[Federal Register Volume 75, Number 182 (Tuesday, September 21, 2010)]
[Proposed Rules]
[Pages 57598-57656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22141]



[[Page 57597]]

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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 209, 213, 214, et al.



Revised Proposal for Revisions to the Schedules of Civil Penalties for 
a Violation of a Federal Railroad Safety Law or Federal Railroad 
Administration Safety Regulation or Order; Proposed Rule

  Federal Register / Vol. 75 , No. 182 / Tuesday, September 21, 2010 / 
Proposed Rules  

[[Page 57598]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209, 213, 214, 215, 217, 218, 219, 220, 221, 222, 223, 
224, 225, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 
239, 240, and 241

[Docket No. FRA-2006-25274, Notice No. 2]
RIN 2130-ZA00


Revised Proposal for Revisions to the Schedules of Civil 
Penalties for a Violation of a Federal Railroad Safety Law or Federal 
Railroad Administration Safety Regulation or Order

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

ACTION: Revised proposal for revisions to schedules of civil penalties, 
with request for comments.

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SUMMARY: FRA is issuing for comment a revised proposal (New Proposal) 
that, if adopted, would amend, line-by-line, FRA's schedules of civil 
penalties (``Schedules'') issued as appendices to FRA's rail safety 
regulations, as well as other guidance, in order to reflect more 
accurately the degree of safety risk associated with a violation of 
each regulatory requirement and to ensure that the civil monetary 
penalty amounts are consistent across all FRA safety regulations. The 
New Proposal represents a revision of FRA's December 2006 proposal to 
amend the Schedules for the same purposes (December 2006 Proposal or 
Initial Proposal).

DATES: Written comments must be received by October 21, 2010. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay or expense.

ADDRESSES: Comments: Comments related to this Docket No. FRA 2006-
25274, Notice No. 2, may be submitted by any of the following methods:
     Fax: 202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m. 
Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal information 
provided.
    Docket: For access to the docket to read background documents or 
comments received go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Edward Pritchard, Director, Office of 
Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 
New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6247), 
edward.pritchard @dot.gov; or Brian Roberts, Trial Attorney, Office of 
the Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6052), [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. General Background
II. Proceedings to Date, Provision of Opportunity for Comment, 
Comparison of Initial and New Proposals
    A. Initial Proposal
    B. Subsequent Changes in the Minimum and Ordinary Maximum Civil 
Penalties
    C. Provision of Opportunity for Comment, With Comparison of the 
Initial and New Proposals
III. FRA's New Proposed Approach to Reevaluating the Schedules of 
Civil Penalties
IV. Rankings of the Rail Safety Regulatory Provisions and the Hours 
of Service Laws in the New Proposal
    A. Motive Power and Equipment Regulations (MP&E) (49 CFR Parts 
215, 218 (Partially), 223, 224, 227, 229, 230, 231, 232, 238, and 
239 (Partially))
    B. Track and Workplace Safety Regulations (49 CFR Parts 213 and 
214)
    C. Grade Crossing Signal Systems and Signal and Train Control 
Regulations (49 CFR Parts 233, 234, 235, and 236)
    D. Operating Practices Regulations (49 CFR Parts 217, 218 
(Partially), 219, 220, 221, 222, 225, 228, 239 (Partially), 240, and 
241) and the Hours of Service Laws (49 U.S.C. Chapter 211)
V. Response to Public Comment on the Schedules Proposed in December 
2006
    A. Concerns Related to Respondents That Are Small Businesses
    B. Concerns About Initially Proposed Penalty Amounts for 
Violations of 49 CFR Parts 222, 225, and 229
    C. Concerns Related to Respondents Who Are Cited as Individuals
    D. Concerns About Effects on FRA's Confidential Close Call 
Reporting Project
    E. Concerns About Proposed Monetary Increases in the Civil 
Penalty Amounts

I. General Background

    FRA last published comprehensive, line-by-line final revisions to 
the Schedules of its safety regulations on December 29, 1988. 53 FR 
52918. The revisions reflected the higher maximum penalty amounts made 
available by the enactment of the Rail Safety Improvement Act of 1988 
(Pub. L. 100-342). With the exception of the penalties relating to the 
hours of service laws (49 U.S.C. chapter 211), the Rail Safety 
Improvement Act of 1988 raised the maximum penalty for any ordinary 
violation from $2,500 to $10,000 (``the ordinary maximum'') and to 
$20,000 for a grossly negligent violation or a pattern of repeated 
violations that has created an imminent hazard of death or injury or 
caused death or injury (``the aggravated maximum''). Therefore, FRA 
published amendments to the Schedules in order to ``give effect to the 
full range of civil penalties * * * permitted to be assessed for 
violation of specific regulations.'' 53 FR 52918. These amendments 
revised not only the maximum civil penalty amount for any violation, 
but also the individual line-item penalties for specific sections or 
subsections of the regulations.
    The Rail Safety Enforcement and Review Act (``RSERA'') (Pub. L. 
102-365), which was enacted September 3, 1992, increased the maximum 
penalty for a violation of the hours of service laws, from $1,000 to 
$10,000 and in some cases to $20,000, making these penalty amounts 
uniform with those of FRA's other regulatory provisions. RSERA also 
increased the minimum penalty from $250 to $500 for all of FRA's 
regulatory provisions.
    Since the publication of the Schedules in 1988, FRA has 
periodically adjusted its minimum and its ordinary or aggravated 
maximum penalty to conform to the mandates of the Federal Civil 
Penalties Inflation Adjustment Act of 1990. 28 U.S.C. 2461 note, as 
amended (``Inflation Act''). The Inflation Act requires that an agency 
adjust by regulation each maximum penalty, or range of minimum and 
maximum penalties, within that agency's jurisdiction periodically to 
reflect inflation. In the Inflation Act, Congress found a way to 
counter the effect that inflation has had on the penalties by having 
the agencies

[[Page 57599]]

charged with enforcement responsibility administratively adjust the 
penalties. Currently FRA's minimum penalty is $650, the ordinary 
maximum is $25,000 and the aggravated maximum is $100,000 (for when a 
``grossly negligent violation or pattern of repeated violations has 
caused an imminent hazard or death or injury to individuals, or has 
caused death or injury'').
    The Inflation Act requires only that the minimum, the ordinary 
maximum, and the aggravated maximum civil penalty for a violation be 
adjusted, not that the guideline penalty amounts for a specific type of 
violation (e.g., a section of a particular regulation) be adjusted. As 
a result, FRA has not adjusted the line-item guideline penalties found 
in the Schedules in conjunction with its adjustments of the minimum, 
maximum and aggravated maximum civil penalties. FRA's practice has been 
to issue Schedules assigning to each section or subsection of the 
regulations specific dollar amounts for initial penalty assessments. 
These Schedules (and all line-item penalty amounts found within them) 
are statements of agency policy that specify the penalty that FRA will 
ordinarily assess for the violation of a particular section or 
subsection of a safety regulation, and are published to inform members 
of the regulated community of the amount that they are likely to be 
assessed for a given violation within the range of $650 to $25,000. The 
Schedules are ``meant to provide guidance as to FRA's policy in 
predictable situations, not to bind FRA from using the full range of 
penalty authority where extraordinary circumstances warrant.'' 49 CFR 
part 209, appendix A. Thus, regardless of the amounts shown in the 
Schedules, FRA continues to reserve the right to assess, within the 
range established by the rail safety statutes (49 U.S.C. chapter 213) 
or by regulation pursuant to the Inflation Act, an amount other than 
that listed in the Schedules based on the circumstances of the alleged 
violation. 73 FR 79698, Dec. 30, 2008.

II. Proceedings to Date, Provision of Opportunity for Comment, and 
Comparison of Initial and New Proposals

A. Initial Proposal

    FRA published 25 proposed Schedules with a request for comments on 
December 5, 2006, which first presented the agency's intention of once 
again comprehensively revising the civil penalty amounts. 71 FR 70590. 
In this Initial Proposal, FRA explained its approach to reevaluating 
the Schedules and explained the severity scale that was developed for 
setting line-item penalty amounts in the Schedules. The severity 
scale's penalty amounts were assessed within the statutory range for 
civil penalties at that time, which was from the minimum of $550 to the 
ordinary maximum of $11,000, as follows:

------------------------------------------------------------------------
  Severity level (explained in the        Ordinary           Willful
     Initial Proposal and below)         violations        violations
------------------------------------------------------------------------
Level A.............................            $8,500           $11,000
Level B.............................             6,500             9,000
Level C.............................             5,000             7,500
Level D.............................             3,000             4,500
Level E.............................             1,500             2,500
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B. Subsequent Changes in the Minimum and Ordinary Maximum Civil 
Penalties

    Subsequently, in 2007, pursuant to the requirements of the 
Inflation Act, FRA recalculated the ordinary maximum penalty and raised 
it from $11,000 to $16,000. 71 FR 51194, Sept. 6, 2007. Then, on 
October 16, 2008, the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Div. A) (``RSIA'') was enacted; Section 302 of the RSIA increased 
the ordinary and aggravated maximum penalty amounts to $25,000 and 
$100,000, respectively. In a final rule published on December 30, 2008, 
FRA adjusted its minimum penalty from $550 to $650 pursuant to 
Inflation Act requirements. 73 FR 79698. In that rule FRA also 
evaluated whether it needed to increase the ordinary and aggravated 
maximum penalties pursuant to the Inflation Act; however, the enactment 
of the RSIA statutorily changed the ordinary and aggravated maximum 
penalties to $25,000 and $100,000, respectively, and therefore rendered 
any inflationary adjustments to either figure unnecessary. Instead, FRA 
adopted $25,000 as the ordinary maximum and $100,000 as the aggravated 
maximum required by the RSIA. (See also correcting amendment to the 
Schedule for 49 CFR part 232. 74 FR 15387, April 6, 2009.)

C. Provision of Opportunity for Comment, With Comparison of the Initial 
and New Proposals

    Given the large statutorily mandated increase in the ordinary 
maximum civil penalty from $11,000 to $25,000 after publication of the 
Initial Proposal, FRA is offering the public an opportunity to review 
and comment on the new higher civil penalty amounts assessed for 
violations on each severity scale level in the New Proposal.\1\ In the 
New Proposal, FRA is issuing another set of proposed Schedules and 
seeking comments from the general public. Comments on the new proposed 
Schedules will be useful to the agency's decision making process.
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    \1\ For example, the severity scale in this New Proposal has 
five levels like the severity scale proposed in the Initial 
Proposal. However, the severity scale in the New Proposal differs 
from the severity scale in the Initial Proposal in several ways. 
First, FRA has adding the word ``materially'' to the description of 
what constitutes a Level E violation in the New Proposal. Therefore, 
Level E violations in the New Proposal are violations that do not 
materially increase the likelihood that a rail equipment accident/
incident or other accident/incident will occur. This is a 
clarification from the previous definition for Level E violations in 
the Initial Proposal where Level E violations were defined as 
violations that did not increase the likelihood that a rail 
equipment accident/incident or other accident/incident would occur. 
This definition did not make sense because failure to follow any FRA 
safety regulation would have some direct or indirect impact on 
railroad safety and thereby increase, even infinitesimally, the 
likelihood of an accident or incident. As a result, the word 
``materially'' was added to the criteria for a Level E violation in 
the severity scale in this New Proposal. Second, FRA has provided 
more transparency and referenced the regulatory language found in 49 
CFR 225.19(d) to explain what FRA means when it says ``Other 
accident/incident'' in Levels A-D in the severity scale in the New 
Proposal. Third, FRA has clarified in the New Proposal that civil 
monetary penalties associated with violations of FRA Orders or 
railroad safety statutes will be assessed according to severity 
scale criteria. Finally, as stated below, FRA has modified its 
approach for establishing civil penalties in the severity scale in 
this New Proposal. FRA is taking a graduated approach to assessing 
civil penalties for ordinary (non-willful) violations while 
increasing the civil penalty amounts in steady increments for 
willful violations.
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    FRA has also slightly modified the severity scale in the New 
Proposal from the severity scale in the Initial Proposal. In the New 
Proposal, FRA has used a targeted enforcement approach for establishing 
the civil penalties for ordinary (non-willful) violations of railroad 
safety regulations. As part of the targeted enforcement approach,

[[Page 57600]]

ordinary violations occurring at the middle and lower levels of the 
severity scale are assessed smaller civil penalties in relation to the 
ordinary maximum while the highest penalty amounts are assessed for 
ordinary Level A violations where serious injuries, deaths, or other 
railroad accidents or incidents are most likely to occur. FRA did not 
take a targeted enforcement approach for establishing the civil penalty 
amounts for willful violations in the New Proposal. Instead, the civil 
penalty amounts for willful violations increase up the severity scale 
in steady dollar amounts, not in graduated percentage increases like 
the civil penalties for ordinary violations.
    Higher penalty amounts for violations of Federal railroad safety 
laws and regulations are necessary because many of FRA's civil 
penalties have not been changed in real terms for many years. As a 
result, inflation has somewhat eroded the deterrent effects of most of 
FRA's civil penalties because the amounts have not been increased to 
account for the effects of inflation. While many of the penalty amounts 
in the New Proposal would represent large increases in penalty amounts 
even after adjusting for inflation, some penalty amounts for violations 
would remain unchanged (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and 
239.301(c)(1)) if adopted by FRA because of the uniform rating of FRA's 
existing penalties on the severity scale. The new penalty amounts in 
this New Proposal will maintain the deterrent effects of FRA's rail 
safety penalties, aiding the success of FRA's mission to make the 
United States rail system safer.
    FRA has also reexamined how it had ranked individual rail safety 
violations on the severity scale in the Initial Proposal. Upon second 
review of the severity scale rankings, FRA is proposing to move certain 
regulatory provisions to higher or lower levels on the severity scale 
in order to refine the agency's application of the severity scale to 
the various violations. For example, FRA is proposing to raise the 
severity scale ranking of 49 CFR 219.3 (``Application: Railroad does 
not have required program''), in this New Proposal from a ``C'' level 
penalty to a ``B'' level penalty. This change is necessary because the 
failure of a railroad covered by 49 CFR part 219 to have an alcohol and 
drug testing program is more likely than not to cause a rail equipment 
accident/incident or other accident/incident involving death, injury, 
or occupational illness rather than just substantially increase the 
likelihood that one of these events could occur. Conversely, in this 
New Proposal, FRA would lower the severity scale ranking of 49 CFR 
225.35 (``Access to records and reports''), from an ``A'' level penalty 
to a ``D'' level penalty. This proposed change in severity scale level 
reflects FRA's judgment that denying its inspectors access to records 
and reports required by 49 CFR part 225 is not extremely likely to lead 
to a railroad accident/incident or other accident/injury including 
death, injury, or occupational illness, but could slightly increase the 
likelihood of one of the above mentioned occurrences if FRA is not 
provided access to accident reporting records and reports. FRA expects 
that these proposed changes to the severity scale rankings of some of 
its violations in the Initial Proposal better refine the agency's 
application of the Severity Scale to the various violations.
    In addition, FRA is proposing minor changes to its Schedules in 
this New Proposal to correct errors and omissions and to reflect more 
accurately FRA's current enforcement practices. Such errors include 
obvious spelling or typographical errors that were caught during the 
review process. Omissions corrected include line-item penalties for any 
existing section or subsection that had been inadvertently omitted from 
an existing Schedule, such as 49 CFR 213.110. Other proposed minor 
revisions to the Schedules include, but are not limited to, adding or 
deleting a suggested penalty for a violation (e.g., 49 CFR 213.109(c), 
214.343(a)(2), 220.38, and 240.201(b)), rewording a line-item 
description for a violation (e.g., 49 CFR 219.23(f) and 233.9), 
renumbering violation subsections (e.g., 49 CFR 214.343(b)(1), 236.587, 
236.905(d), and 236.913(j)), and adding or revising footnotes to the 
Schedules (e.g., 49 CFR parts 214, 232, and 239). For example, FRA is 
proposing to add a footnote 3 to the Schedule for 49 CFR part 214 to 
clarify that FRA will consult the suggested penalty amounts under 49 
CFR 214.343 (``Training and qualification, general:'') when assessing 
penalties for the training violations in 49 CFR 214.345 through 
214.355, as the suggested penalty amounts for these sections had been 
left blank in previous versions of part 214's penalty schedule. FRA is 
hopeful these proposed minor changes updating its Schedules would 
provide a more accurate picture to the regulated community of FRA's 
actual enforcement practices.
    New suggested penalty amounts have also been proposed for 
violations of subparts that had not been mentioned in the existing 
penalty schedules: 49 CFR part 218, subpart E (``Protection of Occupied 
Camp Cars''); 49 CFR part 228, subpart D (``Electronic 
Recordkeeping''); 49 CFR part 232, subpart G (``Electronically 
Controlled Pneumatic (ECP) Braking Systems''); and 49 CFR part 236, 
subpart I (``Positive Train Control Systems'') are also included. FRA 
is also suggesting new penalty amounts for 49 CFR part 227 
(``Occupational Noise Exposure'') which was not ranked in the severity 
scale in the Initial Proposal because the final rule creating part 227 
was published on October 27, 2006, but not effective until February 26, 
2007. 71 FR 63066. In addition, FRA will also be accepting comments on 
the new penalties in 49 CFR part 237 that were published in a bridge 
safety standards final rule on July 15, 2010 and will become effective 
on September 13, 2010. 75 FR 41282.
    Further, FRA is proposing to add language to 49 CFR part 228, 
appendix A, to state its proposed guideline penalty amounts for both 
non-willful and willful violations of the hours of service laws (49 
U.S.C. chapter 211). In addition, this New Proposal would also add or 
change language in the portion of 49 CFR part 209, appendix A, entitled 
``Penalty Schedules: Assessment of Maximum Penalties,'' to reflect the 
new minimum, ordinary maximum, and aggravated maximum civil penalties 
of $650, $25,000, and $100,000 respectively. Finally, FRA is also 
proposing to add the language ``or orders'' in two places within this 
portion of part 209, appendix A to update the language to reflect FRA's 
already existing policy of establishing civil penalty schedules and 
recommended civil penalty amounts applicable to violations of various 
orders issued by FRA (such as emergency orders under 49 U.S.C. 20104) 
when necessary to advance the agency's safety mission.

III. FRA's New Proposed Approach to Reevaluating the Schedules of Civil 
Penalties

    The Federal Railroad Administrator is authorized as the delegate of 
the Secretary of Transportation to enforce the Federal railroad safety 
statutes (49 U.S.C. chapters 201-213) regulations, and orders, 
including the statutory civil penalty provisions at 49 U.S.C. chapter 
213. 49 CFR 1.49. FRA currently has 26 parts of regulations that 
contain Schedules.\2\ With this New Proposal,

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FRA is proposing to amend each of the line-item guideline penalty 
amounts contained within the Schedules for each of the regulations and 
to add guideline penalty amounts for violations of the hours of service 
laws to 49 CFR part 228, appendix A (collectively, Penalty Guidelines). 
In reevaluating the penalty amounts in the Schedules, FRA has developed 
a new proposed severity scale (``New Proposed Severity Scale'') for 
setting the line-item penalty amounts for each violation of the safety 
regulations and for violations of the hours of service laws. The 
severity scale FRA is proposing to adopt in this New Proposal is 
described in the following section.
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    \2\ However, as previously stated, FRA recently published a 
final rule on bridge safety standards on July 15, 2010. 75 FR 41282. 
As part of that final rule, FRA created new regulations and 
penalties under 49 CFR part 237, which was previously an unused part 
of the CFR. Therefore after the September 13, 2010 effective date 
for the final rule, FRA will have 27 parts of regulations that 
contain Schedules. In this New Proposal, FRA is also accepting 
comments on the new penalties contained in the final rule.
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New Proposed Severity Scale for Setting Line-Item Penalty Amounts in 
FRA Penalty Guidelines

    FRA's rail safety regulations and the rail safety statutes are 
intended either to prevent a railroad accident/incident or to mitigate 
the consequences if one were to occur. For the most severe ratings on 
the scale, FRA concentrated on the degrees of likelihood that an 
accident/incident \3\ will occur or that graver consequences of an 
accident/incident will occur as a result of failing to comply with the 
section. The following New Proposed Severity Scale is intended to 
reflect this focus:
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    \3\ ``Accident/incident'' is defined at 49 CFR 225.5. Accidents/
incidents are divided into three categories: highway-rail grade 
crossing accidents/incidents, rail equipment accidents/incidents; 
and accidents/incidents resulting in death, injury, or occupational 
illness. 49 CFR 225.19(c). A highway-rail grade crossing accident/
incident is ``[a]ny impact between railroad on-track equipment and 
an automobile, bus, truck, motorcycle, bicycle, farm vehicle, or 
pedestrian at a highway-rail grade crossing.'' 49 CFR 225.5, read in 
light of 49 CFR 225.19(c). Rail equipment accidents/incidents are 
defined in 49 CFR 225.19(c) to include ``collisions, derailments, 
fires, explosions, acts of God, and other events involving the 
operation of on-track equipment (standing or moving) * * * that 
result in damage to railroad property that is greater than the 
reporting threshold.'' Currently the reporting threshold is $9,200. 
74 FR 65458 (Dec. 10, 2009).

    Level A-Very High Probability--Failure of a railroad to comply 
with this section or subsection of the Code of Federal Regulations 
(``CFR''), this FRA order, or this rail safety statute is extremely 
likely to result in one or more of the following events, but does 
not create an imminent hazard of death or injury to individuals or 
cause an actual death or injury \4\:
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    \4\ FRA has statutory authority to assess civil penalties in the 
range of $650 (minimum) to $25,000 (ordinary maximum) for ordinary 
violations of its regulations. FRA may assess a penalty at the 
statutory aggravated maximum of $100,000 only ``when a grossly 
negligent violation or a pattern of repeated violations has caused 
an imminent hazard of death or injury to individuals, or has caused 
death or injury.'' A $100,000, statutory aggravated maximum penalty 
is the equivalent of a Level A Plus and is, therefore, off the 
scale. The standard of ``imminent hazard'' of death or injury (the 
standard for a civil penalty at the aggravated maximum penalty) is 
different from the standard of ``extremely likely'' to result in 
death or injury (the standard for Level A penalties on the severity 
scale). Imminent hazards are hazards that are likely to occur 
without delay or that actually may be occurring at the time the 
violation is taken. In contrast, a hazard that is extremely likely 
to result in a railroad accident/incident or another accident/
incident causing death, injury, or occupational disease has a high 
probability of causing one or more of those adverse events sooner or 
later, but is not necessarily likely to occur without delay or 
contemporaneously when the violation is taken.

1. Rail equipment accident/incident
2. Other accident/incident (including death, injury, or occupational 
illness)\5\
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    \5\ See 49 CFR 225.19(d).
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FRA is proposing to issue a penalty guideline for Level ``A'' of 
$19,500 for an ordinary violation and $25,000 for a willful 
violation of the regulation, order, or statute.

    Level B--High Probability--Failure of railroad to comply with 
this section or subsection of the CFR, this FRA order, or this rail 
safety statute is more likely than not to result in the occurrence 
of:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or 
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``B'' of 
$13,000 for an ordinary violation and $20,500 for a willful 
violation of the regulation, order, or statute.

    For the following levels, FRA is not only addressing the likelihood 
that noncompliance will or could contribute to an accident or 
aggravated consequences if an accident occurred, but also the 
importance of maintaining compliance in order to prevent violations of 
these regulatory or statutory sections or subsections from becoming 
leading accident causes in the future.

    Level C--Moderate Probability--Failure of railroad to comply 
with this section or subsection of the CFR, this FRA order, or this 
rail safety statute substantially increases the likelihood that one 
of the following will occur:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or 
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``C'' of 
$9,500 for an ordinary violation and $17,000 for a willful violation 
of the regulation, order, or statute.
    Level D--Minor Probability--Failure of the railroad to comply 
with this section or subsection of the CFR, this FRA order, or this 
rail safety statute slightly increases the likelihood that one of 
the following will occur:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or 
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``D'' of 
$5,500 for an ordinary violation and $10,000 for a willful violation 
of the regulation, order, or statute.
    Level E--Minimal Probability--Failure to comply with this 
section or subsection of the CFR, this FRA order, or this rail 
safety statute does not materially increase the likelihood that a 
rail equipment accident/incident or other accident/incident will 
occur, except in special circumstances, such as if the noncompliance 
is willful or widespread. Nevertheless, noncompliance with any one 
of these provisions undercuts the effectiveness of the Federal 
railroad safety program, and could compromise the safety of rail 
operations.
    Example: Violation of Sec.  225.13--Late Reports--Submitting a 
late accident/incident report to FRA does not increase the 
likelihood that a rail equipment accident/incident or other 
accident/incident will occur. Widespread noncompliance with that 
provision, however, could lead to inaccuracies in Federal accident 
databases, which in turn could delay FRA's response to emerging 
safety problems.
    FRA is proposing to issue a penalty guideline for Level ``E'' of 
$2,500 for an ordinary violation and $5,000 for a willful violation 
of the regulation, order, or statute.

    Like the Initially Proposed Severity Scale, the New Proposed 
Severity Scale shows, there are five different levels of probabilities, 
ranging from ``A'' (the most severe) to ``E'' (the least severe of the 
types of violations). In developing the rankings (``A'' through ``E''), 
FRA concentrated on the degrees of likelihood that an accident/incident 
will occur or that graver consequences will occur as a result of the 
failure to comply with the particular section or subsection of the 
safety regulations or with the statute. Using the New Proposed Severity 
Scale, FRA then assigned a ranking (from ``A'' to ``E'') to each of the 
provisions of the particular rail safety regulations and to the hours 
of service statute, which the agency has responsibility for 
administering and enforcing. The resulting proposed line-item penalty 
amounts for violations of each of the sections or subsections of the 
safety regulations affected and for violations of the hours of service 
laws reflect FRA's determination, based on safety data and industry 
knowledge, of how likely the violation of a particular provision is to 
result in a rail equipment accident/incident or another type of 
accident/incident. Due to the increase in the ordinary maximum from 
$11,000 to $25,000 since the Initial Proposal, the new proposed civil 
penalty amounts have increased in most instances, but in some cases the 
new proposed civil penalty amount would remain the same (e.g., 49 CFR 
219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA. 
Nonetheless, a determination by FRA that violation of a provision does 
not increase the likelihood that a rail equipment accident/incident or 
other accident will occur, however, does not mean that the provision is 
inconsequential to the effectiveness of

[[Page 57602]]

the Federal railroad safety program or to the overall safety of 
railroad operations.
    Currently, each Schedule is in the form of a table consisting of 
three columns with one or more footnotes. Like the initially proposed 
Schedules, the new proposed Schedules would continue to be structured 
in this fashion and to provide guideline penalty amounts for two 
categories of violations: Ordinary (non-willful) and willful. Each new 
proposed Schedule lists the CFR section or subsection in the left-hand 
column, sometimes with additional designations to distinguish different 
types of violations (penalty codes) of the section or subsection in 
order to facilitate the assessment of civil penalties. The only 
exception continues to be 49 CFR part 231; the left-hand column of the 
new proposed Schedule lists the FRA defect codes \6\ for that part, and 
not the corresponding CFR sections. The reason for this continues to be 
the fact that the defect codes are organized by the type of safety 
appliance, which makes them easier to use, than the section numbers of 
part 231, which are organized primarily by car or locomotive type. 
Nevertheless, if necessary, every defect code can be traced to a 
specific regulatory provision in part 231 or statutory provision in 49 
U.S.C. chapter 203, or both. The corresponding penalties for each 
violation are listed in the middle and right-hand columns: The 
guideline penalty amount for an ordinary violation and then the 
guideline penalty amount for a willful violation. The ordinary 
penalties apply to railroads or other respondents, except individuals, 
while the ``willful'' column applies to willful violations committed by 
railroads or individuals.
---------------------------------------------------------------------------

    \6\ Defect codes were developed by FRA in order to facilitate 
computerization of inspection data generated by FRA inspectors by 
providing a digital format for every CFR section. Defect codes are 
analytical tools only and are subject to change without notice.
---------------------------------------------------------------------------

    The following chart summarizes the new proposed guideline amounts 
for ordinary and willful violations by severity level:

------------------------------------------------------------------------
                                                  Ordinary     Willful
      Severity level under new  Proposal         violations   violations
------------------------------------------------------------------------
Level A.......................................      $19,500      $25,000
Level B.......................................       13,000       20,500
Level C.......................................        9,500       17,000
Level D.......................................        5,500       10,000
Level E.......................................        2,500        5,000
------------------------------------------------------------------------

IV. Rankings of the Rail Safety Regulatory Provisions and the Hours of 
Service Laws in the New Proposal

    Although the railroad industry's overall safety record has improved 
over the last decade, significant train accidents/incidents continue to 
occur. As a result, the FRA's safety program is being guided by careful 
analysis of accident/incident, inspection, and other safety data. FRA 
has also directed both its regulatory and compliance efforts toward the 
areas that involve the highest of safety risks, in order to reduce the 
number and severity of accidents/incidents caused by a failure to 
comply with those safety regulations. Therefore, the goal of the new 
proposed line-item penalty amounts for each of the Schedules and the 
new proposed penalty amount for violations of the hours of service 
statute is to reflect the different degrees of probability that a 
violation of a particular regulatory section or subsection, order, or 
statute will result in a rail equipment accident/incident or other 
accident/incident, in order to improve the overall safety of railroad 
operations.

A. Motive Power and Equipment Regulations (MP&E) (49 CFR Parts 215, 218 
(Partially), 223, 224, 227, 229, 230, 231, 232, 238, and 239 
(Partially))

    In reevaluating the current line-item penalty amounts for each of 
the CFR sections or subsections found in 49 CFR parts 215, 218 
(partially), 223, 224, 227, 229, 230, 231, 232, 238, and 239 
(partially) of the CFR, FRA took into consideration, among other 
factors, the nationwide list of ``Top 10'' MP&E defects. The defects 
are listed in the table below, in descending order, according to the 
number of times that each defect was determined to have caused a rail 
equipment accident/incident, excluding highway-rail grade crossing 
accidents/incidents that are also classified as rail equipment 
accidents/incidents (``train accidents''), between January 2005 and 
December 2009.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Journal (roller bearing)             Damaged flange or tread (build up)--
 overheated--(143)                    (60)
Pantograph defect (locomotive)--     Coupler retainer pin/cross key
 (121)                                missing--(57)
Side bearing clearance               Rigging down or dragging--(49)
 insufficient--(86)
Broken rim--(80)                     Other coupler/draft system defects;
                                      Worn Flange (tie)--(38)
Truck bolster stiff--(67)            Center sill broken or bent--(36)
------------------------------------------------------------------------

    The CFR sections or subsections that relate to these defects have 
received higher proposed rankings in the Schedules compared to other 
MP&E defects and as such now carry higher penalty amounts. For example, 
a violation of 49 CFR 215.103(d)(3), which involves a defective wheel 
rim with a crack of one inch or more, received a proposed ``A'' 
severity ranking (and a proposed guideline penalty amount of $19,500) 
because of the high safety risk that the defect will cause a broken rim 
that, in turn, causes a derailment. In addition, FRA applied the New 
Proposed Severity Scale in order to determine the degrees of likelihood 
that any type of accident/incident will occur as a result of 
noncompliance with the regulations.

B. Track and Workplace Safety Regulations (49 CFR Parts 213 and 214)

    In recent years, most of the serious accidents/incidents (train 
collisions or derailments resulting in a release of hazardous materials 
or harm to rail passengers, rail employees, or the general public) 
resulted from human factor or track causes. Over the last five years, 
31.9 percent of train accidents were caused by track defects. In an 
effort to reduce track accidents, FRA is focusing its track inspections 
on the areas of highest risks and encouraging inspectors to recommend 
enforcement action on the kinds of violations that are considered 
leading causes of track-caused train accidents. Therefore, in 
evaluating the line-item penalty amounts for all the sections or 
subsections, FRA took into consideration the leading causes of track-
related train accidents when applying the New Proposed Severity Scale 
to the Track Safety Standards. For example, violations of 49 CFR 213.53 
``Gage'' received a new proposed ``A'' ranking (and new proposed 
penalty guideline amounts of $19,500 for an ordinary violation and 
$25,000 for a willful violation) because improper gage is one of the 
leading causes of track-related train accidents.
    In ranking the sections or subsections of 49 CFR part 214 
(``Railroad Workplace Safety''), FRA took into consideration not only 
the probability that an accident/incident could result if a violation 
occurred, but also the fact that

[[Page 57603]]

the accident/incident could result in serious injury or death. One 
example of the rankings for part 214 is the ranking for the second type 
of violation of 49 CFR 214.103, coded 214.103(ii), ``Failure to use 
fall protection.'' This violation designated 214.103(ii) received a 
proposed ranking of ``A'' (and a proposed guideline penalty of $19,500 
for an ordinary violation and $25,000 for a willful violation) because 
the violation could result in serious injury or death, as evidenced by 
the several bridge worker fatalities in the past 10 years due to the 
failure to use fall protection.

