NPRM the shipper would not be
required to submit a remedial actions report.
3. Does FRA have the legal authority to impose civil or criminal
penalties on railroads and/or individuals that either violate or cause
a violation of the reporting requirements?
The proposed rule identified the penalties that FRA might impose
upon any person who violates or causes the violation of any requirement
of Subpart E, and noted that penalties were authorized by Sec. 209 of
the Safety Act. However, the AAR, the ASLRA, and the UP stated that
although the source of FRA's authority in promulgating the rule was
Sec. 3 of the RSERA, neither that section nor any other section of the
RSERA authorized the imposition of civil or criminal penalties. The
three commenters noted that while Sec. 209 of the Safety Act authorized
penalties for violations of safety rules or regulations issued under
that Act, Sec. 3 of the RSERA was neither an amendment nor an addition
to the Safety Act. They then concluded that since FRA never provided
any notice or a reasoned explanation for why the rule's substantive
provisions are ``necessary'' for railroad safety under Sec. 202(a) of
the Safety Act (now codified at 49 U.S.C. 20103), or ``necessary or
appropriate'' for safe transportation of hazardous materials under
Sec. 105(a)(1) of the Hazardous Materials Transportation Act (now
codified at 49 U.S.C. 5103), neither civil nor criminal penalties are
authorized.
These commenters opined that since the underlying violation is
already subject to a civil penalty, and the necessary incentives to
submit a remedial actions report are already in place, the possible
imposition of an additional penalty would be superfluous. The BRC
contended that the incentive provided by a separate penalty for
submitting an improper remedial actions report increases accountability
and forces the railroads to ensure completion of the report.
FRA adopts the NPRM proposal that civil and/or criminal penalties
may be imposed upon any person, including a railroad, who either
violates or causes the violation of any requirement of Subpart E. As
stated in the authority citation for the proposed revised part 209,
FRA's authority for including civil and criminal penalty provisions in
the remedial actions reporting rule derives from our rulemaking
authority under 49 U.S.C. 20103 (formerly contained in Sec. 202 of the
Safety Act). See 49 CFR 1.49(m). Contrary to the implication of the
AAR, the ASLRA, and the UP, FRA is not issuing the remedial actions
reporting rule with respect to violations of the Hazardous Materials
Regulations under the authority of 49 U.S.C. 5103 (formerly contained
in Sec. 105(a)(1) of the Hazardous Materials Transportation Act). With
regard to submission of remedial actions reports for violations of the
Hazardous Materials Regulations, our authority for including civil and
criminal penalty provisions in the rule derives from our rulemaking
authority under 49 U.S.C. 20103, in furtherance of our enforcement
authority under the provisions of law formerly known as the Hazardous
Materials Transportation Act. See 49 CFR 1.49 (m) and (s). Of course,
FRA could issue these rules under the provisions of law formerly
contained in the Safety Act even if the provisions of law formerly
contained in Sec. 3 of the RSERA did not exist, so this is an academic
argument. For the record, FRA believes these rules are necessary for
safety.
Accordingly, consistent with FRA's belief that Congress did not
intend for FRA to lack the authority to enforce the remedial actions
reporting rule, we are issuing the rule under both 49 U.S.C. 20111(d)
and 49 U.S.C. 20103 in order to avail ourselves of all potential
remedies that may be necessary to achieve compliance. To the extent
that we are issuing the rule under 49 U.S.C. 20103, we have concluded
that it is ``necessary'' to ensure railroad safety, as required by
Sec. 20103(a). FRA strongly disagrees with the AAR's conclusion that
the NPRM failed to sufficiently set forth why the submission of
remedial actions is ``necessary'' for railroad safety. The AAR quoted
FRA's statement in the NPRM that ``* * * it is doubtful that this
proposed rule alone will reduce the number of defective conditions in
the industry, or that it will materially impact on the already
declining rate of train accidents.'' 58 FR 33601. The AAR also observed
that FRA ``* * * is unable to quantify any direct or indirect safety
benefit from this proposed rule.'' 58 FR 33601. The AAR further noted
that even if certain correctable violations (which, if uncorrected,
pose ongoing safety risks) have meaningful connections to safety, this
nexus does not establish that the submission of remedial actions
reports is ``necessary'' to railroad safety.
Although FRA readily acknowledged in the NPRM that it is unable to
quantify any direct or indirect safety benefit from the proposed rule,
it also stated that the potential benefit will come about by increasing
the ability of the railroad industry to manage quality control. 58 FR
33601. FRA also concluded that the rule will improve its ability to
efficiently and effectively manage its inspection resources. 58 FR
33601. In addition, it was hoped that railroads (previously included
under the term ``responsible company''), after being required to report
remedial actions to FRA, will create their own internal databases of
the remedial actions reports. Although we noted that internal analyses
of the information was not required by the NPRM, we stated that such
analyses (in conjunction with other resource management data) might
lead railroad management to take actions designed to reduce and/or
effectively respond to defective conditions. 58 FR 33601.
We also stated in the NPRM that remedial actions reporting will
assist FRA in monitoring follow-up actions by railroads with respect to
conditions sufficiently serious to warrant possible future civil
penalty actions. 58 FR 33601. FRA then noted that the rule also holds
particular potential for reducing the amount of time that FRA Safety
Inspectors spend returning to an inspection location to check on the
status of a violation for which a violation report had previously been
submitted. 58 FR 33601. The rule also will permit FRA to develop more
comprehensive safety data, better utilize its limited resources, and
consistently treat all similarly situated violators of the Federal
railroad safety laws.
4. Should notification to a railroad that it must submit a remedial
actions report be provided to a specific person and place designated by
that railroad?
The proposed rule identified the entity itself as the person upon
whom written notification of the requirement to submit a remedial
actions report would be served. No provision was included to permit a
railroad to direct FRA to serve the written notice upon either a named
individual or an individual having a particular job title or job
function on the railroad. FRA anticipated that written notice would be
given directly to an appropriate local railroad official, such as a
foreman, trainmaster, or supervisor.
