90 FR 124 pgs. 28612-28622 - Amendments to the Federal Railroad Administration's Procedures for Service of Documents in Railroad Safety Enforcement Proceedings
Type: PRORULEVolume: 90Number: 124Pages: 28612 - 28622
Pages: 28612, 28613, 28614, 28615, 28616, 28617, 28618, 28619, 28620, 28621, 28622Docket number: [Docket No. FRA-2022-0085]
FR document: [FR Doc. 2025-12124 Filed 6-27-25; 4:15 pm]
Agency: Transportation Department
Sub Agency: Federal Railroad Administration
Official PDF Version: PDF Version
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2022-0085]
RIN 2130-AC93
Amendments to the Federal Railroad Administration's Procedures for Service of Documents in Railroad Safety Enforcement Proceedings
AGENCY:
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
ACTION:
Notice of proposed rulemaking (NPRM).
SUMMARY:
This proposed rule would update FRA's railroad safety enforcement procedures and rules of practice to require electronic service of documents. This proposed rule would also establish procedures to implement new authority regarding civil penalties for alleged Federal railroad safety violations. Finally, this proposal would make other necessary administrative updates, such as correcting addresses.
DATES:
Comments on the proposed rule must be received by September 2, 2025. FRA may consider comments received after that date, but only to the extent practicable.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2022-0085 may be submitted by going to https://www.regulations.gov and following the online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket number (FRA-2022-0085), and Regulatory Identification Number (RIN) for this rulemaking (2130-AC93). All comments received will be posted without change to https://www.regulations.gov; this includes any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov and follow the online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT:
Veronica Chittim, Senior Attorney, Office of Safety Law, Office of the Chief Counsel, FRA, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone 202-480-3410), veronica.chittim@dot.gov; or Lucinda Henriksen, Senior Advisor, Office of Railroad Safety, FRA (telephone 202-657-2842), lucinda.henriksen@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Consistent with the deregulatory agenda of President Donald J. Trump and Secretary of Transportation Sean P. Duffy, which seeks to unleash America's economic prosperity without compromising transportation safety, and as described in more detail below, this proposed rule would update FRA's railroad safety enforcement procedures and rules of practice to require electronic service of documents; establish procedures to implement new authority regarding civil penalties for alleged Federal railroad safety violations; and make other necessary administrative updates, such as correcting addresses.
In 1977, FRA established 49 CFR part 209, which set out certain procedures for carrying out FRA's safety enforcement mission. 42 FR 56742 (Oct. 28, 1977). Part 209 currently provides procedures for the assessment of civil penalties pursuant to the Federal hazardous materials (hazmat) transportation safety laws, 49 U.S.C. chapter 51, in subpart B; compliance orders pursuant to 49 U.S.C. 5121(a) and/or 20111(b) in subpart C; and administrative proceedings relating to the determination of an individual's fitness for performing safety-sensitive functions under 49 U.S.C. 20111(c) (individual liability) in subpart D. Subpart A includes general provisions that apply to each of these subparts. 1
Footnotes:
1 ?Part 209 also includes subpart E, which sets forth provisions regarding the submission of remedial action reports by railroads, and subpart F, which deals with the review of rail routing decisions.
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Part 209 divides procedures for the service of documents into two sections, with §?209.7 concerning the service of subpoenas, and §?209.5 concerning the service of all other documents in proceedings governed by part 209. Id. at 56743. Among other things, §?209.5 regulates the service of documents in hazmat civil penalty assessments, compliance orders, and individual liability proceedings. While appendix A to part 209 details the procedures for non-hazmat civil penalty assessments, those procedures do not include any specific requirements for how documents may be transmitted to respondents.
FRA has updated part 209's service provisions only once, in 1989, to prescribe procedures for disqualifying railroad employees from performing safety-sensitive functions and permit service by first-class mail of motions and requests for admissions. 54 FR 42894 (Oct. 18, 1989). To account for technological changes that have occurred since then, conform FRA's procedures for hazmat and non-hazmat assessments, align FRA's service provisions with those at other agencies, 2 and help agency operations to continue, without interruption, during emergencies, this proposed rule would modernize part 209's provisions and other FRA procedures regarding service to require service through electronic methods of transmission. By serving documents electronically, parties to proceedings under part 209 can expedite document delivery and reduce printing and mailing costs.