C. Grade Crossing Signal Systems and Signal and Train Control 
Regulations (49 CFR Parts 233, 234, 235, and 236)

    FRA applied the New Proposed Severity Scale to each of the sections 
in 49 CFR parts 233, 234, 235, and 236, in order to determine the 
appropriate proposed rankings for each of the sections or subsections 
of the regulations. In the area of signal and train control (S&TC), FRA 
followed the New Proposed Severity Scale, which concentrates on the 
potential for an accident/incident resulting from noncompliance. S&TC 
systems are vital to the safe functioning of the general railroad 
system because train crews and highway motorists rely on the accuracy 
of the information provided by these systems to make safe movements on 
the railway system and through highway-rail grade crossings. While 
there are relatively few train accidents and highway-rail grade 
crossing accidents/incidents associated with S&TC causes that have 
occurred in recent years, the consequences of an S&TC-caused accident 
can be catastrophic. Therefore, it is imperative that the Schedules put 
into effect by FRA reflect the levels of risks associated with the 
violation of these CFR sections or subsections, in order to prevent 
future S&TC-caused accidents.

D. Operating Practices Regulations (49 CFR Parts 217, 218 (Partially), 
219, 220, 221, 222, 225, 228, 239 (Partially), 240, and 241) and Hours 
of Service Laws (49 U.S.C. Chapter 211)

    Over the five years from January 2005 to December 2009, human-
factor-related causes accounted for 34.2 percent of all train 
accidents. A review of the FRA's Office of Railroad Safety database 
indicated that in 2009 the top four human factor causes contributing to 
train accidents were improperly lined switches; employees absent on, 
at, or ahead of a shoving movement; failure to control during a shoving 
movement; and failure to comply with restricted speed or its equivalent 
when not in connection with a block or interlocking signal. These top 
causes are often involved in violations of such regulations as 49 CFR 
part 220 (``Railroad Communications''). A review of the top four causes 
for human factor train accidents between January 2005 and December 2009 
showed that these causes accounted for 1,812 reportable train 
accidents/incidents (including 13 employee fatalities, 463 employee 
injuries, and over $96 million in damages). Therefore, when applying 
the New Proposed Severity Scale to the regulatory provision or statute, 
FRA considered all of this safety information in order to ensure that 
each new proposed line-item penalty amount reflected the likelihood 
that noncompliance would result in a train accident/incident, or that 
graver consequences would occur as a result of failing to comply with 
the statute or section or subsection of the regulations.

V. Response to Public Comment on the Schedules Proposed in December 
2006

    As previously stated, the existing Schedules are statements of 
agency policy, which FRA has authority to amend or replace without 
having to provide prior notice and opportunity for comment under the 
Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA 
provided members and representatives of the regulated community and the 
general public with an opportunity to comment on the proposed line-item 
penalty amounts published on December 5, 2006. FRA received six 
comments on the Schedules proposed in December 2006. FRA has considered 
the comments received and now responds to the questions and concerns 
raised in them.

A. Concerns Related to Respondents That Are Small Businesses

    The Small Railroad Business Owners of America (``SRBOA'') commented 
that FRA's December 2006 proposed civil penalty policy does not 
adequately take into account the interests of small businesses. The 
commenter suggested that doubling certain civil penalties for smaller 
railroads is unfair, especially because most of the accidents/incidents 
occur on larger railroads. The commenter also asked that FRA provide 
additional training and assistance to smaller railroads in 
comprehension and application of the rail safety regulations.
    In addition, the American Short Line and Regional Railroad 
Association (``ASLRRA'') commented that the proposed statement of 
agency policy ignores the effect that proposed amounts would have on 
small railroads. ASLRRA suggested that FRA move instead, towards a 
sliding scale system of civil penalties based on the class of track 
under 49 CFR part 213 that is involved in the violation. In the 
alternative, ASLRRA suggested that FRA take the time to codify a 
second, lower schedule of penalties for small railroads.
    In response to these concerns, FRA would like to emphasize appendix 
C to 49 CFR part 209, where FRA has published its policy statement 
concerning small business entities. FRA understands that small entities 
in the rail industry have significantly different characteristics from 
larger carriers and shippers. Therefore, FRA has developed programs to 
respond to compliance-related inquiries of small entities, and to 
ensure proper handling of civil penalty and other enforcement actions 
against small businesses. FRA inspectors provide training on the 
requirements of all railroad safety statutes for new and existing small 
businesses upon request. Also, it is FRA's policy to maintain frequent 
and open communications with the national representatives of the 
primary small entity associations and to consult with these 
organizations before embarking on new policies that may impact the 
interests of small businesses. Additionally, FRA has posted all of its 
manuals electronically for compliance with the rail safety disciplines 
at http://www.fra.dot.gov.
    FRA employs an enforcement policy that addresses the unique nature 
of small entities in the imposition of civil penalties and resolution 
of those assessments. Pursuant to appendix A to 49 CFR part 209, it is 
FRA's policy to consider a variety of factors in determining whether to 
take enforcement action against persons, including small entities, who 
have violated the safety laws and regulations. In general, the presence 
of both good faith and prompt remedial action on the part of the small 
entity militates against taking a civil penalty action, especially if 
the violation is an isolated event. Once FRA has assessed a civil 
penalty, FRA may adjust or compromise the initial penalty claim based 
on a wide variety of mitigating factors. The mitigating criteria that 
FRA applies are found in the railroad safety statutes at 49 U.S.C. ch. 
213 and in the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121) (``SBREFA''); these factors include the severity 
of the safety or health risk presented; the existence of alternative 
methods of eliminating the safety hazard; the entity's culpability; the 
entity's compliance history; the entity's ability to pay the 
assessment; the impact an assessment might exact on the

[[Page 57604]]

entity's continued business; and evidence that the entity acted in good 
faith. 49 CFR part 209, appendix C.
    FRA's enforcement policy with respect to small entities is flexible 
and comprehensive, but FRA's first priority in its compliance and 
enforcement activities is public and employee safety. FRA notes that an 
accident on a small railroad could have the same consequences as an 
accident on a large railroad. Therefore, small railroads are 
responsible for compliance with the railroad safety statutes and 
regulations.
    Finally, the Small Railroad Business Owners' Association of America 
(``SRBOA'') commented that FRA's civil penalties were higher than those 
used by the Federal Motor Carrier Safety Administration (``FMCSA'') for 
enforcing commercial motor vehicle driver and trucking safety, and 
suggested that FRA should impose civil penalties for smaller railroads 
only if discussing the situation with them does not work first.
    As explained above, FRA's rail safety inspectors take into account 
a variety of factors in determining whether to take enforcement 
actions. They have the option of citing the railroads for defects, 
which in their judgment do not merit civil penalties before citing them 
for violations, which do carry civil penalty recommendations. Also, FRA 
does not believe it is appropriate to compare FRA's rail safety 
penalties to FMCSA's penalties for driver and trucking safety. The 
safety considerations in the trucking and rail industries are very 
different. An accident involving a train is potentially far more 
catastrophic and costly than a similar accident involving a truck. For 
example, one railroad tank car could contain many truckloads of 
hazardous material, and one train could consist of many such railroad 
tank cars.

B. Concerns About Initially Proposed Penalty Amounts for Violations of 
49 CFR Parts 222, 225, and 229

    The Association of American Railroads (``AAR'') stated that, in 
several cases, the penalties proposed in December 2006 are 
disproportionate to the severity of the violation. Specifically, AAR 
took exception to penalties proposed for noncompliance with 49 CFR 
parts 222, 225, and 229.
    With regard to part 222 (the train horn rule), AAR contended that a 
``D'' level penalty for a violation of Sec.  222.21(b) is 
unsubstantiated, as the sounding of a horn for more than 20 seconds 
will not increase the likelihood of an accident or incident.
    FRA provides that the train horn rule focuses on public and 
community interests. To remain true to the intention of the rule, FRA 
must take the interests of the community into account when determining 
the penalty amount that a violation merits. FRA believes that it is 
important that sufficient warning be provided to the motorist who needs 
time to recognize the audible signal, understand its message, initiate 
a reaction, and take appropriate action when at a grade crossing. See 
71 FR 47618, Aug. 17, 2006. If the train horn is sounded more than 25 
seconds before the train enters the train crossing, motorists might 
well begin to doubt the credibility of the train horn as an indicator 
of the train's immediacy to the grade crossing. As a result, motorists 
will be more likely to take the risk of traveling through the crossing 
even when the train horn is sounded.
    The rule text for Sec.  222.21(b) also provides a ``good faith'' 
exception for the required length of time that the horn is sounded. The 
section permits additional flexibility by stating that the engineer 
shall not be in violation of Sec.  222.21(b) if the engineer sounds the 
horn not more than 25 seconds before the crossing, if in good faith the 
engineer cannot precisely estimate the arrival time of the train at the 
crossing. FRA has determined that the interests of avoiding an accident 
or incident as well as the interests of the community have been taken 
into account in assessing violations of Sec.  222.21(b) as a proposed 
``D'' level penalty with the exception of ``failure to sound the horn 
at least 15 seconds and less than \1/4\-mile before a crossing,'' which 
is assessed as a proposed ``C'' level penalty.
    Additionally, AAR stated that routine sounding of the horn at a 
grade crossing within a quiet zone, pursuant to Sec.  222.45, will not 
increase the likelihood of an accident or incident.
    With regard to AAR's comment on Sec.  222.45, although sounding the 
train horn in a quiet zone may not substantially increase the 
likelihood of an accident the first time or the first few times, trains 
that routinely sound their horns at quiet-zone grade crossings might 
cause motorists to doubt the credibility of signs marking a grade 
crossing as a quiet-zone grade crossing and whether a particular grade 
crossing is actually a quiet-zone grade crossing. Therefore, if routine 
violations of a quiet zone continue, motorists will begin to expect the 
warning of a train horn when a train is preparing to enter quiet-zone 
grade crossings where routine violations of the quiet zone occur. That 
could predictably lead to fatal accidents.
    In addition, violations of Sec.  222.45 increase the annoyance 
level of the communities surrounding the grade crossing. A fundamental 
feature of this rule was to balance driver and pedestrian safety with 
community noise concerns. Decreasing the civil monetary penalty would 
reduce the incentive to comply with the part and potentially increase 
noise for the surrounding communities. FRA maintains that the initial 
and new proposed ``D'' level penalty for a violation of Sec.  222.45 
sufficiently addresses the concerns that brought about the part 222 
rulemaking. See 71 FR 47614, Aug. 17, 2006.
    AAR also argued that a ``B'' level penalty for a violation of 49 
CFR 225.13 was unmerited, as a railroad's filing of a report one day 
late would not be more likely to cause an accident or incident.
    FRA has taken into consideration AAR's comments involving FRA's 
regulations on accident/incident reporting, 49 CFR part 225. FRA 
acknowledges the merits in AAR's comments with regard to Sec.  225.13, 
and FRA has revised the proposed penalty ranking for a violation of 
Sec.  225.13 from a ``B'' to an ``E.'' Upon reevaluating how part 225 
violations were ranked on the severity scale in the Initial Proposal, 
FRA has lowered many of the proposed severity scale rankings for 
violations of this part. For example, FRA has determined to change the 
ranking of a Sec.  225.11 violation (failure to submit monthly report 
of accidents/incidents) from a proposed ``B'' to a proposed ``D'' level 
penalty. At the same time, FRA has determined that a violation of Sec.  
225.9, failure to report certain accidents or incidents, immediately 
via telephone to the National Response Center, would be more 
detrimental to railroad safety, because the failure could prevent FRA 
from learning about the event and deciding whether or not the agency 
should commence an investigation. Even delayed notification could 
compromise such an investigation and prevent FRA from obtaining 
information that could identify safety problems that could cause future 
accidents or incidents. FRA has, therefore, changed the penalty amount 
from a proposed ``E'' to a proposed ``C'' level penalty.
    Finally, AAR stated that a ``C'' level penalty for a violation of a 
provision of the Locomotive Safety Standards, 49 CFR 229.137(a)(3), was 
uncalled for, as the lack of a toilet in the lead locomotive will not 
``substantially increase the likelihood of an accident or incident.''
    When FRA promulgated the notice of proposed rulemaking for the 
locomotive cab sanitation standards, FRA determined that serious health 
consequences may result if railroad employees are exposed to unsanitary 
conditions or lack access to facilities. In fact, it is widely known 
that exposure to

[[Page 57605]]

human fecal matter or untreated sewage waste can lead to diarrheal 
diseases such as amebiasis, giardiasis, shigellosis, and viral diseases 
such as hepatitis. See 66 FR 137, Jan. 2, 2001. FRA notes that any one 
of these mentioned conditions would fulfill the reporting requirements 
under the definition of an ``occupational illness'' pursuant to 49 CFR 
225.19(d) and therefore be considered an accident/incident within the 
meaning of the initially proposed Severity Scale and the New Proposed 
Severity Scale. FRA also notes that an engineer who contracts one of 
those diseases on duty might well be unable to operate his or her train 
safely.

C. Concerns Related to Respondents Who Are Cited as Individuals

    The Brotherhood of Locomotive Engineers and Trainmen (``BLET'') had 
a number of comments on civil penalties against individuals for rail 
safety violations. The BLET raised concern that FRA's conclusions on 
the data indicate a ``lack of discipline by the workers.'' Also, the 
commenter suggested that the December 2006 proposed statement of agency 
policy suffers from ``the same infirmity as the railroad operating 
rules NPRM (notice of proposed rulemaking).'' Overall, the BLET seemed 
very concerned with the effect that a larger penalty would have on an 
individual as opposed to a railroad.
    FRA responds that civil penalties assessed against individuals 
pursuant to the rail safety statutes, regulations, and orders may be 
assessed administratively only if FRA determines that the individual's 
conduct was willful in nature. 49 U.S.C. 21304. ``FRA considers a 
`willful' violation to be one that is an intentional, voluntary act 
committed either with knowledge of the relevant law or reckless 
disregard for whether the act violated the requirements of the law.'' 
49 CFR part 209, appendix A. FRA continues to hold that the higher 
penalties for a willful violation serve to deter an individual from 
engaging in this type of egregious behavior. Further, FRA assesses rail 
safety civil penalties against railroads at a substantially higher 
frequency than against individuals. As neither the Initial Proposal nor 
the New Proposal addresses the issues covered in ``Railroad Operating 
Rules: Program of Operational Tests and Inspections; Railroad Operating 
Practices: Handling Equipment, Switches and Fixed Derails,'' FRA 
declines to respond in this proposal to comments regarding that 
rulemaking, in which a final rule was published on June 16, 2008. 73 FR 
33888.

D. Concerns About Effects on FRA's Confidential Close Call Reporting 
Project

    The BLET also provided comments exhibiting a concern as to how the 
proposed penalty schedule in the Initial Proposal would impact FRA's 
Confidential Close Call Reporting Pilot Project (``Close Call 
Project''). The Close Call Project involves encouraging employees from 
its participating railroads to report ``close call'' incidents 
voluntarily and anonymously. A ``close call'' is an event in which a 
death, a personal injury, or property damage is narrowly averted. Thus, 
a ``close call'' presents an opportunity to improve safety practices in 
a situation or incident that has potential for more serious 
consequences by allowing the people involved to report the event in 
detail without fear of adverse consequences, thereby providing FRA with 
vital data about precursors to accidents or incidents that FRA might 
otherwise not receive. The information collected from the Close Call 
Project provides an opportunity to identify and correct weaknesses in a 
railroad's safety system before an accident/incident or other unsafe 
event occurs. The system can also be used to monitor changes in safety 
over time and to uncover hidden unsafe conditions that were previously 
unreported.
    FRA does not agree with BLET's comment that the Initial Proposal 
would nullify the incentive for voluntary submission of information in 
this pilot program. The employees participating in the Close Call 
Project are protected from carrier discipline, decertification, and FRA 
enforcement action in the same manner regardless of whether the civil 
penalties are increased. Before a Close Call Project may be initiated, 
the employing railroad and the employees' union representatives sign a 
memorandum of understanding (``MOU'') that specifies each party's 
rights and responsibilities. Revising the Schedules would not impact 
any MOU that has been implemented, and would not affect any MOU that is 
to be implemented in the future, as they would not expand FRA's 
enforcement authority.

E. Concerns About Proposed Monetary Increases in the Civil Penalty 
Amounts

    Commenters measured the change between the current penalties and 
the initially proposed penalties in nominal terms. That is, commenters 
calculated the price change between the initially proposed penalties 
and the current penalties without first adjusting the current penalty 
amounts for inflation. Inflation erodes the purchasing power of money 
over time. As previously stated in this New Proposal, the enforcement 
and deterrent effects of the current penalties have decreased over time 
as they had not been increased line by line to account for the effects 
of inflation. A better, ``apples-to-apples'' comparison would be to 
compare the proposed penalties to the inflation-adjusted, or real, 
current penalties. Adjusting for inflation allows comparison of the 
penalties using dollars with the same purchasing power.
    Given that inflation-adjusted, current penalties serve as the 
proper baseline for measuring change, it is significant that many of 
the current penalties have not changed in nominal terms for many years.
    As previously stated, in undertaking this effort to revise the 
Schedules comprehensively after many years, FRA is focusing on areas 
that pose greater safety risks, and maintaining enforcement in other 
regulatory areas per its authority to set penalty guidelines within the 
minimum, ordinary maximum, and aggravated maximum statutory penalties. 
With the New Proposal, some of the proposed penalty amounts if adopted 
by FRA will indeed show large increases, even after adjusting for 
inflation.\7\ However, as previously stated, some newly proposed 
penalty amounts for violations would remain unchanged (e.g., 49 CFR 
219.205(b), 222.49(b), 229.71, and 239.301(c)(1)). Again, the penalty 
amounts in the New Proposal reflect the

[[Page 57606]]

reanalyzed risk basis for the penalty amounts and the new ordinary 
maximum statutory penalty. FRA believes that these new proposed 
Schedules will maintain and increase the effect of the civil monetary 
penalties, fostering a higher overall level of safety.
---------------------------------------------------------------------------

    \7\ For example, BLET stated that the penalty for 49 CFR 
214.103(ii) (``Failure to use fall protection'') would increase 340 
percent. Expressing the original penalty amounts in 2006 dollars 
(for consistency with the first proposed penalty schedules that were 
published on December 5, 2006), the increase would actually have 
been 204 percent; however, with the proposed penalties in this 
notice, the increase in real dollars would be 559 percent. 
Similarly, for 49 CFR 218.22(c)(5) (``Utility employees: Assignment 
conditions: Performing functions not listed''), BLET found an 87.5 
percent increase. Measured in 2006 dollars, the difference between 
the current penalties and the originally-proposed revised penalties 
would have been 15 percent, and with the proposed penalties in this 
notice, the real difference would be about 46 percent. For 49 CFR 
219.11(b)(1) (``General conditions for chemical tests: Employee 
unlawfully refuses to participate in testing''), BLET calculated a 
120 percent increase, the change in real dollars from the original 
proposal would have been 41 percent. With the proposed penalties in 
this New Proposal, the increase would be about 22 percent (Upon 
reevaluating the severity scale rankings in the Initial Proposal, 
FRA lowered the severity scale ranking for violations of Sec.  
219.11(b)(1) from a proposed ``A'' to a proposed ``D'' level 
penalty.) In each of these examples, the rules concern areas of 
significant risk. Consequentially, FRA has determined that higher 
proposed penalties are necessary and justified.
---------------------------------------------------------------------------

List of Subjects

49 CFR Part 209

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

49 CFR Part 213

    Bridges, Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

49 CFR Part 215

    Freight, Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 217

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees, 
Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 219

    Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad 
safety, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 220

    Penalties, Radio, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 221

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 222

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

49 CFR Part 223

    Glass and glass products, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 224

    Penalties, Railroad locomotive safety, Railroad safety, Reporting 
and recordkeeping requirements.

49 CFR Part 225

    Investigations, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 227

    Locomotives, Noise control, Occupational safety and health, 
Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 228

    Administrative practice and procedures, Buildings and facilities, 
Hazardous materials transportation, Noise control, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 229

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 230

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 231

    Penalties, Railroad safety.

49 CFR Part 232

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 233

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 234

    Highway safety, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 235

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

49 CFR Part 236

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 238

    Fire prevention, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 239

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR Part 240

    Administrative practice and procedure, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 241

    Communications, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.
    In consideration of the foregoing, FRA proposes to amend parts 209, 
213, 214, 215, 217, 218, 219, 220, 221, 222, 223, 224, 225, 227, 228, 
229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 240, and 241 of 
subtitle B, chapter II of title 49 of the Code of Federal Regulations 
to read as follows:

PART 209--[AMENDED]

    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 1.49.

    2. Appendix A to part 209 is revised to read as follows:

Appendix A to Part 209--Statement of Agency Policy Concerning 
Enforcement of the Federal Railroad Safety Laws

Penalty Schedules: Assessment of Maximum Penalties

    As recommended by the Department of Transportation in its 
initial proposal for rail safety legislative revisions in 1987, the 
RSIA raised the maximum civil penalties for violations of the safety 
regulations or orders. Under the Hours of Service Act, the penalty 
was changed from a flat $500 to a penalty of ``up to $1,000, as the 
Secretary of Transportation deems reasonable.'' Under all the other 
statutes, the maximum penalty was raised from $2,500 to $10,000 per 
violation, except that ``where a grossly negligent violation or 
pattern of repeated violations has created an imminent hazard of 
death or injury,'' the penalty was raised to a maximum of $20,000 
per violation.
    The Rail Safety Enforcement and Review Act (RSERA), enacted in 
1992, increased the maximum penalty from $1,000 to $10,000 and in 
some cases, $20,000 for a violation of the hours of service laws, 
making these penalty amounts uniform with those of FRA's other 
regulatory provisions and orders. RSERA also increased the minimum 
civil monetary penalty from $250 to $500 for all of FRA's regulatory 
provisions and orders. The Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, note, as 
amended by Section 31001(s)(1) of the Debt Collection Improvement 
Act of 1996 (Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996) 
(Inflation Act) required that agencies adjust by regulation each 
minimum and maximum civil monetary penalty within the agency's 
jurisdiction for inflation and make subsequent adjustments once 
every four years after the initial adjustment. Accordingly, FRA's 
minimum and maximum civil monetary penalties have been adjusted.
    In 2008, the Rail Safety Improvement Act of 2008 (RSIA of 2008) 
was enacted raising

[[Page 57607]]

FRA's civil monetary ordinary and aggravated maximum penalties to 
$25,000 and $100,000 respectively. FRA amended the civil penalty 
provisions in its regulations so as to make $25,000 the ordinary 
maximum penalty per violation and $100,000 the aggravated maximum 
penalty per violation, as authorized by the RSIA of 2008, in a final 
rule published on December 30, 2008 in the Federal Register. 73 FR 
79700. The December 30, 2008 final rule also adjusted the minimum 
civil penalty from $550 to $650 pursuant to Inflation Act 
requirements. Id. A correcting amendment to the civil penalty 
provisions in 49 CFR part 232 was published on April 6, 2009. 74 FR 
15388.
    FRA's traditional practice has been to issue penalty schedules 
assigning to each particular regulation or order specific dollar 
amounts for initial penalty assessments. The schedule (except where 
issued after notice and an opportunity for comment) constitutes a 
statement of agency policy, and is ordinarily issued as an appendix 
to the relevant part of the Code of Federal Regulations. For each 
regulation or order, the schedule shows two amounts within the $650 
to $25,000 range in separate columns, the first for ordinary 
violations, the second for willful violations (whether committed by 
railroads or individuals). In one instance--part 231--the schedule 
refers to sections of the relevant FRA defect code rather than to 
sections of the CFR text. Of course, the defect code, which is 
simply a reorganized version of the CFR text used by FRA to 
facilitate computerization of inspection data, is substantively 
identical to the CFR text.
    Accordingly, under each of the schedules (ordinarily in a 
footnote), and regardless of the fact that a lesser amount might be 
shown in both columns of the schedule, FRA reserves the right to 
assess the statutory maximum penalty of up to $100,000 per violation 
where a grossly negligent violation has created an imminent hazard 
of death or injury. This authority to assess a penalty for a single 
violation above $25,000 and up to $100,000 is used only in very 
exceptional cases to penalize egregious behavior. FRA indicates in 
the penalty demand letter when it uses the higher penalty amount 
instead of the penalty amount listed in the schedule.

PART 213--[AMENDED]

    3. The authority citation for part 213 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461, 
note; and 49 CFR 1.49(m).

    4. Appendix B to part 213 is revised to read as follows:

         Appendix B to Part 213--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section 2 3                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
213.4(a) Excepted track \2\.........            $9,500           $17,000
213.4(b) Excepted track \2\.........            13,000            20,500
213.4(c) Excepted track \ 2\........            13,000            20,500
213.4(d) Excepted track \2\.........            13,000            20,500
213.4(e):
     (1) Excepted track.............            13,000            20,500
     (2) Excepted track.............            13,000            20,500
     (3) Excepted track.............            13,000            20,500
     (4) Excepted track.............            13,000            20,500
213.4(f) Excepted track.............             5,500            10,000
213.7 Designation of qualified                   9,500            17,000
 persons to supervise certain
 renewals and inspect track.........
213.9 Classes of track: Operating               19,500            25,000
 speed limits.......................
213.11 Restoration or renewal of                 9,500            17,000
 track under traffic conditions.....
213.13 Measuring track not under                13,000            20,500
 load...............................
 
         Subpart B--Roadbed
 
213.33 Drainage.....................            13,000            20,500
213.37 Vegetation...................             9,500            17,000
 
      Subpart C--Track Geometry
213.53 Gage.........................            19,500            25,000
213.55 Alignment....................            13,000            20,500
213.57 Curves; elevation and speed              13,000            20,500
 limitations........................
213.59 Elevation of curved track;               13,000            20,500
 runoff.............................
213.63 Track surface................            13,000            20,500
 
     Subpart D--Track Structure
 
213.103 Ballast; general............             9,500            17,000
213.109 Crossties:
     (a) Material used..............             5,500            10,000
     (b) Distribution of ties.......            13,000            20,500
     (d) Sufficient number of                    9,500            17,000
     nondefective ties..............
     (f) Joint ties.................             9,500            17,000
     (g) Track constructed without               9,500            17,000
     crossties......................
213.110 Gage restraint measurement
 systems:
     (a) through (b) Notification...             9,500            17,000
     (c) Design requirements........            13,000            20,500
     (g) through (i) Exception                   9,500            17,000
     reports........................
     (j) Data integrity.............            13,000            20,500
     (k) Training...................             9,500            17,000
     (l) Remedial actions...........            19,500            25,000
     (m) PTLF.......................            13,000            20,500
     (n) Recordkeeping..............             9,500            17,000
     (o) Inspection frequency.......            19,500            25,000
213.113 Defective rails.............            19,500            25,000
213.115 Rail end mismatch...........             9,500            17,000
213.118(a) CWR plan in effect.......            13,000            20,500
213.118(b) CWR plan filed with FRA..            13,000            20,500
213.119 Continuous welded rail:

[[Page 57608]]

 
     (a) CWR installation/adjustment            13,000            20,500
     procedures.....................
     (b) CWR fastening requirements.            13,000            20,500
     (c) CWR joint installation/                13,000            20,500
     maintenance procedures.........
     (d) CWR rail temperature                   13,000            20,500
     requirements...................
     (e) CWR alinement..............            13,000            20,500
     (f) Procedures for controlling             13,000            20,500
     train speed on CWR track.......
     (g) CWR track inspections......            13,000            20,500
     (h) CWR joint bar inspections..            13,000            20,500
     (i) CWR training...............            13,000            20,500
     (j) CWR records................             9,500            17,000
     (k) CWR manual at job site.....             9,500            17,000
213.121(a) Rail joints..............            13,000            20,500
213.121(b) Rail joints..............            13,000            20,500
213.121(c) Rail joints..............            19,500            25,000
213.121(d) Rail joints..............            13,000            20,500
213.121(e) Rail joints..............            13,000            20,500
213.121(f) Rail joints..............            13,000            20,500
213.121(g) Rail joints..............            13,000            20,500
213.121(h) Rail joints..............            13,000            20,500
213.122 Torch cut rail..............            13,000            20,500
213.123 Tie plates..................             9,500            17,000
213.127 Rail fastenings.............            13,000            20,500
213.133 Turnouts and track                       9,500            17,000
 crossings, generally...............
213.135 Switches:...................
     (a) through (g)................            13,000            20,500
     (h) chipped or worn points.....            13,000            20,500
213.137 Frogs.......................            13,000            20,500
213.139 Spring rail frogs...........            13,000            20,500
213.141 Self-guarded frogs..........             9,500            17,000
213.143 Frog guard rails and guard              13,000            20,500
 faces; gage........................
 
   Subpart E--Track Appliances and
        Track-Related Devices
 
213.205 Derails.....................             9,500            17,000
 
        Subpart F--Inspection
 
213.233 Track inspections...........             9,500            17,000
213.235 Switches, crossings,                     9,500            17,000
 transition devices.................
213.237 Inspection of rail..........            13,000            20,500
213.239 Special inspections.........             9,500            17,000
213.241 Inspection records..........             9,500            17,000
 
Subpart G--Train Operations at Track
        Classes 6 and Higher
 
213.305 Designation of qualified                19,500            25,000
 individuals; general qualifications
213.307 Class of track; operating               19,500            25,000
 speed limits.......................
213.309 Restoration or renewal of               19,500            25,000
 track under traffic conditions.....
213.311 Measuring track not under               13,000            20,500
 load...............................
213.319 Drainage....................             9,500            17,000
213.321 Vegetation..................             9,500            17,000
213.323 Track gage..................            19,500            25,000
213.327 Alignment...................            19,500            25,000
213.329 Curves, elevation and speed             19,500            25,000
 limits.............................
213.331 Track surface...............            19,500            25,000
213.333 Automated vehicle inspection            19,500            25,000
 systems............................
213.335 Crossties:
     (a) Material used..............             9,500            17,000
     (b) Distribution of ties.......            13,000            20,500
     (c) Sufficient number of                    9,500            17,000
     nondefective ties, non-concrete
     (d) Sufficient number of                   19,500            25,000
     nondefective, concrete ties....
     (e) Joint ties.................            19,500            25,000
     (f) Track constructed without              19,500            25,000
     crossties......................
     (g) Non-defective ties                     19,500            25,000
     surrounding defective ties.....
     (h) Tie plates.................            19,500            25,000
     (i) Tie plates.................            19,500            25,000
213.337 Defective rails.............            19,500            25,000
213.339 Inspection of rail in                   19,500            25,000
 service............................
213.341 Inspection of new rail......            19,500            25,000
213.343 Continuous welded rail (a)              19,500            25,000
 through (h)........................
213.345 Vehicle qualification                   19,500            25,000
 testing (a) through (b)............
     (c) through (e)................            19,500            25,000
213.347 Automotive or railroad                  13,000            20,500
 crossings at grade.................
213.349 Rail end mismatch...........            13,000            20,500
213.351(a) Rail joints..............            19,500            25,000

[[Page 57609]]

 
213.351(b) Rail joints..............            19,500            25,000
213.351(c) Rail joints..............            19,500            25,000
213.351(d) Rail joints..............            19,500            25,000
213.351(e) Rail joints..............            13,000            20,500
213.351(f) Rail joints..............            19,500            25,000
213.351(g) Rail joints..............            19,500            25,000
213.352 Torch cut rails.............             9,500            17,000
213.353 Turnouts, crossovers,                   19,500            25,000
 transition devices.................
213.355 Frog guard rails and guard              13,000            20,500
 faces; gage........................
213.357 Derails.....................             9,500            17,000
213.359 Track stiffness.............            19,500            25,000
213.361 Right of way................             9,500            17,000
213.365 Visual inspections..........            19,500            25,000
213.367 Special inspections.........            19,500            25,000
213.369 Inspections records.........             9,500            17,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ In addition to assessment of penalties for each instance of
  noncompliance with the requirements identified by this footnote, track
  segments designated as excepted track that are or become ineligible
  for such designation by virtue of noncompliance with any of the
  requirements to which this footnote applies are subject to all other
  requirements of part 213 until such noncompliance is remedied.
\3\ The penalty schedule uses section numbers from 49 CFR part 213. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 214--[AMENDED]

    5. The authority citation for part 214 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    6. Appendix A to part 214 is revised to read as follows:

         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
   Subpart B--Bridge Worker Safety
              Standards
 
214.103 Fall protection:
    (i) Failure to provide fall                $13,000           $20,500
     protection.....................
    (ii) Failure to use fall                    19,500            25,000
     protection.....................
214.105 Standards and practices:
    (a) General:
        (1) Fall protection used for             9,500            17,000
         other purposes.............
        (2) Failure to remove from               9,500            17,000
         service....................
        (3) Failure to protect from              9,500            17,000
         deterioration..............
        (4) Failure to inspect and              13,000            20,500
         remove.....................
        (5) Failure to train........            13,000            20,500
        (6) Failure to provide for              13,000            20,500
         prompt rescue..............
        (7) Failure to prevent                   9,500            17,000
         damage.....................
        (8) Failure to use proper                9,500            17,000
         connectors.................
        (9) Failure to use proper                9,500            17,000
         anchorages.................
    (b) Fall arrest system:
        (1)-(17) Failure to provide              9,500            17,000
         conforming equipment.......
    (c) Safety net systems:
        (1) Failure to install close             9,500            17,000
         to workplace...............
        (2) Failure to provide fall             13,000            20,500
         arrest if over 30 feet.....
        (3) Failure to provide for              13,000            20,500
         unobstructed fall..........
        (4) Failure to test.........             9,500            17,000
        (5) Failure to use proper                9,500            17,000
         equipment..................
        (6) Failure to prevent                  13,000            20,500
         contact with surface below.
        (7) Failure to properly                 13,000            20,500
         install....................
        (8) Failure to remove                   13,000            20,500
         defective nets.............
        (9) Failure to inspect......            13,000            20,500
        (10) Failure to remove                   5,500            10,000
         objects....................
        (11)-(13) Failure to use                 9,500            17,000
         conforming equipment.......
214.107 Working over water:
    (a)(i) Failure to provide life              13,000            20,500
     vest...........................
        (ii) Failure to use life                13,000            20,500
         vest.......................
    (c) Failure to inspect..........             9,500            17,000
    (e)(i) Failure to provide ring              13,000            20,500
     buoys..........................