Five commenters opined that unless FRA requires each railroad to
identify a specific person or contact within that railroad, delays or
failure to respond to the remedial actions report could result. The AAR
proposed that FRA provide initial notification of a filing requirement
to nonagreement officers (or their designates) involved in managerial
field supervision, with duplicate notice sent to a location to be
specified by each railroad. The AAR stated that while cost savings are
difficult to quantify, providing notification to a headquarters
location would enhance timeliness and compliance. The AAR requested
that if the final rule does not require central notification, then FRA
Safety Inspectors should be required to make every effort to hand
deliver notification to the nonagreement managers (or their designates)
who accompany the field inspectors. Conrail stated that many of its
first-line supervisors, with whom FRA Safety Inspectors currently leave
inspection reports, assume that the reports are not their
responsibility to forward or answer because the problems did not exist
or originate in their territories.
The BRC argued that if the railroads need to implement internal
reforms in order to comply with FRA regulations then blame cannot be
placed on the remedial actions reporting requirement. The BRC opined
that to the extent that the railroads already monitor and control
required repairs to track and equipment, their current internal
accountability will foster compliance with this rule. It also believed
that since most violations are resolved and handled locally, the
remedial actions report form could be completed locally.
FRA is not persuaded that a requirement to provide notification of
the duty to submit a remedial actions report to either a specific
local-level nonagreement official and/or to an official at a central
location of the railroad is either necessary or appropriate. Upon
consideration of all of the comments, FRA believes that to require its
inspectors to expend additional time serving notice upon only certain
categories of railroad employees at each inspection location and also
to maintain current lists of names and mailing addresses of designated
railroad officials at central locations, would undermine FRA's ability
to efficiently and effectively manage its inspection resources.
Under current FRA procedures, FRA Safety Inspectors usually will
deliver their inspection report directly to the individual who
accompanied them on the railroad's property during the inspection.
Other times, the inspectors will communicate with an appropriate local
railroad official (either agreement or nonagreement) shortly after they
perform an unaccompanied inspection. In any event, the inspection
report form shows to whom FRA has delivered the report, so there is a
clear basis on which a railroad can insist on accountability by its own
officers and employees. Accordingly, we believe that each railroad is
uniquely qualified to establish its own internal control mechanism for
ensuring that all information concerning remedial actions reporting,
delivered by FRA to any relevant local employee of the railroad, is
reported to the necessary individuals in the railroad's hierarchy in a
timely and efficient manner.
5. Should the inspection report itself be adapted and modified to
serve as the remedial actions report form?
The NPRM proposed the continued use by FRA Safety Inspectors of a
different type of inspection report form specific to each discipline.
However, only one generic remedial actions report form, regardless of
the rule, regulation, order, or standard involved, would be used by all
railroads required to report their remedial actions. It was anticipated
that FRA would develop a number of specific remedial actions report
forms unique to each discipline, either as part of, or as attachments
to, the inspection reports themselves.
The AAR, the UP, and the ASLRA strongly urged FRA to amend its
existing inspection reports to serve as remedial actions report forms,
thus eliminating much of the paperwork and reporting burdens from the
railroads. The AAR also noted that several of FRA's current inspection
forms already serve this purpose, such as the ``Railroad Followup''
section on inspection reports for Track, Motive Power and Equipment,
and Signal and Train Control inspections.
FRA agrees with the commenters that modifying the inspection report
to serve as the remedial actions report form will generally ease the
paperwork burden imposed by this rule on the railroads and will
specifically reduce the amount of time required to complete the form.
FRA has also decided to combine all four of its discipline-specific
inspection reports into one new generic inspection report, to be
designated as Form FRA F 6180.96. To denote that a railroad is required
to submit a remedial actions report, the FRA Safety Inspector checks
the box marked ``required'' in the section entitled ``Remedial
Actions'' of the new inspection report form. The railroad will then
provide the required remedial actions report information directly on
its copy of the inspection report, and mail that form back to the
appropriate FRA Safety Inspector.
6. Should the instructions on the remedial actions report form be
changed to make submission of a brief narrative statement optional,
thus permitting a railroad to submit its report by only selecting the
appropriate remedial action code?
The NPRM proposed prohibiting a railroad from reporting its
remedial actions simply by indicating that corrective actions were
performed. The proposed rule would have required a railroad to report
to FRA with the necessary level of specificity by selecting the
appropriate reporting code along with a brief narrative description to
indicate the nature of the actions taken.
The AAR and the ASLRA contended that, with the exception of the
code ``other remedial actions,'' FRA should not require written
narrative statements when an applicable action code already exists.
They believed that preparation of a narrative adds to compliance time
and costs, but yields no railroad safety benefits. They further argued
that the absence of a narrative would not undermine the quality of
railroad compliance, since FRA could perform field audits and random
samplings of railroad records.
The BRC strongly favored retention of the narrative description
requirement and suggested that additional instructions be added to the
reporting form to enhance the quality of the narrative statement, e.g.,
when repairs to a railroad car are necessary the narrative statement
should indicate the place of repair, the extent of the repair, and the
name of the person performing the repair. The BRC opined that the
narrative statement would assist FRA in determining if a railroad
needed to take additional actions, without the need for a formal audit.
FRA agrees with the AAR and the ASLRA that under most circumstances
the selection of a remedial action code on the reporting form will
fully and accurately reflect the action or actions taken to remedy a
failure to comply with a provision of the Federal railroad safety laws.
Examples of such codes include the following: repair or replacement of
a defective component without movement, movement of a locomotive or car
for repair (where permitted) and its subsequent repair, completion of a
required test or inspection, removal of a noncomplying item from
service but not for repair (where permitted), or reduction of operating
speed (where sufficient to achieve compliance). It is primarily this
coded information that FRA anticipates entering into its computer
database to augment FRA's ability to efficiently and effectively manage
its inspection resources. With the exception of the residuary code for
``other remedial actions,'' FRA concludes that requiring inclusion of a
narrative statement on the report form would unnecessarily add to the
time that a railroad would expend on completion of the form and would
be of marginal value to railroad safety.