Footnotes:
2 ? See, e.g., 49 CFR 535.9(b)(6)(ii) (providing that the National Highway Transportation Safety Administration can serve Notice of Violations with respect to its Medium- and Heavy-Duty Vehicle Fuel Efficiency Program by electronic mail); 14 CFR 302.7 (allowing for service in aviation economic proceedings before DOT to be performed by electronic mail); 18 CFR 385.2010(g) (requiring the Federal Energy Regulatory Commission to serve all documents "by electronic means, unless such means are impractical, in which case service shall be made by United States mail").
This proposal would also establish procedures in part 209 to implement new authority regarding civil penalties provided in section 22418 of the Infrastructure Investment and Jobs Act, Public Law 117-58 (Nov. 15, 2021), codified at 49 U.S.C. 21301(a). This statutory authority allows FRA to administratively resolve civil penalty assessments alleging violations under FRA's railroad safety authority.
Congress provided FRA with the authority to resolve these civil penalty matters with an administrative hearing, which: (1) aligns FRA's authority and procedures with those of other DOT modal administrations, such as the Federal Aviation Administration and the Pipeline and Hazardous Materials Safety Administration ( see, e.g., 49 U.S.C. 5123(b) and 46301(c)(1)); (2) creates procedural and economic efficiencies in civil penalty enforcement matters under the railroad safety laws that are not otherwise paid or compromised; (3) ensures due process; (4) encourages compliance and responsiveness from regulated entities; (5) allows for the composition of an administrative record in the event of litigation; and (6) promotes safety. To implement this authority, this proposed rule would establish administrative procedures similar to those for hazmat cases (49 CFR part 209, subpart B), in a new subpart G of part 209.
This NPRM would also make miscellaneous updates to web and email addresses to ensure they are accurate. Finally, the proposed rule would adjust language in FRA regulations to ensure information gets to the agency subject matter expert in the relevant technical discipline.
II. Section-by-Section Analysis
Part 209
§?209.1 Purpose
In §?209.1, FRA proposes to update the relevant citations regarding FRA's rail safety and hazardous materials authority. The provisions previously found in 49 CFR 1.49 are now found in 49 CFR 1.88 and 1.89. FRA proposes to revise §?209.1(a) and (b) and remove (c) entirely, as the citations in §?209.1 are obsolete.
§?209.5 Service
This proposal would restructure 49 CFR 209.5, to update paragraph (a) to require the service of documents through electronic methods of delivery, such as email, whenever possible. FRA would expect all documents to be served by electronic means, unless such means are impossible or otherwise unavailable. FRA proposes that only in circumstances where electronic methods of delivery are impossible, would service be permitted by U.S. mail or in person. FRA proposes that service will not be effective if the party making service receives indication that the attempted service did not reach the person to be served ( e.g., an electronic transmission auto-reply message states the electronic communication was undeliverable to the recipient). This proposed rule would also reformat paragraph (a) for clarity and to align with the proposed updated paragraph (c), which details when service is effective.
FRA proposes to update paragraph (c) to make clear when service will be deemed completed. This paragraph expands on existing paragraph (c) to clearly delineate when service as listed in paragraph (a) becomes effective. FRA proposes to require that the date of service by an electronic method of transmission is the date of transmission. In the event service is not made by an electronic method of transmission and service is made by physical mail, FRA proposes that the date of service would be the postmark date.
FRA proposes to move the language in existing paragraph (e) to paragraph (d). FRA would add language in a revised paragraph (e) to address how dates for service would be determined. This proposed language is consistent with the language used in parts 240 and 242, providing that when service must be effected within a particular timeframe, the date certain when service must be completed will be determined in accordance with the computation of time provisions in Rule 6 of the Federal Rules of Civil Procedure (FRCP), as amended. The "as amended" after the reference to the FRCP would allow for the most current version of the FRCP to be applied.
§?209.6 Requests for Admission
In §?209.6(a), FRA proposes to add subpart G to the list of subparts to which this section applies.
§?209.7 Subpoenas; Witness Fees
This NPRM would amend 49 CFR 209.7, which governs subpoenas issued under part 209. In §?209.7(a) and (j), FRA proposes to add subpart G to the list of subparts to which this section applies. FRA would modify paragraphs (c) and (d), which discuss methods of service of subpoenas, to require service via the same method of electronic transmission as the proposed amended §?209.5 provides. FRA also proposes to remove the methods of in-person service or service by mail for subpoenas, except where electronic service is impossible.