[[Page 57610]]

 
        (ii) Failure to use ring      ................            17,000
         buoys......................
    (f)(i) Failure to provide skiff.             9,500            17,000
        (ii) Failure to use skiff...  ................            17,000
214.109 Scaffolding:
    (a)-(f) Failure to provide                  13,000            20,500
     conforming equipment...........
214.113 Head protection:
    (a)(i) Failure to provide.......            13,000            20,500
        (ii) Failure to use.........            13,000            20,500
    (b) or (c) Failure to provide                9,500            17,000
     conforming equipment...........
214.115 Foot protection:
    (a)(i) Failure to require use of             9,500            17,000
        (ii) Failure to use.........             9,500            17,000
214.117 Eye and face protection:
    (a)(i) Failure to provide.......             9,500            17,000
        (ii) Failure to use.........             5,500            10,000
    (b) Failure to use conforming                9,500            17,000
     equipment......................
    (c) Use of defective equipment..             9,500            17,000
    (d) Failure to provide for                   9,500            17,000
     corrective lenses..............
 
Subpart C--Roadway Worker Protection
                Rule
 
214.303 Railroad on-track safety
 programs, generally:
    (a) Failure of a railroad to                19,500            25,000
     implement an On-track Safety
     Program........................
    (b) On-track Safety Program of a             9,500            17,000
     railroad includes no internal
     monitoring procedure...........
214.305 Compliance Dates:
    Failure of a railroad to comply              9,500            17,000
     by the specified dates.........
214.307 Review and approval of
 individual on-track safety programs
 by FRA:
    (a)(i) Failure to notify FRA of              2,500             5,000
     adoption of On-track Safety
     Program........................
        (ii) Failure to designate                2,500             5,000
         primary person to contact
         for program review.........
214.309 On-track safety program
 documents:
    (1) On-track Safety Manual not               9,500            17,000
     provided to prescribed
     employees......................
    (2) On-track Safety Program                  5,500            10,000
     documents issued in fragments..
214.311 Responsibility of employers:
    (b) Roadway worker required by              19,500            25,000
     employer to foul a track during
     an unresolved challenge........
    (c) Roadway workers not provided             9,500            17,000
     with written procedure to
     resolve challenges of on-track
     safety procedures..............
214.313 Responsibility of individual
 roadway workers:
    (a) Failure to follow railroad's  ................            25,000
     on-track safety rules..........
    (b) Roadway worker fouling a      ................            25,000
     track when not necessary in the
     performance of duty............
    (c) Roadway worker fouling a      ................            25,000
     track without ascertaining that
     provision is made for on-track
     safety.........................
    (d) Roadway worker failing to     ................            25,000
     notify employer of
     determination of improper on-
     track safety provisions........
214.315 Supervision and
 communication:
    (a) Failure of employer to                  19,500            25,000
     provide job briefing...........
    (b) Incomplete job briefing.....            13,000            20,500
    (c)(i) Failure to designate                 13,000            20,500
     roadway worker in charge of
     roadway work group.............
        (ii) Designation of more                 9,500            17,000
         than one roadway worker in
         charge of one roadway work
         group......................
        (iii) Designation of non-               13,000            20,500
         qualified roadway worker in
         charge of roadway work
         group......................
    (d)(i) Failure to notify roadway            13,000            20,500
     workers of on-track safety
     procedures in effect...........
        (ii) Incorrect information              13,000            20,500
         provided to roadway workers
         regarding on-track safety
         procedures in effect.......
        (iii) Failure to notify                 13,000            20,500
         roadway workers of change
         in on-track safety
         procedures.................
    (e)(i) Failure of lone worker to             9,500            17,000
     communicate with designated
     employee for daily job briefing
        (ii) Failure of employer to             13,000            20,500
         provide means for lone
         worker to receive daily job
         briefing...................
214.317 On-track safety procedures,
 generally:
    On-track safety rules conflict              19,500            25,000
     with this part.................
214.319 Working limits, generally:
    (a) Nonqualified roadway worker             13,000            20,500
     in charge of working limits....
    (b) More than one roadway worker            13,000            20,500
     in charge of working limits on
     the same track segment.........
    (c)(1) Working limits released              19,500            25,000
     without notifying all affected
     roadway workers................
        (2) Working limits released             19,500            25,000
         before all affected roadway
         workers are otherwise
         protected..................
214.321 Exclusive track occupancy:
    (b) Improper transmission of                 9,500            17,000
     authority for exclusive track
     occupancy......................
    (b)(1) Failure to repeat                     9,500            17,000
     authority for exclusive track
     occupancy to issuing employee..
        (2) Failure to retain                    5,500            10,000
         possession of written
         authority for exclusive
         track occupancy............
        (3) Failure to record                   13,000            20,500
         authority for exclusive
         track occupancy when issued
    (c) Limits of exclusive track               19,500            25,000
     occupancy not identified by
     proper physical features.......
    (d)(1) Movement authorized into             19,500            25,000
     limits of exclusive track
     occupancy without authority of
     roadway worker in charge.......
        (2) Movement authorized                 19,500            25,000
         within limits of exclusive
         track occupancy without
         authority of roadway worker
         in charge..................
        (3) Movement within limits              19,500            25,000
         of exclusive track
         occupancy exceeding
         restricted speed without
         authority of roadway worker
         in charge..................

[[Page 57611]]

 
214.323 Foul time:
    (a) Foul time authority                     19,500            25,000
     overlapping movement authority
     of train or equipment..........
    (b) Failure to repeat foul time              9,500            17,000
     authority to issuing employee..
214.325 Train coordination:
    (a) Train coordination limits               13,000            20,500
     established where more than one
     train is authorized to operate.
    (b)(1) Train coordination                    9,500            17,000
     established with train not
     visible to roadway worker at
     the time.......................
        (2) Train coordination                   9,500            17,000
         established with moving
         train......................
        (3) Coordinated train moving            13,000            20,500
         without authority of
         roadway worker in charge...
        (4) Coordinated train                   13,000            20,500
         releasing movement
         authority while working
         limits are in effect.......
214.327 Inaccessible track:
    (a) Improper control of entry to            13,000            20,500
     inaccessible track.............
        (5) Remotely controlled                 13,000            20,500
         switch not properly secured
         by control operator........
    (b) Train or equipment moving               13,000            20,500
     within inaccessible track
     limits without permission of
     roadway worker in charge.......
    (c) Unauthorized train or                   13,000            20,500
     equipment located within
     inaccessible track limits......
214.329 Train approach warning
 provided by watchmen/lookouts:
    (a) Failure to give timely                  19,500            25,000
     warning of approaching train...
    (b)(1) Failure of watchman/                 13,000            20,500
     lookout to give full attention
     to detecting approach of train.
        (2) Assignment of other                 19,500            25,000
         duties to watchman/lookout.
    (c) Failure to provide proper                9,500            17,000
     warning signal devices.........
    (d) Failure to maintain position            13,000            20,500
     to receive train approach
     warning signal.................
    (e) Failure to communicate                  13,000            20,500
     proper warning signal..........
    (f)(1) Assignment of                        13,000            20,500
     nonqualified person as watchman/
     lookout........................
        (2) Nonqualified person                  9,500            17,000
         accepting assignment as
         watchman/lookout...........
    (g) Failure to properly equip a              9,500            17,000
     watchman/lookout...............
214.331 Definite train location:
    (a) Definite train location                 13,000            20,500
     established where prohibited...
    (b) Failure to phase out                     9,500            17,000
     definite train location by
     required date..................
    (d)(1) Train location                       13,000            20,500
     information issued by
     unauthorized person............
        (2) Failure to include all              19,500            25,000
         trains operated on train
         location list..............
        (5) Failure to clear track              13,000            20,500
         10 minutes before earliest
         departure time of train at
         last station prior to work
         location, or failure to
         remain clear until such
         train passed...............
        (6) Train passing station               19,500            25,000
         before time shown in train
         location list..............
        (7) Nonqualified person                 13,000            20,500
         using definite train
         location to establish on-
         track safety...............
214.333 Informational line-ups of
 trains:
    (a) Informational line-ups of               19,500            25,000
     trains used for on-track safety
     where prohibited...............
    (b) Informational line-up                   19,500            25,000
     procedures inadequate to
     protect roadway workers........
    (c) Failure to discontinue                   9,500            17,000
     informational line-ups by
     required date..................
214.335 On-track safety procedures
 for roadway work groups:
    (a) Failure to provide on-track             19,500            25,000
     safety for a member of a
     roadway work group.............
    (b) Member of roadway work group            13,000            20,500
     fouling a track without
     authority of employee in charge
    (c) Failure to provide train                19,500            25,000
     approach warning or working
     limits on adjacent track where
     required.......................
214.337 On-track safety procedures
 for lone workers:
    (b) Failure by employer to                  19,500            25,000
     permit individual discretion in
     use of individual train
     detection......................
    (c)(1) Individual train                     13,000            20,500
     detection used by nonqualified
     employee.......................
        (2) Use of individual train             19,500            25,000
         detection while engaged in
         heavy or distracting work..
        (3) Use of individual train             19,500            25,000
         detection in controlled
         point or manual
         interlocking...............
        (4) Use of individual train             19,500            25,000
         detection with insufficient
         visibility.................
        (5) Use of individual train             19,500            25,000
         detection with interfering
         noise......................
        (6) Use of individual train             19,500            25,000
         detection while a train is
         passing....................
    (d) Failure to maintain access              19,500            25,000
     to place of safety clear of
     live tracks....................
    (e) Lone worker unable to                   19,500            25,000
     maintain vigilant lookout......
    (f)(1) Failure to prepare                    5,500            10,000
     written statement of on-track
     safety.........................
        (2) Incomplete written                   2,500             5,000
         statement of on-track
         safety.....................
        (3) Failure to produce                   2,500             5,000
         written statement of on-
         track safety to FRA........
214.339 Audible warning from trains:
    (a) Failure to require audible               9,500            17,000
     warning from trains............
    (b) Failure of train to give                 9,500            17,000
     audible warning where required.
214.341 Roadway maintenance
 machines:
    (a) Failure of on-track safety              19,500            25,000
     program to include provisions
     for safety near roadway
     maintenance machines...........
    (b) Failure to provide operating             9,500            17,000
     instructions...................
        (1) Assignment of                       13,000            20,500
         nonqualified employee to
         operate machine............
        (2) Operator unfamiliar with            13,000            20,500
         safety instructions for
         machine....................
        (3) Roadway worker working              13,000            20,500
         with unfamiliar machine....
    (c) Roadway maintenance machine             19,500            25,000
     not clear of passing trains or
     operation of machine component
     closer than four feet to
     adjacent track without
     procedural instructions........
214.343 Training and qualification,
 general:
    (a)(1) Assignment of roadway                13,000            20,500
     worker duties to employee that
     is not trained or qualified....
    (a)(2) Acceptance of roadway                13,000            20,500
     worker assignment by employee
     that is not trained or
     qualified......................
    (b)(1) Failure to provide                   13,000            20,500
     initial training...............

[[Page 57612]]

 
    (b)(2) Failure to provide annual             9,500            17,000
     training.......................
    (c) Failure to provide training             13,000            20,500
     to employee other than a
     roadway worker on functions
     related to on-track safety.....
    (d)(1) Failure to maintain                   9,500            17,000
     records of qualifications......
        (2) Incomplete records of                5,500            10,000
         qualifications.............
        (3) Failure to provide                   2,500             5,000
         records of qualifications
         to FRA.....................
214.345 Training for all roadway                   \3\               \3\
 workers............................
214.347 Training and qualification                 \3\               \3\
 for lone workers...................
214.349 Training and qualification                 \3\               \3\
 of watchmen/lookouts...............
214.351 Training and qualification                 \3\               \3\
 of flagmen.........................
214.353 Training and qualification                 \3\               \3\
 of roadway workers who provide on-
 track safety for roadway work
 groups.............................
214.355 Training and qualification                 \3\               \3\
 in on-track safety for operators of
 roadway maintenance machines.......
 
     Subpart D--On-Track Roadway
  Maintenance Machines and Hi-Rail
              Vehicles
 
214.503 Good-faith challenges;
 procedures for notification and
 resolution:
    (a) Failure of employee to        ................            20,500
     notify employer that the
     machine or vehicle does not
     comply with this subpart or has
     a condition inhibiting safe
     operation......................
    (b) Roadway worker required to              19,500            25,000
     operate machine or vehicle when
     good-faith challenge not
     resolved.......................
    (c) Failure of employer to have             19,500            25,000
     or follow written procedures to
     resolve good-faith challenges..
214.505 Required environmental
 control and protection systems for
 new on-track roadway maintenance
 machines with enclosed cabs:
    (a) Failure to equip new                    19,500            25,000
     machines with required systems.
    (b) Failure of new or existing              19,500            25,000
     machines to protect employees
     from exposure to air
     contaminants...................
    (c) Failure of employer to                   9,500            17,000
     maintain required list of
     machines or make list available
    (d) Removal of ``designated                  9,500            17,000
     machine'' from list before
     retired or sold................
    (e) Personal respiratory                    19,500            25,000
     protective equipment not
     provided when ventilation
     system fails...................
    (f) Personal respiratory                    19,500            25,000
     protective equipment fails to
     meet required standards........
    (g) Other new machines with                 19,500            25,000
     enclosed cabs not equipped with
     operable heating and
     ventilation systems............
    (h) Nonenclosed station not                 19,500            25,000
     equipped with covering, where
     feasible.......................
214.507 Required safety equipment
 for new on-track roadway
 maintenance machines:
    (a)(1)-(5) Failure to equip new             19,500            25,000
     machine or provide protection
     as specified in these
     paragraphs.....................
    (a)(6)-(7) Failure to equip new             13,000            20,500
     machine with first-aid kit or
     operative and charged fire
     extinguisher...................
    (b) Position for operator to                19,500            25,000
     stand not properly equipped to
     provide safe and secure
     position.......................
    (c) New machine not equipped                13,000            20,500
     with accurate speed indicator,
     as required....................
    (d) As-built light weight not               13,000            20,500
     conspicuously displayed on new
     machine........................
214.509 Required visual illumination            13,000            20,500
 and reflective devices for new on-
 track roadway maintenance machines.
214.511 Required audible warning                19,500            25,000
 devices for new on-track roadway
 maintenance machines...............
214.513 Retrofitting of existing on-
 track roadway maintenance machines;
 general:
    (a) Failure to provide safe and             19,500            25,000
     secure position and protection
     from moving parts inside cab
     for each roadway worker
     transported on machine.........
    (b) Horn or other audible                   13,000            20,500
     warning device is missing,
     inoperable, or has noncompliant
     triggering mechanism...........
    (c) Illumination device or                  13,000            20,500
     portable light missing,
     inoperable, improperly secured,
     or incapable of illuminating
     track as required..............
214.515 Overhead covers for existing
 on-track roadway maintenance
 machines:
    (a) Failure to repair,                      19,500            25,000
     reinstall, or maintain overhead
     cover as required..............
    (b) Failure to provide written               9,500            17,000
     response to operator's request
     within 60 days.................
214.517 Retrofitting of existing on-
 track roadway maintenance machines
 manufactured on or after January 1,
 1991:
    (a) Failure to equip machine                19,500            25,000
     with change-of-direction alarm
     or rearward viewing device.....
    (b) Failure to equip machine                19,500            25,000
     with operative heater..........
    (c) Failure to display light                13,000            20,500
     weight of machine as required..
    (d) Failure to equip machine                19,500            25,000
     with reflective material,
     reflective device, or operable
     brake lights...................
    (e) Failure to install or                   19,500            25,000
     replace safety glass as
     required.......................
    (f) Failure to equip machine                19,500            25,000
     with turntable restraint device
     or warning light as required...
214.518 Safe and secure position for            19,500            25,000
 riders.............................
214.519 Floors, decks, stairs, and              19,500            25,000
 ladders for on-track roadway
 maintenance machines...............
214.521 Flagging equipment for on-              13,000            20,500
 track roadway maintenance machines
 and hi-rail vehicles...............
214.523 Hi-rail vehicles:
    (a) Failure to inspect hi-rail              19,500            25,000
     gear annually..................
    (b) Failure to maintain                      9,500            17,000
     inspection record or make
     record available to FRA........
    (c) Failure to equip new hi-rail            13,000            20,500
     vehicle with alarm and light or
     beacon as required.............
    (d)(2) Failure of operator to                9,500            17,000
     tag, date, or report
     noncomplying condition.........
    (d)(3) Failure to repair or                 13,000            20,500
     replace noncomplying alarms,
     lights, or beacons as required.
214.525 Towing with on-track roadway            19,500            25,000
 maintenance machines or hi-rail
 vehicles...........................
214.527 On-track roadway maintenance
 machines; inspection for compliance
 and schedule for repairs:
    (a) Failure of operator to check             9,500            17,000
     on-track roadway maintenance
     machine for compliance.........
    (b) Failure of operator to tag,              9,500            17,000
     date, or report noncomplying
     condition......................

[[Page 57613]]

 
    (c)(1)-(4) Failure to meet                  13,000            20,500
     requirements for operating on-
     track roadway maintenance
     machine with noncomplying
     headlights, work lights, horn,
     fire extinguisher, alarm,
     warning light, or beacon.......
    (c)(5) Failure to repair or                 19,500            25,000
     replace defective or missing
     operator's seat within required
     time period....................
214.529 In-service failure of                   19,500            25,000
 primary braking system.............
214.531 Schedule of repairs; general            13,000            20,500
214.533 Schedule of repairs subject
 to availability of parts:
    (a)-(c) Failure to order                    13,000            20,500
     necessary part(s), make
     repair(s), or remove on-track
     roadway maintenance machine or
     hi-rail vehicle from service as
     required.......................
    (d) Failure to maintain record               9,500            17,000
     or make record available to FRA
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. In addition, there are certain sections of the penalty
  schedule for which no penalty is listed in the ordinary violation
  column. These sections may only be cited as willful violations. The
  Administrator reserves the right to assess a penalty of up to $100,000
  for any violation where circumstances warrant. See 49 CFR part 209,
  appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.
\3\ See Sec.   214.343 (Training and qualification, general).

PART 215--[AMENDED]

    7. The authority citation for part 215 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    8. Appendix B to part 215 is revised to read as follows:

         Appendix B to Part 215--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         Violation
------------------------------------------------------------------------
         Subpart A--General
 
215.9 Movement for repair:            ................  ................
     (a), (c).......................               \1\               \1\
     (b)............................            $5,500           $10,000
215.11 Designation of qualified                  9,500            17,000
 persons............................
 
215.13 Pre-departure inspection.....             9,500            17,000
 
  Subpart B--Freight Car Components
 
          Suspension System
 
215.103 Defective wheel:
    (a) Flange thickness of:          ................  ................
        (1) \7/8\'' or less but more             9,500            17,000
         than \13/16\''.............
        (2) \13/16\'' or less.......            13,000            20,500
    (b) Flange height of:
        (1) 1\1/2\'' or greater but              9,500            17,000
         less than \15/8\''.........
        (2) \15/8\'' or more........            13,000            20,500
    (c) Rim thickness of:
        (1) \11/16\'' or less but                9,500            17,000
         more than \5/8\''..........
         (2) \5/8\'' or less........            13,000            20,500
    (d) Wheel rim, flange plate hub
     width:
        (1) Crack of less than 1''..             9,500            17,000
        (2) Crack of 1'' or more....            13,000            20,500
        (3) Break...................            19,500            25,000
    (e) Chip or gouge in flange of:
        (1) 1\1/2\'' or more but                 5,500            10,000
         less than 1\5/8\'' in
         length; and \1/2\'' or more
         but less than \5/8\'' in
         width......................
        (2) \15/8\'' or more in                  9,500            17,000
         length; or \5/8\'' or more
         in width...................
    (f) Slid flat or shelled
     spot(s):
        (1)(i) One spot more than                5,500            10,000
         2\1/2\'', but less than
         3'', in length.............
            (ii) One spot 3'' or                 9,500            17,000
             more in length.........
        (2)(i) Two adjoining spots               5,500            10,000
         each of which is more than
         2'' but less than 2\1/2\''
         in length..................
            (ii) Two adjoining spots             9,500            17,000
             both of which are at
             least 2'' in length, if
             either spot is 2\1/2\''
             or more in length......
    (g) Loose on axle...............            19,500            25,000
    (h) Overheated; discoloration
     extending:
        (1) More than 4'' but less               9,500           17,000(
         than 4\1/2\''..............
        (2) 4\1/2\'' or more........            13,000            20,500
    (i) Welded......................            13,000            20,500
215.105 Defective axle:
    (a)(1) Crack of 1'' or less.....             9,500            17,000
         (2) Crack of more than 1''.            13,000            20,500
         (3) Break..................            19,500            25,000

[[Page 57614]]

 
     (b) Gouge in surface that is                5,500            10,000
     between the wheel seats and is
     more than \1/8\'' in depth.....
     (c) End collar with crack or                9,500            17,000
     break..........................
     (d) Journal overheated.........            19,500            25,000
     (e) Journal surface has: A                  9,500            17,000
     ridge; a depression; a
     circumferential score;
     corrugation; a scratch; a
     continuous streak; pitting;
     rust; or etching...............
215.107 Defective plain bearing box:
 general:
    (a)(1) No visible free oil                   5,500            10,000
         (2) Lubricating pad dry (no            13,000            20,500
         expression of oil observed
         when pad is compressed)....
    (b) Box lid is missing, broken,              5,500            10,000
     or open except to receive
     servicing......................
    (c) Contains foreign matter that             9,500            17,000
     can be expected to damage the
     bearing or have a detrimental
     effect on the lubrication of
     the journal and bearing
215.109 Defective plain bearing box:
 journal lubrication system:
    (a) Lubricating pad has a tear..             5,500            10,000
    (b) Lubricating pad scorched,                9,500            17,000
     burned, or glazed..............
    (c) Lubricating pad contains                 9,500            17,000
     decaying or deteriorating
     fabric.........................
    (d) Lubricating pad has an                   9,500            17,000
     exposed center core or metal
     parts contacting the journal...
    (e) Lubricating pad is missing              13,000            20,500
     or not in contact with the
     journal........................
215.111 Defective plain bearing:
    (a) Missing.....................            19,500            25,000
    (b) Bearing liner is loose or                9,500            17,000
     has piece broken out...........
    (c) Overheated..................            19,500            25,000
215.113 Defective plain bearing
 wedge:
    (a) Missing.....................            19,500            25,000
    (b) Cracked.....................             9,500            17,000
    (c) Broken......................            13,000            20,500
    (d) Not located in its design                9,500            17,000
     position.......................
215.115 Defective roller bearing:
    (a)(1) Overheated...............            19,500            25,000
        (2)(i) Cap screw(s) loose...            13,000            20,500
            (ii) Cap screw lock                  5,500            10,000
             broken, missing or
             improperly applied.....
        (3) Seal is loose or                     5,500            10,000
         damaged, or permits leakage
         of lubricant...............
    (b)(1) Not inspected and tested             13,000            20,500
     after derailment
        (2) Not disassembled after               9,500            17,000
         derailment.................
        (3) Not repaired or replaced            13,000            20,500
         after derailment...........
215.117 Defective roller bearing
 adapter:
    (a) Cracked or broken...........             9,500            17,000
    (b) Not in its design position..            13,000            20,500
    (c) Worn on the crown...........             9,500            17,000
215.119 Defective freight car truck:
    (a)(1) A side frame or bolster              19,500            25,000
     that is broken.................
        (2)(i) Side frame or bolster             9,500            17,000
         with crack of: \1/4\'' or
         more, but less than 1''....
            (ii) 1'' or more........            13,000            20,500
     (b) A snubbing device that is               9,500            17,000
     ineffective or missing.........
    (c) Side bearing(s):
        (1) Assembly missing or                 19,500            25,000
         broken.....................
        (2) In contact except by                13,000            20,500
         design.....................
        (3), (4) Total clearance at
         one end or at diagonally
         opposite sides of:
            (i) More than \3/4\''                9,500            17,000
             but not more than 1''..
            (ii) More than 1''......            13,000            20,500
    (d) Truck spring(s):
        (1) Do not maintain travel               9,500            17,000
         or load....................
        (2) Compressed solid........             9,500            17,000
        (3) Outer truck springs
         broken or missing:
            (i) Two outer springs...             9,500            17,000
            (ii) Three or more outer            13,000            20,500
             springs................
    (e) Truck bolster-center plate              13,000            20,500
     interference...................
    (f) Brake beam shelf support                 9,500            17,000
     worn...........................
 
             Car Bodies
 
215.121 Defective car body:
    (a) Has less than \21/2\''                   9,500            17,000
     clearance from the top of rail.
    (b) Car center sill is:
         (1) Broken.................            19,500            25,000
         (2) Cracked more than 6''..             9,500            17,000
         (3) Bent or buckled more                9,500            17,000
         than \21/2\'' in any 6'
         length.....................
     (c) Coupler carrier that is                 9,500            17,000
     broken or missing..............
     (d) Car door not equipped with             19,500            25,000
     operative safety hangers.......
     (e)(1) Center plate not                    19,500            25,000
     properly secured...............
         (2) Portion missing........             9,500            17,000
         (3) Broken.................            19,500            25,000
         (4) Two or more cracks.....             9,500            17,000

[[Page 57615]]

 
     (f) Broken sidesill,                        9,500            17,000
     crossbearer, or body bolster...
 
            Draft System
 
215.123 Defective couplers:
    (a) Shank bent out of alignment.             5,500            10,000
    (b) Crack in highly stressed                 9,500            17,000
     junction area..................
    (c) Coupler knuckle broken or                9,500            17,000
     cracked........................
    (d) Coupler knuckle pin or                   9,500            17,000
     thrower that is missing or
     inoperative....................
    (e) Coupler retainer pin lock                5,500            10,000
     that is missing or broken......
    (f) Coupler with following                   9,500            17,000
     conditions: Locklift
     inoperative; no anticreep
     protection; or coupler lock is
     missing, inoperative, bent,
     cracked, or broken.............
215.125 Defective uncoupling device.             9,500            17,000
215.127 Defective draft arrangement:
    (a) Draft gear that is                       9,500            17,000
     inoperative....................
    (b) Yoke that is broken.........             9,500            17,000
    (c) End of car cushioning unit               9,500            17,000
     is leaking or inoperative......
    (d) Vertical coupler pin                    19,500            25,000
     retainer plate missing or has
     missing fastener...............
    (e) Draft key or draft key                  19,500            25,000
     retainer that is inoperative or
     missing........................
    (f) Follower plate that is                   9,500            17,000
     missing or broken..............
215.129 Defective cushioning device.             9,500            17,000
 
   Subpart C--Restricted Equipment
 
215.203 Restricted cars.............             9,500            17,000
 
        Subpart D--Stenciling
 
215.301 General.....................             5,500            10,000
215.303 Stenciling of restricted                 5,500            10,000
 cars...............................
215.305 Stenciling of maintenance-of-            5,500            10,000
 way................................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations
  are discovered with respect to a single freight car that is placed or
  continued in service by a railroad, the appropriate penalties set
  forth above are aggregated up to a maximum of $25,000 per day. A
  failure to perform, with respect to a particular freight car, the
  predeparture inspection required by Sec.   215.13 of this part will be
  treated as a violation separate and distinct from, and in addition to,
  any substantive violative conditions found on the car. The
  Administrator reserves the right to assess a penalty of up to $100,000
  for any violation where circumstances warrant. See 49 CFR part 209,
  appendix A. Failure to observe any condition for movement set forth in
  paragraphs (a) and (c) of Sec.   215.9 will deprive the railroad of
  the benefit of the movement-for-repair provision and make the railroad
  and any responsible individuals liable for penalty under the
  particular regulatory section(s) concerning the substantive defect(s)
  present on the freight car at the time of movement. Maintenance-of-way
  equipment not stenciled in accordance with Sec.   215.305 is subject
  to all requirements of this part. See Sec.   215.3(c)(3).
\2\ The penalty schedule uses section numbers from 49 CFR part 215. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 217--[AMENDED]

    9. The authority citation for part 217 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    10. Appendix A to part 217 is revised to read as follows:

Appendix A to Part 217--Schedule Of Civil Penalties \1\

------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         Violation
------------------------------------------------------------------------
         Subpart A--General
 
217.7 Operating Rules:
    (a).............................            $5,500           $10,000
    (b).............................             5,500            10,000
    (c).............................             5,500            10,000
217.9 Operational tests and
 inspections:
    (a) Failure to implement a                  9,500-           17,000-
     program........................            19,500            25,000
    (b) Railroad and railroad
     testing officer
     responsibilities:
        (1) Failure to provide                  13,000            20,500
         instruction, examination,
         or field training, or
         failure to conduct tests in
         accordance with program....
        (2) Records.................             9,500            17,000
    (c) Record of program; program              9,500-           17,000-
     incomplete.....................            19,500            25,000
    (d) Records of individual tests              9,500            17,000
     and inspections................
    (e) Failure to retain copy of or
     conduct:.......................
        (1)(i) Quarterly review.....            13,000            20,500
        (1)(ii) and (2) Six month               13,000            20,500
         review.....................
        (3) Records.................             9,500            17,000

[[Page 57616]]

 
    (f) Annual summary..............             9,500            17,000
    (h) Failure to timely or                   13,000-           20,500-
     appropriately amend program                19,500            25,000
     after disapproval..............
217.11 Program of instruction on
 operating rules:
    (a).............................            5,500-           10,000-
                                                13,000            20,500
    (b).............................            5,500-           10,000-
                                                13,000            20,500
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 217. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 218--[AMENDED]

    11. The authority citation for part 218 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    12. Appendix A to part 218 is revised to read as follows:

         Appendix A to Part 218--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
Subpart B--Blue Signal Protection of
               Workmen
 
218.22 Utility employees:
    (a) Employee qualifications.....            $5,500           $10,000
    (b) Concurrent service..........             9,500            17,000
    (c) Assignment conditions:
        (1) No controlling                       9,500            17,000
         locomotive.................
        (2) Empty cab...............             9,500            17,000
        (3)(4) Improper                          9,500            17,000
         communication..............
        (5) Performing functions not             5,500            10,000
         listed.....................
    (d) Improper release............             5,500            10,000
    (f) More than three utility                  5,500            10,000
     employees with one crew........
218.23 Blue signal display..........             9,500            17,000
218.24 One-person crew:
    (a)(1) Equipment not coupled or              5,500            10,000
     insufficiently separated.......
    (a)(2) Unoccupied locomotive cab             9,500            17,000
     not secured....................
    (b) Helper service..............             5,500            10,000
218.25 Workmen on a main track......             9,500            17,000
218.27 Workmen on track other than
 main track:
    (a) Protection provided except               5,500            10,000
     that signal not displayed at
     switch.........................
    (b) through (e).................             9,500            17,000
218.29 Alternate methods of
 protection:
    (a)(1) Protection provided                   5,500            10,000
     except that signal not
     displayed at switch............
    (a)(2) through (a)(8)...........             9,500            17,000
    (b)(1) Protection provided                   5,500            10,000
     except that signal not
     displayed at switch............
    (b)(2) through (b)(4)...........             9,500            17,000
    (c) Use of derails..............             9,500            17,000
    (d) Emergency repairs...........             9,500            17,000
218.30 Remotely controlled switches:
    (a) and (b).....................             9,500            17,000
    (c).............................             2,500             5,000
 
 Subpart C--Protection of Trains and
             Locomotives
 
218.35 Yard limits:
    (a) and (b).....................             9,500            17,000
    (c).............................             2,500             5,000
218.37 Flag protection:
    (a).............................             9,500            17,000
    (b) and (c).....................             9,500            17,000
218.39 Hump operations..............             9,500            17,000
218.41 Noncompliance with hump                   9,500            17,000
 operations rule....................
 
   Subpart D--Prohibition against
    Tampering with Safety Devices
 
218.55 Tampering....................  ................            17,000
218.57
    (i) Knowingly operating or                   5,500  ................
     permitting operation of
     disabled equipment.............
    (ii) Willfully operating or       ................            10,000
     permitting operation of
     disabled equipment.............
218.59 Operation of disabled                     5,500            10,000
 equipment..........................
 