Contrary to the BRC's argument, FRA believes that the possibility
of a followup FRA inspection, coupled with potential imposition of
civil and criminal penalties for filing a false remedial actions
report, will serve as a significant deterrent to any railroad
considering filing a report with a false or misleading remedial action
code selected. Accordingly, FRA is revising the final rule to require a
railroad compelled to file a remedial actions report to select only an
appropriate remedial action code to fully describe the remedial action
or actions performed. Completion of the brief narrative description
section will ordinarily be optional; however, for any railroad
selecting the remedial action code ``other remedial actions''
completion of the brief narrative description section will be
mandatory.
7. Did FRA substantially underestimate the regulatory impact of the
rule when it stated that it would cost the railroad industry only
$66,500 per year to fill out the required remedial actions reports?
The NPRM noted that the potential benefit of the rule comes from
increasing the ability of the railroad industry to manage quality
control, as well as by improving FRA's ability to efficiently and
effectively manage its inspection resources. It was anticipated that it
would not take the realization of many benefits to offset the
relatively insignificant cost to society of approximately $75,000 per
year ($66,500 to the railroad industry each year to fill out the
required remedial actions reports and approximately $8,100 to FRA to
review the reports). Moreover, the public reporting burden for the
collection of information was estimated to average approximately 23
minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
The AAR argued that FRA's cost estimate is off by at least a factor
of ten. This commenter believed that although a voluntary report may
take only 15 minutes to complete, the risk of civil and criminal
penalties would require a railroad to devote more management time and
attention to reporting and would increase the completion time to at
least one and one-half hours. The AAR further contended that FRA erred
by estimating the actual employee cost per hour to be $24.00, rather
than $36.00 per hour with fringe benefits included in the calculation.
The ASLRA agreed with the AAR that the cost of implementation was
grossly understated. This commenter believed that based upon wage
levels for the larger Class II and Class III railroads of approximately
$28.00 to $30.00 per hour, along with an average 90-minute time period
required for recording, checking accuracy, and senior management
clearance, the estimated annual administration cost to small railroads
will be approximately $50,000 to $75,000. Both commenters, and the UP,
argued that the reporting burden would be eased if FRA incorporated the
reporting requirement directly onto the inspection report, and relied
primarily on a checkoff of coded responses in lieu of a written
description of remedial actions performed.
As already discussed in this preamble, FRA has addressed many of
the concerns about time and cost raised by the three commenters by
modifying the inspection report to serve as the remedial actions report
form and by making a railroad's submission of a narrative description
optional, under most circumstances, instead of required. Accordingly,
FRA anticipates that the public reporting burden for collection of
information required for this rule will remain as estimated in the
NPRM, an average of approximately 23 minutes per response for all
reports filed as a result of Secs. 209.405 and 209.407.
FRA rejects the argument that the risk of civil and criminal
penalties will increase the time required to complete a mandatory
remedial actions report over the time now required to complete a
voluntary report. A railroad is legally obligated to correct a cited
violation and avoid continued noncompliance, regardless of whether it
is required to inform FRA of its remedial actions. Presumably, a
railroad that currently voluntarily submits remedial actions reports to
FRA is not choosing to provide inaccurate and untruthful information
merely because the threat of civil and criminal penalties may be
lacking. Accordingly, FRA concludes that the time required to read the
remedial actions report form and select an appropriate remedial action
code will be minimal.
Section-by-Section Analysis
Section 209.3 is reorganized, the definition of ``person'' is
revised, and definitions of three important terms employed in the
remedial actions regulations are added. The first of the newly defined
terms is ``FRA Safety Inspector.'' It is defined to mean an FRA safety
inspector, a State inspector participating in railroad safety
investigative and surveillance activities under Part 212 of this
chapter, or any other official duly authorized by FRA. The term
``railroad'' is defined as it appears in the recodification of the
provisions of law formerly contained in the Safety Act. The term
``Federal railroad safety laws'' includes the provisions of law that
before their repeal and reenactment in title 49 of the U.S. Code were
contained in the Safety Act, the Hazmat Act, SFTA, and those laws
transferred to the jurisdiction of the Secretary of Transportation by
subsections (e)(1), (2), and (6)(A) of section 6 of the DOT Act. Those
laws which were transferred include, but are not limited to, the Safety
Appliance Acts, the Locomotive Inspection Act, the Accident Reports
Act, the Hours of Service Act, and the Signal Inspection Act. In
addition, the term ``Federal railroad safety laws'' encompasses the
rules, regulations, orders, and standards issued pursuant to the above
provisions of law.
As discussed elsewhere in this preamble, FRA has decided to limit
the applicability of the final rule to railroads only. Accordingly, the
term ``responsible company'' has been eliminated.
Section 209.401 describes the purpose and scope of the remedial
actions reporting regulations. FRA seeks to prevent and avoid accidents
and injuries that could result from a railroad's failure to remedy
certain violations of the Federal railroad safety laws that have been
recommended for the assessment of a civil penalty. The rules require a
railroad notified by an FRA Safety Inspector both that assessment of a
civil penalty will be recommended for a failure to comply with a
provision of the Federal railroad safety laws and that a remedial
actions report must be submitted, to report to the inspector actions
taken to remedy that failure. The railroad must report within 30 days
after the end of the month in which it receives such notification.
In response to AAR's request, FRA has added new subsection (d) to
Sec. 209.401 to clarify that FRA requires the submission of a remedial
actions report from a railroad against whom a civil penalty is
recommended only for a failure to comply that could literally and
specifically be corrected by that railroad. For completed or past
transactions that can no longer be remedied (e.g., permitting an
engineer to work over 12 hours in violation of the Federal hours of
service laws), FRA expects the railroad against whom a civil penalty is
recommended to reassess its own overall policy and attitude toward
future compliance, perhaps by reallocating its resources or providing
additional employee training. In all these situations, a civil penalty
has already been recommended as an incentive toward such generally
responsive actions. Accordingly, to require a railroad to inform FRA of
remedial actions taken in response to a particular violation that can
no longer be remedied by that railroad would be superfluous.