§?209.8 Depositions in Formal Proceedings
In §?209.8(a), FRA proposes to add subpart G to the list of subparts to which this section applies.
§?209.9 Filing
[top] This proposed rule would amend §?209.9 to replace the physical mailing address for the Assistant Chief Counsel for Safety with an email address ( FRALegal@dot.gov ) to accommodate electronic submissions. FRA would also add subpart G to the list of subparts to which this section applies. Finally, to
§?209.13 Consolidation
In §?209.13, FRA proposes to add subpart G to the list of subparts to which this section applies.
§?209.15 Rules of Evidence
In §?209.15, FRA would add subpart G to the list of subparts to which this section applies.
§?209.105 Notice of Probable Violation
FRA proposes to update the web address in §?209.105(a) from www.fra.dot.gov to https://railroads.dot.gov/. FRA also proposes to update the references from "Chief Counsel" to "Office of the Chief Counsel."
§?209.109 Payment of Penalty; Compromise
FRA proposes to amend §?209.109(a) to update the mailing and overnight delivery addresses for payments. FRA would also correct a typographical error in §?209.109(b), updating the word "contracting" to "contacting," and update the reference to the "Office of the Chief Counsel" rather than the "Chief Counsel."
§?209.303 Coverage
FRA proposes to amend §?209.303(c)(3) to account for regulations issued since the provision was last revised in 2009, and a comparable change was made. 3 FRA proposes to change the language from "parts 213 through 241 of this title" to "parts 213 through 299 of this title." This change would now expressly include regulations found in additional parts, such as parts 242, 243, 245, 246, 270, 271, and 272.
Footnotes:
3 ?See 74 FR 23329, 23331 ("The existing provision only refers to parts 213 through 236. Because parts 238 through 241 have been added to the Code of Federal Regulations since the last amendment of this provision, it is necessary to make this technical amendment for accuracy and clarity").
§?209.335 Penalties
To avoid the need to update this section every time the civil penalty amounts are adjusted for inflation, FRA proposes to change §?209.335(a) and (b) by replacing references to specific penalty amounts with general references to the minimum civil monetary penalty and ordinary maximum civil monetary penalty. FRA would add language to this section referring readers to 49 CFR part 209, appendix A, where FRA will continue to specify statutorily provided civil penalty amounts updated for inflation.
§?209.405 Reporting of Remedial Actions
This proposed rule would amend §?209.405(a)(3) to require railroads to submit a required remedial action report electronically via email to the FRA inspector, instead of by first-class mail.
§?209.407 Delayed Reports
This proposed rule would amend §?209.407(a)(2) to require railroads to submit an explanation of a delayed remedial action report electronically to the FRA inspector, instead of by first-class mail.
Part 209, Subpart G-Enforcement, Hearing, and Appeal Procedures for Rail Safety Violations
FRA proposes to amend 49 CFR part 209 to add a new subpart G, Enforcement, Hearing, and Appeal Procedures for Rail Safety Violations. The proposed language mirrors the procedures in part 209, subpart B, Hazardous Materials, but would apply the procedures to railroad safety violations, rather than hazardous materials violations. As described in the background section above, these proposed procedures would implement new statutory authority in 49 U.S.C. 21301(a) regarding railroad safety civil penalty assessments.
§?209.601 Civil Penalties Generally
The proposed language in section 209.601 would describe the purpose of subpart G generally, as prescribing rules of procedure for the assessment of civil penalties per the Federal railroad safety laws, 49 U.S.C. chapters 201 through 213.
§?209.603 Minimum and Maximum Penalties
Section 209.603 would refer to the minimum and maximum civil penalties for railroad safety violations. These penalties are set by statute (49 U.S.C. ch. 213) and are subject to annual inflation adjustments.
§?209.605 Demand Letter
Section 209.605 would outline the required content for each demand letter.
§?209.607 Reply
Section 209.607 is proposed to contain procedures for a respondent's reply to a demand letter, to include payment, informal response, and hearing options.
§?209.609 Payment of Penalty; Compromise
This section would contain instructions for making a payment and allowing for compromise of a civil penalty assessment.
§?209.611 Informal Response and Assessment
Section 209.611 proposes to explain the process for how a respondent may respond informally to a demand letter.
§?209.613 Request for Hearing
Section 209.613 proposes to explain the process for how a respondent may request a hearing in response to a demand letter.
§?209.615 Hearing
Section 209.615 would contain the hearing procedures should a respondent request a hearing in response to a demand letter.