[[Page 57617]]

 
  Subpart E--Protection of Occupied
              Camp Cars
 
218.71 Warning Signal Display:
    (a) Warning signals.............             5,500            10,000
        (1) Cars may not be moved...             9,500            17,000
        (2) Rolling equipment may                5,500            10,000
         not be on same track
         reducing view of warning
         signal.....................
        (3) Rolling equipment may                9,500            17,000
         not pass a warning signal..
        (4) Signal will be displayed             5,500            10,000
         immediately and only
         removed prior to departure.
218.75 Methods of protection for
 camp cars on main track:
    (a) Warning signals near each                5,500            10,000
     switch with access.............
    (b) Immediate notification of                9,500            17,000
     occupation.....................
    (c) Alerting affected personnel              5,500            10,000
     of cars........................
    (d) Manual switched lined and                9,500            17,000
     locked.........................
    (e) Remote switches protected...             9,500            17,000
218.77 Remotely controlled switches:
    (a) Remote switch lined and                  9,500            17,000
     locked.........................
    (b) Operator may not remove                  9,500            17,000
     locking device without
     permission.....................
    (c) Recordkeeping...............             2,500             5,000
    (d) Derail and signal when                   9,500            17,000
     located on main track..........
218.79 Alternative methods for
 protection:
    (a) Other than main track:
        (1) Warning signal at each               9,500            17,000
         switch providing access....
        (2) Switches lined and                   9,500            17,000
         locked.....................
        (3) Derails 50 feet away                 9,500            17,000
         when speed is 5MPH.........
    (b) Except as provided in (a) on
     other than main track:
        (1) Derails 150 feet away                9,500            17,000
         from equipment.............
        (2) Derails must be locked               9,500            17,000
         in derailing position with
         signal.....................
 
   Subpart F--Handling Equipment,
        Switches and Derails
 
218.95 Instruction, Training and
 Examination:
    (a) Program.....................      9,500-13,000     17,000-20,500
    (b) Records.....................             9,500            17,000
    (c) Failure to timely or              9,500-13,000     17,000-20,500
     appropriately amend program
     after disapproval..............
218.97 Good Faith Challenge
 Procedures:
    (a) Employee Responsibility       ................             5,000
     Failure........................
    (b) through (d) Failure to adopt             9,500            17,000
     or implement procedures........
218.99 Shoving or Pushing Movements:
    (a) Failure to implement                    13,000            20,500
     required operating rule........
    (b) Failure to conduct job            9,500-13,000     17,000-20,500
     briefing, use a qualified
     employee, or establish proper
     protection.....................
    (c) Failure to observe equipment             9,500            17,000
     direction......................
    (d) Failure to properly                      9,500            17,000
     establish point protection
     within a remote control zone...
    (e) Failure to abide by                      9,500            17,000
     operational exception
     requirements...................
218.101 Leaving Equipment in the
 Clear:
    (a) Failure to implement                     9,500            17,000
     required operating rule........
    (b) Equipment left improperly                9,500            17,000
     fouling........................
    (c) Failure to implement                     9,500            17,000
     procedures for identifying
     clearance points...............
218.103 Hand-operated switches,
 including crossover switches:
    (a) Failure to implement                     9,500            17,000
     required operating rule........
    (b) through (d) Railroad                     9,500            17,000
     employee failures..............
218.105 Additional operational
 requirements for hand-operated main
 track switches:
    (a) Failure to implement                    13,000            20,500
     required operating rule........
    (b) and (c) Railroad and                     9,500            17,000
     employee failures..............
    (d) Failure to properly release             13,000            20,500
     authority limits...............
218.107 Additional operational
 requirements for hand-operated
 crossover switches:
    (a) Failure to implement                     9,500            17,000
     required operating rule........
    (b) and (c) Railroad and                     9,500            17,000
     employee failures..............
218.109 Hand-operated fixed derails:
    (a) Failure to implement                     9,500            17,000
     required operating rule........
    (b) and (c) Railroad and                     9,500            17,000
     employee failures..............
------------------------------------------------------------------------
\1\ Except as provided for in Sec.   218.57, a penalty may be assessed
  against an individual only for a willful violation. In addition, there
  are certain sections of the penalty schedule for which no penalty is
  listed in the ordinary violation column. These sections may only be
  cited as willful violations. The Administrator reserves the right to
  assess a penalty of up to $100,000 for any violation where the
  circumstances warrant. See 49 CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 218. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


[[Page 57618]]

PART 219--[AMENDED]

    13. The authority citation for part 219 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49(m).

    14. Appendix A to part 219 is revised to read as follows:

         Appendix A to Part 219--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
219.3 Application: Railroad does not           $13,000           $20,500
 have required program
219.11 General conditions for
 chemical tests:
    (b)(1) Employee unlawfully                   5,500            10,000
     refuses to participate in
     testing........................
    (b)(2) Employer fails to give               13,000            20,500
     priority to medical treatment..
    (b)(3) Employee fails to remain              5,500            10,000
     available......................
    (b)(4) Employee tampers with                 5,500            10,000
     specimen.......................
    (d) Employee unlawfully required             5,500            10,000
     to execute a waiver of rights..
    (e) Railroad used or authorized   ................            10,000
     the use of coercion to obtain
     specimens......................
    (g) Failure to meet supervisory              9,500            17,000
     training requirements or
     program of instruction not
     available or program not
     complete.......................
    (h) Urine or blood specimens                 5,500            10,000
     provided for Federal testing
     were used for nonauthorized
     testing........................
219.23 Railroad policies:
    (a) Failure to provide written               5,500            10,000
     notice of FRA test.............
    (b) Failure to provide written               2,500             5,000
     notice of basis for FRA test...
    (c) Use of Subpart C form for                2,500             5,000
     other test.....................
    (d) Failure to provide                       2,500             5,000
     educational materials..........
    (e) Educational materials fail               2,500             5,000
     to explain requirements of this
     part and/or include required
     content........................
    (f) Non-Federal provisions are               5,500            10,000
     not clearly described as
     independent authority..........
 
       Subpart B--Prohibitions
 
219.101 Alcohol and drug use
 prohibited:
    Employee violates prohibition(s)            19,500            25,000
219.103 Prescribed and over-the-
 counter drugs:
    (a) Failure to train employee                5,500            10,000
     properly on requirements.......
219.104 Responsive action:
    (a) Failure to remove employee              19,500            25,000
     from covered service
     immediately....................
    (b) Failure to provide notice                5,500            10,000
     for removal....................
    (c) Failure to provide prompt                5,500            10,000
     hearing........................
    (d) Employee improperly returned            13,000            20,500
     to service.....................
219.105 Railroad's duty to prevent
 violations:
    (a) Employee improperly                     19,500            25,000
     permitted to remain in covered
     service........................
    (b) Failure to exercise due                  9,500            17,000
     diligence to assure compliance
     with prohibition...............
219.107 Consequences of unlawful
 refusal:
    (a) Failure to disqualify an                13,000            20,500
     employee for nine months
     following a refusal............
    (e) Employee unlawfully returned            13,000            20,500
     to service.....................
 
      Subpart C--Post-Accident
        Toxicological Testing
 
219.201 Events for which testing is
 required:
    (a) Failure to test after                   13,000            20,500
     qualifying event (each employee
     not tested is a violation).....
    (c)(1)(i) Failure to make good               5,500            10,000
     faith determination............
    (c)(1)(ii) Failure to provide                2,500             5,000
     requested decision report to
     FRA............................
    (c)(2) Testing performed after               9,500            17,000
     nonqualifying event............
219.203 Responsibilities of
 railroads and employees:
    (a)(1)(i) and (a)(2)(i) Failure              5,500            10,000
     to properly test/exclude from
     testing........................
    (a)(1)(ii) and (a)(2)(ii)                    5,500            10,000
     Noncovered service employee
     tested.........................
    (b)(1) Delay in obtaining                    5,500            10,000
     specimens due to failure to
     make every reasonable effort...
    (c) Independent medical facility             5,500            10,000
     not utilized...................
    (d) Failure to report event or               2,500             5,000
     contact FRA when intervention
     required.......................
219.205 Specimen collection and
 handling:
    (a) Failure to observe                       5,500            10,000
     requirements with respect to
     specimen collection, marking
     and handling...................
    (b) Failure to provide properly              2,500             5,000
     prepared forms with specimens..
    (d) Failure to promptly or                   5,500            10,000
     properly forward specimens.....
219.207 Fatality:
    (a) Failure to test.............            13,000            20,500
    (a)(1) Failure to ensure timely              2,500             5,000
     collection and shipment of
     required specimens.............
    (b) Failure to request                       5,500            10,000
     assistance when necessary......
219.209 Reports of tests and
 refusals:
    (a)(1) Failure to provide                    2,500             5,000
     telephonic report..............
    (b) Failure to provide written               2,500             5,000
     report of refusal to test......
    (c) Failure to maintain report               2,500             5,000
     explaining why test not
     conducted within four hours....
219.211 Analysis and follow-up:
    (c) Failure of MRO to report                 5,500            10,000
     review of positive results to
     FRA............................
 
    Subpart D--Testing for Cause
 
219.300 Mandatory reasonable
 suspicion testing:
    (a)(1) Failure to test when                 19,500            25,000
     reasonable suspicion criteria
     met............................

[[Page 57619]]

 
    (a)(2) Tested when reasonable                9,500            17,000
     suspicion criteria not met.....
219.301 Testing for reasonable
 cause:
    (a) Event did not occur during               5,500            10,000
     daily tour.....................
    (b)(2) Tested when accident/                 9,500            17,000
     incident criteria not met......
    (b)(3) Tested when operating                 9,500            17,000
     rules violation criteria not
     met............................
219.302 Prompt specimen collection:
    (a) Specimen collection not                  5,500            10,000
     conducted promptly.............
 
    Subpart E--Identification of
         Troubled Employees
 
219.401 Requirement for policies:
    (b) Failure to publish and/or                5,500            10,000
     implement required policy......
219.407 Alternate policies:
    (c) Failure to file agreement or             5,500            10,000
     other document or provide
     timely notice or revocation....
 
   Subpart F--Pre-Employment Tests
 
219.501 Pre-employment tests:
    (a) Failure to perform pre-                 13,000            20,500
     employment drug test before
     first time employee performs
     covered service................
 
 Subpart G--Random Testing Programs
219.601 Railroad random drug
 programs:
    (a)(1) Failure to file a random             13,000            20,500
     program........................
    (a)(2) Failure to file amendment             5,500            10,000
     to program.....................
    (b) Failure to meet random                   9,500            17,000
     testing criteria...............
    (b)(1)(i) Failure to use a                   9,500            17,000
     neutral selection process......
    (b)(2)(i)(B) Testing not spread              5,500            10,000
     throughout the year............
    (b)(3) Testing not distributed               5,500            10,000
     throughout the day.............
    (b)(4) Advance notice provided               9,500            17,000
     to employee....................
    (b)(6) Testing when employee not             5,500            10,000
     on duty........................
219.601 A Failure to include covered             9,500            17,000
 service employee in pool...........
219.602 Administrator's
 determination of drug testing rate:
    (f) Total number of tests below             13,000            20,500
     minimum random drug testing
     rate...........................
219.603 Participation in drug
 testing:
    Failure to document reason for               5,500            10,000
     not testing selected employee..
219.607 Railroad random alcohol
 programs:
    (a)(1) Failure to file a random             13,000            20,500
     alcohol program................
    (a)(2) Failure to file amendment             5,500            10,000
     to program.....................
    (b) Failure to meet random                   9,500            17,000
     testing criteria...............
    (b)(1) Failure to use a neutral              9,500            17,000
     selection process..............
    (b)(5) Testing when employee not             5,500            10,000
     on duty........................
    (b)(8) Advance notice provided               9,500            17,000
     to employee....................
219.607 A Failure to include covered             9,500            17,000
 service employee in pool...........
219.608 Administrator's
 determination of random alcohol
 testing rate:
    (e) Total number of tests below             13,000            20,500
     minimum random alcohol testing
     rate...........................
219.609 Participation in alcohol                 5,500            10,000
 testing: Failure to document reason
 for not testing selected employee
 
 Subpart H--Drug and Alcohol Testing
             Procedures
 
219.701 Standards for drug and
 alcohol testing:
    (a) Failure to comply with part              5,500            10,000
     40 procedures in Subpart B, D,
     F, or G testing................
    (b) Testing not performed in a               5,500            10,000
     timely manner..................
 
      Subpart I--Annual Report
 
219.800 Reporting alcohol and drug
 misuse prevention program results
 in a management information system:
    (a) Failure to submit MIS report             5,500            10,000
     on time........................
    (c) Failure to submit accurate               5,500            10,000
     MIS report.....................
    (d) Failure to include required              5,500            10,000
     data...........................
 
      Subpart J--Recordkeeping
            Requirements
 
219.901 Retention of Alcohol Testing
 Records:
    (a) Failure to maintain records              5,500            10,000
     required to be kept by part 40.
    (b) Failure to maintain records              5,500            10,000
     required to be kept for five
     years..........................
    (c) Failure to maintain records              5,500            10,000
     required to be kept for two
     years..........................
219.903 Retention of Drug Testing
 Records:
    (a) Failure to maintain records              5,500            10,000
     required to be kept by part 40.
    (b) Failure to maintain records              5,500            10,000
     required to be kept for five
     years..........................
    (c) Failure to maintain records              5,500            10,000
     required to be kept for two
     years..........................
219.905 Access to facilities and
 records:
    (a) Failure to release records               9,500            17,000
     in this subpart in accordance
     with part 40...................
    (b) Failure to permit access to              9,500            17,000
     facilities.....................
    (c) Failure to provide access to             9,500            17,000
     results of railroad alcohol and
     drug testing programs..........
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The FRA Administrator reserves the right to assess a
  penalty of up to $100,000 for any violation, including ones not listed
  in this penalty schedule, where circumstances warrant. See 49 CFR part
  209, appendix A.

[[Page 57620]]

 
\2\ The penalty schedule uses section numbers from 49 CFR part 219. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 220--[AMENDED]

    15. The authority citation for part 220 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304, 
21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    16. Appendix C to part 220 is revised to read as follows:

         Appendix C to Part 220--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
220.9 Requirements for trains.......           $13,000           $20,500
220.11 Requirements for roadway                 13,000            20,500
 workers............................
 
    Subpart B--Radio and Wireless
      Communication Procedures
 
220.21 Railroad operating rules;
 radio communications:
    (a).............................             9,500            17,000
    (b).............................             9,500            17,000
220.23 Publication of radio                      9,500            17,000
 information........................
220.25 Instruction of employees.....             9,500            17,000
220.27 Identification...............             9,500            17,000
220.29 Statement of letters and                  9,500            17,000
 numbers............................
220.31 Initiating a transmission....             5,500            10,000
220.33 Receiving a transmission.....             9,500            17,000
220.35 Ending a transmission........             9,500            17,000
220.37 Voice test...................            13,000            20,500
220.38 Failed equipment.............             2,500             5,000
220.39 Continuous monitoring........             9,500            17,000
220.41 [Reserved]...................
220.43 Communication consistent with            13,000            20,500
 the rules..........................
220.45 Complete communications......            13,000            20,500
220.47 Emergencies..................            19,500            25,000
220.49 Switching, backing or pushing            19,500            25,000
220.51 Signal indications...........            13,000            20,500
220.61 Radio transmission of                    19,500            25,000
 mandatory directives...............
------------------------------------------------------------------------
\1\ A penalty may be assessed against and only for a willful violation.
  The Administrator reserves the right to assess a penalty of up to
  $100,000 for any violation where circumstances warrant. See 49 CFR
  part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 220. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 221--[AMENDED]

    17. The authority citation for part 221 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    18. Appendix C to part 221 is revised to read as follows:

         Appendix C to Part 221--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
     Subpart B--Marking Devices
 
221.13 Marking device display:
    (a) Device not present, not                 $9,500           $17,000
     displayed, or not properly
     illuminated....................
    (d) Device too close to rail....             2,500             5,000
221.14 Marking devices: Use of                   5,500            10,000
 unapproved or noncomplying device..
221.15 Marking device inspection:
    (a) Failure to inspect at crew               5,500            10,000
     change.........................
    (b), (c) Improper inspection....             5,500            10,000
221.16 Inspection procedure:
    (a) Failure to obtain protection             9,500            17,000
    (b) Improper protection.........             5,500            10,000
221.17 Movement of defective                       (1)               (1)
 equipment..........................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Where the conditions for movement of
  defective equipment set forth in Sec.   221.17 of this part are not
  met, the movement constitutes a violation of Sec.   221.13 of this
  part.

[[Page 57621]]

 
\2\ The penalty schedule uses section numbers from 49 CFR part 221. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 222--[AMENDED]

    19. The authority citation for part 222 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20153, 21301, 21304; 28 
U.S.C. 2461, note; and 49 CFR 1.49.

    20. Appendix H to part 222 is revised to read as follows:

         Appendix H to Part 222--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
 Subpart B--Use of Locomotive Horns
 
222.21 Use of locomotive horn:
    (a) Failure to sound horn at                $9,500           $17,000
     grade crossing.................
    Failure to sound horn in proper              5,500            10,000
     pattern........................
    (b) Failure to sound horn at                 9,500            17,000
     least 15 seconds and less than
     \1/4\ mile before crossing.....
        Sounding the horn more than              5,500            10,000
         25 seconds before the
         crossing...................
        Sounding the horn more than              5,500            10,000
         \1/4\ mile in advance of
         crossing...................
 
 Subpart C--Exceptions to the Use of
         the Locomotive Horn
    Silenced Horns at Individual
              Crossings
 
222.33 Failure to sound horn when                9,500            17,000
 conditions of Sec.   222.33 are not
 met................................
 
     Silenced Horns at Groups of
       Crossings--Quiet Zones
 
222.45 Routine sounding of the                   5,500            10,000
 locomotive horn at a quiet zone
 crossing...........................
222.49(b) Failure to provide Grade               2,500             5,000
 Crossing Inventory Form information
222.59(d) Routine sounding of the                2,500             5,000
 locomotive horn at a grade crossing
 equipped with wayside horn.........
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 222. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 223--[AMENDED]

    21. The authority citation for part 223 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20133, 20701-20702, 21301-02, 
21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    22. Appendix B to part 223 is revised to read as follows:

         Appendix B to Part 223--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
  Subpart B--Specific Requirements
223.9 New or rebuilt equipment:
    (a) Locomotives.................            $5,500           $10,000
    (b) Cabooses....................             5,500            10,000
    (c) Passenger cars..............             5,500            10,000
223.11(c) Existing locomotives......             5,500            10,000
    (d) Repair of window............             2,500             5,000
223.13(c) Existing cabooses.........             5,500            10,000
    (d) Repair of window............             2,500             5,000
223.15(c) Existing passenger cars...             5,500            10,000
    (d) Repair of window............             2,500             5,000
223.17 Identification of units......             2,500             5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  U.S.C. 21301, 21304, and 49 CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 223. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


[[Page 57622]]

PART 224--[AMENDED]

    23. The authority citation for part 224 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20148 and 21301; 28 U.S.C. 
2461; and 49 CFR 1.49.

    24. Appendix A to part 224 is revised to read as follows:

         Appendix A to Part 224--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
 Subpart B--Application, Inspection,
 and Maintenance of Retroreflective
              Material
 
224.103 Characteristics of
 retroreflective sheeting:
    (a)-(d) Retroreflective sheeting            $5,500           $10,000
     applied does not meet the
     requirements of Sec.   224.103.
224.105 Sheeting dimensions and
 quantity:
    (a) Failure to apply minimum                 5,500            10,000
     amount of retroreflective
     sheeting in accordance with
     Table 2........................
    (b) Applying retroreflective                 5,500            10,000
     sheeting of wrong dimensions...
224.106 Location of retroreflective
 sheeting:
    (a), (b) Applying                            5,500            10,000
     retroreflective sheeting in
     nonconforming pattern..........
224.107 Implementation schedule:
    (a)(1), (b)(1) Failure to apply              5,500            10,000
     retroreflective sheeting to new
     freight car or locomotive
     before equipment placed in
     service........................
    (a)(2), (b)(2), (b)(4) Failure               5,500            10,000
     to apply retroreflective
     sheeting to existing freight
     car or locomotive in accordance
     with minimum schedule of
     paragraphs (a)(2), (b)(2), or
     (b)(4).........................
224.109 Inspection, repair, and
 replacement:
    (1) Failure to perform                       5,500            10,000
     inspection.....................
    (2) Failure to properly notify               5,500            10,000
     car owner of defect............
    (3) Failure to retain written                2,500             5,000
     notification of defect for two
     years..........................
    (4) Failure to repair defect                 5,500            10,000
     after notification.............
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 224. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 225--[AMENDED]

    25. The authority citation for part 225 continues to read as 
follows:

    Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 
21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    26. Appendix A to part 225 is revised to read as follows:

         Appendix A to Part 225--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
225.9 Telephonic reports of certain             $9,500           $17,000
 accidents/incidents................
225.11 Reports of accidents/                     5,500            10,000
 incidents..........................
225.12(a): Failure to file Railroad
 Employee Human Factor Attachment
 properly:
    (1) Employee identified.........             2,500             5,000
    (2) No employee identified......             2,500             5,000
225.12(b):
    (1) Failure to notify employee               5,500            10,000
     properly.......................
    (2) Notification of employee not             2,500             5,000
     involved in accident...........
225.12(c): Failure of employing                  2,500             5,000
 railroad to provide requested
 information properly...............
225.12(d):
    (1) Failure to revise report                 2,500             5,000
     when identity becomes known....
    (2) Failure to notify after late             5,500            10,000
     identification.................
225.12(f)(1): Submission of notice               2,500             5,000
 if employee dies as result of the
 reported accident..................
225.12(g): Willfully false accident   ................            20,500
 statement by employee..............
225.13 Late reports.................             2,500             5,000
225.17(d) Alcohol or drug                        9,500            17,000
 involvement........................
225.23 Joint operations.............               (1)               (1)
225.25 Recordkeeping................             5,500            10,000
225.27 Retention of records.........             2,500             5,000
225.33:
    (1) Failure to adopt the                     9,500            17,000
     Internal Control Plan..........
    (2) Inaccurate reporting due to              9,500            17,000
     failure to comply with the
     Internal Control Plan..........
    (3) Failure to comply with the               9,500            17,000
     intimidation/harassment policy
     in the Internal Control Plan...

[[Page 57623]]

 
225.35 Access to records and reports             5,500            10,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. A failure to comply with Sec.   225.23
  constitutes a violation of Sec.   225.11. For purposes of Sec.  Sec.
  225.25 and 225.27 of this part, each of the following constitutes a
  single act of noncompliance: (1) A missing or incomplete log entry for
  a particular employee's injury or illness; or (2) a missing or
  incomplete log record for a particular rail equipment accident or
  incident. Each day a violation continues is a separate offense.
\2\ The penalty schedule uses section numbers from 49 CFR part 225. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 227--[AMENDED]

    27. The authority citation for part 227 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20103 (note), 20701-20702; and 49 
CFR 1.49.

    28. Appendix G to part 227 is revised to read as follows:

         Appendix G to Part 227--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
227.3 Application:
    (b)(4) Failure to meet the                  $5,500           $10,000
     required conditions for foreign
     railroad operations............
    Subpart B--Occupational Noise
   Exposure for Railroad Operating
              Employees
 
227.103 Noise monitoring program:
    (a) Failure to develop and/or               19,500            25,000
     implement a noise monitoring
     program........................
    (b) Failure to use sampling as               5,500            10,000
     required.......................
    (c) Failure to integrate sound               5,500            10,000
     levels and/or make noise
     measurements as required.......
    (d) Failure to repeat noise                  5,500            10,000
     monitoring where required......
    (e) Failure to consider work                 5,500            10,000
     environments where hearing
     protectors may be omitted......
    (f) Failure to provide                       2,500             5,000
     opportunity to observe
     monitoring.....................
    (g) Reporting of monitoring
     results:
        (1) Failure to notify                    5,500            10,000
         monitored employee.........
        (2) Failure to post results              5,500            10,000
         as required................
227.105 Protection of employees:
    (a) Failure to provide                      19,500            25,000
     appropriate protection to
     exposed employee...............
    (b) Failure to observe and                   5,500            10,000
     document sources of noise
     exposure.......................
    (c)-(d) Failure to protect                  13,000            20,500
     employee from impermissible
     continuous noise...............
227.107 Hearing conservation
 program:
    (a) Failure to administer an HCP            19,500            25,000
    (b) Failure to compute noise                 9,500            17,000
     exposure as required...........
227.109 Audiometric testing program:
    (a) Failure to establish and/or             19,500            25,000
     maintain an audiometric testing
     program........................
    (b) Failure to provide                       5,500            10,000
     audiometric test at no cost to
     employee.......................
    (c) Failure to have qualified                5,500            10,000
     person perform audiometric test
    (d) [Reserved]..................  ................  ................
    (e) Failure to establish                     9,500            17,000
     baseline audiogram as required.
    (f) Failure to offer and/or                  5,500            10,000
     require periodic audiogram as
     required.......................
    (g) Failure to evaluate                      5,500            10,000
     audiogram as required..........
    (h) Failure to comply with                   5,500            10,000
     follow-up procedures as
     required.......................
    (i) Failure to use required                  5,500            10,000
     method for revising baseline
     audiograms.....................
227.111 Audiometric test
 requirements:
    (a) Failure to conduct test as               5,500            10,000
     required.......................
    (b) Failure to use required                  5,500            10,000
     equipment......................
    (c) Failure to administer test               5,500            10,000
     in room that meets requirements
    (d) Complete failure to                     13,000            20,500
     calibrate......................
        (1) Failure to perform daily             2,500             5,000
         calibration as required....
        (2) Failure to perform                   2,500             5,000
         annual calibration as
         required...................
        (3) Failure to perform                   2,500             5,000
         exhaustive calibration as
         required...................
227.115 Hearing protectors (HP):
    (a) Failure to comply with                   9,500            17,000
     general requirements...........
    (b) Failure to make HP available             5,500            10,000
     as required....................
    (c) Failure to require use of HP            13,000            20,500
     at action level................
    (d) Failure to require use of HP            13,000            20,500
     at TWA of 90 dB(A).............
227.117 Hearing protector
 attenuation:
    (a) Failure to evaluate                      2,500             5,000
     attenuation as required........
    (b)-(c) Failure to attenuate to              2,500             5,000
     required level.................
    (d) Failure to reevaluate                    2,500             5,000
     attenuation....................

[[Page 57624]]

 
227.119 Training program:
    (a) Failure to institute a                   9,500            17,000
     training program as required...
    (b) Failure to provide training              2,500             5,000
     within required time frame.....
    (c) Failure of program and/or                2,500             5,000
     training materials to include
     required information...........
227.121 Recordkeeping:
    (a) General Requirements:
        (1) Failure to make record               2,500             5,000
         available as required......
        (3) Failure to transfer or               2,500             5,000
         retain records as required.
    (b)-(f) Records:
        (1) Failure to maintain                  2,500             5,000
         record or failure to
         maintain record with
         required information.......
        (2) Failure to retain                    2,500             5,000
         records for required time
         period.....................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 227. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 228--[AMENDED]

    29. The authority citation for part 228 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. 
A, Pub. L. 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303, 
21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49; and 49 U.S.C. 
103.
    30. In appendix A to part 228, the ninth paragraph below the 
heading ``General Provisions'', entitled ``Penalty'' is revised to read 
as follows:

Appendix A to Part 228--Requirements of the Hours of Service Act: 
Statement of Agency Policy and Interpretation

* * * * *

General Provisions

* * * * *
    Penalty. * * * Effective October 9, 2007, the ordinary maximum 
penalty of $11,000 was raised to $16,000 as required under law. 
Effective March 2, 2009, the minimum penalty, ordinary maximum 
penalty and aggravated maximum penalty were raised again. The 
minimum penalty was increased from $550 to $650 pursuant to the 
law's requirement. Meanwhile, the ordinary maximum penalty was 
increased from $16,000 to $25,000 and the aggravated maximum was 
increased from $27,000 to $100,000 in accordance with the authority 
provided under the Rail Safety Improvement Act of 2008. FRA's 
guideline civil penalty amounts for violations of the substantive 
hours of service statute are $9,500 for an ordinary violation of the 
hours of service statute and $17,000 for a willful violation of the 
hours of service statute. The Administrator reserves the right to 
assess a penalty of up to $100,000 for a violation where 
circumstances warrant. See 49 CFR part 209, appendix A.
* * * * *
    31. Appendix B to part 228 is revised to read as follows:

         Appendix B to Part 228--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
  Subpart B--Records and Reporting
 
228.9 Railroad records..............            $5,500           $10,000
228.11 Hours of duty records........             2,500             5,000
    Error on record reflect pattern             13,000            20,500
     of inaccurate recordkeeping....
228.17 Dispatcher's record..........             2,500             5,000
228.19 Monthly reports of excess                 9,500            17,000
 service............................
 
 Subpart D--Electronic Recordkeeping
 
228.203 Program components..........             9,500            17,000
228.205 Access to electronic records             9,500            17.000
228.207 Training....................             5,500            10,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 228. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 229--[AMENDED]

    32. The authority citation for part 229 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20137-20138, 
20143, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 
CFR 1.49(c), (m).

    33. Appendix B to part 229 is revised to read as follows:

[[Page 57625]]



         Appendix B to Part 229--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
229.7 Prohibited acts: Safety            $2,500-13,000     $5,000-20,500
 deficiencies not governed by
 specific regulations: To be
 assessed on relevant facts.........
229.9 Movement of noncomplying                   (\1\)             (\1\)
 locomotives........................
229.11 Locomotive identification....             2,500             5,000
229.13 Control of locomotives.......             9,500            17,000
229.17 Accident reports.............            15,500            10,000
219.19 Prior waivers................             (\1\)             (\1\)
 
   Subpart B--Inspection and Tests
 
229.21 Daily inspection:
    (a)(b):
         (1) Inspection overdue.....             5,500            10,000
        (2) Inspection report not                2,500             5,000
         made, improperly executed,
         or not retained............
     (c) Inspection not performed by             2,500             5,000
     a qualified person.............
229.23 Periodic inspection General
    (a)(b):
        (1) Inspection overdue......             5,500            10,000
        (2) Inspection performed                 5,500            10,000
         improperly or at a location
         where the underneath
         portion cannot be safely
         inspected..................
    (c)(d):
        (1) Form missing............             2,500             5,000
        (2) Form not properly                    2,500             5,000
         displayed..................
        (3) Form improperly executed             2,500             5,000
    (e) Replace Form FRA F 6180-49A              2,500             5,000
     by April 2.....................
    (f) Secondary record of the                  2,500             5,000
     information reported on Form
     FRA F 6180.49A.................
229.25:
     (a) through (e)(4) Tests: Every             5,500            10,000
     periodic inspection............
     (e)(5) Ineffective maintenance.            13,000            20,500
229.27 Annual tests.................             5,500            10,000
229.29 Biennial tests...............             5,500            10,000
229.31:
    (a) Biennial hydrostatic tests               5,500            10,000
     of main reservoirs.............
    (b) Biennial hammer tests of                 5,500            10,000
     main reservoirs................
    (c) Drilled telltale holes in                5,500            10,000
     welded main reservoirs.........
    (d) Biennial tests of aluminum               5,500            10,000
     main reservoirs................
229.33 Out-of-use credit............             2,500             5,000
 
   Subpart C--Safety Requirements
 
        General Requirements
 
229.41 Protection against personal               9,500            17,000
 injury.............................
229.43 Exhaust and battery gases....             9,500            17,000
229.45 General condition: To be           2,500-13,000      5,000-20,500
 assessed based on relevant facts...
 
            Brake System
 
229.46 Brakes: General..............             9,500            17,000
229.47 Emergency brake valve........             9,500            17,000
229.49 Main reservoir system:
    (a)(1) Main reservoir safety                 9,500            17,000
     valve..........................
        (2) Pneumatically actuated               9,500            17,000
         control reservoir..........
     (b)(c) Main reservoir governors             9,500            17,000
229.51 Aluminum main reservoirs.....             9,500            17,000
229.53 Brake gauges.................             9,500            17,000
229.55 Piston travel................             9,500            17,000
229.57 Foundation brake gear........             9,500            17,000
229.59 Leakage......................             9,500            17,000
 
            Draft System
 
229.61 Draft system.................             5,500            10,000
          Suspension System
 
229.63 Lateral motion...............             5,500            10,000
229.64 Plain bearing................             5,500            10,000
229.65 Spring rigging...............             5,500            10,000
229.67 Trucks.......................             9,500            17,000
229.69 Side bearings................             9,500            17,000
229.71 Clearance above top of rail..             2,500             5,000
229.73 Wheel sets...................             9,500            17,000
229.75 Wheel and tire defects:
    (a), (d) Slid flat or shelled
     spot(s):
        (1) One spot \21/2\'' or                 9,500            17,000
         more but less than 3'' in
         length.....................
        (2) One spot 3'' or more in             13,000            20,500
         length.....................
        (3) Two adjoining spots each             9,500            17,000
         of which is 2'' or more in
         length but less than \21/
         2\'' in length.............