Accordingly, a railroad that has delivered a freight car in
interchange with a defective wheel that FRA identifies to a receiving
railroad as requiring repair might be recommended for the assessment of
a civil penalty, but the offering railroad would not be required to
submit a remedial actions report to FRA for this completed transaction.
However, if the receiving railroad is recommended for the assessment of
a civil penalty, it would be required to submit a report because the
nature of its violation poses an ongoing risk to rail safety. Of
course, for purposes of resource allocation with respect to future FRA
inspection and enforcement activity, FRA welcomes the receipt of
remedial actions reports from all entities (including railroads and
shippers of hazardous materials) on a voluntary basis when the FRA
Safety Inspector checks the ``Optional Box'' on the inspection report.
However, no entity will be penalized for failing to submit a
noncompulsory report.
Section 209.403 defines the applicability of these regulations. The
final regulations do not expand the number of entities affected by the
reporting requirement beyond the single category required by the
provisions of law formerly contained in the RSERA, i.e., all railroads
receiving written notification from an FRA Safety Inspector both that a
recommendation for the assessment of a civil penalty is being made and
that a remedial actions report must be submitted. The primary impact of
this change from the proposed rule is that hazardous materials shippers
over which FRA exercises enforcement authority will not be required to
report their remedial actions to the inspector. While the regulations
do not directly apply to individuals, as the penalty provision in
Sec. 209.409 makes clear, any individual who willfully thwarts the
reporting provisions of the proposed rule would be held individually
liable for the violation.
Section 209.405(a) requires that upon receipt of written
notification on Form FRA F 6180.96 from an FRA Safety Inspector both
that assessment of a civil penalty will be recommended for a failure to
comply with a provision of the Federal railroad safety laws and that a
remedial actions report must be submitted, the railroad shall report to
the inspector all actions taken to remedy that failure. The railroad
shall have 30 days after the calendar month in which the notification
is received to submit this report to the inspector in writing. The duty
to report to the inspector is not triggered merely by receiving written
notification from the inspector that assessment of a civil penalty will
be recommended, but only in conjunction with receiving written
notification from the inspector that a remedial actions report must be
submitted.
Since a recommendation for the assessment of a civil penalty must
be made before submission of a remedial actions report is required, the
duty would never arise merely upon notification that a defect has been
discovered. Alternatively, if a recommendation for the assessment of a
civil penalty is made and a railroad receives written notification that
a remedial actions report must be submitted, but no civil penalty is
later assessed either for policy or evidentiary reasons, the duty to
report remedial actions taken pursuant to this section still exists.
Accordingly, if the railroad is ultimately not required to pay a civil
penalty for the underlying alleged violation, the railroad would still
be liable for a civil penalty under Sec. 209.405 for failing to file a
required remedial actions report regarding the underlying alleged
violation.
Written notification that the submission of a remedial actions
report is required will occur only when a failure to comply with a
provision of a Federal railroad safety law for which the assessment of
a civil penalty is recommended falls into one of three general
categories. The three general categories consist of (i) physical
defects, (ii) recordkeeping and reporting violations, and (iii) filing
violations. These categories represent types of violations that could
still pose ongoing risks to rail safety if left uncorrected and/or can
actually be specifically corrected. The obligation to determine whether
a particular failure recommended for the assessment of a civil penalty
triggers the requirement to submit a remedial actions report rests
totally with FRA. Moreover, since a railroad's duty to submit a
remedial actions report arises only upon specific notification to this
effect, no violation can occur under this section unless such
notification is properly provided by FRA.
The ASLRA commented that since circumstances vary as to what
constitutes a violation, FRA Safety Inspectors must receive clear
guidance as to when a violation requires the submission of a remedial
actions report. The commenter argues that without such guidance an
inspector might impose the reporting requirement on all categories of
violations, not just for the three general categories of violations
discussed earlier. FRA is aware of the potential for inconsistent
enforcement of the reporting regulations by its inspectors, and intends
to provide them with comprehensive training concerning the types and
circumstances of violations that require the submission of remedial
actions reports.
The 30-day time period is merely provided for the administrative
convenience of the railroad, so as to allow sufficient time to report
its remedial actions by filling out the form provided to it. The pre-
existing duty to correct the defect or take other appropriate remedial
action remains the same as it was before the effective date of these
regulations. Accordingly, a railroad would be subject to a new
recommendation for the assessment of a civil penalty for a willful
violation if, for example, it operated a freight car subject to the
Freight Car Safety Standards, except under the provisions of 49 CFR
215.9, knowing it to be defective, but with the intent to delay making
repairs until the end of the 30-day reporting deadline. Indeed, under
49 U.S.C. 21301 (formerly contained in Sec. 209(c) of the Safety Act),
each day the violation continued would constitute a separate offense.
In an instance where the FRA Safety Inspector hand delivers the written
notification directly to an appropriate official, such as a foreman,
trainmaster, or supervisor on duty at the location where the failure to
comply with the provision of a Federal railroad safety law is either
found or discovered, the date of actual delivery will be the operative
date for reporting purposes. This provision is intended to affect the
same categories of railroads that currently receive notification from
FRA either that a defect exists and/or that a recommendation for the
assessment of a civil penalty is being made. A railroad receiving
written notification by first class mail that a recommendation for the
assessment of a civil penalty is being made would be deemed to have
received such notification five business days after the date of
mailing, as determined by the date accompanying the signature of the
safety inspector.
This subsection also requires that the railroad reporting remedial
actions shall not simply indicate that corrective actions were taken,
but shall select the appropriate reporting code to indicate what
actions were taken, including the date of corrective actions. To take
an example from the accident/incident reporting regulations, if a
railroad fails to submit to FRA a monthly report of railroad accidents/
incidents within 30 days after the expiration of the month during which
the accident/incident occurred, an example of remedial action would be
to file a late report with FRA for the relevant month. The railroad
would select the remedial action code ``Report filed.'' See 49 CFR
225.11 and 225.13. Or if, under the Railroad Operating Rules, a
railroad required to file with the Federal Railroad Administrator one
copy of its code of operating rules, timetables, and timetable
instructions failed to do so, an example of remedial action would be to
file the copy of the relevant documents as soon as possible after
receiving the notification. The railroad would select the remedial
action code ``Document filed.'' See 49 CFR 217.7.