§?209.617 Presiding Officer's Decision
Section 209.617 would contain the procedures for the presiding officer's decision following a hearing.
§?209.619 Assessment Considerations
FRA proposes section 209.619 to provide the list of considerations when assessing a civil penalty, as provided in 49 U.S.C. 21301(a)(3).
§?209.621 Appeal
Section 209.621 would describe the procedures for appealing the presiding officer's decision or order issued under proposed §?209.617.
Part 209, Appendix A Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws
This proposed rule would amend 49 CFR part 209, appendix A, to incorporate a variety of minor administrative changes. For example, FRA would update previous references in the appendix from "regions" to "districts" to ensure information gets to the agency subject matter expert in the relevant technical discipline. FRA would also update this appendix for outdated web addresses and citations, and make other miscellaneous revisions, including updating citations for DOT's delegations to FRA. FRA also proposes to add language discussing the new proposed procedures in subpart G of part 209 for resolving railroad safety civil penalty assessments.
Part 209, Appendix B Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
[top] FRA proposes to amend 49 CFR part 209, appendix B, to update the web
Part 209, Appendix C FRA's Policy Statement Concerning Small Entities
FRA proposes to amend 49 CFR part 209, appendix C, to update the web address from www.fra.dot.gov to https://railroads.dot.gov/. FRA proposes to adjust language under the heading "Small Entity Communication Policy" to ensure information gets to the agency subject matter expert in the relevant technical discipline. Finally, FRA proposes to amend language under the heading "Small Entity Enforcement Policy" to remove the reference to the Safety Assurance and Compliance Program and to clarify how FRA assists small entities.
III. Regulatory Impact and Notices
A. Executive Orders (E.O.) 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures
FRA has evaluated this proposed rule in accordance with E.O. 12866, Regulatory Planning and Review (58 FR 51735, Oct. 4, 1993), and DOT Order 2100.6B, Policies and Procedures for Rulemaking (Mar. 10, 2025). The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this NPRM is not a significant regulatory action under section 3(f) of E.O. 12866.
This proposed rule would allow electronic methods of serving documents, such as email, whenever possible. This would expedite the speed at which documents are delivered while also reducing costs that would otherwise exist from having to physically print and mail documents. Additionally, this proposed rule would make miscellaneous changes such as reflecting updated web and email addresses. FRA expects this proposed rule would reduce burdens on regulated entities. Moreover, this proposed rule would provide some qualitative benefits to regulated entities and the U.S. government, by clarifying, simplifying, and updating the language of part 209.
B. E.O. 14192 (Unleashing Prosperity Through Deregulation)
E.O. 14192, Unleashing Prosperity Through Deregulation (90 FR 9065, Jan. 31, 2025), requires that for "each new [E.O. 14192 regulatory action] issued, at least ten prior regulations be identified for elimination."? 4 Implementation guidance for E.O. 14192 issued by OMB (Memorandum M-25-20, Mar. 26, 2025) defines two different types of E.O. 14192 actions: an E.O. 14192 deregulatory action, and an E.O. 14192 regulatory action. 5
Footnotes:
4 ?Executive Office of the President. Executive Order 14192 of January 31, 2025. Unleashing Prosperity Through Deregulation. 90 FR 9065-9067. Feb. 6, 2025.
5 ?Executive Office of the President. Office of Management and Budget. Guidance Implementing Section 3 of Executive Order 14192, Titled "Unleashing Prosperity Through Deregulation. " Memorandum M-25-20. Mar. 26, 2025.
An E.O. 14192 deregulatory action is defined as "an action that has been finalized and has total costs less than zero." This proposed rule is expected to have total costs less than zero, and therefore it would be considered an E.O. 14192 deregulatory action upon issuance of a final rule. While FRA affirms that each amendment proposed in this NPRM has a cost that is negligible or "less than zero" consistent with E.O. 14192, FRA still requests comment on the extent of the cost savings for the changes proposed in this NPRM.
C. Regulatory Flexibility Act and E.O. 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 6 requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. The term small entities comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 (5 U.S.C. 601(6)).
Footnotes:
6 ?Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
No regulatory flexibility analysis is required, however, if the head of an Agency or an appropriate designee certifies that the rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would offer clarity, and would expedite the speed at which documents are delivered while also reducing costs that would otherwise exist from having to physically print and mail documents, that could result in some benefits. By extending this regulatory relief, many regulated entities, including small entities, would experience benefits. Consequently, FRA certifies that the proposed action would not have a significant economic impact on a substantial number of small entities.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FRA wants to assist small entities in understanding this proposed rule so they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT .
D. Paperwork Reduction Act
There is no new collection of information requirements contained in this proposed rule, and in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., therefore, an information collection submission to OMB is not required. The recordkeeping and reporting requirements already contained in part 209 became effective when they were approved by OMB in 2022. The OMB approval numbers are OMB No. 2130-0529, which expires on July 31, 2025, and OMB No. 2130-0509, which expires on November 30, 2025.
E. Environmental Assessment
FRA has analyzed this proposed rule for the purposes of the National Environmental Policy Act of 1969 (NEPA). In accordance with 42 U.S.C. 4336 and DOT NEPA Order 5610.1C, FRA has determined that this proposed rule is categorically excluded pursuant to 23 CFR 771.118(c)(4), "[p]lanning and administrative activities that do not involve or lead directly to construction, such as: [p]romulgation of rules, regulations, and directives." This proposed rulemaking is not anticipated to result in any environmental impacts, and there are no unusual or extraordinary circumstances present in connection with this rulemaking.
F. Federalism Implications
[top] This proposed rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Thus, in accordance with E.O. 13132, Federalism (64 FR 43255, Aug. 10, 1999), preparation of a Federalism Assessment is not warranted.
G. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure, in the aggregate, of $100,000,000 or more, adjusted for inflation, in any one year by State, local, or Indian Tribal governments, or the private sector. Thus, consistent with section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1532), FRA is not required to prepare a written statement detailing the effect of such an expenditure.
H. Energy Impact
E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare a Statement of Energy Effects for any "significant energy action." FRA has evaluated this proposed rule in accordance with E.O. 13211 and determined that this proposed rule is not a "significant energy action" within the meaning of E.O. 13211.
I. E.O. 13175 (Tribal Consultation)
FRA has evaluated this proposed rule in accordance with the principles and criteria contained in E.O. 13175, Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2000). The proposed rule would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal laws. Therefore, the funding and consultation requirements of E.O. 13175 do not apply, and a tribal summary impact statement is not required.
J. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the U.S. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the U.S.
K. Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to http://www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.transportation.gov/privacy. To facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.
L. Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rulemaking can be found in the Abstract section of the Department's Unified Agenda entry for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2130-AC93.
List of Subjects
49 CFR Part 209
Administrative practice and procedure, Hazardous materials transportation, Penalties, Railroad safety, Reporting and recordkeeping requirements.
The Proposed Rule
In consideration of the foregoing, FRA proposes to amend part 209 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:
PART 209-RAILROAD SAFETY ENFORCEMENT PROCEDURES
1. The authority citation for part 209 continues to read as follows:
Authority:
49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461 note; and 49 CFR 1.89.
2. Revise §?209.1 to read as follows:
§?209.1 Purpose.
Appendix A to this part contains a statement of agency policy concerning enforcement of those laws. This part describes certain procedures employed by the Federal Railroad Administration in its enforcement of statutes and regulations related to railroad safety. By delegation from the Secretary of Transportation, the Administrator has responsibility for:
(a) Enforcement of subchapters B and C of chapter I, subtitle B, title 49, CFR, and 49 U.S.C. ch. 51 and uncodified provisions, with respect to the transportation or shipment of hazardous materials by railroad (49 CFR 1.89(j)); and
(b) Exercise of the authority vested in the Secretary by 49 U.S.C. Subtitle V, Part A (Safety, chapter 201 et seq. ) and uncodified provisions of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A, 122 Stat. 4848) (49 CFR 1.89(a), (b)).
3. Revise §?209.5 to read as follows:
§?209.5 Service.
(a) Each order, notice, or other document required to be served under ch. II of subtitle B of title 49 of the Code of Federal Regulations must be served by the following method:
(1) Any electronic method of delivery so long as there was no indication received that any transmission had failed; or
(2) In the event an electronic method of delivery is impossible, service may be made by U.S. mail.
(b) Service upon a person's duly authorized representative constitutes service upon that person.
(c) The date of service will be:
(1) If sent by an electronic method of delivery, the date of electronic transmission to the party to be served.
(2) In the event an electronic method of delivery is impossible, and mailing is used, the postmark date. An official U.S. Postal Service receipt from a registered or certified mailing constitutes prima facie evidence of service.