[[Page 57626]]

 
        (4) Two adjoining spots each            13,000            20,500
         of which are at least 2''
         in length, if either spot
         is \21/2\'' or more in
         length.....................
    (b) Gouge or chip in flange of:
        (1) More than \11/2\'' but               9,500            17,000
         less than \15/8\'' in
         length; and more than \1/
         2\'' but less than \5/8\''
         in width...................
        (2) \15/8\'' or more in                 13,000            20,500
         length and \5/8\'' or more
         in width...................
    (c) Broken rim..................            19,500            25,000
    (e) Seam in tread...............             9,500            17,000
    (f) Flange thickness of:........
        (1) \7/8\'' or less but more             9,500            17,000
         than \13/16\''.............
        (2) \13/16\'' or less.......            13,000            20,500
    (g) Tread worn hollow...........             9,500            17,000
    (h) Flange height of:
        (1) \11/2\'' or greater but              9,500            17,000
         less than \15/8\''.........
        (2) \15/8\'' or more........            13,000            20,500
    (i) Tire thickness..............             9,500            17,000
    (j) Rim thickness:
        (1) Less than 1'' in road                9,500            17,000
         service and \3/4\'' in yard
         service....................
        (2) \15/16\'' or less in                13,000            20,500
         road service and \11/16\''
         in yard service............
    (k):
        (1) Crack of less than 1''..             9,500            17,000
        (2) Crack of 1'' or more....            13,000            20,500
        (3) Break...................            19,500            25,000
        (l) Loose wheel or tire.....            19,500            25,000
    (m) Welded wheel or tire........             9,500            17,000
 
          Electrical System
 
229.77 Current collectors...........             5,500            10,000
229.79 Third rail shoes and beams...             5,500            10,000
229.81 Emergency pole; shoe                      9,500            17,000
 insulation.........................
229.83 Insulation or grounding......            13,000            20,500
229.85 Door and cover plates marked              5,500            10,000
 ``Danger''.........................
229.87 Hand operated switches.......             5,500            10,000
229.89 Jumpers; cable connections:
    (a) Jumpers and cable                        9,500            17,000
     connections; locked and guarded
    (b) Condition of jumpers and                 9,500            17,000
     cable connections..............
229.91 Motors and generators........             9,500            17,000
 
    Internal Combustion Equipment
 
229.93 Safety cut-off device........             9,500            17,000
229.95 Venting......................             9,500            17,000
229.97 Grounding fuel tanks.........             9,500            17,000
229.99 Safety hangers...............             9,500            17,000
229.101 Engines:
    (a) Temperature and pressure                 5,500            10,000
     alarms, controls, and switches.
    (b) Warning notice..............             9,500            17,000
    (c) Wheel slip/slide protection.             5,500            10,000
 
          Steam Generators
 
229.103 Safe working pressure;                   9,500            17,000
 factor of safety
229.105 Steam generator number......             2,500             5,000
229.107 Pressure gauge..............             9,500            17,000
229.109 Safety valves...............             9,500            17,000
229.111 Water-flow indicator........             9,500            17,000
229.113 Warning notice..............             9,500            17,000
 
       Cabs and Cab Equipment
 
229.115 Slip/slide alarms...........             9,500            17,000
229.117 Speed indicators............             9,500            17,000
229.119 Cabs, floors, and
 passageways:
     (a)(1) Cab set not securely                 5,500            10,000
     mounted or braced..............
        (2) Insecure or improper                 5,500            10,000
         latching device............
     (b) Cab windows of lead                     5,500            10,000
     locomotive.....................
     (c) Floors, passageways, and                5,500            10,000
     compartments...................
     (d) Ventilation and heating                 9,500            17,000
     arrangement....................
     (e) Continuous barrier.........             9,500            17,000
     (f) Containers for fuses and                9,500            17,000
     torpedoes......................
229.121 Locomotive cab noise:
    (a) Performance Standards
        (1) Failure to meet sound               13,000            20,500
         level......................
        (2) Improper maintenance                 5,500            10,000
         alterations................
        (3) Failure to comply with               5,500            10,000
         static test protocols......
    (b) Maintenance of Locomotives:
        (1) Failure to maintain                  5,500            10,000
         excessive noise report
         record or respond to report
         as required................

[[Page 57627]]

 
        (3) Failure to make good                 5,500            10,000
         faith effort as required...
        (4) Failure to maintain                  2,500             5,000
         record as required.........
229.123 Pilots, snowplows, end                   5,500            10,000
 plates.............................
229.125:
    (a) Headlights..................             9,500            17,000
    (d) Auxiliary lights............             9,500            17,000
229.127 Cab lights..................             5,500            10,000
229.129 Locomotive horn:
    (a) Prescribed sound levels.....             9,500            17,000
    Arrangement of horn.............             9,500            17,000
    (b) Failure to perform sound                 9,500            17,000
     level test.....................
    (c) Sound level test improperly              9,500            17,000
     performed......................
Record of sound level test                       5,500            10,000
 improperly executed, or not
 retained...........................
229.131 Sanders.....................             2,500             5,000
229.135 Event Recorders:
    (a) Lead locomotive without in-              9,500            17,000
     service event recorder.........
    (b) Failure to meet equipment                9,500            17,000
     requirements...................
    (c) Unauthorized removal or                  9,500            17,000
     failure to remove from service.
    (d) Improper response to out of              9,500            17,000
     service event recorder.........
    (e) Failure to preserve data or              9,500            17,000
     unauthorized extraction of data
    (g) Tampering with device or                 9,500            17,000
     data...........................
229.137 Sanitation, general:
    (a) Sanitation compartment in                9,500            17,000
     lead unit, complete failure to
     provide required items.........
        (1) Ventilation.............             5,500            10,000
        (2) Door missing............             5,500            10,000
        (2)(i) Door doesn't close...             5,500            10,000
        (2)(ii) No modesty lock.....             2,500             5,000
        (3) Not equipped with toilet             9,500            17,000
         in lead....................
        (4) Not equipped with                    5,500            10,000
         washing system.............
        (5) Lack of paper...........             5,500            10,000
        (6) Lack of trash receptacle             5,500            10,000
    (b) Exceptions:
        (1)(i) Commuter service,                 2,500             5,000
         failure to meet conditions
         of exception...............
        (1)(ii) Switching service,               2,500             5,000
         failure to meet conditions
         of exception...............
        (1)(iii) Transfer service,               2,500             5,000
         failure to meet conditions
         of exception...............
        (1)(iv) Class III, failure               2,500             5,000
         to meet conditions of
         exception..................
        (1)(v) Tourist, failure to               2,500             5,000
         meet conditions of
         exception..................
        (1)(vi) Control cab                      2,500             5,000
         locomotive, failure to meet
         conditions of exception....
        (2) Noncompliant toilet.....             5,500            10,000
    (c) Defective/unsanitary toilet              5,500            10,000
     in lead unit...................
        (1)-(5) Failure to meet                  5,500            10,000
         conditions of exception....
    (d) Defective/unsanitary unit;               5,500            10,000
     failure to meet conditions for
     trailing position..............
    (e) Defective/sanitary unit;                 5,500            10,000
     failure to meet conditions for
     switching/transfer service.....
    (f) Paper, washing, trash                    5,500            10,000
     holder; failure to equip prior
     to departure...................
    (g) Inadequate ventilation;                  5,500            10,000
     failure to repair or move prior
     to departure...................
    (h) Door closure/modesty lock;               2,500             5,000
     failure to repair or move......
    (i) Failure to retain/maintain               5,500            10,000
     of equipped units..............
    (j) Failure to equip new units/              5,500            10,000
     in-cab facility................
    (k) Failure to provide potable               5,500            10,000
     water..........................
229.139 Servicing requirements:
    (a) Lead occupied unit not                   5,500            10,000
     sanitary.......................
    (b) Components not present/                  2,500             5,000
     operating......................
    (c) Occupied unit in switching,              2,500             5,000
     transfer service, in trailing
     position not sanitary..........
    (d) Defective unit used more                 5,500            10,000
     than ten days..................
    (e) Failure to repair defective              2,500             5,000
     modesty lock...................
 
        Subpart D--Locomotive
 Crashworthiness Design Requirements
 
229.141 Body structure, MU                       9,500            17,000
 locomotives........................
229.205 General requirements:
    (a)(1) Wide-nose locomotive not             19,500            25,000
     designed in compliance with AAR
     S-580-2005.....................
        (2) Wide-nose locomotive not            19,500            25,000
         designed in compliance with
         new approved design
         standard...................
        (3) Wide-nose locomotive not            19,500            25,000
         designed in compliance with
         alternate approved design
         standard...................
    (b) Monocoque or semi-monocoque             19,500            25,000
     locomotive not in compliance
     with design requirements.......
    (c) Narrow-nose not in                      19,500            25,000
     compliance with design
     requirements...................
229.206 Design requirements:
    Locomotive fails to meet--
        (1) Emergency egress                    19,500            25,000
         requirements...............
        (2) Emergency interior                  19,500            25,000
         lighting requirements......
        (3) Interior configuration              19,500            25,000
         requirements...............
229.213 Locomotive manufacturing
 information:
    (a) Failure to retain required               9,500            17,000
     information....................
    (b) Failure to produce required              9,500            17,000
     information....................

[[Page 57628]]

 
229.215 Retention and inspection of
 designs:
    (a) Failure to retain required               9,500            17,000
     design records.................
    (b) Failure to retain required               9,500            17,000
     repair or modification records.
    (c) Failure to make records                  9,500            17,000
     available when requested.......
229.217 Fuel tank:
    (a) External fuel tank..........            19,500            25,000
    (b) Internal fuel tank..........            19,500            25,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations
  are discovered with respect to a single locomotive that is used by a
  railroad, the appropriate penalties set forth above are aggregated up
  to a maximum of $25,000 per day. However, a failure to perform, with
  respect to a particular locomotive, any of the inspections and tests
  required under subpart B of this part will be treated as a violation
  separate and distinct from, and in addition to, any substantive
  violative conditions found on that locomotive. Moreover, the
  Administrator reserves the right to assess a penalty of up to $100,000
  for any violation where circumstances warrant. See 49 CFR part 209,
  appendix A. Failure to observe any condition for movement set forth in
  Sec.   229.9 will deprive the railroad of the benefit of the movement-
  for-repair provision and make the railroad and any responsible
  individuals liable for penalty under the particular regulatory
  section(s) concerning the substantive defect(s) present on the
  locomotive at the time of movement. Failure to comply with Sec.
  229.19 will result in the lapse of any affected waiver.
\2\ The penalty schedule uses section numbers from 49 CFR part 229. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 230--[AMENDED]

    34. The authority citation for part 230 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; 
and 49 CFR 1.49.

    35. Appendix D to part 230 is revised to read as follows:

           Appendix D to Part 230--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
   General Inspection Requirements
 
230.11 Repair of non-complying
 conditions:
    (a) Failure to repair                       $5,500           $10,000
     noncomplying steam locomotive
     prior to use in service........
    (b) Failure of owner and/or                  5,500            10,000
     operator to approve repairs
     made prior to use of steam
     locomotive.....................
230.12 Movement of noncomplying                    (1)               (1)
 steam locomotive...................
230.13 Daily inspection:
    (a)(b):
        (1) Inspection overdue......             9,500            17,000
        (2) Inspection not performed             5,500            10,000
         by qualified person........
    (c) Inspection report not made,              5,500            10,000
     improperly executed or not
     retained.......................
230.14 Thirty-one service day
 inspection:
    (a):
        (1) Inspection overdue......             9,500            17,000
        (2) Inspection not performed             5,500            10,000
         by qualified person........
    (b) Failure to notify FRA.......             5,500            10,000
    (c) Inspection report not made,              5,500            10,000
     improperly executed, not
     properly filed.................
230.15 Ninety-two service day
 inspection:
    (a):
        (1) Inspection overdue......             9,500            17,000
        (2) Inspection not performed             5,500            10,000
         by qualified person........
    (b) Inspection report not made,              5,500            10,000
     improperly executed, not
     properly filed.................
230.16 Annual inspection:
    (a):
        (1) Inspection overdue......             9,500            17,000
        (2) Inspection not performed             5,500            10,000
         by qualified person........
    (b) Failure to notify FRA.......             5,500            10,000
    (c) Inspection report not made,              5,500            10,000
     improperly executed, not
     properly filed.................
230.17 One thousand four hundred
 seventy-two service day inspection:
    (a):
        (1) Inspection overdue......             9,500            17,000
        (2) Inspection not performed             5,500            10,000
         by qualified person........
    (b) Inspection report not made,              5,500            10,000
     improperly executed, not
     properly maintained, not
     properly filed.................
 
     Recordkeeping Requirements
 
230.18 Service days:
    (a) Service day record not                   5,500            10,000
     available for inspection.......
    (b) Failure to file service day              5,500            10,000
     report with FRA Regional
     Administrator..................
    (c) Failure to complete all                  9,500            17,000
     1,472 service day inspection
     items prior to returning
     retired steam locomotive to
     service........................

[[Page 57629]]

 
230.19 Posting of forms:
    (a) FRA Form No. 1:
        (1) FRA Form No. 1 not                   5,500            10,000
         properly filled out........
        (2) FRA Form No. 1 not                   5,500            10,000
         properly displayed.........
    (b) FRA Form No. 3:
        (1) FRA Form No. 3 not                   5,500            10,000
         properly filled out........
        (2) FRA Form No. 3 not                   5,500            10,000
         properly displayed.........
230.20 Alteration and repair
 reports:
    (a) Alterations:
        (1) Failure to properly file             5,500            10,000
         FRA Form No. 19 with FRA
         Regional Administrator.....
        (2) FRA Form No. 19 not                  5,500            10,000
         properly filled out........
        (3) FRA Form No. 19 not                  5,500            10,000
         properly maintained........
    (b) Repairs to unstayed portions
     of the boiler:
        (1) FRA Form No. 19 not                  5,500            10,000
         properly filled out........
        (2) FRA Form No. 19 not                  5,500            10,000
         properly maintained........
    (c) Repairs to stayed portions
     of the boiler:
        (1) FRA Form No. 19 not                  5,500            10,000
         properly filled out........
        (2) FRA Form No. 19 not                  5,500            10,000
         properly maintained........
230.21 Failure to properly document              5,500            10,000
 steam locomotive number change.....
230.22 Failure to properly report                9,500            17,000
 accident resulting from failure of
 steam locomotive boiler or part or
 appurtenance thereof...............
 
Subpart B--Boilers and Appurtenances
 
230.23 Responsibility for general
 construction and safe working
 pressure:
    (a) Failure to properly                     19,500            25,000
     establish safe working pressure
     for steam locomotive boiler....
    (b) Placing steam locomotive in             19,500            25,000
     service before safe working
     pressure for boiler has been
     established....................
 
          Allowable Stress
 
230.24 Maximum allowable stress
 values on boiler components:
    (a) Use of materials not of                  5,500            10,000
     sufficient tensile strength....
    (b) Use of a safety factor value            13,000            20,500
     of less than four when using
     the code of original
     construction in boiler
     calculations...................
230.25 Maximum allowable stresses on
 stays and braces:
    (a) Exceeding allowable stress               5,500            10,000
     values on fire box and/or
     combustion chamber.............
    (b) Exceeding allowable stress               5,500            10,000
     values on round, rectangular or
     gusset braces..................
 
        Inspection and Repair
 
230.29 Inspection and repair:
     (a):
        (1) Failure of owner and/or              9,500            17,000
         operator to inspect and
         repair any steam locomotive
         boiler and/or appurtenance
         under control thereof......
        (2) Failure to remove steam             13,000            20,500
         locomotive from service
         when considered necessary
         to do so...................
    (b):
        (1) Failure of perform                  13,000            20,500
         repairs in accordance with
         accepted industry standards
        (2) Owner and/or operator               13,000            20,500
         returning steam locomotive
         boiler and/or appurtenances
         to service before they are
         in good condition and safe
         and suitable for service...
230.30 Lap-joint seam boilers,                  13,000            20,500
 failure to properly inspect........
230.31 Flues to be removed:
    (a):
        (1) Failure to remove all                9,500            17,000
         flues when inspecting
         boiler.....................
        (2) Failure to enter boiler              9,500            17,000
         and clean and inspect......
    (b) Failure to remove                        5,500            10,000
     superheater flues when deemed
     necessary to do so.............
230.32 Time and method of
 inspection:
    (a) Failure to perform 1,472                 9,500            17,000
     service day inspection when
     required to do so..............
    (b) Failure to properly inspect              9,500            17,000
     boiler during 1,472 service day
     inspection.....................
230.33 Welded repairs and
 alterations:
    (a) Failure to obtain permission             9,500            17,000
     before welding on unstayed
     portions of boiler containing
     alloy or carbon steel with
     carbon content over .25 percent
     carbon.........................
    (b) Failure to perform welding               9,500            17,000
     on unstayed portions of boiler
     containing carbon steel not
     exceeding .25 percent carbon in
     accordance with a nationally
     accepted standard for boiler
     repairs........................
    (c):
        (1) Failure to submit                    9,500            17,000
         written request for
         approval before performing
         weld buildup on wasted
         areas of unstayed boiler
         surfaces that exceed 100
         square inches or the
         smaller of 25 percent of
         minimum required wall
         thickness or \1/2\ inch....
        (2) Repairing wasted sheets.             9,500            17,000
230.34 Riveted repairs and
 alterations:
    (a) Failure to obtain approval               9,500            17,000
     before making riveted
     alterations on unstayed
     portions of the boiler; failure
     to do riveting in accordance
     with established railroad
     practices or accepted national
     standards for boiler repairs...
    (b) Failure to perform riveted               9,500            17,000
     repairs on unstayed boiler
     portions in accordance with
     established railroad practices
     or accepted national standards
     for boiler repairs.............

[[Page 57630]]

 
    (c) Failure to perform riveted               5,500            10,000
     repairs on stayed boiler
     portions in accordance with
     established railroad practices
     or accepted national standards
     for boiler repairs.............
 
     Pressure Testing of Boilers
 
230.35 Failure to raise temperature              5,500            10,000
 of steam locomotive boiler to 70
 degrees F. before applying
 hydrostatic pressure to the boiler.
230.36 Hydrostatic testing of
 boilers:
    (a) Failure to perform                       9,500            17,000
     hydrostatic test of boiler as
     required.......................
    (b) Failure to properly perform              9,500            17,000
     hydrostatic test...............
    (c) Failure to properly inspect              9,500            17,000
     boiler after conducting
     hydrostatic test above MAWP....
230.37 Failure to perform proper                 5,500            10,000
 steam test or inspection of boiler
 after completion of repair or
 alteration to boiler...............
 
              Staybolts
 
230.38 Telltale holes:
    (a) Failure to have telltale                 5,500            10,000
     holes as required in staybolts.
    (b) Failure to have proper                   5,500            10,000
     telltale holes in reduced body
     staybolts......................
    (c) Failure to keep telltale                 5,500            10,000
     holes when so required.........
230.39 Broken staybolts:
    (a) Boiler in service with                   9,500            17,000
     excess number of broken
     staybolts......................
    (b) Failure to replace staybolts             9,500            17,000
     when required to do so; to
     properly replace staybolts when
     so required; to inspect
     adjacent staybolts when
     replacing broken staybolts.....
    (c) Failure to count leaking,                9,500            17,000
     plugged, or missing telltale
     holes as broken staybolts......
    (d) Closing telltale holes by                9,500            17,000
     prohibited means...............
230.40 Time and method of staybolt
 testing:
    (a) Failure to hammer test                   5,500            10,000
     staybolts when so required.....
    (b) Failure to properly hammer               5,500            10,000
     test staybolts.................
230.41 Flexible staybolts with caps:
    (a) Failure to inspect flexible              5,500            10,000
     staybolts as required..........
    (b) Failure to replace broken                5,500            10,000
     flexible staybolts; failure to
     close inner ends of telltale
     holes as required..............
    (c) Failure to report removal of             5,500            10,000
     flexible staybolts caps and
     other tests on FRA Form No. 3
     when so required...............
    (d) Failure to remove staybolt               5,500            10,000
     caps or otherwise test when FRA
     inspector or steam locomotive
     owner and/or operator consider
     it necessary to do so..........
 
            Steam Gauges
 
230.42 Failure to have accurate                 13,000            20,500
 boiler steam gauge where engine
 crew can conveniently read.........
230.43 Failure to have gauge siphon              5,500            10,000
 of proper capacity on steam gauge
 supply pipe; failure to properly
 clean, maintain the steam gauge
 supply pipe........................
230.44 Failure to test steam gauge               5,500            10,000
 when so required...................
230.45 Failure to properly test and/             5,500            10,000
 or set steam gauge.................
230.46 Failure to attach to boiler               5,500            10,000
 backhead metal badge plate showing
 allowable steam pressure...........
230.47 Boiler Number:
    (a) (b) (c) Failure to stamp                 5,500            10,000
     builder's number on boiler when
     number is known................
 
        Safety Relief Valves
 
230.48 Number and capacity of safety
 relief valves:
    (a) Failure to equip steam                  13,000            20,500
     locomotive boiler with proper
     safety relief valves...........
    (b) Failure to provide                      13,000            20,500
     additional safety relief valve
     capacity when so required......
230.49 Setting of safety relief
 valves:
    (a) Safety relief valve(s) set              13,000            20,500
     and/or adjusted by person not
     competent to do so.............
    (b) Safety relief valve(s) not              13,000            20,500
     set to open at prescribed
     pressure(s)....................
    (c) Safety relief valve(s) not              13,000            20,500
     properly set...................
    (d) Set pressure of lowest                   5,500            10,000
     safety relief valve not
     properly indicated.............
230.50 Failure to test and adjust                9,500            17,000
 safety relief valves when required
 to do so...........................
 
    Water Glasses and Gauge Cocks
 
230.51 Failure to equip steam                    5,500            10,000
 locomotive boiler with at least two
 properly installed water glasses...
230.52 Failure to properly equip                13,000            20,500
 water glasses......................
230.53 Failure to properly clean                 5,500            10,000
 water glass valves and/or gauge
 cocks when required to do so.......
230.54 Testing and maintenance:
    (a) Failure to properly test                 5,500            10,000
     water glasses and/or gauge
     cocks..........................
    (b) Failure to properly maintain             9,500            17,000
     gauge cocks, water column drain
     valves, and/or water glass
     valves.........................
230.55 Tubular type water and
 lubricator glasses and shields:
    (a) Failure to renew tubular                 5,500            10,000
     type water glasses as required.
    (b) Failure to properly shield               5,500            10,000
     tubular water glasses and/or
     lubricator glasses.............
    (c) Failure to properly locate               5,500            10,000
     and/or maintain water glasses
     and/or water glass shields.....
230.56 Failure to equip water glass              5,500            10,000
 with suitable lamp.................
 
Injectors, Feedwater Pumps, and Flue
                Plugs
 
230.57 Injectors and feedwater
 pumps:
    (a) Failure to equip steam                  13,000            20,500
     locomotive with proper means
     for delivering water to the
     boiler.........................

[[Page 57631]]

 
    (b) Failure to properly test and/           13,000            20,500
     or maintain injectors,
     feedwater pumps, boiler checks,
     delivery pipes, feed water
     pipes, tank hose, tank valves..
    (c) Failure to properly brace                5,500            10,000
     injectors, feedwater pumps, and/
     or associated piping...........
230.58 Flue plugs:
    (a) Plugging flue plugs when not             5,500            10,000
     otherwise permitted............
    (b) Improperly plugging flue                 5,500            10,000
     plugs, when otherwise permitted
 
            Fusible Plugs
 
230.59 Failure to remove and                     9,500            17,000
 properly clean fusible boiler plugs
 when required to do so; failure to
 properly note removal..............
 
           Washing Boilers
 
230.60 Time of washing:
    (a) Failure to thoroughly wash               5,500            10,000
     boiler when required to do so..
    (b) Failure to remove washout                9,500            17,000
     plugs, arch tube plugs, thermic
     siphon plugs, circulator plugs,
     water bar plugs when washing
     locomotive boiler..............
    (c) Failure to examine and/or                9,500            17,000
     properly maintain washout plugs
     washout plug sleeves, threaded
     openings.......................
    (d) Failure to clean fusible                 9,500            17,000
     plugs when required to do so...
230.61 Arch tubes, water bar tubes,
 circulators and thermic siphons:
    (a) Failure to clean, wash,                  5,500            10,000
     inspect arch tubes, water bar
     tubes, circulators and thermic
     siphons as required............
    (b) Failure to renew arch tubes,             9,500            17,000
     water bar tubes; failure to
     repair or renew circulators,
     thermic siphons when required..
    (c) Failure to properly inspect              9,500            17,000
     and/or replace as necessary
     arch tubes, water bar tubes,
     circulators....................
 
             Steam Pipes
 
230.62 Failure to properly inspect              13,000            20,500
 and/or repair or replace as
 necessary dry pipes subject to
 pressure...........................
230.63 Failure to properly inspect               9,500            17,000
 smoke box, steam pipes, pressure
 parts when required to do so.......
 
             Steam Leaks
 
230.64 Failure to remove from                    9,500            17,000
 service steam locomotive boiler
 leaking under lagging from
 condition which may reduce safety
 and/or repair the boiler before
 returning to service...............
230.65 Failure to keep steam                     5,500            10,000
 locomotive boiler, piping,
 appurtenances in repair so steam
 does not obscure vision............
 
  Subpart C--Steam Locomotives and
               Tenders
 
230.66 Failure to properly oversee               5,500            10,000
 general design, construction,
 maintenance of steam locomotive(s)
 and tender(s)......................
230.67 Failure to ensure all steam              13,000            20,500
 locomotives and tenders are
 properly inspected and repaired and/
 or all defects are properly
 repaired and steam locomotive and/
 or tender are in good condition,
 safe and suitable for service
 before being returned to service...
 
          Speed Indicators
 
230.68 Failure to equip steam                    5,500            10,000
 locomotive that operates in excess
 of 20 miles per hour over the
 general system with speed indicator
 maintained to ensure accurate
 functioning........................
 
              Ash Pans
 
230.69 Failure to equip steam                    5,500            10,000
 locomotive with properly supported
 ash pan with operating mechanism
 that may be safely operated and
 securely closed....................
 
     Brake and Signal Equipment
 
230.70 Safe condition:
    (a) Failure to perform proper                5,500            10,000
     pre-departure inspection when
     so required....................
    (b) Failure to properly equip                5,500            10,000
     steam locomotive with brake
     pipe valve clearly identified
     as ``Emergency Brake Valve''...
230.71 Orifice testing of air
 compressors:
    (a)(b):
        Failure to properly test and/            5,500            10,000
         or maintain air
         compressor(s) capacity.....
230.72 Testing main reservoirs:
    (a) Failure to properly test                 5,500            10,000
     main reservoir(s) when required
    (b) Impermissibly or improperly              5,500            10,000
     drilling main reservoir........
    (c) Impermissibly using NDE                  5,500            10,000
     method to measure wall
     thickness of main reservoir....
    (d) Failure to use appropriate               9,500            17,000
     method of NDE testing of wall
     thickness of welded or riveted
     longitudinal lap seam main
     reservoir(s); failure to
     withdraw main reservoir(s) from
     service when testing reveals
     insufficient wall thickness....
230.73 Air gauges:
    (a) Failure to equip steam                   5,500            10,000
     locomotive with properly
     located air gauge(s) that are
     no more than three psi in error
    (b) Failure to test air gauge(s)             5,500            10,000
     when so required...............
    (c) Failure to properly test air             5,500            10,000
     gauge(s).......................
230.74 Failure to properly clean and/            5,500            10,000
 or test all air brake valves,
 related dirt collectors, filters
 when required to do so.............

[[Page 57632]]

 
230.75 Failure to properly stencil               5,500            10,000
 or display date of testing and
 cleaning and initials of shop or
 station performing work............
230.76 Piston travel:
    (a) Insufficient minimum piston              5,500            10,000
     travel.........................
    (b) Excessive piston travel when             5,500            10,000
     steam locomotive is stationary.
230.77 Foundation brake gear:
    (a) Failure to properly maintain             5,500            10,000
     foundation brake gear..........
    (b) Foundation brake gear less               5,500            10,000
     than 2.5 inches above rail.....
230.78 Leakage:
    (a):
        (1) Failure to test for                  5,500            10,000
         leakage from main reservoir
         or related piping as
         required...................
        (2) Failure to repair                    5,500            10,000
         excessive leakage from main
         reservoir or related piping
         leakage....................
    (b) Failure to test for brake                5,500            10,000
     cylinder as required...........
    (c):
        (1) Failure to test for                  5,500            10,000
         leakage from steam
         locomotive brake pipe as
         required...................
        (2) Failure to repair                    5,500            10,000
         excessive brake pipe
         leakage....................
230.79 Train signal system:
    (1) Failure to test the train                5,500            10,000
     signal system or other form of
     on-board communication as
     required.......................
    (2) Failure to repair train                  5,500            10,000
     signal system or other on-board
     communication when not safe or
     suitable for service...........
 
 Cabs, Warning Signals, Sanders and
               Lights
 
230.80 Cabs:
    (a) Steam locomotive cab not                 5,500            10,000
     safe and suitable for service..
    (b) Steam pipes: Construction,               5,500            10,000
     attachment.....................
    (c) Oil-burning steam                        5,500            10,000
     locomotive, cab-enclosed.......
230.81 Cab aprons:
    (a) Cab apron, general                       5,500            10,000
     provisions.....................
    (b) Cab apron, insufficient                  5,500            10,000
     width..........................
230.82 Fire doors:
    (a) Safe and suitable for                    5,500            10,000
     service, general provisions....
    (b) Construction and maintenance             5,500            10,000
     of mechanically operated fire
     doors..........................
    (c) Construction and maintenance             5,500            10,000
     of hand-operated fire doors....
230.83 Cylinder cocks:
    (1) Failure to properly equip                5,500            10,000
     with cylinder cocks............
    (2) Failure to properly maintain             5,500            10,000
     cylinder cocks.................
230.84 Sanders:
    (1) Inoperable sanders..........             5,500            10,000
    (2) Failure to test sanders.....             5,500            10,000
230.85 Audible warning devices:
    (a) General provisions..........             5,500            10,000
    (b) Sound level measurements,                5,500            10,000
     Failure to properly take.......
230.86 Required illumination:
    (a) General provisions..........             5,500            10,000
    (b) Dimming device, failure to               5,500            10,000
     properly equip with............
    (c) Multiple locomotives,                    5,500            10,000
     failure of lead locomotive to
     display headlight..............
230.87 Cab lights: Failure to                    5,500            10,000
 properly equip with................
 
    Throttles and Reversing Gear
 
230.88 Throttles: Failure to                     5,500            10,000
 properly maintain, equip...........
230.89 Reverse gear:
    (a) General provisions..........             5,500            10,000
    (b) Air-operated power reverse               5,500            10,000
     gear...........................
    (c) Power reverse gear                       5,500            10,000
     reservoirs.....................
 
     Draw Gear and Draft Systems
 
230.90 Draw gear and draft systems:
    (a) Maintenance and testing.....             5,500            10,000
    (b) Safety bars and chains,                  5,500            10,000
     general........................
    (c) Safety bars and chains,                  5,500            10,000
     minimum length.................
    (d) Lost motion between steam                5,500            10,000
     locomotive and tender..........
    (e) Spring buffers: Improper                 5,500            10,000
     application, compression.......
230.91 Chafing irons: Improper                   5,500            10,000
 application, maintenance...........
230.92 Draw gear, draft systems:                 5,500            10,000
 Improperly maintained, fastened....
 
            Driving Gear
 
230.93 Pistons and piston rods:
    (a) Failure to properly inspect,             5,500            10,000
     maintain, renew................
    (b) Fasteners: Failure to keep               5,500            10,000
     tight, properly equip..........
230.94 Crossheads: Improperly                    5,500            10,000
 maintained, excess clearance.......
230.95 Guides: Failure to securely               5,500            10,000
 fasten, properly maintain..........
230.96 Main, side, valve motion                  5,500            10,000
 rods:

[[Page 57633]]

 
    (a) General.....................             5,500            10,000
    (b) Repairs.....................             5,500            10,000
        (1) Failure to make in                   5,500            10,000
         accordance with accepted
         national standard..........
        (2) Failure to submit                    5,500            10,000
         written request for
         approval prior to welding..
    (c) Bearings and bushings.......             5,500            10,000
    (d) Rod side motion: Excessive               5,500            10,000
     motion.........................
    (e) Oil, grease cups: Failure to             5,500            10,000
     securely fasten, properly equip
     (f) Main rod bearings:
        (1) Excessive bore..........             5,500            10,000
        (2) Excessive lost motion...             5,500            10,000
    (g) Side rod bearings, excessive             5,500            10,000
     bore...........................
230.97 Crank pins:
    (a) General provisions..........             5,500            10,000
    (b) Maintenance: Failure to                  5,500            10,000
     maintain in safe, suitable
     condition......................
 
            Running Gear
 
230.98 Driving, trailing, engine
 truck axles:
    (a) Condemning defects..........             5,500            10,000
    (b) Journal diameter: Failure to             2,500             5,000
     stamp on end of axle...........
230.99 Tender truck axle:                        5,500            10,000
 Insufficient diameter..............
230.100 Defects in tender truck
 axles and journals:
    (a) Tender truck axle condemning             5,500            10,000
     defects........................
    (b) Tender truck journal                     5,500            10,000
     condemning defects.............
230.101 Steam locomotive driving
 journal boxes:
    (a) Driving journal boxes:                   5,500            10,000
     Failure to properly maintain...
    (b) Broken bearings: Failure to              5,500            10,000
     renew..........................
    (c) Loose bearings: Failure to               5,500            10,000
     repair or renew................
230.102 Tender plain bearing journal             5,500            10,000
 boxes: Failure to repair...........
230.103 Tender roller bearing                    5,500            10,000
 journal boxes: Failure to properly
 maintain...........................
230.104 Driving box shoes and                    5,500            10,000
 wedges: Failure to properly
 maintain...........................
230.105 Lateral motion:
    (a) Condemning limits: Total                 5,500            10,000
     lateral motion in excess of....
    (b) Limits exceeded, failure to              5,500            10,000
     demonstrate conditions require
     additional lateral motion......
    (c) Interferes with other parts              5,500            10,000
     of steam locomotive............
 