Unless the railroad selects the remedial action code ``other
remedial actions,'' submission of a brief narrative description will be
optional. Although a railroad selecting ``other remedial actions'' is
required to describe its remedial actions in a somewhat precise manner,
FRA does not expect a lengthy and technical step-by-step explanation of
what remedial actions were taken.
Section 209.405(a)(3) provides that each railroad shall return the
form only to the FRA Safety Inspector whose name and address are so
designated. Although FRA presently employs a different type of
inspection report specific to each discipline, the reporting form to be
provided by FRA is the current version of a new inspection report (a
copy of which is appended to this final rule) for use by all railroads
required to report their remedial actions. The FRA inspector will
submit a copy of the completed remedial actions report form to FRA's
Office of Chief Counsel for use during the penalty assessment and
negotiation process. It is anticipated that the available remedial
action codes along with the brief narrative section (when applicable)
will be sufficient to report the remedial actions involved.
Accordingly, a railroad will not be permitted the option of submitting
its own version of a reporting form to FRA, even if it contains the
same information as the FRA form.
A railroad is expected to submit its remedial actions report to FRA
within the time limit specified in Sec. 209.405(a), even if the
railroad believes that a question exists as to factual elements
constituting a violation of the statute or regulation cited on the
inspection report. The only exception to this requirement concerns a
railroad unable either to initiate or complete remedial actions that
comply with the ``Delayed Reports'' requirement of Sec. 209.407. If a
railroad does contest the allegation, Sec. 209.405(b) permits the
railroad to explain its reasons on the remedial actions report form. To
illustrate, while FRA does not expect a railroad to make repairs to a
component part that the railroad does not believe is broken or
defective, Sec. 209.405(b) does require the railroad to explain what
actions it took to reach the conclusion that FRA's allegation was
incorrect. For example, consider a situation in which a railroad
disagrees with an inspector's conclusion that the height of a wheel
flange on a car, from the tread to the top of the flange, was 1\1/2\
inches or more, in violation of 49 C.F.R. 215.103(b). Rather than
select the category code corresponding to an actual repair job, the
railroad would be expected to discuss what actions it took to disprove
the inspector's conclusion. In response to SEPTA's concern, that by
requiring the reporting of remedial actions FRA is in reality obtaining
a guilty plea which interferes with the review and negotiations
process, FRA states in Sec. 209.405(b) that a railroad's failure to
raise all pertinent defenses on the remedial actions report does not
preclude it from doing so later in response to a penalty demand.
Section 209.407 sets forth in subsection (a) the procedure that
must be followed by a railroad if, upon receipt of written notification
from FRA both that assessment of a civil penalty will be recommended
for a failure by that railroad to comply with a provision of the
Federal railroad safety laws and that a remedial actions report must be
submitted, it is unable to either initiate and/or complete remedial
actions within the time limit set forth in Sec. 209.405. Each railroad
shall have 30 days after the calendar month in which the notification
is received to report to FRA in writing the reasons for such delay and
a good faith estimate of the date by which the remedial actions will be
completed. For purposes of determining the calendar month in which
written notification is received, the same analysis as applied to
Sec. 209.405(a) applies to this subsection as well. Further, as
explained in the analysis of Sec. 209.405(a), the 30-day time period is
provided for the administrative convenience of the railroad, and the
pre-existing duty to correct the defect or take other appropriate
remedial actions would remain the same as it was before the effective
date of these regulations.
This subsection also requires that the railroad reporting a delay
in either initiating and/or completing remedial actions in a timely
manner pursuant to Sec. 209.405, shall not simply indicate that
corrective actions could not be taken. It shall report to FRA with the
necessary level of specificity to indicate why these actions could not
be taken. This subsection makes clear that although FRA does not expect
a lengthy and technical step-by-step explanation of why remedial
actions could not be taken, the regulations are intended to force a
railroad to be somewhat precise in its report. Consider an example from
the Track Safety Standards: A railroad is informed that a
recommendation for the assessment of a civil penalty is being made
pursuant to 49 C.F.R. 213.109 for the failure of a 39-foot segment of
its track to have a sufficient number of crossties which in combination
will hold gage within the limits prescribed in Sec. 213.53(b). Under
the wording of this subsection, a written explanation to FRA merely
stating that ``the defect could not be corrected'' would be
insufficient. However, an explanation briefly stating either that ``no
crossties are currently in stock but will arrive within 45 days and be
installed within three days after arrival'' or ``no funds are currently
available to initiate repairs and track has been taken out of service;
repairs will be completed in 60 days when funds are expected to become
available'' would fulfill the regulatory requirement. However, if
immediately upon receiving written notification from FRA that a
remedial actions report must be submitted, a railroad in the above
example makes a business decision to permanently cease operations over
a segment of track, the appropriate section under which to report this
remedial action would be Sec. 209.405.
Section 209.407(a)(1) provides that each railroad shall submit its
explanation of the reasons for its delay in a manner that provides the
inspection report number, the inspection date, and the item number. A
photocopy of both sides of the Form FRA F 6180.96 on which the railroad
received notification may be used for this purpose. The railroad must
retain the original of Form FRA F 6180.96 and, as soon as it finally
takes all actions necessary to remedy its failure to comply with a
provision of the Federal railroad safety laws, submit it to FRA in
accordance with Sec. 209.407(b).
Section 209.407(a)(2) requires that upon completing all actions
necessary to remedy a failure to comply with a provision of the Federal
railroad safety laws, each railroad shall have 30 days after the
calendar month in which the actions are completed to report to FRA in
writing, in accordance with the remedial action code reporting
procedures referenced in Sec. 209.405(a) and (b).
FRA will expect a railroad to exercise good faith to determine the
date by which it will complete its remedial actions, and to do so as
promptly as possible. However, FRA has dropped the proposed requirement
of Sec. 209.407(c) concerning a showing of good cause by any railroad
failing to complete its remedial actions within 90 days of receiving
written notification of a failure to comply with a provision of the
Federal railroad safety laws.
As set forth in the discussion of Sec. 209.405(b), Sec. 209.407(b)
requires a railroad to submit its remedial actions report to FRA under
the provisions of Sec. 209.405 even if the railroad believes that a
question exists as to factual elements constituting a violation of the
statute or regulation cited on the inspection report. As also set forth
in the analysis of Sec. 209.405(b), if a railroad does contest the
allegation it may explain its reasons on the remedial action report
form and later present all pertinent defenses in response to a penalty
demand.
Section 209.409 identifies the penalties FRA may impose upon any
person, including a railroad, that violates any requirement of this
subpart. These penalties are authorized by 49 U.S.C. 21301, 21304, and
21311 (formerly contained in Sec. 209 of the Safety Act). The penalty
provision parallels penalty provisions included in numerous other
regulations issued by FRA under authority of the provisions of law
formerly contained in the Safety Act. Essentially, any person who
violates any requirement of this subpart or causes the violation of any
such requirement will be subject to a civil penalty of at least $500
and not more than $10,000 per violation. Civil penalties may be
assessed against individuals only for willful violations, and where a
grossly negligent violation or a pattern of repeated violations creates
an imminent hazard of death or injury to persons, or causes death or
injury, a penalty not to exceed $20,000 per violation may be assessed.
In addition, each day a violation continues will constitute a separate
offense. Finally, a person may be subject to criminal penalties for
knowingly and willfully falsifying reports required by these
regulations. FRA believes that the inclusion of penalty provisions for
failure to comply with the regulations is important in ensuring that
compliance is achieved not only in terms of submitting the relevant
reports of remedial actions taken, but also in development of more
accurate inspection and compliance data so as to better determine if
railroads are minimizing and correcting safety problems.
Environmental Impact
FRA has evaluated these final regulations in accordance with its
procedures for ensuring full consideration of the potential
environmental impacts of FRA actions, as required by the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) and related
directives. These final regulations meet the criteria that establish
this as a non-major action for environmental purposes.
Regulatory Impact
Executive Order l2866 and DOT Regulatory Policies and Procedures
This final rule has been evaluated in accordance with existing
policies and procedures. It is considered to be non-significant under
both Executive Order 12866 and the DOT policies and procedures (44 FR
11034; February 26, 1979). FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of the final rule.
It may be inspected and photocopied at Office of Chief Counsel, Federal
Railroad Administration, 400 Seventh Street, S.W., Room 8201,
Washington, D.C. 20590. Photocopies may also be obtained by submitting
a written request to the FRA Docket Clerk at the above address.
FRA believes that, in general, the railroad industry performs
repairs or takes other remedial actions in response to notification by
FRA of defects and violations in a timely and complete manner.
Especially where violations have been filed, failure to take corrective
action could lead to vastly increased penalties and even individual
liability. These regulations may provide some additional incentive to
take such corrective action where it otherwise might not be taken, but
that potential benefit cannot be quantified. However, it is doubtful
that these regulations alone will reduce the number of defective
conditions in the industry, or that they will materially reduce the
rate of train accidents. Further, these regulations will not change the
manner in which FRA enforces the other Federal railroad safety laws;
the types of violations for which safety inspectors currently recommend
the assessment of a civil penalty will remain the same.
At this time, FRA is unable to quantify any direct or indirect
safety benefit from this final rule. The potential benefit of this rule
comes about by increasing the ability of the railroad industry to
manage quality control, as well as by improving FRA's ability to
efficiently and effectively manage its inspection resources. It is
hoped that railroads, after being required by these regulations to
report remedial actions, will create their own internal databases of
these reports. Although not required by these regulations, an internal
analysis of this information, in conjunction with other resource
management data, might lead railroad management to take actions
designed to reduce or effectively respond to defective conditions.
The regulations will assist FRA in monitoring follow-up actions by
railroads with respect to conditions sufficiently serious to warrant
possible future civil penalty actions. Moreover, the regulations hold
particular potential for reducing the amount of time safety inspectors
spend returning to an inspection location to check on the status of a
violation for which a violation report had previously been submitted.
Further, the regulations permit FRA to develop more comprehensive
safety data, better utilize its limited resources, and consistently
treat all similarly situated violators of the Federal railroad safety
laws.
The extent to which these potential benefits will be realized will
become clearer over time as both the railroads and FRA learn how to
best use the data required by these regulations. What appears clear at
this time, however, is that it will not take the realization of many
benefits to offset the relatively insignificant cost to society of
approximately $71,000 per year ($63,121 to the railroad industry each
year to fill out the required remedial actions reports and
approximately $7,700 to FRA to review the reports).
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities. In
reviewing the economic impact of the rule, FRA has concluded that it
will have a minimal economic impact on a minor number of small
entities. There are no direct or indirect economic impacts for small
units of government, businesses, or other organizations; therefore, it
is certified that this rule will not have a significant economic impact
on a substantial number of small entities under the provisions of the
Regulatory Flexibility Act. State rail safety agencies remain free to
participate in the administration of FRA's rules, but are not required
to do so.
Federalism Implications
This rule does not have substantial direct effects 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. Therefore, in accordance with Executive Order
12612, FRA has determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
This final rule has information collection requirements in
Secs. 209.405 and 209.407. Section 209.405 provides that when a
railroad is notified in writing by an FRA Safety Inspector that a civil
penalty will be recommended for a failure to comply with a provision of
the Federal railroad safety laws, and that a remedial actions report
must be submitted, the railroad must report to FRA all actions taken to
remedy that failure. Section 209.407 has an additional information
collection requirement, stating that any railroad unable to either
initiate and/or complete remedial actions within the time limit set
forth in Sec. 209.405 shall submit a written explanation of the reasons
for the delay and a good faith estimate of the date by which the
remedial actions will be completed. FRA is submitting this information
collection requirement to the Office of Management and Budget for
approval under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et
seq.). The public reporting burden for this collection of information
is estimated to average approximately 23 minutes per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. A Federal Register notice will
be published when Paperwork Reduction Act approval is obtained.