Trucks, Frames and Equalizing System
 
230.106 Steam locomotive frame:
    (a) Failure to properly inspect              5,500            10,000
     and/or maintain................
    (b) Broken frames, not properly             13,000            20,500
     patched or secured.............
230.107 Tender frame and body:
    (a) Failure to properly maintain             5,500            10,000
    (b) Height difference between                5,500            10,000
     tender deck and steam
     locomotive cab floor or deck
     excessive......................
    (c) Gangway minimum width                    5,500            10,000
     excessive......................
    (d) Tender frame condemning                  9,500            17,000
     defects........................
230.108 Steam locomotive leading and
 trailing trucks:
    (a) Failure to properly maintain             5,500            10,000
    (b) Safety chain, suitable                   5,500            10,000
     safety chain not provided......
    (c) Insufficient truck clearance             5,500            10,000
230.109 Tender trucks:
    (a):
        (1) Tender truck frames.....             5,500            10,000
        (2) Tender truck center                  5,500            10,000
         plate......................
    (b) Tender truck bolsters:                   9,500            17,000
     Failure to properly maintain...
    (c) Condemning defects, springs              5,500            10,000
     and/or spring rigging..........
    (d) Truck securing arrangement:              5,500            10,000
     Not properly maintained........
    (e) Side bearings, truck                     5,500            10,000
     centering devices..............
    (f) Friction side bearings: Run              5,500            10,000
     in contact.....................
    (g):
        (1) Side bearings, failure               5,500            10,000
         to equip rear trucks with..
        (2) Insufficient clearance               5,500            10,000
         of.........................
230.110 Pilots:
    (a) General provisions..........             5,500            10,000
    (b) Clearance, insufficient or               5,500            10,000
     excessive......................
230.111 Spring rigging:
    (a) Arrangement of springs and               5,500            10,000
     equalizers.....................
    (b) Spring or spring rigging                 5,500            10,000
     condemning defects.............
 
          Wheels and Tires
 
230.112 Wheels and tires:
    (a) Improperly mounted, excess               9,500            17,000
     variance in axle diameter......
    (b) Out of gage.................             5,500            10,000
    (c) Flange distance variance,                5,500            10,000
     excessive......................

[[Page 57634]]

 
    (d) Tire thickness, insufficient             5,500            10,000
    (e) Tire width, insufficient....             5,500            10,000
230.113 Wheels and tire defects:
    (1) Failure to repair...........             5,500            10,000
    (2) Welding on, except as                    9,500            17,000
     otherwise provided for.........
        (a) Cracks or breaks in.....             5,500            10,000
        (b) Flat spots..............             5,500            10,000
        (c) Chipped flange..........             5,500            10,000
        (d) Broken rim..............             5,500            10,000
        (e) Shelled-out spots.......             5,500            10,000
        (f) Seams...................             5,500            10,000
        (g) Worn flanges, excessive              5,500            10,000
         wear.......................
        (h) Worn treads, excessive               5,500            10,000
         wear.......................
        (i) Flange height,                       5,500            10,000
         insufficient or excessive..
        (j) Rim thickness,                       5,500            10,000
         insufficient...............
        (k) Wheel diameter,                      5,500            10,000
         excessive variance.........
230.114 Wheel centers:
    (a) Filling blocks and shims....             5,500            10,000
    (b) Wheel center condemning                  5,500            10,000
     limits, failure to repair......
    (c) Wheel center repairs........             5,500            10,000
    (d) Counterbalance maintenance..             5,500            10,000
 
       Steam Locomotive Tanks
 
230.115 Feed water tanks:
    (a) General provisions..........             5,500            10,000
    (b) Inspection frequency,                    5,500            10,000
     failure to inspect as required.
    (c) Top of tender: Improperly                5,500            10,000
     maintained and/or equipped.....
230.116 Oil tanks:
     (1) Failure to properly                    13,000            20,500
     maintain.......................
     (2) Failure to equip with                  19,500            25,000
     complying safety cut-off device
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Failure to observe any condition for
  movement set forth in Sec.   230.12 will deprive the railroad of the
  benefit of the movement-for-repair provision and make the railroad and
  any responsible individuals liable for penalty under the particular
  regulatory section(s) concerning the substantive defect(s) present on
  the locomotive at the time of movement. Failure to comply with Sec.
  230.12 will result in the lapse of any affected waiver. Generally,
  when two or more violations of these regulations are discovered with
  respect to a single locomotive that is used by a railroad, the
  appropriate penalties set forth are aggregated up to a maximum of
  $25,000 per day. However, a failure to perform, with respect to a
  particular locomotive, any of the inspections and tests required under
  this part, will be treated as a violation separate and distinct from,
  and in addition to, any substantive violative conditions found on that
  locomotive.
\2\ The penalty schedule uses section numbers from 49 CFR part 230. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 231--[AMENDED]

    36. The authority citation for part 231 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; 
and 49 CFR 1.49.

    37. Appendix A to part 231 is revised to read as follows:

         Appendix A to Part 231--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
110.A1 Hand brake or hand brake part           $13,000           $20,500
 missing............................
110.A2 Hand brake or hand brake part            13,000            20,500
 broken.............................
110.A3 Hand brake or hand brake part             9,500            17,000
 loose or worn......................
110.B1 Hand brake inoperative.......            13,000            20,500
110.B2 Hand brake inefficient.......             9,500            17,000
110.B3 Hand brake improperly applied             9,500            17,000
110.B4 Hand brake incorrectly                    5,500            10,000
 located............................
110.B5 Hand brake shaft welded or                5,500            10,000
 wrong dimension....................
110.B6 Hand brake shaft not retained             5,500            10,000
 in operating position..............
110.B8 Hand brake or hand brake                  5,500            10,000
 parts wrong design.................
114.B2 Hand brake wheel or lever has             5,500            10,000
 insufficient clearance around rim
 or handle..........................
114.B3 Hand brake wheel/lever                    5,500            10,000
 clearance insufficient to vertical
 plane through inside face of
 knuckle............................
120.A1 Brake step missing except by             13,000            20,500
 design.............................
120.A2 Brake step or brace broken or            13,000            20,500
 decayed............................
120.A3 Brake step or brace loose....             9,500            17,000
120.B1 Brake step or brace bent.....             9,500            17,000

[[Page 57635]]

 
120.B2 Brake step or brace wrong                 5,500            10,000
 dimensions.........................
120.C1 Brake step improperly applied             5,500            10,000
120.C2 Brake step improperly located             5,500            10,000
120.C3 Brake step with less than 4''             5,500            10,000
 clearance to vertical plane through
 inside face of knuckle.............
120.C4 Brake step obstructed or                  9,500            17,000
 otherwise unsafe...................
124.A1 Running board missing or part            13,000            20,500
 missing except by design...........
124.A2 Running board broken or                  13,000            20,500
 decayed............................
124.A3 Running board loose presents              9,500            17,000
 a tripping hazard or other unsafe
 condition..........................
124.A4 Running board wrong material.             5,500            10,000
124.B1 Running board bent to the                 9,500            17,000
 extent that it is unsafe...........
124.B2 Running board wrong                       5,500            10,000
 dimensions.........................
124.B3 Running board wrong location.             5,500            10,000
124.C1 Running board improperly                  5,500            10,000
 applied............................
124.C2 Running board obstructed.....             9,500            17,000
126.A1 End platform missing or part             13,000            20,500
 except by design...................
126.A2 End platform broken or                   13,000            20,500
 decayed............................
126.A3 End platform loose...........             9,500            17,000
126.B1 End platform or brace bent...             5,500            10,000
126.B2 End platform wrong dimensions             5,500            10,000
126.C1 End platform improperly                   5,500            10,000
 applied............................
126.C2 End platform with less than               5,500            10,000
 required clearance to vertical
 plane through inside knuckle.......
126.C3 End platform improperly                   5,500            10,000
 located............................
126.C4 End platform obstructed......             9,500            17,000
128.A1 Platform or switching step               13,000            20,500
 missing............................
128.A2 Platform or switching step               13,000            20,500
 broken or decayed..................
128.A3 Platform or switching step                9,500            17,000
 loose..............................
128.B1 Platform or switching step                9,500            17,000
 bent...............................
128.B2 Platform or switching step                5,500            10,000
 does not meet the required location
 or dimensions......................
128.C1 Platform or switching step                9,500            17,000
 improperly applied or repaired.....
128.C2 Platform or switching step                9,500            17,000
 obstructed.........................
128.D1 Switching step back stop or               5,500            10,000
 kick plate missing.................
128.D2 Switching step not                        5,500            10,000
 illuminated when required..........
128.D3 Non-illuminated step not                  5,500            10,000
 painted contrasting color..........
130.A1 Sill step or additional                  13,000            20,500
 tread, missing.....................
130.A2 Sill step or additional                  13,000            20,500
 tread, broken......................
130.A3 Sill step or additional                   9,500            17,000
 tread, loose.......................
130.B1 Sill step or additional                   9,500            17,000
 tread, bent........................
130.B2 Sill step or additional                   5,500            10,000
 tread, having wrong dimensions or
 improperly located.................
130.B3 Sill step improperly applied.             5,500            10,000
132.A1 Side door step missing step..            13,000            20,500
132.A2 Side door step broken........            13,000            20,500
132.A3 Side door step loose.........             9,500            17,000
132.B1 Side door step bent..........             9,500            17,000
132.B2 Side door step having wrong               5,500            10,000
 dimensions.........................
134.A1 Ladder missing...............            13,000            20,500
134.A2 Ladder broken................            13,000            20,500
134.A3 Ladder loose.................             9,500            17,000
134.B1 Ladder bent..................             9,500            17,000
134.B2 Ladder having wrong                       5,500            10,000
 dimensions.........................
134.C1 Ladder improperly applied....             5,500            10,000
134.C2 Ladder having insufficient                5,500            10,000
 clearance or improperly located....
134.C3 Ladder wrong design..........             5,500            10,000
134.C4 Ladder wrong material........             5,500            10,000
134.D1 End clearance insufficient...             5,500            10,000
136.A1 Ladder tread or handholds                13,000            20,500
 missing............................
136.A2 Ladder tread or handhold                 13,000            20,500
 broken.............................
136.A3 Ladder tread or handhold                  9,500            17,000
 loose except by design.............
136.B1 Ladder tread or handhold bent             9,500            17,000
 to the extent that it may be unsafe
136.B2 Ladder tread or handhold                  5,500            10,000
 wrong dimensions...................
136.C1 Ladder tread or handhold                  5,500            10,000
 improperly applied.................
136.C2 Ladder tread or handhold                  5,500            10,000
 having wrong clearance.............
136.C3 Ladder or handhold improperly             5,500            10,000
 located............................
136.C4 Ladder tread or handhold                  9,500            17,000
 obstructed.........................
136.C5 Ladder tread without                      9,500            17,000
 footguards.........................
138.A1 Hand or safety railing                   13,000            20,500
 missing............................
138.A2 Hand or safety railing broken            13,000            20,500
138.A3 Hand or safety railing loose              9,500            17,000
 except by design...................
138.B1 Hand or safety railing bent..             9,500            17,000
138.B2 Hand or safety railing wrong              5,500            10,000
 dimensions.........................
138.C1 Hand or safety railing                    5,500            10,000
 improperly applied.................
138.C2 Hand or safety railing having             5,500            10,000
 less than the required clearance...

[[Page 57636]]

 
138.C3 Hand or safety railing                    5,500            10,000
 improperly located.................
140.A1 Uncoupling lever missing.....             9,500            17,000
140.A2 Uncoupling lever broken or                9,500            17,000
 disconnected.......................
140.B1 Uncoupling lever bent will                9,500            17,000
 not safely and reasonably function
 as intended........................
140.C1 Uncoupling lever bracket bent             9,500            17,000
 lever will not function properly...
140.C2 Uncoupling lever bracket                  9,500            17,000
 broken or missing..................
140.D1 Uncoupling lever wrong                    5,500            10,000
 dimension..........................
140.D2 Uncoupling lever with                     5,500            10,000
 improper handle clearance..........
144.A1 Coupler missing..............            13,000            20,500
144.B1 Coupler height incorrect.....             5,500            10,000
144.C1 Coupler inoperative..........             9,500            17,000
145.A1 Kick plates missing..........             5,500            10,000
145.A2 Kick plates broken...........             5,500            10,000
145.B1 Kick plates wrong dimensions.             5,500            10,000
145.B2 Kick plates improper                      5,500            10,000
 clearance..........................
145.B3 Kick plates insecure or                   5,500            10,000
 improperly applied.................
146.A Notice or stencil not posted               2,500             5,000
 on cabooses with running boards
 removed............................
146.B Safe means not provided to                 2,500             5,000
 clean or maintain windows of
 caboose............................
231.31 Drawbars, standard height....             9,500            17,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations
  are discovered with respect to a single unit of equipment that is used
  by a railroad, the appropriate penalties set forth above are
  aggregated up to a maximum of $25,000 per day. The Administrator
  reserves the right to assess a penalty of up to $100,000 for any
  violation where circumstances warrant. See 49 CFR part 209, appendix
  A.
\2\ This schedule uses section numbers from FRA's Safety Appliance
  Defect Code, a restatement of the CFR text in a reorganized format.
  For convenience, and as an exception to FRA's general policy, penalty
  citations will cite the defect code rather than the CFR. FRA reserves
  the right, should litigation become necessary, to substitute in its
  complaint the CFR and/or statutory citation in place of the defect
  code section cited in the penalty demand letter.

PART 232--[AMENDED]

    38. The authority citation for part 232 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 
1.49.

    39. Appendix A to part 232 is revised to read as follows:

         Appendix A to Part 232--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
232.15 Movement of power brake
 defects:
    (a) Improper movement, general..             (\1\)             (\1\)
        (11) Failure to make                    $9,500           $17,000
         determinations and provide
         notification of en route
         defect.....................
    (b) Complete failure to tag.....             9,500            17,000
        (1) Insufficient tag or                  2,500             5,000
         record.....................
        (2), (4) Improper removal of             9,500            17,000
         tag........................
        (3) Failure to retain record             9,500            17,000
         of tag.....................
    (c) Improper loading or purging.             9,500            17,000
    (e) Improper placement of                    9,500            17,000
     defective equipment............
232.19 Availability of records......             (\1\)             (\1\)
 
   Subpart B--General Requirements
 
232.103 All train brake systems:
     (a)-(c), (h)-(i) Failure to                 9,500            17,000
     meet general design
     requirements...................
     (d) Failure to have proper                 13,000            20,500
     percentage of operative brakes
     from Class I brake test........
     (e) Operating with less than 85            13,000            20,500
     percent operative brakes.......
     (f) Improper use of car with                9,500            17,000
     inoperative or ineffective.....
    brakes..........................
     (g) Improper display of piston              9,500            17,000
     travel.........................
     (m) Failure to stop train with              9,500            17,000
     excess air flow or gradient....
     (n) Securement of unattended     ................  ................
     equipment:
         (1) Failure to apply                   13,000            20,500
         sufficient number of hand
         brakes; failure to develop
         or implement procedure to
         verify number applied......
         (2) Failure to reduce to                9,500            17,000
         zero or vent brake pipe....
         (3) Failure to apply hand               9,500            17,000
         brakes on locomotives......
         (4) Failure to adopt or                13,000            20,500
         comply with procedures for
         securing unattended
         locomotive.................
     (o) Improper adjustment of air              9,500            17,000
     regulating devices.............
     (p) Failure to hold supervisors             9,500            17,000
     jointly responsible............
232.105 Locomotives:
     (a) Air brakes not in safe and             13,000            20,500
     suitable condition.............
     (b) Not equipped with proper               13,000            20,500
     hand or parking brake..........

[[Page 57637]]

 
     (c)(1) Failure to inspect/                  9,500            17,000
     repair hand or parking brake...
         (2) Failure to properly                 5,500            10,000
         stencil, tag, or record....
     (d) Excess leakage from                     9,500            17,000
     equalizing reservoir...........
     (e) Improper use of feed or                 9,500            17,000
     regulating valve braking.......
     (f) Improper use of passenger               9,500            17,000
     position.......................
     (g) Brakes in operative                    13,000            20,500
     condition......................
232.107 Air sources/cold weather
 operations:
     (a)(1), (2) Failure to adopt or            13,000            20,500
     comply with monitoring program
     for yard air sources...........
         (3) Failure to maintain                 9,500            17,000
         records....................
     (b) Failure to blow                        13,000            20,500
     condensation...................
     (c) Use of improper chemicals..            13,000            20,500
     (d) Failure to equip or drain              13,000            20,500
     yard air reservoirs............
     (e) Failure to adopt or comply             13,000            20,500
     cold weather operating
     procedures.....................
232.109 Dynamic brakes:
     (a) Failure to provide                      9,500            17,000
     information....................
     (b) Failure to make repairs....             9,500            17,000
     (c) Failure to properly tag....             5,500            10,000
     (d) Failure to maintain record              2,500             5,000
     of repair......................
     (e) Improper deactivation......             9,500            17,000
     (f) Improper use of locomotive              9,500            17,000
     as controlling unit............
     (g) Locomotive not properly                 9,500            17,000
     equipped with indicator........
     (h) Rebuilt locomotive not                  9,500            17,000
     properly equipped..............
     (j) Failure to adopt or comply             13,000            20,500
     with dynamic brake operating
     rules..........................
     (k) Failure to adopt or comply             13,000            20,500
     with training on operating
     procedures.....................
232.111 Train handling information:
    (a) Failure to adopt and comply             13,000            20,500
     with procedures................
    (b) Failure to provide specific              9,500            17,000
     information....................
 
  Subpart C--Inspection and Testing
            Requirements
 
232.203 Training requirements:
    (a) Failure to develop or adopt             19,500            25,000
     program........................
    (b)(1)-(9) Failure to address or             9,500            17,000
     comply with specific required
     item or provision of program...
    (c) Failure to adopt or comply              13,000            20,500
     with two-way EOT program.......
    (d) Failure to adopt or comply              13,000            20,500
     with retaining valve program...
    (e) Failure to maintain adequate            13,000            20,500
     records........................
    (f) Failure to adopt and comply             19,500            25,000
     with periodic assessment plan..
232.205 Class I brake test--initial
 terminal inspection:
     (a) Complete failure to perform      (\1\) 19,500            25,000
     inspection.....................
     (c)(1)-(4), (6)-(8) Partial                13,000            20,500
     failure to perform inspection..
     (c)(5) Failure to properly                  9,500            17,000
     adjust piston travel (per car).
     (d) Failure to use carman when              5,500            10,000
     required.......................
     (e) Failure to provide proper               9,500            17,000
     notification...................
     (f) Failure to void compressed              9,500            17,000
     air............................
232.207 Class IA brake tests--1,000-
 mile inspection:
    (a) Complete failure to perform       (\1\) 13,000            20,500
     inspection.....................
    (b)(1)-(6) Partial failure to                9,500            17,000
     perform inspection.............
    (c) Failure to properly                      9,500            17,000
     designate location.............
    (c)(1) Failure to perform at                 9,500            17,000
     designated location............
    (c)(2) Failure to provide                    9,500            17,000
     notification...................
232.209 Class II brake tests--
 intermediate inspection:
    (a) Complete failure to perform       (\1\) 13,000            20,500
     inspection.....................
    (b)(1)-(5), (c) Partial failure              9,500            17,000
     to perform inspection..........
    (c) Failure to conduct Class I               (\1\)             (\1\)
     after Class II pick-up.........
232.211 Class III brake tests--
 trainline continuity inspection:
    (a) Complete failure to perform             13,000            20,500
     inspection.....................
    (b)(1)-(4), (c) Partial failure              9,500            17,000
     to perform inspection..........
    (d) Failure to restore air                   9,500            17,000
     pressure at rear...............
232.213 Extended haul trains:
    (a)(1) Failure to properly                  13,000            20,500
     designate an extended haul
     train..........................
    (a)(2)-(3), (5)(i), (8) Failure              (\1\)             (\1\)
     to perform inspections.........
    (a)(4) Failure to remove                     5,500            10,000
     defective car (per car)........
    (a)(5)(ii), (6) Failure to                  13,000            20,500
     conduct inbound inspection.....
    (a)(7) Failure to maintain                   5,500            10,000
     record of defects (per car)....
    (b) Improper movement or use of             13,000            20,500
     extended haul train............
232.215 Transfer train brake tests:
    (a) Failure to perform                      13,000            20,500
     inspection.....................
    (b) Failure to perform on cars               9,500            17,000
     added..........................
232.217 Train brake system tests
 conducted using yard air:
    (a) Failure to use suitable                  9,500            17,000
     device.........................
    (b) Improper connection of air              13,000            20,500
     test device....................
     (c) Failure to properly perform             (\1\)             (\1\)
     inspection.....................

[[Page 57638]]

 
     (d) Failure to calibrate test               9,500            17,000
     device.........................
     (e) Failure to use accurate                 9,500            17,000
     device.........................
232.219 Double heading and helper
 service:
    (a) Failure to perform                       9,500            17,000
     inspection or inability to
     control brakes.................
    (b) Failure to make visual                   9,500            17,000
     inspection.....................
    (c) Use of improper helper link              9,500            17,000
     device.........................
 
 Subpart D--Periodic Maintenance and
        Testing Requirements
 
232.303 General requirements:
    (b)-(d) Failure to conduct                   9,500            17,000
     inspection or test when car on
     repair track...................
    (e) Improper movement of                     9,500            17,000
     equipment for testing..........
    (e)(1) Failure to properly tag               5,500            10,000
     equipment for movement.........
    (e)(2)-(4) Failure to retain                 5,500            10,000
     record or improper removal of
     tag or card....................
    (f) Failure to stencil or track              9,500            17,000
     test information...............
232.305 Single car tests:
     (a) Failure to test in accord               9,500            17,000
     with required procedure........
     (b)-(c) Failure to perform test             9,500            17,000
232.309 Single car air brake test
 equipment and devices:
     (a)-(f) Failure to properly                 9,500            17,000
     test or calibrate..............
 
   Subpart E--End-of-Train Devices
 
232.403 Design standards for one-way
 devices:
    (a)-(g) Failure to meet                      9,500            17,000
     standards......................
232.405 Design standards for two-way  ................  ................
 devices:
    (a)-(i) Failure to meet                      9,500            17,000
     standards......................
232.407 Operating requirements for
 two-way devices:
    (b) Failure to equip a train....            13,000            20,500
    (c) Improper purchase...........             9,500            17,000
    (f)(1) Failure of device to be              13,000            20,500
     armed and operable.............
    (f)(2) Insufficient battery                  9,500            17,000
     charge.........................
    (f)(3) Failure to activate the               9,500            17,000
     device.........................
    (g) Improper handling of en                 13,000            20,500
     route failure, freight or other
     non-passenger..................
    (h) Improper handling of en                 13,000            20,500
     route failure, passenger.......
232.409 Inspection and testing of
 devices:
    (a) Failure to have unique code.             9,500            17,000
    (b) Failure to compare                       9,500            17,000
     quantitative values............
    (c) Failure to test emergency               13,000            20,500
     capability.....................
    (d) Failure to properly                      9,500            17,000
     calibrate......................
 
Subpart F--Introduction of New Brake
          System Technology
 
232.503 Process to introduce new
 technology:
    (b) Failure to obtain FRA                   19,500            25,000
     approval.......................
232.505 Pre-revenue service           ................  ................
 acceptance testing plan:
    (a) Failure to obtain FRA                   13,000            20,500
     approval.......................
    (b) Failure to comply with plan.             9,500            17,000
    (f) Failure to test previously              13,000            20,500
     used technology................
 
Subpart G--Electronically Controlled
   Pneumatic (ECP) Braking Systems
 
232.603 Design, interoperability,
 and configuration management
 requirements:
    (a) Failure to meet minimum                  5,500            10,000
     standards......................
    (b) Using ECP brake equipment                9,500            17,000
     without approval...............
    (c) Failure to adopt and comply             13,000            20,500
     with a proper configuration
     management plan................
232.605 Training Requirements:
    (a) Failure to adopt and comply              (\1\)             (\1\)
     with a proper training,
     qualification, and designation
     program for employees that
     perform inspection, testing or
     maintenance....................
    (b) Failure to amend operating              13,000            20,500
     rules..........................
    (c) Failure to adopt and comply             13,000            20,500
     with proper training criteria
     for locomotive engineers.......
232.607 Inspection and testing
 requirements:
    (a)(1), (b), (c)(1) Complete or              (\1\)             (\1\)
     partial failure to perform
     inspection.....................
    (a)(2) Complete or partial                   9,500            17,000
     failure to perform pre-
     departure inspection...........
    (c)(1)(iv), (c)(2) Failure to                9,500            17,000
     perform visual inspection on a
     car added en route.............
    (d) Failure to perform                       (\1\)             (\1\)
     inspection.....................
    (e)(1), (2) Failure to properly              9,500            17,000
     initialize the train...........
    (e)(3) Failure to ensure                     9,500            17,000
     identical consist and system
     information....................
    (f)(1) Failure to apply a proper             (\1\)             (\1\)
     brake pipe service reduction...
    (f)(2) Failure to properly                   (\1\)             (\1\)
     adhere to the proper piston
     travel ranges..................
    (g)(1)-(4) Improperly located               13,000            20,500
     and guarded cable..............
     (g)(5) Condition of cable and               9,500            17,000
     connections....................
232.609 Handling of defective
 equipment with ECP brake systems:
    (a) Failure to have proper                   (\1\)             (\1\)
     percentage of operative brakes
     from Class I brake test........
    (b) Failure to prevent a car                 9,500            17,000
     known to arrive with defective
     brakes to depart location where
     a Class I brake test is
     required.......................

[[Page 57639]]

 
    (c) Improper movement of a car               9,500            17,000
     equipped with conventional
     pneumatic brakes...............
    (d) Operating with less than 85              (\1\)             (\1\)
     percent operative brakes.......
    (f)(2)(i) Improper placement of              (\1\)             (\1\)
     defective conventional brake
     equipment......................
    (f)(2)(ii) Improper placement of             9,500            17,000
     defective ECP brake equipment..
    (g) Improper movement of                     (\1\)             (\1\)
     defective stand-alone ECP brake
     equipment in a train operating
     with conventional pneumatic
     brakes.........................
    (h) Improper movement from                   (\1\)             (\1\)
     initial terminal of stand-alone
     ECP brake equipment in a
     conventional brake operated
     train..........................
    (i) Failure to tag equipment....             (\1\)             (\1\)
    (j)(1) Failure to adopt and                  5,500            10,000
     comply with procedures for the
     movement of defective equipment
    (j)(2) Failure to submit list of             9,500            17,000
     ECP brake system repair
     locations......................
232.611 Periodic maintenance:
     (a) Failure to ensure the                   9,500            17,000
     proper and safe condition of
     car............................
     (b)-(d) Failure to perform test             9,500            17,000
232.613 End-of-train devices:
    (a) Failure to meet design                   9,500            17,000
     standards for ECP-EOT devices..
    (b) Moving with an improper or               9,500            17,000
     improperly connected ECP-EOT
     device.........................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations
  are discovered with respect to a single unit of equipment that is
  placed or continued in service by a railroad, the appropriate
  penalties set forth above are aggregated up to a maximum of $25,000
  per day. Although the penalties listed for failure to perform the
  brake inspections and tests under Sec.   232.205 through Sec.
  232.209 may be assessed for each train that is not properly inspected,
  failure to perform any of the inspections and tests required under
  those sections will be treated as a violation separate and distinct
  from, and in addition to, any substantive violative conditions found
  on the equipment contained in the train consist. Moreover, the
  Administrator reserves the right to assess a penalty of up to $100,000
  for any violation where circumstances warrant. See 49 CFR part 209,
  appendix A.
Failure to observe any condition for movement of defective equipment set
  forth in Sec.   232.15(a) will deprive the railroad of the benefit of
  the movement-for-repair provision and make the railroad and any
  responsible individuals liable for penalty under the particular
  regulatory section(s) concerning the substantive defect(s) present on
  the equipment at the time of movement.
Failure to provide any of the records or plans required by this part
  pursuant to Sec.   232.19 will be considered a failure to maintain or
  develop the record or plan and will make the railroad liable for
  penalty under the particular regulatory section(s) concerning the
  retention or creation of the document involved.
Failure to properly perform any of the inspections specifically
  referenced in Sec.  Sec.   232.209, 232.213, and 232.217 may be
  assessed under each section of this part or this chapter, or both,
  that contains the requirements for performing the referenced
  inspection.
\2\ The penalty schedule uses section numbers from 49 CFR part 232. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 233--[AMENDED]

    40. The authority citation for part 233 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    41. Appendix A to part 233 is revised to read as follows:

         Appendix A to Part 233--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
233.5 Accidents resulting from                  $9,500           $17,000
 signal failure.....................
233.7 Signal failure reports........             5,500            10,000
233.9 Reports.......................             2,500             5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 233. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 234--[AMENDED]

    42. The authority citation for part 234 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    43. Appendix A to part 234 is revised to read as follows:

[[Page 57640]]



         Appendix A to Part 234--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart B--Reports
 
234.7 Accidents involving grade                 $9,500           $17,000
 crossing signal failure............
234.9 Grade crossing signal system               5,500            10,000
 failure reports....................
 
  Subpart C--Response to Reports of
     Warning System Malfunction
 
234.101 Employee notification rules.             5,500            10,000
234.103 Timely response to report of            13,000            20,500
 malfunction........................
234.105 Activation failure:
     (a) Failure to notify--train               19,500            25,000
     crews..........................
    Other railroads.................            19,500            25,000
     (b) Failure to notify law                   5,500            10,000
     enforcement agency.............
     (c) Failure to comply with--               13,000            20,500
     flagging requirements..........
    Speed restrictions..............            13,000            20,500
     (d) Failure to activate horn or             5,500            10,000
     whistle........................
234.106 Partial activation:
     (a) Failure to notify--train                9,500            17,000
     crews..........................
    Other railroads.................             9,500            17,000
     (b) Failure to notify law                   5,500            10,000
     enforcement agency.............
    1 (c) Failure to comply with--               9,500            17,000
     flagging requirements speed
     restrictions...................
     (d) Failure to activate horn or             5,500            10,000
     whistle........................
234.107 False activation:
     (a) Failure to notify--train               13,000            20,500
     crews..........................
    Other railroads.................            13,000            20,500
    1 (b) Failure to notify law                  5,500            10,000
     enforcement agency.............
     (c) Failure to comply with--                9,500            17,000
     flagging requirements..........
    Speed restrictions..............             9,500            17,000
     (d) Failure to activate horn or             5,500            10,000
     whistle........................
234.109 Recordkeeping...............             2,500             5,000
 
 Subpart D--Maintenance, Inspection,
             and Testing
 
        Maintenance Standards
 
234.201 Location of plans...........             5,500            10,000
234.203 Control circuits............             9,500            17,000
234.205 Operating characteristics of            13,000            20,500
 warning system apparatus...........
234.207 Adjustment, repair, or                  13,000            20,500
 replacement of component...........
234.209 Interference with normal                19,500            25,000
 functioning of system..............
234.211 Locking of warning system                5,500            10,000
 apparatus..........................
234.213 Grounds.....................             9,500            17,000
234.215 Standby power system........            19,500            25,000
234.217 Flashing light units........             5,500            10,000
234.219 Gate arm lights and light                5,500            10,000
 cable..............................
234.221 Lamp voltage................             9,500            17,000
234.223 Gate arm....................             5,500            10,000
234.225 Activation of warning system            19,500            25,000
234.227 Train detection apparatus...            19,500            25,000
234.229 Shunting sensitivity........            19,500            25,000
234.231 Fouling wires...............            13,000            20,500
234.233 Rail joints.................            13,000            20,500
234.235 Insulated rail joints.......            19,500            25,000
234.237 Switch equipped with circuit             5,500            10,000
 controller.........................
234.239 Tagging of wires and                     5,500            10,000
 interference of wires or tags with
 signal apparatus...................
234.241 Protection of insulated                  9,500            17,000
 wire; splice in underground wire...
234.243 Wire on pole line and aerial             9,500            17,000
 cable..............................
234.245 Signs.......................             5,500            10,000
 
        Inspections and Tests
 
234.247 Purpose of inspections and              13,000            20,500
 tests; removal from service of
 relay or device failing to meet
 test requirements..................
234.249 Ground tests................            13,000            20,500
234.251 Standby power...............             9,500            17,000
234.253 Flashing light units and                 5,500            10,000
 lamp voltage.......................
234.255 Gate arm and gate mechanism.             5,500            10,000
234.257 Warning system operation....            13,000            20,500
234.259 Warning time................             9,500            17,000
234.261 Highway traffic signal pre-              9,500            17,000
 emption............................
234.263 Relays......................             9,500            17,000
234.265 Timing relays and timing                 9,500            17,000
 devices............................
234.267 Insulation resistance tests,             9,500            17,000
 wires in trunking and cables.......
234.269 Cut-out circuits............            19,500            25,000
234.271 Insulated rail joints, bond              9,500            17,000
 wires, and track connections.......
234.273 Results of tests............             2,500             5,000
 

[[Page 57641]]

 
  Requirements for Processor-Based
               Systems
 
234.275 Processor-Based Systems.....            13,000            20,500
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 234. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 235--[AMENDED]

    44. The authority citation for part 235 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    45. Appendix A to part 235 is revised to read as follows:

         Appendix A to Part 235--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
235.5 Changes requiring filing of               $5,500           $10,000
 application
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 235. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 236--[AMENDED]

    46. The authority citation for part 236 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note and 49 
CFR 1.49.

    47. Appendix A to part 236 is revised to read as follows:

         Appendix A to Part 236--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
236.0 Applicability, minimum                    $9,500           $17,000
 requirements.......................
 