List of Subjects in 49 CFR Part 209
Railroad safety, Railroad remedial actions reporting rules.
The Final Rule
In consideration of the foregoing, chapter II, subtitle B, of title
49, Code of Federal Regulations is amended as follows:
PART 209--[AMENDED]
1. The authority citation for part 209 is revised to read as
follows:
Authority: 49 U.S.C. subtitle V, part A; 49 U.S.C. chap. 51 and
57; Pub. L. 103-272; 49 U.S.C. 20301, 20303, 20304, 21302, and
21304; 49 U.S.C. 21302 and 21304; 49 U.S.C. 21302, 21304, 21311, and
20901; 49 U.S.C. 21303, 21304, and 21102; 49 U.S.C. 20102, 20103,
20107, 20108, 20110-20114, 20131-20143, 21301, 21302, 21304, 21311,
and 24902; 49 U.S.C. 103(c); 49 U.S.C. 21302 and 21304; 49 U.S.C.
20302, 20305, 20502-20505, 20701-20703, 20901, 20902, 21302, and
80504; 49 U.S.C. 5103, 5104, 5110, 5112, 5120, and 5123-5125; and 49
CFR 1.49(c), (d), (f), (g), (m), (s), (ee), (gg), and internal
delegations.
2. By revising Sec. 209.3 to read as follows:
Sec. 209.3. Definitions.
As used in this part--
Administrator means the Administrator of FRA, the Deputy
Administrator of FRA, or the delegate of either.
Chief Counsel means the Chief Counsel of FRA or his or her
delegate.
Day means calendar day.
Federal railroad safety laws means the provisions of law generally
at 49 U.S.C. subtitle V, part A or 49 U.S.C. chap. 51 or 57 and the
rules, regulations, orders, and standards issued under any of those
provisions. See Pub. L. 103-272 (1994). Before recodification, these
statutory provisions were contained in the following statutes: (i) the
Federal Railroad Safety Act of 1970 (Safety Act) (49 U.S.C. 20101-
20117, 20131, 20133-20141, 20143, 21301, 21302, 21304, 21311, 24902,
and 24905, and Secs. 4(b)(1), (i), and (t) of Pub. L. 103-272, formerly
codified at 45 U.S.C. 421, 431 et seq.); (ii) the Hazardous Materials
Transportation Act (Hazmat Act) (49 U.S.C. 5101 et seq., formerly
codified at 49 App. U.S.C. 1801 et seq.); (iii) the Sanitary Food
Transportation Act of 1990 (SFTA) (49 U.S.C. 5713, formerly codified at
49 App. U.S.C. 2801 (note)); and those laws transferred to the
jurisdiction of the Secretary of Transportation by subsection (e)(1),
(2), and (6)(A) of section 6 of the Department of Transportation Act
(DOT Act), as in effect on June 1, 1994 (49 U.S.C. 20302, 21302, 20701-
20703, 20305, 20502-20505, 20901, 20902, and 80504, formerly codified
at 49 App. U.S.C. 1655(e)(1), (2), and (6)(A)). 49 U.S.C. 20111 and
20109, formerly codified at 45 U.S.C. 437 (note) and 441(e). Those laws
transferred by the DOT Act include, but are not limited to, the
following statutes: (i) the Safety Appliance Acts (49 U.S.C. 20102,
20301, 20302, 20304, 21302, and 21304, formerly codified at 45 U.S.C.
1-14, 16); (ii) the Locomotive Inspection Act (49 U.S.C. 20102, 20701-
20703, 21302, and 21304, formerly codified at 45 U.S.C. 22-34); (iii)
the Accident Reports Act (49 U.S.C. 20102, 20701, 20702, 20901-20903,
21302, 21304, and 21311, formerly codified at 45 U.S.C. 38-43); (iv)
the Hours of Service Act (49 U.S.C. 20102, 21101-21107, 21303, and
21304, formerly codified at 45 U.S.C. 61-64b); and (v) the Signal
Inspection Act (49 U.S.C. 20102, 20502-20505, 20902, 21302, and 21304,
formerly codified at 49 App. U.S.C. 26).
FRA means the Federal Railroad Administration, U.S. Department of
Transportation.
FRA Safety Inspector means an FRA safety inspector, a state
inspector participating in railroad safety investigative and
surveillance activities under Part 212 of this chapter, or any other
official duly authorized by FRA.
Motion means a request to a presiding officer to take a particular
action.
Person generally includes all categories of entities covered under
1 U.S.C. 1, including but not limited to the following: a railroad; any
manager, supervisor, official, or other employee or agent of a
railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any independent contractor providing
goods or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor; however,
person, when used to describe an entity that FRA alleges to have
committed a violation of the provisions of law formerly contained in
the Hazardous Materials Transportation Act or contained in the
Hazardous Materials Regulations, has the same meaning as in 49 U.S.C.
5102(9) (formerly codified at 49 App. U.S.C. 1802(11)), i.e., an
individual, firm, copartnership, corporation, company, association,
joint-stock association, including any trustee, receiver, assignee, or
similar representative thereof, or government, Indian tribe, or
authority of a government or tribe when offering hazardous material for
transportation in commerce or transporting hazardous material to
further a commercial enterprise, but such term does not include the
United States Postal Service or, for the purposes of 49 U.S.C. 5123-
5124 (formerly contained in Secs. 110 and 111 of the Hazardous
Materials Transportation Act and formerly codified at 49 App. U.S.C.
1809-1810), a department, agency, or instrumentality of the Federal
Government.
Pleading means any written submission setting forth claims,
allegations, arguments, or evidence.
Presiding Officer means any person authorized to preside over any
hearing or to make a decision on the record, including an
administrative law judge.
Railroad means any form of nonhighway ground transportation that
runs on rails or electro-magnetic guideways, including (i) commuter or
other short-haul railroad passenger service in a metropolitan or
suburban area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979; and (ii) high speed
ground transportation systems that connect metropolitan areas, without
regard to whether those systems use new technologies not associated
with traditional railroads; but does not include rapid transit
operations in an urban area that are not connected to the general
railroad system of transportation.
Respondent means a person upon whom FRA has served a notice of
probable violation, notice of investigation, or notice of proposed
disqualification.
3. By adding a new Subpart E--Reporting of Remedial Actions, to
read as follows:
Subpart E--Reporting of Remedial Actions
Sec.
209.401. Purpose and scope.
209.403. Applicability.
209.405. Reporting of remedial actions.
209.407. Delayed reports.
209.409. Penalties.
(a) The purpose of this subpart is to prevent accidents and
casualties arising from the operation of a railroad that result from a
railroad's failure to remedy certain violations of the Federal railroad
safety laws for which assessment of a civil penalty has been
recommended.
(b) To achieve this purpose, this subpart requires that if an FRA
Safety Inspector notifies a railroad both that assessment of a civil
penalty will be recommended for its failure to comply with a provision
of the Federal railroad safety laws and that a remedial actions report
must be submitted, the railroad shall report to the FRA Safety
Inspector, within 30 days after the end of the calendar month in which
such notification is received, actions taken to remedy that failure.
(c) This subpart does not relieve the railroad of the underlying
responsibility to comply with a provision of the Federal railroad
safety laws. The 30-day period after the end of the calendar month in
which notification is received is intended merely to provide the
railroad with an opportunity to prepare its report to FRA, and does not
excuse continued noncompliance.
(d) This subpart requires the submission of remedial actions
reports for the general categories of physical defects, recordkeeping
and reporting violations, and filing violations, where the railroad can
literally and specifically correct a failure to comply with a provision
of the Federal railroad safety laws, as reasonably determined by the
FRA Safety Inspector. No railroad is required to submit a report for a
failure involving either a completed or past transaction or a
transaction that it can no longer remedy.
Sec. 209.403. Applicability.
This subpart applies to any railroad that receives written
notification from an FRA Safety Inspector both (i) that assessment of a
civil penalty will be recommended for its failure to comply with a
provision of the Federal railroad safety laws and (ii) that it must
submit a remedial actions report.
Sec. 209.405. Reporting of remedial actions.
(a) Except as provided in Sec. 209.407, each railroad that has
received written notification on Form FRA F 6180.96 from an FRA Safety
Inspector both that assessment of a civil penalty will be recommended
for the railroad's failure to comply with a provision of the Federal
railroad safety laws and that it must submit a remedial actions report,
shall report on this form all actions that it takes to remedy that
failure. The railroad shall submit the completed form to the FRA Safety
Inspector within 30 days after the end of the calendar month in which
the notification is received.
(1) Date of receipt of notification. If the FRA Safety Inspector
provides written notification to the railroad by first class mail, then
for purposes of determining the calendar month in which notification is
received, the railroad shall be presumed to have received the
notification five business days following the date of mailing.
(2) Completion of Form FRA F 6180.96, including selection of
railroad remedial action code. Each railroad shall complete the
remedial actions report in the manner prescribed on the report form.
The railroad shall select the one remedial action code on the reporting
form that most accurately reflects the action or actions that it took
to remedy the failure, such as, repair or replacement of a defective
component without movement, movement of a locomotive or car for repair
(where permitted) and its subsequent repair, completion of a required
test or inspection, removal of a noncomplying item from service but not
for repair (where permitted), reduction of operating speed (where
sufficient to achieve compliance), or any combination of actions
appropriate to remedy the noncompliance cited. Any railroad selecting
the remedial action code ``other remedial actions'' shall also furnish
FRA with a brief narrative description of the action or actions taken.
(3) Submission of Form FRA F 6180.96. The railroad shall return the
form by first class mail to the FRA Safety Inspector whose name and
address appear on the form.
(b) Any railroad concluding that the violation alleged on the
inspection report may not have occurred may submit the remedial actions
report with an appropriate written explanation. Failure to raise all
pertinent defenses does not foreclose the railroad from doing so in
response to a penalty demand.
Sec. 209.407. Delayed reports.
(a) If a railroad cannot initiate or complete remedial actions
within 30 days after the end of the calendar month in which the
notification is received, it shall--
(1) Prepare, in writing, an explanation of the reasons for such
delay and a good faith estimate of the date by which it will complete
the remedial actions, stating the name and job title of the preparer
and including either:
(i) A photocopy of both sides of the Form FRA F 6180.96 on which
the railroad received notification; or
(ii) The following information:
(A) The inspection report number;
(B) The inspection date; and
(C) The item number; and
(2) Sign, date, and submit such written explanation and estimate,
by first class mail, to the FRA Safety Inspector whose name and address
appear on the notification, within 30 days after the end of the
calendar month in which the notification is received.
(b) Within 30 days after the end of the calendar month in which all
such remedial actions are completed, the railroad shall report in
accordance with the remedial action code procedures referenced in
Sec. 209.405(a). The additional time provided by this section for a
railroad to submit a delayed report shall not excuse it from liability
for any continuing violation of a provision of the Federal railroad
safety laws.
Sec. 209.409. Penalties.
Any person who violates any requirement of this subpart or causes
the violation of any such requirement is subject to a civil penalty of
at least $500 and not more than $10,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$20,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. A person may also be subject to
the criminal penalties provided for in 49 U.S.C. 21311 (formerly
codified in 45 U.S.C. 438(e)) for knowingly and willfully falsifying
reports required by this subpart.
Issued in Washington, D.C., on August 16, 1994.
Note: The following Inspection Report/Remedial Actions Report
will not appear in the Code of Federal Regulations.
Jolene M. Molitoris,
Administrator.
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[FR Doc. 94-20722 Filed 8-23-94; 8:45 am]
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