 Subpart A--Rules and Instructions--
             All Systems
               General
 
236.1 Plans, where kept.............            13,000            20,500
236.2 Grounds.......................            13,000            20,500
236.3 Locking of signal apparatus
 housings:
    Power interlocking machine                   5,500            10,000
     cabinet not secured against
     unauthorized entry.............
    Other violations................             5,500            10,000
236.4 Interference with normal                  19,500            25,000
 functioning of device..............
236.5 Design of control circuits on             19,500            25,000
 closed circuit principle...........
236.6 Hand-operated switch equipped             13,000            20,500
 with switch circuit controller.....
236.7 Circuit controller operated by            13,000            20,500
 switch-and-lock movement...........
236.8 Operating characteristics of               9,500            17,000
 electro-magnetic, electronic, or
 electrical apparatus...............
236.9 Selection of circuits through              5,500            10,000
 indicating or annunciating
 instruments........................
236.10 Electric locks, force drop                5,500            10,000
 type; where required...............
236.11 Adjustment, repair, or                   13,000            20,500
 replacement of component...........
236.12 Spring switch signal                      9,500            17,000
 protection; where required.........
236.13 Spring switch; selection of               9,500            17,000
 signal control circuits through
 circuit controller.................
236.14 Spring switch signal                      9,500            17,000
 protection; requirements...........
236.15 Timetable instructions.......             5,500            10,000
236.16 Electric lock, main track
 releasing circuit:
    Electric lock releasing circuit             13,000            20,500
     on main track extends into
     fouling circuit where turnout
     not equipped with derail at
     clearance point either pipe-
     connected to switch or
     independently locked,
     electrically...................
    Other violations................            13,000            20,500
236.17 Pipe for operating                        5,500            10,000
 connections, requirements..........
236.18 Software management control
 plan:
    (a) Failure to develop and adopt             9,500            17,000
     a plan.........................
    (b) Failure to fully implement               9,500            17,000
     plan...........................
    (c) Inadequate plan.............             9,500            17,000
 

[[Page 57642]]

 
   Roadway Signals and Cab Signals
 
236.21 Location of roadway signals..            13,000            20,500
236.22 Semaphore signal arm;                     5,500            10,000
 clearance to other objects.........
236.23 Aspects and indications......             9,500            17,000
236.24 Spacing of roadway signals...            13,000            20,500
236.26 Buffing device, maintenance..            13,000            20,500
 
           Track Circuits
 
236.51 Track circuit requirements:
    (a) Shunt fouling circuit used              13,000            20,500
     where permissible speed through
     turnout greater than 45 m.p.h..
    (b) Track relay not in de-                  19,500            25,000
     energized position or device
     that functions as track relay
     not in its most restrictive
     state when train, locomotive,
     or car occupies any part of
     track circuit, except fouling
     section of turnout of hand-
     operated main-track crossover..
    Other violations................            13,000            20,500
236.52 Relayed cut-section..........            13,000            20,500
236.53 Track circuit feed at grade              13,000            20,500
 crossing...........................
236.54 Minimum length of track                  13,000            20,500
 circuit............................
236.55 Dead section; maximum length.            13,000            20,500
236.56 Shunting sensitivity.........            13,000            20,500
236.57 Shunt and fouling wires:
    (a) Shunt or fouling wires do               13,000            20,500
     not consist of at least two
     discrete conductors............
    Other violations................             9,500            17,000
236.58 Turnout, fouling section:
    Rail joint in shunt fouling                 13,000            20,500
     section not bonded.............
    Other violations................             9,500            17,000
236.59 Insulated rail joints........            13,000            20,500
236.60 Switch shunting circuit; use             13,000            20,500
 restricted.........................
 
          Wires and Cables
 
236.71 Signal wires on pole line and            13,000            20,500
 aerial cable.......................
236.73 Open-wire transmission line;              9,500            17,000
 clearance to other circuits........
236.74 Protection of insulated wire;             9,500            17,000
 splice in underground wire.........
236.76 Tagging of wires and                      5,500            10,000
 interference of wires or tags with
 signal apparatus...................
 
 Inspections and Tests; All Systems
 
236.101 Purpose of inspection and                9,500            17,000
 tests; removal from service or
 relay or device failing to meet
 test requirements..................
236.102 Semaphore or search-light               13,000            20,500
 signal mechanism...................
236.103 Switch circuit controller or            13,000            20,500
 point detector.....................
236.104 Shunt fouling circuit.......             9,500            17,000
236.105 Electric lock...............             9,500            17,000
236.106 Relays......................             9,500            17,000
236.107 Ground tests................             9,500            17,000
236.108 Insulation resistance tests,
 wires in trunking and cables:
    (c) Circuit permitted to                    13,000            20,500
     function on a conductor having
     insulation resistance value
     less than 200,000 ohms.........
    Other violations................             9,500            17,000
236.109 Time releases, timing relays             9,500            17,000
 and timing devices.................
236.110 Results of tests............             2,500             5,000
 
  Subpart B--Automatic Block Signal
               Systems
              Standards
 
236.201 Track circuit control of                13,000            20,500
 signals............................
236.202 Signal governing movements              13,000            20,500
 over hand-operated switch..........
236.203 Hand-operated crossover                 13,000            20,500
 between main tracks; protection....
236.204 Track signaled for movements            13,000            20,500
 in both directions, requirements...
236.205 Signal control circuits;                19,500            25,000
 requirements.......................
236.206 Battery or power supply with             9,500            17,000
 respect to relay; location.........
236.207 Electric lock on hand-
 operated switch; control:
    Approach or time locking of                 13,000            20,500
     electric lock on hand-operated
     switch can be defeated by
     unauthorized use of emergency
     device which is not kept sealed
     in the non-release position....
    Other violations................             9,500            17,000
 
       Subpart C--Interlocking
              Standards
 
236.301 Where signals shall be                   9,500            17,000
 provided...........................
236.302 Track circuits and route                13,000            17,000
 locking............................
236.303 Control circuits for                    13,000            20,500
 signals, selection through circuit
 controller operated by switch
 points or by switch locking
 mechanism..........................
236.304 Mechanical locking or same              13,000            20,500
 protection effected by circuits....
236.305 Approach or time locking....            13,000            20,500
236.306 Facing point lock or switch-             9,500            17,000
 and-lock movement..................
236.307 Indication locking:.........            13,000            20,500

[[Page 57643]]

 
236.308 Mechanical or electric                  13,000            20,500
 locking or electric circuits;
 requisites.........................
236.309 Loss of shunt protection;
 where required:
    Loss of shunt of five seconds or            13,000            20,500
     less permits release of route
     locking of power-operated
     switch, movable point frog, or
     derail.........................
    Other violations................             9,500            17,000
236.310 Signal governing approach to             9,500            17,000
 home signal........................
236.311 Signal control circuits,                13,000            20,500
 selection through track relays or
 devices functioning as track relays
 and through signal mechanism
 contacts and time releases at
 automatic interlocking.............
236.312 Movable bridge, interlocking
 of signal appliances with bridge
 devices:
    Emergency bypass switch or                  13,000            20,500
     device not locked or sealed....
    Other violations................            13,000            20,500
236.314 Electric lock for hand-
 operated switch or derail:
    Approach or time locking of                 13,000            20,500
     electric lock at hand-operated
     switch or derail can be
     defeated by unauthorized use of
     emergency device which is not
     kept sealed in non-release
     position.......................
    Other violations................            13,000            20,500
 
       Rules and Instructions
 
236.326 Mechanical locking removed               9,500            17,000
 or disarranged; requirement for
 permitting train movements through
 interlocking.......................
236.327 Switch, movable-point frog              13,000            20,500
 or split-point derail..............
236.328 Plunger of facing-point.....             9,500            17,000
236.329 Bolt lock...................            13,000            20,500
236.330 Locking dog of switch and                9,500            17,000
 lock movement......................
236.334 Point detector..............            13,000            20,500
236.335 Dogs, stops and trunnions of             5,500            10,000
 mechanical locking.................
236.336 Locking bed.................             5,500            10,000
236.337 Locking faces of mechanical              5,500            10,000
 locking; fit.......................
236.338 Mechanical locking required              5,500            10,000
 in accordance with locking sheet
 and dog chart......................
236.339 Mechanical locking;                      5,500            10,000
 maintenance requirements...........
236.340 Electromechanical                        5,500            10,000
 interlocking machine; locking
 between electrical and mechanical
 levers.............................
236.341 Latch shoes, rocker links,               5,500            10,000
 and quadrants......................
236.342 Switch circuit controller...            13,000            20,500
 
        Inspection and Tests
 
236.376 Mechanical locking..........             9,500            17,000
236.377 Approach locking............             9,500            17,000
236.378 Time locking................             9,500            17,000
236.379 Route locking...............             9,500            17,000
236.380 Indication locking..........             9,500            17,000
236.381 Traffic locking.............             9,500            17,000
236.382 Switch obstruction test.....            13,000            20,500
236.383 Valve locks, valves, and                 9,500            17,000
 valve magnets......................
236.384 Cross protection............             9,500            17,000
236.386 Restoring feature on power               9,500            17,000
 switches...........................
236.387 Movable bridge locking......            13,000            20,500
 
 Subpart D--Traffic Control Systems
              Standards
              Standards
 
236.401 Automatic block signal
 system and interlocking standards
 applicable to traffic control
 systems:
236.402 Signals controlled by track             19,500            25,000
 circuits and control operator......
236.403 Signals at controlled point.            19,500            25,000
236.404 Signals at adjacent control             19,500            25,000
 points.............................
236.405 Track signaled for movements            19,500            25,000
 in both directions, change of
 direction of traffic...............
236.407 Approach or time locking;               19,500            25,000
 where required.....................
236.408 Route locking...............            19,500            25,000
236.410 Locking, hand-operated
 switch; requirements:
    (a) Hand-operated switch on main            13,000            20,500
     track not electrically or
     mechanically locked in normal
     position where signal not
     provided to govern movement to
     main track, movements made at
     speeds in excess of 20 m.p.h.,
     or train and engine movements
     may clear main track...........
    Hand-operated switch on signaled            13,000            20,500
     siding not electrically or
     mechanically locked in normal
     position where maximum
     authorized speed on the siding
     exceeds 30 m.p.h...............
    (b) Approach or time locking of             13,000            20,500
     electric lock at hand-operated
     switch can be defeated by use
     of emergency release device of
     electric lock which is not kept
     sealed in non-release position.
    Other violations................             9,500            17,000
 
       Rules and Instructions
 
236.426 Interlocking rules and                   2,500             5,000
 instructions applicable to traffic
 control systems....................
 
        Inspection and Tests
 
236.476 Interlocking inspections and             2,500             5,000
 tests applicable to traffic control
 systems............................
 
  Subpart E--Automatic Train Stop,
Train Control and Cab Signal Systems
              Standards
              Standards
 
236.501 Forestalling device and                  9,500            17,000
 speed control......................

[[Page 57644]]

 
236.502 Automatic brake application,            13,000            20,500
 initiation by restrictive block
 conditions stopping distance in
 advance............................
236.503 Automatic brake application;            13,000            20,500
 initiation when predetermined rate
 of speed exceeded..................
236.504 Operations interconnected                9,500            17,000
 with automatic block-signal system.
236.505 Proper operative relation                5,500            10,000
 between parts along roadway and
 parts on locomotive................
236.506 Release of brakes after                 13,000            20,500
 automatic application..............
236.507 Brake application; full                  9,500            17,000
 service............................
236.508 Interference with                        9,500            17,000
 application of brakes by means of
 brake valve........................
236.509 Two or more locomotives                  5,500            10,000
 coupled............................
236.511 Cab signals controlled in                9,500            17,000
 accordance with block conditions
 stopping distance in advance.......
236.512 Cab signal indication when              13,000            20,500
 locomotive enters blocks...........
236.513 Audible indicator...........             9,500            17,000
236.514 Interconnection of cab                   5,500            10,000
 signal system with roadway signal
 system.............................
236.515 Visibility of cab signals...             9,500            17,000
236.516 Power supply................             5,500            10,000
 
   Rules and Instructions; Roadway
 
236.526 Roadway element not                      5,500            10,000
 functioning properly...............
236.527 Roadway element insulation               5,500            10,000
 resistance.........................
236.528 Restrictive condition                    9,500            17,000
 resulting from open hand-operated
 switch; requirement................
236.529 Roadway element inductor;                5,500            10,000
 height and distance from rail......
236.531 Trip arm; height and                     5,500            10,000
 distance from rail.................
236.532 Strap iron inductor; use                 5,500            10,000
 restricted.........................
236.534 Entrance to equipped                     9,500            17,000
 territory; requirements............
 
 Rules and Instructions; Locomotives
 
236.551 Power supply voltage........             5,500            10,000
236.552 Insulation resistance.......             5,500            10,000
236.553 Seal, where required........             5,500            10,000
236.554 Rate of pressure reduction;              9,500            17,000
 equalizing reservoir or brake pipe.
236.555 Repaired or rewound receiver             2,500             5,000
 coil...............................
236.556 Adjustment of relay.........             5,500            10,000
236.557 Receiver; location with                  5,500            10,000
 respect to rail....................
236.560 Contact element, mechanical              5,500            10,000
 trip type; location with respect to
 rail...............................
236.562 Minimum rail current                     5,500            10,000
 required...........................
236.563 Delay time..................             9,500            17,000
236.564 Acknowledging time..........             5,500            10,000
236.565 Provision made for                       5,500            10,000
 preventing operation of pneumatic
 brake-applying apparatus by double-
 heading clock; requirement.........
236.566 Locomotive of each train                 5,500            10,000
 operating in train stop, train
 control or cab signal territory;
 equipped...........................
236.567 Restrictions imposed when
 device fails and/or is cut out en
 route:
    Report not made to designated                9,500            17,000
     officer at next available point
     of communication after
     automatic train stop, train
     control, or cab signal device
     fails and/or is cut en route...
    Trains permitted to proceed at               9,500            17,000
     speed exceeding 79 m.p.h. where
     automatic train stop, train
     control, or cab signal device
     fails and/or is cut out en
     route when absolute block
     established in advance of train
     on which device is inoperative.
    Other violations................             5,500            10,000
236.568 Difference between speeds                5,500            10,000
 authorized by roadway signal and
 cab signal; action.................
 
    Inspection and Tests; Roadway
 
236.576 Roadway element.............             5,500            10,000
236.577 Test, acknowledgement, and               5,500            10,000
 cut-in circuits....................
 
  Inspection and Tests; Locomotive
 
236.586 Daily or after trip test....             9,500            17,000
236.587 Departure test:
    (b) Test of automatic train                 13,000            20,500
     stop, train control, or cab
     signal apparatus on locomotive
     not made on departure of
     locomotive from initial
     terminal if equipment on
     locomotive not cut out between
     initial terminal and equipped
     territory......................
    Test of automatic train stop,               13,000            20,500
     train control, or cab signal
     apparatus on locomotive not
     made immediately on entering
     equipped territory, if
     equipment on locomotive cut out
     between initial terminal and
     equipped territory.............
    (c) Automatic train stop, train             13,000            20,500
     control, or cab signal
     apparatus on locomotive making
     more than one trip within 24-
     hour period not given departure
     test within corresponding 24-
     hour period....................
     (d) Failure to certify, post,               2,500             5,000
     or retain test results as
     required.......................
    Other violations................             2,500             5,000
236.588 Periodic test...............            13,000            20,500
236.589 Relays......................             9,500            17,000
236.590 Pneumatic apparatus:
    Automatic train stop, train                  9,500            17,000
     control, or cab signal
     apparatus not inspected and
     cleaned at least once every 736
     days...........................
    Other violations................             9,500            17,000
 

[[Page 57645]]

 
  Subpart F--Dragging Equipment and
  Slide Detectors and Other Similar
    Protective Devices; Standards
 
              Standards
 
236.601 Signals controlled by                   13,000            20,500
 devices; location..................
 
 Subpart H--Standards for Processor-
   Based Signal and Train Control
               Systems
 
236.905 Railroad Safety Program Plan
 (RSPP).............................
    (a) Failure to develop and                   9,500            17,000
     submit RSPP when required......
    (d) Failure to obtain FRA                    9,500            17,000
     approval for a modification to
     RSPP...........................
236.907 Product Safety Plan (PSP):
    (a) Failure to address required              9,500            17,000
     PSP elements...................
    (b) Failure to identify or                   9,500            17,000
     implement product configuration/
     revision control measures......
    (d) Failure to communicate                  19,500            25,000
     identified safety critical
     hazard.........................
236.909 Minimum Performance
 Standard:
    (a) Failure to make analyses or              9,500            17,000
     documentation available........
    (b) Failure to determine or                 13,000            20,500
     demonstrate that the minimum
     performance standard has been
     met............................
236.913 Notification to FRA of PSPs:
    (a) Failure to prepare a PSP or              9,500            17,000
     PSP amendment as required......
    (b) Failure to submit a PSP or               9,500            17,000
     PSP amendment as required......
    (c) Failure to submit an                     9,500            17,000
     informational filing...........
    (j) Field testing without                   19,500            25,000
     authorization or approval......
236.915 Implementation and
 operation:
    (a) Operation of product without            19,500            25,000
     authorization or approval......
    (b) Failure to comply with PSP..             9,500            17,000
    (c) Interference with normal                19,500            25,000
     functioning safety-critical
     product........................
    (d) Failure to determine cause               9,500            17,000
     and adjust, repair or replace
     without undue delay or take
     appropriate action pending
     repair.........................
236.917 Retention of records:
    (a) Failure to maintain records              9,500            17,000
     as required....................
    (b)(1) Failure to report                    13,000            20,500
     inconsistency..................
    (b)(2) Failure to take prompt                5,500            10,000
     countermeasures................
    (b)(3) Failure to provide final              5,500            10,000
     report.........................
236.919 Operations and Maintenance               5,500            10,000
 Manual.............................
236.921 Training and qualification               9,500            17,000
 program, general...................
236.923 Task analysis and basic
 requirements:
    (a) Failure to develop an                    9,500            17,000
     acceptable training program....
    (a)(6) Failure to train persons              9,500            17,000
     as required....................
    (a)(8) Failure to conduct                    5,500            10,000
     evaluation of training program
     as required....................
    (b) Failure to maintain records              2,500             5,000
     as required....................
236.925 Training specific to control             9,500            17,000
 office personnel...................
236.927 Training specific to                     9,500            17,000
 locomotive engineers and other
 operating personnel................
236.929 Training specific to roadway             9,500            17,000
 workers............................
 
  Subpart I--Positive Train Control
               Systems
236.1005 Positive Train Control
 System Requirements:
    Failure to complete PTC system               5,500            10,000
     installation on track segment
     where PTC is required prior to
     12/31/2015.....................
    Commencement of revenue service             13,000            20,500
     prior to obtaining PTC System
     Certification..................
    Failure of the PTC system to                19,500            25,000
     perform a safety-critical
     function required by this
     section........................
    Failure to provide notice,                  13,000            20,500
     obtain approval, or follow a
     condition for temporary
     rerouting when required........
    Exceeding the allowed percentage             2,500             5,000
     of controlling locomotives
     operating out of an initial
     terminal after receiving a
     failed initialization..........
236.1006 Equipping locomotives
 operating in PTC territory:
    Operating in PTC territory a                19,500            25,000
     controlling locomotive without
     a required and operative PTC
     onboard apparatus..............
    Failure to report as prescribed              2,500             5,000
     by this section................
    Non-compliant operation of                  13,000            20,500
     unequipped trains in PTC
     territory......................
236.1007 Additional requirements for
 high-speed service:
    Operation of passenger trains at             9,500            17,000
     a speed equal to or greater
     than 60 m.p.h. on non-PTC-
     equipped territory where
     required.......................
    Operation of freight trains at a             9,500            17,000
     speed equal to or greater than
     50 m.p.h. on non-PTC-equipped
     territory where required.......
    Failure to fully implement                   9,500            17,000
     incursion protection where
     required.......................
236.1009 Procedural requirements:
    Failure to file PTCIP when                   2,500             5,000
     required.......................
    Failure to amend PTCIP when                  2,500             5,000
     required.......................
    Failure to obtain Type Approval              2,500             5,000
     when required..................
    Failure to update NPI...........             2,500             5,000
    Operation of PTC system prior to            13,000            20,500
     system certification...........
236.1011 PTCIP content requirements:
    Failure to install a PTC system              2,500             5,000
     in accordance with subpart I
     when so required...............
236.1013 PTCDP content requirements
 and Type Approval:

[[Page 57646]]

 
    Failure to maintain quality                  2,500             5,000
     control system.................
    Inappropriate use of Type                    2,500             5,000
     Approval.......................
236.1015 PTCSP content requirements
 and PTC System Certification:
    Failure to implement PTC system              9,500            17,000
     in accordance with the
     associated PTCSP and resultant
     system certification...........
    Failure to maintain PTC system               9,500            17,000
     in accordance with the
     associated PTCSP and resultant
     system certification...........
    Failure to maintain required                 2,500             5,000
     supporting documentation.......
236.1017 Independent third party
 Verification and Validation:
    Failure to conduct independent              13,000            20,500
     third party Verification and
     Validation when ordered........
236.1019 Main line track exceptions:
    Revenue operations conducted in              5,500            10,000
     non-compliance with the
     passenger terminal exception...
    Revenue operations conducted in              5,500            10,000
     non-compliance with the limited
     operations exception...........
    Failure to request modification              5,500            10,000
     of the PTCIP or PTCSP when
     required.......................
    Revenue operations conducted in              9,500            17,000
     violation of (c)(2)............
    Revenue operations conducted in              9,500            17,000
     violation of (c)(3)............
236.1021 Discontinuances, material
 modifications, and amendments:
    Failure to update PTCDP when                 2,500             5,000
     required.......................
    Failure to update PTCSP when                 2,500             5,000
     required.......................
    Failure to immediately adopt and             2,500             5,000
     comply with approved RFA.......
    Discontinuance or modification               2,500             5,000
     of a PTC system without
     approval when required.........
236.1023 Errors and malfunctions:
    Railroad failure to provide                  2,500             5,000
     proper notification of PTC
     system error or malfunction....
    Failure to maintain PTCPVL......             2,500             5,000
    Supplier failure to provide                  2,500             5,000
     proper notification of
     previously identified PTC
     system error or malfunction....
    Failure to provide timely                    2,500             5,000
     notification...................
    Failure to provide appropriate               5,500            10,000
     protective measures in the
     event of PTC system failure....
236.1027 Exclusions:
    Integration of primary train                 9,500            17,000
     control system with locomotive
     electronic system without
     approval.......................
236.1029 PTC system use and en route
 failures:
    Failure to determine cause of                5,500            10,000
     PTC system component failure
     without undue delay............
    Failure to adjust, repair, or                5,500            10,000
     replace faulty PTC system
     component without undue delay..
    Failure to take appropriate                  5,500            10,000
     action pending adjustment,
     repair, or replacement of
     faulty PTC system component....
    Non-compliant train operation                9,500            17,000
     within PTC-equipped territory
     with inoperative PTC onboard
     apparatus......................
    Interference with the normal                 9,500            17,000
     functioning of safety-critical
     PTC system.....................
    Improper arrangement of the PTC              5,500            10,000
     system onboard apparatus.......
236.1033 Communications and security
 requirements:
    Failure to provide cryptographic             2,500             5,000
     message integrity and
     authentication.................
    Improper use of revoked                      2,500             5,000
     cryptographic key..............
    Failure to protect cryptographic             2,500             5,000
     keys from unauthorized
     disclosure, modification, or
     substitution...................
    Failure to establish prioritized             2,500             5,000
     service restoration and
     mitigation plan for
     communication services.........
236.1035 Field testing requirements:
    Field testing without                        5,500            10,000
     authorization or approval......
236.1037 Records retention:
    Failure to maintain records and              2,500             5,000
     databases as required..........
    Failure to report inconsistency.             5,500            10,000
    Failure to take prompt                       5,500            10,000
     countermeasures................
    Failure to provide final report.             2,500             5,000
236.1039 Operations and Maintenance
 Manual:
    Failure to implement and                     2,500             5,000
     maintain Operations and
     Maintenance Manual as required.
236.1043 Task analysis and basic
 requirements:
    Failure to develop and maintain              5,500            10,000
     an acceptable training program.
    Failure to train persons as                  2,500             5,000
     required.......................
    Failure to conduct evaluation of             2,500             5,000
     training program as required...
    Failure to maintain records as               2,500             5,000
     required.......................
236.1045 Training specific to office
 control personnel:
    Failure to conduct training                  2,500             5,000
     unique to office control
     personnel......................
236.1047 Training specific to
 locomotive engineers and other
 operations personnel:
    Failure to conduct training                  2,500             5,000
     unique to locomotive engineers
     and other operating personnel..
236.1049 Training specific to
 roadway workers:
    Failure to conduct training                  2,500            5,000
     unique to roadway workers......
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 236. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


[[Page 57647]]

PART 238--[AMENDED]

    48. The authority citation for part 238 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303, 
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; 49 CFR 
1.49.
    49. Appendix A to part 238 is revised to read as follows:

         Appendix A to Part 238--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General
 
238.15 Movement of power brake
 defects:
     (b) Improper movement from                $13,000           $20,500
     Class I or IA brake test.......
     (c) Improper movement of en                 9,500            17,000
     route defect...................
         (2), (3) Insufficient tag               2,500             5,000
         or record..................
         (4) Failure to determine                9,500            17,000
         percent operative brakes...
     (d) Failure to follow operating            13,000            20,500
     restrictions...................
     (e) Failure to follow                       9,500            17,000
     restrictions for inoperative
     front or rear unit.............
238.17 Movement of other than power   ................  ................
 brake defects: \1\
     (c)(4), (5) Insufficient tag or             2,500             5,000
     record.........................
     (d) Failure to inspect or                   9,500            17,000
     improper use of roller bearings
     (e) Improper movement of                    9,500            17,000
     defective safety appliances....
238.19 Reporting and tracking
 defective equipment:
     (a) Failure to have reporting              19,500            25,000
     or tracking system.............
     (b) Failure to retain records..             5,500            10,000
     (c) Failure to make records                 2,500             5,000
     available......................
     (d) Failure to list power brake             5,500            10,000
     repair points..................
 
   Subpart B--Safety Planning and
        General Requirements
 
238.103 Fire protection plan/fire
 safety:
    (a) Failure to use proper                   13,000            20,500
     materials......................
     (b) Improper certification.....             5,500            10,000
     (c) Failure to consider fire               13,000            20,500
     safety on new equipment........
     (d) Failure to perform fire                13,000            20,500
     safety analysis................
     (e) Failure to develop, adopt              13,000            20,500
     or comply with procedures......
238.105 Train electronic hardware
 and software safety:
     (a), (b), (c) Failure to                   13,000            20,500
     develop and maintain hardware
     and software safety............
    (d) Failure to include required             13,000            20,500
     design features................
     (e) Failure to comply with                  9,500            17,000
     hardware and software safety
     program........................
238.107 Inspection, testing, and
 maintenance plan:
     (b) Failure to develop plan....            13,000            20,500
     (b)(1)-(5) Failure of plan to               9,500            17,000
     address specific item..........
     (d) Failure to conduct annual               9,500            17,000
     review.........................
238.109 Training, qualification, and
 designation program:
     (a) Failure to develop or adopt            13,000            20,500
     program........................
     (b)(1)-(4) Failure of plan to               9,500            17,000
     address specific item..........
     (b)(5)-(12) Failure to comply               9,500            17,000
     with specific required
     provisions of the program......
     (b)(13) Failure to maintain                 5,500            10,000
     adequate records...............
238.111 Pre-revenue service
 acceptance testing plan:
     (a) Failure to properly test               13,000            20,500
     previously used equipment......
     (b)(1) Failure to develop plan.            13,000            20,500
     (b)(2) Failure to submit plan               9,500            17,000
     to FRA.........................
     (b)(3) Failure to comply with               9,500            17,000
     plan...........................
     (b)(4) Failure to document                  5,500            10,000
     results of testing.............
     (b)(5) Failure to correct                   9,500            17,000
     safety deficiencies or impose
     operating limits...............
     (b)(6) Failure to maintain                  5,500            10,000
     records........................
     (b)(7) Failure to obtain FRA                9,500            17,000
     approval.......................
238.113 Emergency window exits......             9,500            17,000
238.114 Rescue access windows.......             9,500            17,000
238.115 Emergency lighting..........             9,500            17,000
238.117 Protection against personal              9,500            17,000
 injury.............................
238.119 Rim-stamped straight-plate               9,500            17,000
 wheels.............................
238.121 Emergency communication.....             9,500            17,000
238.123 Emergency roof access.......             9,500            17,000
 
Subpart C--Specific Requirements for
     Tier I Passenger Equipment
 
238.203 Static end strength.........             9,500            17,000
238.205 Anti-climbing mechanism.....             9,500            17,000
238.207 Link between coupling                    9,500            17,000
 mechanism and car body.............
238.209 Forward end structure of                 9,500            17,000
 locomotives........................
238.211 Collision posts.............             9,500            17,000
238.213 Corner posts................             9,500            17,000
238.215 Rollover strength...........             9,500            17,000
238.217 Side structure..............             9,500            17,000
238.219 Truck-to-car-body attachment             9,500            17,000
238.221 Glazing.....................             9,500            17,000
238.223 Fuel tanks..................             9,500            17,000
238.225 Electrical system...........             9,500            17,000

[[Page 57648]]

 
238.227 Suspension system...........             9,500            17,000
238.229 Safety appliances--general:
     (e) Failure to properly                     9,500            17,000
     identify equipment (per car)...
     (g) Failure to adopt or comply              9,500            17,000
     with inspection plan...........
     (h) Failure to use qualified                9,500            17,000
     person (per car)...............
     (i) Failure to properly conduct             9,500            17,000
     initial or periodic inspection
     (per car)......................
     (j) Failure to take proper                  9,500            17,000
     remedial action (per car)......
     (k) Failure to maintain records             5,500            10,000
     (per car)......................
238.230 Safety appliances--new
 equipment:
     (b)(2) Failure to identify                  9,500            17,000
     welded appliance (per car).....
     (b)(3) Failure to receive                   9,500            17,000
     approval for use (per car).....
     (c)(2) Failure to make proper               9,500            17,000
     repair (per car)...............
238.231 Brake System (a)-(g), (i)-               9,500            17,000
 (n)
     (h)(1), (2) Hand or parking                13,000            20,500
     brake missing or inoperative...
     (h)(3) Hand or parking brake                5,500            10,000
     inspection or record (per car).
     (h)(4) Hand or parking brake               13,000            20,500
     not applied to hold equipment
     unattended on grade or
     prematurely released...........
238.233 Interior fittings and                    9,500            17,000
 surfaces...........................
238.235 Doors.......................             9,500            17,000
238.237 Automated monitoring........             9,500            17,000
 
 Subpart D--Inspection, Testing, and
 Maintenance Requirements for Tier I
         Passenger Equipment
 
238.303 Exterior mechanical
 inspection of passenger equipment:
     (a)(1) Failure to perform               \1\ 9,500            17,000
     mechanical inspection..........
     (a)(2) Failure to inspect                   9,500            17,000
     secondary brake system.........
     (b) Failure to perform                  \1\ 9,500            17,000
     inspection on car added to
     train..........................
     (c) Failure to utilize properly             9,500            17,000
     qualified personnel............
     (e)(1) Products of combustion               9,500            17,000
     not released outside cab.......
     (e)(2) Battery not vented or                9,500            17,000
     gassing excessively............
     (e)(3) Coupler not in proper                9,500            17,000
     condition......................
     (e)(4) No device under drawbar              9,500            17,000
     pins or connection pins........
     (e)(5) Suspension system and                9,500            17,000
     spring rigging not in proper
     condition......................
     (e)(6) Truck not in proper                  9,500            17,000
     condition......................
     (e)(7) Side bearing not in                  9,500            17,000
     proper condition...............
     (e)(8) Wheel not in proper       ................  ................
     condition:
         (i), (iv) Flat spot(s) and   ................  ................
         shelled spot(s):
             (A) One spot 2\1/2\''               9,500            17,000
             or more but less than
             3'' in length..........
             (B) One spot 3'' or                13,000            20,500
             more in length.........
             (C) Two adjoining spots             9,500            17,000
             each of which is 2'' or
             more in length but less
             than 2\1/2\'' in length
             (D) Two adjoining spots            13,000            20,500
             each of which are at
             least 2'' in length, if
             either spot is 2\1/2\''
             or more in length......
         (ii) Gouge or chip in
         flange:
             (A) More than 1\1/2\''              9,500            17,000
             but less than 1\5/8\''
             in length; and more
             than \1/2\'' but less
             than \5/8\'' in width..
             (B) 1\5/8\'' or more in            13,000            20,500
             length and \5/8\'' or
             more in width..........
         (iii) Broken rim...........            13,000            20,500
         (v) Seam in tread..........             9,500            17,000
         (vi) Flange thickness of:    ................  ................
             (A) \7/8\'' or less but             9,500            17,000
             more than..............
             (B) \13/16\'' or less..            13,000            20,500
         (vii) Tread worn hollow....             9,500            17,000
         (viii) Flange height of:
             (A) 1\1/2\'' or greater             9,500            17,000
             but less than 1\5/8\''.
             (B) 1\5/8\'' or more...            13,000            20,500
         (ix) Rim thickness:          ................  ................
             (A) Less than 1''......             9,500            17,000
             (B) \15/16\'' or less..            13,000            20,500
         (x) Crack or break in
         flange, tread, rim, plate,
         or hub:
             (A) Crack of less than              9,500            17,000
             1''....................
             (B) Crack of 1'' or                13,000            20,500
             more...................
             (C) Break..............            13,000            20,500
         (xi) Loose wheel...........            13,000            20,500
         (xii) Welded wheel.........            13,000            20,500
     (e)(10) Improper grounding or              13,000            20,500
     insulation.....................
     (e)(11) Jumpers or cable                    9,500            17,000
     connections not in proper
     condition......................
     (e)(12) Door or cover plate not             9,500            17,000
     properly marked................
     (e)(13) Buffer plate not                    9,500            17,000
     properly placed................
     (e)(14) Diaphragm not properly              9,500            17,000
     placed or aligned..............
     (e)(15) Secondary braking                   9,500            17,000
     system not in operating mode or
     contains known defect..........
     (e)(16) Roller bearings:
         (i) Overheated.............            13,000            20,500
         (ii) Cap screw loose or                 9,500            17,000
         missing....................

[[Page 57649]]

 
         (iii) Cap screw lock broken             5,500            10,000
         or missing.................
         (iv) Seal loose, damaged,               9,500            17,000
         or leaks lubricant.........
     (e)(17) Air compressor                      9,500            17,000
     inoperative....................
     (g) Record of inspection:
         (1), (4) Failure to                     5,500            10,000
         maintain record of
         inspection.................
         (2) Record contains                     2,500             5,000
         insufficient information...
238.305 Interior mechanical
 inspection of passenger cars:
     (a) Failure to perform                  \1\ 5,500            10,000
     inspection.....................
     (b) Failure to utilize properly             5,500            10,000
     qualified personnel............
     (c)(1) Failure to protect                   9,500            17,000
     against personal injury........
     (c)(2) Floors not free of                   9,500            17,000
     condition that creates hazard..
     (c)(3) Access to manual door                5,500            10,000
     release not in place...........
     (c)(4) Emergency equipment not              5,500            10,000
     in place.......................
     (c)(5) Emergency brake valve                5,500            10,000
     not stenciled or marked........
     (c)(6) Door or cover plates not             5,500            10,000
     properly marked................
     (c)(7) Safety signage not in                5,500            10,000
     place or legible...............
     (c)(8) Trap door unsafe or                  9,500            17,000
     improperly secured.............
     (c)(9) Vestibule steps not                  5,500            10,000
     illuminated....................
     (c)(10) Door does not safely                9,500            17,000
     operate as intended............
     (c)(11) Seat broken, loose, or              9,500            17,000
     not properly attached..........
     (e) Record of inspection:
         (1), (4) Failure to                     5,500            10,000
         maintain record of
         inspection.................
         (2) Record contains                     2,500             5,000
         insufficient information...
     (f) Record of inspection:
         (1), (4) Failure to                     5,500            10,000
         maintain record of
         inspection.................
         (2) Record contains                     2,500             5,000
         insufficient information...
238.307 Periodic mechanical
 inspection of passenger cars and
 unpowered vehicles:
     (a) Failure to perform periodic         \1\ 9,500            17,000
     mechanical inspection..........
     (b) Failure to utilize properly             9,500            17,000
     qualified personnel............
     (c)(1) Seat or seat attachment              9,500            17,000
     broken or loose................
     (c)(2) Luggage rack broken or               9,500            17,000
     loose..........................
     (c)(3) Bed, bunks, or                       9,500            17,000
     restraints broken or loose.....
     (c)(4) Emergency window exit                9,500            17,000
     does not properly operate......
     (c)(5) Emergency lighting not               9,500            17,000
     operational....................
     (c)(6) Switches not in proper               9,500            17,000
     condition......................
     (c)(7) Coupler not in proper                9,500            17,000
     condition......................
     (c)(8) Truck not equipped with              9,500            17,000
     securing arrangement...........
     (c)(9) Truck center casting                13,000            20,500
     cracked or broken..............
     (c)(10) General conditions                  9,500            17,000
     endangering crew, passengers...
     (c)(13) Hand or parking brake               9,500            17,000
     test not performed.............
     (d)(1) Manual door release does             9,500            17,000
     not operate as intended........
     (d)(2) Hand or parking brake                9,500            17,000
     inspection not performed.......
     (e)(1) Failure to maintain                  5,500            10,000
     record of inspection...........
         (i)-(iv) Record contains                2,500             5,000
         insufficient information...
     (f)(1) Record of inspection:
         (i) Failure to maintain                 5,500            10,000
         record of inspection.......
         (ii) Record contains                    2,500             5,000
         insufficient information...
238.309 Periodic brake equipment
 maintenance:
     (b) Failure to perform on MU                9,500            17,000
     locomotive.....................
     (c) Failure to perform on                   9,500            17,000
     conventional locomotive........
     (d) Failure to perform on                   9,500            17,000
     passenger coaches or other
     unpowered vehicle..............
     (e) Failure to perform on cab               9,500            17,000
     car............................
     (f) Record of periodic
     maintenance:
         (1), (2) Failure to                     5,500            10,000
         maintain record or stencil.
238.311 Single car tests:
     (a) Failure to test in accord               9,500            17,000
     with required procedure........
     (b) Failure to utilize properly             9,500            17,000
     qualified personnel............
     (c), (e) Failure to perform                 9,500            17,000
     single car test................
     (f) Improper movement of car                5,500            10,000
     for testing....................
     (g) Failure to test after                   5,500            10,000
     repair or replacement of
     component......................
238.313 Class I brake test:
     (a) Failure to perform on              \1\ 19,500            25,000
     commuter or short-distance
     intercity passenger train......
     (b) Failure to perform on long-        \1\ 19,500            25,000
     distance intercity passenger
     train..........................
     (c) Failure to perform on cars         \1\ 13,000            20,500
     added to passenger train.......
     (d) Failure to utilized                    13,000            20,500
     properly qualified personnel...
     (f) Passenger train used from              13,000            20,500
     Class I brake test with less
     than 100% operative brakes.....
     (g) Partial failure to perform             13,000            20,500
     inspection on a passenger train
         (3) Failure to adjust                   9,500            17,000
         piston travel (per car)....
     (h) Failure to maintain record.             5,500            10,000
     (j) Failure to perform                     13,000            20,500
     additional Class I brake test..
    1 (j)(3) Failure to maintain                 5,500            10,000
     record.........................
238.315 Class IA brake test:

[[Page 57650]]

 
     (a) Failure to perform                 \1\ 13,000            20,500
     inspection.....................
     (d) Failure to utilize properly             9,500            17,000
     qualified personnel............
     (e) Passenger train used from              13,000            20,500
     Class IA brake test with
     improper percentage of
     operative brakes...............
     (f) Partial failure to perform              9,500            17,000
     inspection on passenger train..
238.317 Class II brake test:
     (a) Failure to perform                  \1\ 9,500            17,000
     inspection.....................
     (b) Failure to utilize properly             9,500            17,000
     qualified personnel............
     (c) Improper use of defective               9,500            17,000
     equipment from Class II brake
     test...........................
238.319 Running brake test:
     (a), (b) Failure to perform                 5,500            10,000
     test...........................
238.321 Out-of-service credit                    5,500            10,000
 
Subpart E--Specific Requirements for
     Tier II Passenger Equipment
 
238.403 Crash energy management.....             9,500            17,000
238.405 Longitudinal static                      9,500            17,000
 compressive strength...............
238.407 Anti-climbing mechanism.....             9,500            17,000
238.409 Forward end structures of
 power car cabs:
     (a) Center collision post......             9,500            17,000
     (b) Side collision posts.......             9,500            17,000
     (c) Corner posts...............             9,500            17,000
     (d) Skin.......................             9,500            17,000
238.411 Rear end structures of power
 car cabs:
     (a) Corner posts...............             9,500            17,000
     (b) Collision posts............             9,500            17,000
238.413 End structures of trailer                9,500            17,000
 cars...............................
238.415 Rollover strength...........             9,500            17,000
238.417 Side loads..................             9,500            17,000
238.419 Truck-to-car-body and truck              9,500            17,000
 component attachment...............
238.421 Glazing:
     (b) End-facing exterior glazing             9,500            17,000
     (c) Alternate glazing                       9,500            17,000
     requirements...................
     (d) Glazing securement.........             9,500            17,000
     (e) Stenciling.................             5,500            10,000
238.423 Fuel tanks:
     (a) External fuel tanks........             9,500            17,000
     (b) Internal fuel tanks........             9,500            17,000
238.425 Electrical system:
     (a) Circuit protection.........             9,500            17,000
     (b) Main battery system........             9,500            17,000
     (c) Power dissipation resistors             9,500            17,000
     (d) Electromagnetic                         9,500            17,000
     interference and compatibility.
238.427 Suspension system                        9,500            17,000
238.429 Safety Appliances:
     (a) Couplers...................            13,000            20,500
     (b) Hand/parking brakes........            13,000            20,500
     (d) Handrail or handhold                    9,500            17,000
     missing........................
         (d)(1)-(8) Handrail or                  9,500            17,000
         handhold improper design...
     (e) Sill step missing..........            13,000            20,500
         (e)(1)-(11) Sill step                   9,500            17,000
         improper design............
     (g) Optional safety appliances.             9,500            17,000
238.431 Brake system................             9,500            17,000
238.433 Draft System................             9,500            17,000
238.435 Interior fittings and                    9,500            17,000
 surfaces...........................
238.437 [Reserved]..................
238.439 Doors:
     (a) Exterior side doors........             9,500            17,000
     (b) Manual override feature....             9,500            17,000
     (c) Notification to crew of                 9,500            17,000
     door status....................
     (d) Emergency back-up power....             9,500            17,000
     (f) End door kick-out panel or              9,500            17,000
     pop-out window.................
238.441 Emergency roof access.......             9,500            17,000
238.443 Headlights..................             9,500            17,000
238.445 Automated monitoring........             9,500            17,000
238.447 Train operator's controls                9,500            17,000
 and power car cab layout...........
 
 Subpart F--Inspection, Testing, and
Maintenance Requirements for Tier II
         Passenger Equipment
 
238.503 Inspection, testing, and
 maintenance requirements:
     (a) Failure to develop                     19,500            25,000
     inspection, testing, and
     maintenance program or obtain
     FRA approval...................
     (b) Failure to comply with                 13,000            20,500
     provisions of the program......
     (c) Failure to ensure equipment             9,500            17,000
     free of conditions which
     endanger safety of crew,
     passengers, or equipment.......
     (d) Specific safety
     inspections:
         (1)(i) Failure to perform              19,500            25,000
         Class I brake test or
         equivalent.................

[[Page 57651]]

 
         (1)(ii) Partial failure to             13,000            20,500
         perform Class I brake test
         or equivalent..............
         (2)(i) Failure to perform           \1\ 9,500            17,000
         exterior mechanical
         inspection.................
         (2)(ii) Failure to perform          \1\ 5,500            10,000
         interior mechanical
         inspection.................
     (g) Failure to perform                      9,500            17,000
     scheduled maintenance as
     required in program............
     (h) Failure to comply with                 13,000            20,500
     training, qualification and
     designation program............
     (i) Failure to develop or                   9,500            17,000
     comply with standard procedures
     for performing inspection,
     tests, and maintenance.........
     (j) Failure to conduct annual              13,000            20,500
     review.........................
     (k) Failure to establish or                13,000            20,500
     utilize quality control program
 
 Subpart G--Specific Safety Planning
 Requirements for Tier II Passenger
              Equipment
 
238.603 Safety plan:
     (a) Failure to develop safety              13,000            20,500
     operating plan.................
     (b) Failure to develop                     13,000            20,500
     procurement plan...............
         (1)-(7) Failure to develop              9,500            17,000
         portion of plan............
     (c) Failure to maintain                     5,500            10,000
     documentation..................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally when two or more violations of these regulations
  are discovered with respect to a single unit of passenger equipment
  that is placed or continued in service by a railroad, the appropriate
  penalties set forth above are aggregated up to a maximum of $25,000
  per day. However, failure to perform, with respect to a particular
  unit of passenger equipment, any of the inspections and tests required
  under subparts D and F of this part will be treated as a violation
  separate and distinct from, and in addition to, any substantive
  violative conditions found on that unit of passenger equipment.
  Moreover, the Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Failure to observe any condition for
  movement of defective equipment set forth in Sec.   238.17 will
  deprive the railroad of the benefit of the movement-for-repair
  provision and make the railroad and any responsible individuals liable
  for penalty under the particular regulatory section(s) concerning the
  substantive defect(s) present on the unit of passenger equipment at
  the time of movement. Failure to observe any condition for the
  movement of passenger equipment containing defective safety
  appliances, other than power brakes, set forth in Sec.   238.17(e)
  will deprive the railroad of the movement-for-repair provision and
  make the railroad and any responsible individuals liable for penalty
  under the particular regulatory section(s) contained in part 231 of
  this chapter or Sec.   238.429 concerning the substantive defective
  condition. The penalties listed for failure to perform the exterior
  and interior mechanical inspections and tests required under Sec.
  238.303 and Sec.   238.305 may be assessed for each unit of passenger
  equipment contained in a train that is not properly inspected.
  Whereas, the penalties listed for failure to perform the brake
  inspections and tests under Sec.   238.313 through Sec.   238.319 may
  be assessed for each train that is not properly inspected.
\2\ The penalty schedule uses section numbers from 49 CFR part 238. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 239--[AMENDED]

    50. The authority citation for part 239 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301, 
21304, and 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(c), (g), 
(m).
    51 Appendix A to Part 239 is advised to read as follows:

        Appendix A to part 239--Schedule of Civil Penalities \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
  Subpart B--Specific Requirements
239.101:
    (a) Failure of a railroad to               $19,500           $25,000
     adopt\3\ a written emergency
     preparedness plan..............
    (a)(1) Failure of the plan to
     provide for:
        (i) Initial or on-board                  9,500            17,000
         notifications by an on-
         board crewmember...........
        (ii) Notification of outside             9,500            17,000
         emergency responders by
         control center.............
    (a)(2) Failure of the plan to
     provide for:
        (i) Initial or periodic                  9,500            17,000
         training of on-board
         personnel..................
        (ii) Initial or periodic                 9,500            17,000
         training of control center
         personnel..................
        (iii) Completion of initial              9,500            17,000
         training of all on-board
         and control center
         personnel by the specified
         date.......................
        (iv) Completion of initial               9,500            17,000
         training of all newly hired
         on-board and control center
         personnel by the specified
         date.......................
        (v) Adequate procedures to               9,500            17,000
         evaluate and test on-board
         and control center
         personnel for qualification
         under the emergency
         preparedness plan..........
        (vi) Adequate on-board                   9,500            17,000
         staffing...................
    (a)(3) Failure of a host                     9,500            17,000
     railroad involved in joint
     operations to coordinate
     applicable portions of the
     emergency preparedness plan
     with the railroad or railroads
     providing or operating a
     passenger train service
     operation......................
    (a)(4) Failure of the plan to
     address:
        (i) Readiness procedures for             9,500            17,000
         emergencies in tunnels.....
        (ii) Readiness procedures                9,500            17,000
         for emergencies on an
         elevated structure or in
         electrified territory......
        (iii) Coordination efforts               9,500            17,000
         involving adjacent rail
         modes of transportation....
    (a)(5) Failure of the plan to     ................  ................
     address relationships with on-
     line emergency responders by
     providing for:
        (i) The development and                  9,500            17,000
         availability of training
         programs...................

[[Page 57652]]

 
        (ii) Invitations to                      9,500            17,000
         emergency responders to
         participate in emergency
         simulations................
        (iii) Distribution of                    9,500            17,000
         applicable portions of the
         current emergency
         preparedness plan..........
    (a)(6) Failure of the plan to     ................  ................
     provide for, or the railroad to
     include on board each train and
     maintain and replace:
        (i) Emergency equipment.....             9,500            17,000
        (ii) First-aid kits.........             9,500            17,000
        (iii) Emergency lighting....             9,500            17,000
    (a)(7) Failure of the plan to                9,500            17,000
     provide for emergency
     instructions inside each
     passenger car or to include
     additional safety awareness
     information....................
239.103 Failure to conduct a                     9,500            17,000
 required full-scale simulation in
 accordance with the frequency
 schedule...........................
239.105 Debriefing and critique:
    (a) Failure to conduct a                     9,500            17,000
     debriefing and critique session
     after an emergency or full-
     scale simulation...............
    (d)(1) Failure to maintain a                 5,500            10,000
     record.........................
    (i) Failure to include date or               2,500             5,000
     location of the emergency or
     simulation.....................
        (ii) Failure to include date             2,500             5,000
         or location of the
         debriefing and critique
         session....................
        (iii) Failure to include                 2,500             5,000
         names of participants in
         the debriefing and critique
         session....................
    (d)(2) Failure to make record                2,500             5,000
     available......................
239.107 Emergency exits:
    (a)(1), (a)(2):                   ................  ................
        (i) Door not marked or                   9,500            17,000
         instructions not posted....
        (ii) Door improperly marked              9,500            17,000
         or instructions improperly
         posted.....................
    (b)(1) Failure to provide for                9,500            17,000
     scheduled inspection,
     maintenance, and repair of
     emergency windows and doors....
    (b)(2):
        (i) Failure to test a                    9,500            17,000
         representative sample of
         emergency windows..........
        (ii) Emergency windows                   5,500            10,000
         tested too infrequently....
    (b)(3) Failure to repair an                  9,500            17,000
     inoperative emergency window or
     door exit......................
    (c):
        (i) Failure to maintain a                5,500            10,000
         record.....................
        (ii) Failure to make record              2,500             5,000
         available..................
    (d)(1) Insufficient limits or                5,500            10,000
     controls on accessibility to
     records........................
    (d)(2) Missing terminal.........             2,500             5,000
    (d)(3) Inability of railroad to              2,500             5,000
     produce information in a usable
     format for immediate review....
    (d)(4) Failure by railroad to                2,500             5,000
     designate an authorized
     representative.................
    (d)(5) Failure to make record                2,500             5,000
     available......................
 
  Subpart C--Review, Approval, and
 Retention of Emergency Preparedness
                Plans
 
239.201 Filing and approval:
    (a):
        (i) Failure of a railroad to            13,000            20,500
         file a written emergency
         preparedness plan..........
        (ii) Failure to designate a              2,500             5,000
         primary person to contact
         for plan review............
        (iii) Failure of a railroad              2,500             5,000
         to file an amendment to its
         plan.......................
    (b)(1), (b)(2):
        (i) Failure of a railroad to             9,500            17,000
         correct a plan deficiency..
        (ii) Failure to provide FRA              2,500             5,000
         with a corrected copy of
         the plan...................
    (b)(3):
        (i) Failure of a railroad to             9,500            17,000
         correct an amendment
         deficiency.................
        (ii) Failure to file a                   2,500             5,000
         corrected plan amendment
         with FRA...................
239.203 Retention of emergency
 preparedness plan:
        (1) Failure to retain a copy             9,500            17,000
         of the plan or an amendment
         to the plan................
        (2) Failure to make record               2,500             5,000
         available..................
 
 Subpart D--Operational (Efficiency)
  Tests; Inspection of Records and
            Recordkeeping
 
239.301 Operational (efficiency)
 tests:
    (a) Failure to periodically                  9,500            17,000
     conduct operational
     (efficiency) tests of its on-
     board and control center
     employees......................
    (b)(1) Failure to maintain a                 5,500            10,000
     record.........................
    (b)(2) Record improperly                     2,500             5,000
     completed......................
    (c)(1) Failure to retain a copy              2,500             5,000
     of the record..................
    (c)(2) Failure to make record                2,500             5,000
     available......................
239.303 Electronic recordkeeping:
    (a) Insufficient limits or                   5,500            10,000
     controls on accessibility to
     records........................
    (b) Missing terminal............             2,500             5,000
    (c) Inability of railroad to                 2,500             5,000
     produce information in a usable
     format for immediate review....
    (d) Failure by railroad to                   2,500             5,000
     designate an authorized
     representative.................
     (e) Failure to make record                  2,500             5,000
     available......................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  U.S.C. 21301, 21304, and 49 CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 239. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

[[Page 57653]]

 
\3\ This section also requires each railroad (subject to part 239) to
  comply with the adopted emergency preparedness plan. As the severity
  of a violation for a railroad's failure to comply with an emergency
  preparedness plan varies depending upon the provision with which the
  railroad failed to comply, please see the guideline penalty for the
  particular section of the regulation requiring that provision.

PART 240--[AMENDED]

    52. The authority citation for part 240 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49.
    53. Appendix A to part 240 is revised to read as follows:

         Appendix A to Part 240--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
Subpart B--Component Elements of the
        Certification Process
 
240.101 Program failures:
    (a) Failure to have program.....           $19,500           $25,000
    (b) Program that fails to                    9,500            17,000
     address a subject..............
240.103 Failure to:
    (a) Follow Appendix B...........             2,500             5,000
    (d) Resubmit, when directed by               2,500             5,000
     FRA............................
240.104 Allowing uncertified person             13,000            20,500
 to operate nontraditional
 locomotives........................
240.105 Failure to have or execute               9,500            17,000
 adequate procedure for selection of
 supervisors........................
240.107 Classes of service:
    (a) Failure to designate classes             9,500            17,000
     of service.....................
240.109 Limitations on considering
 prior conduct records:
    (a) Failure to have procedure                9,500            17,000
     for determining eligibility....
    (e) Considering excluded data...             9,500            17,000
    (f), (g) Failure to provide                  9,500            17,000
     timely review opportunity......
240.111 Furnishing motor vehicle
 records:
    (a) Failure to action required               2,500             5,000
     to make information available..
    (b) Failure to request:.........
        (1) Local record............             2,500             5,000
        (2) NDR record..............             2,500             5,000
    (f) Failure to request                       2,500             5,000
     additional record..............
    (g) Failure to notify of absence             2,500             5,000
     of license.....................
    (h) Failure to submit request in             2,500             5,000
     timely manner..................
    (i) Failure to report within 48              2,500             5,000
     hours or railroad taking
     certification action for not
     reporting earlier than 48 hours
240.113 Furnishing prior employment
 information:
    (a) Failure to take action                   2,500             5,000
     required to make information
     available......................
    (b) Failure to request record...             2,500             5,000
240.115 Criteria for considering
 prior motor vehicle conduct:
    (b) Considering excluded data...             9,500            17,000
     (c) Failure to:
         (1) Consider data..........            19,500            25,000
         (3)-(4) Properly act in                 5,500            10,000
         response to data...........
240.117 Consideration of operational
 rules compliance records:
    (a) Failure to have program and             19,500            25,000
     procedures.....................
    (b)-(j) Failure to have adequate             9,500            17,000
     program or procedure...........
240.119 Consideration of substance
 abuse/rules compliance records:
    (a) Failure to have program and             19,500            25,000
     procedures.....................
    (b)-(e) Failure to have adequate             9,500            17,000
     program or procedure...........
240.121 Failure to have adequate                 9,500            17,000
 procedure for determining acuity...
    (f) Failure of engineer to                   9,500            17,000
     notify.........................
240.123 Failure to have:
    (b) Adequate procedures for                  9,500            17,000
     continuing education...........
    (c) Adequate procedures for                  9,500            17,000
     training new engineers.........
240.125 Failure to have:
    (a) Adequate procedures for                  9,500            17,000
     testing knowledge..............
    (d) Adequate procedures for                  9,500            17,000
     documenting testing............
240.127 Failure to have:
    (a) Adequate procedures for                  9,500            17,000
     evaluating skill performance...
    (c) Adequate procedures for                  9,500            17,000
     documenting skills testing.....
240.129 Failure to have:
    (a)-(b) Adequate procedures for              9,500            17,000
     monitoring performance.........
  Subpart C--Implementation of the
        Certification Process
 
240.201 Schedule for implementation:
    (a) Failure to select                        2,500             5,000
     supervisors by specified date..
    (c) Failure to issue certificate             2,500             5,000
     to engineer....................
    (d) Allowing uncertified person             19,500            25,000
     to operate.....................
    (e)-(g) Certifying without                   9,500            17,000
     complying with subpart C.......
    (h)-(i) Failure to issue                     2,500             5,000
     certificate to engineer........
240.203

[[Page 57654]]

 
    (a) Designating a person as a
     supervisor without determining
     that
        (1) Person knows and                     9,500            17,000
         understands this part......
        (2) Person can test and                 19,500            25,000
         evaluate engineers.........
        (3) Person has experience to             9,500            17,000
         prescribe remedies.........
    (b) Certifying a person without
     determining that:
        (1) Person meets the                    19,500            25,000
         eligibility criteria.......
        (2) Person meets the medical             9,500            17,000
         criteria...................
        (3) Person has demonstrated              9,500            17,000
         knowledge..................
        (4) Person has demonstrated              9,500            17,000
         skills.....................
    (c) Certifying a person without
     determining that:
        (1) Person has completed                 9,500            17,000
         training program...........
        (2) Person meets the                     9,500            17,000
         eligibility criteria.......
        (3) Time has elapsed........             9,500            17,000
240.205 Procedures for determining
 eligibility based on prior safety
 conduct:
    (a) Selecting person lacking                19,500            25,000
     eligibility....................
    (d) Failure to have basis for                9,500            17,000
     taking action..................
240.207 Ineligibility based on
 medical condition:
    (a) Selecting person lacking                13,000            20,500
     proper acuity..................
    (b) Failure to have basis for                2,500             5,000
     finding of proper acuity.......
    (c) Acuity examinations                      2,500             5,000
     performed by unauthorized
     person.........................
    (d) Failure to note need for                 2,500             5,000
     device to achieve acuity.......
    (e) Failure to use device needed             2,500             5,000
     for proper acuity..............
240.209 Demonstrating knowledge:
    (b) Failure to properly                     13,000            20,500
     determine knowledge............
    (c) Improper test procedure.....             9,500            17,000
    (d) Failure to document test                 2,500             5,000
     results........................
    (e) Allowing person to operate               9,500            17,000
     despite test failure...........
240.211 Demonstrating skills:
    (b) Failure to properly                      9,500            17,000
     determine knowledge............
    (c) Improper test procedure.....             5,500            10,000
    (d) Failure to document test                 2,500             5,000
     results........................
    (e) Allowing person to operate               9,500            17,000
     despite test failure...........
240.213 Completion of approved
 training program:
    (a) Failure to properly                      9,500            17,000
     determine......................
    (b) Failure to document                      5,500            10,000
     successful program completion..
240.215 Supporting information:
    (a), (f)-(h) Failure to have a               2,500             5,000
     record.........................
    (b) Failure to have complete                 2,500             5,000
     record.........................
        (i) Falsification of record.  ................            25,000
240.217 Time limits for making
 determinations:
    (a), (c) Exceeding time limit...             5,500            10,000
240.219 Denial of certification:
    (a) Failure to notify or provide             5,500            10,000
     opportunity for comment........
    (c) Failure to notify, provide               5,500            10,000
     data, or untimely notification.
240.221 Identification of persons:
    (a)-(c) Failure to have a record             5,500            10,000
    (d) Failure to update a record..             5,500            10,000
    (e)-(f) Failure to make a record             2,500             5,000
     available......................
240.223 Certificate criteria:
    (a) Improper certificate........             2,500             5,000
    (b) Failure to designate those               2,500             5,000
     with signatory authority.......
    (d) Falsification of certificate  ................            25,000
240.225 Railroad relying on
 determination of another:
    (a) Failure to address in                   19,500            25,000
     program or failure to require
     newly hired engineer to take
     entire training program........
        (2) Reliance on wrong class              5,500            10,000
         of service.................
        (3) Failure to familiarize               5,500            10,000
         person with new operational
         territory..................
        (4) Failure to determine                 5,500            10,000
         knowledge..................
        (5) Failure to determine                 5,500            10,000
         performance skills.........
240.227 Railroad relying on
 requirements of a different
 country:
    (a) Joint operator reliance:
        (1) On person not employed..             2,500             5,000
        (2) On person who fails to               2,500             5,000
         meet Canadian requirements.
    (b) Canadian railroad reliance:
        (1) On person not employed..             2,500             5,000
        (2) On person who fails to               2,500             5,000
         meet Canadian requirements.
240.229 Requirements for joint
 operations territory:
    (a) Allowing uncertified person              5,500            10,000
     to operate.....................
    (b) Certifying without making               13,000            20,500
     determinations or relying on
     another railroad...............
    (c) Failure of
        (1) Controlling railroad                19,500            25,000
         certifying without
         determining certification
         status, knowledge, skills,
         or familiarity with
         physical characteristics...

[[Page 57655]]

 
        (2) Employing railroad to               19,500            25,000
         determine person's
         certified and qualified
         status for controlling
         railroad...................
        (3) Person to notify                    19,500            25,000
         employing railroad of lack
         of qualifications..........
    (d) Failure to provide qualified             5,500            10,000
     person.........................
240.231 Persons qualified on
 physical characteristics in other
 than joint operations:
    (a) Person unqualified, no                  19,500            25,000
     exception applies or railroad
     does not adequately address in
     program........................
    (b) Failure to have a pilot:
        (1) For engineer who has                19,500            25,000
         never been qualified.......
        (2) For engineer previously              9,500            17,000
         qualified..................
 
  Subpart D--Administration of the
       Certification Programs
 
240.301 Failure to have system for               5,500            10,000
 certificate replacement............
240.303 Monitoring operations:
    (a) Failure to have program.....            19,500            25,000
    (b) Failure to observe each                  2,500             5,000
     person annually................
    (c) Failure to test each person              2,500             5,000
     annually.......................
    (d) Failure to test properly....             2,500             5,000
240.305 Prohibited conduct:
    (a) Unlawful:
        (1) Passing of stop signal..            19,500            25,000
        (2) Control of speed........            19,500            25,000
        (3) Brake tests.............            19,500            25,000
        (4) Occupancy of main track.            19,500            25,000
        (5) Tampering or operation              19,500            25,000
         with disabled safety device
        (6) Supervisor, pilot, or               19,500            25,000
         instructor fails to take
         appropriate action.........
    (b) Failure of engineer to:
        (1) Carry certificate.......             2,500             5,000
        (2) Display certificate when             2,500             5,000
         requested..................
    (c) Failure of engineer to                  19,500            25,000
     notify railroad of limitations
     or railroad requiring engineer
     to exceed limitations..........
    (d) Failure of engineer to                  19,500            25,000
     notify railroad of denial or
     revocation.....................
240.307 Revocation of certification:
    (a) Failure to withdraw person              13,000            20,500
     from service...................
    (b) Failure to notify, provide               5,500            10,000
     hearing opportunity, or
     untimely procedures............
    (c)-(h) Failure of railroad to               5,500            10,000
     comply with hearing or waiver
     procedures.....................
    (j) Failure of railroad to make              5,500            10,000
     record.........................
    (k) Failure of railroad to                  13,000            20,500
     conduct reasonable inquiry or
     make good faith determination..
240.309 Oversight Responsibility
 Report:
    (a) Failure to report or to                  2,500             5,000
     report on time.................
    (b)-(h) Incomplete or inaccurate             5,500            10,000
     report.........................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 240. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 241--[AMENDED]

    54. The authority citation for part 241 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311; 28 
U.S.C. 2461, note; 49 CFR 1.49.

    55. Appendix B to part 241 is revised to read as follows:

         Appendix B to Part 241--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
241.9:
    (a) Requiring or permitting                 $9,500           $17,000
     extraterritorial dispatching of
     a railroad operation...........
    (c) Failing to notify FRA about              5,500            10,000
     extraterritorial dispatching of
     a railroad operation in an
     emergency situation............
241.11 Conducting a railroad
 operation that is
 extraterritorially dispatched:
    (a)(1) Generally................             9,500            17,000
    (c) In an emergency situation--              2,500             5,000
     where dispatching railroad
     fails to notify FRA of the
     extraterritorial dispatching...
241.13 Requiring or permitting track
 to be used for the conduct of a
 railroad operation that is
 extraterritorially dispatched:
    (a)(1) Generally................             9,500            17,000

[[Page 57656]]

 
    (c) In an emergency situation--              2,500             5,000
     where dispatching railroad
     fails to notify FRA of the
     extraterritorial dispatching...
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  U.S.C. 21301, 21304 and 49 CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 241. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on August 23, 2010.
Karen J. Rae,
Deputy Administrator.
[FR Doc. 2010-22141 Filed 9-20-10; 8:45 am]
BILLING CODE 4910-06-P