(d) Each pleading must be accompanied by a certificate of service specifying how and when service was made.
(e) When service must occur within a particular timeframe, the date certain when service must be completed will be determined in accordance with the computation of time provisions in Rule 6 of the Federal Rules of Civil Procedure, as amended.
4. Revise §?209.6(a) to read as follows:
§?209.6 Requests for admission.
(a) A party to any proceeding under subpart B, C, D, or G of this part may serve upon any other party written requests for the admission of the genuineness of any relevant documents identified within the request, the truth of any relevant matters of fact, and the application of law to the facts as set forth in the request.
5. Amend §?209.7 by revising paragraphs (a), (c), (d)(1), (d)(2), and (j) to read as follows:
§?209.7 Subpoenas; witness fees.
[top] (a) The Chief Counsel may issue a subpoena on the Chief Counsel's own initiative in any matter related to enforcement of the railroad safety laws. However, where a proceeding under
(c) A subpoena may be served by any electronic method of delivery so long as there was no indication received that any transmission had failed. In the event an electronic method of delivery is impossible, service may be made by U.S. mail or in person.
(d) * * *
(1) To a natural person by:
(i) Any electronic method of delivery so long as there was no indication received that the transmission failed; or
(ii) Any method whereby actual notice of the issuance and content is given (and the fees are made available) prior to the return date.
(2) To an entity other than a natural person by:
(i) Any electronic method of delivery so long as there was no indication received that the transmission failed; or
(ii) Any method whereby actual notice of the issuance and content is given (and the fees are made available) to a registered agent for service or to any officer, director, or agent in charge of any office of the person, prior to the return date.
(j) Attendance of any FRA employee engaged in an investigation which gave rise to a proceeding under subpart B, C, or G of this part for the purpose of eliciting factual testimony may be assured by filing a request with the Chief Counsel at least fifteen (15) days before the date of the hearing. The request must indicate the present intent of the requesting person to call the employee as a witness and state generally why the witness will be required.
6. Revise §?209.8(a) to read as follows:
§?209.8 Depositions in formal proceedings.
(a) Any party to a proceeding under subpart B, C, D, or G of this part may take the testimony of any person, including a party, by deposition upon oral examination on order of the presiding officer following the granting of a motion under paragraph (b) of this section. Depositions may be taken before any disinterested person who is authorized by law to administer oaths. The attendance of witnesses may be compelled by subpoena as provided in §?209.7 and, for proceedings under subpart D of this part, §?209.315.
7. Revise §?209.9 to read as follows:
§?209.9 Filing.
All materials filed with FRA or any FRA officer in connection with a proceeding under subpart B, C, D, or G of this part shall be submitted to the Assistant Chief Counsel for Safety, Office of the Chief Counsel, Federal Railroad Administration, to FRALegal@dot.gov, except that documents produced in accordance with a subpoena shall be presented at the place and time specified by the subpoena.
8. Revise §?209.13 to read as follows:
§?209.13 Consolidation.
At the time a matter is set for hearing under subpart B, C, D, or G of this part, the Chief Counsel may consolidate the matter with any similar matter(s) pending against the same respondent or with any related matter(s) pending against other respondent(s) under the same subpart. However, on certification by the presiding officer that a consolidated proceeding is unmanageable or otherwise undesirable, the Chief Counsel will rescind or modify the consolidation.
9. Revise §?209.15 to read as follows:
§?209.15 Rules of evidence.
The Federal Rules of Evidence for United States Courts and Magistrates shall be employed as general guidelines for proceedings under subparts B, C, D, and G of this part. However, all relevant and material evidence shall be received into the record.
10. Revise §?209.105(a) to read as follows:
§?209.105 Notice of probable violation.
(a) FRA, through the Office of the Chief Counsel, begins a civil penalty proceeding by serving a notice of probable violation on a person charging him or her with having violated one or more provisions of subchapter A or C of chapter I, subtitle B of this title. FRA's website at https://railroads.dot.gov/ contains guidelines used by the Office of the Chief Counsel in making initial penalty assessments.
11. Revise §?209.109 to read as follows:
§?209.109 Payment of penalty; compromise.
(a) Payment of a civil penalty may be made by credit card, certified check, money order, or wire transfer. Payment by credit card must be made via the internet at https://www.pay.gov/paygov/. Instructions for online payment are found on the website. Payments made by certified check or money order should be made payable to the Federal Railroad Administration and sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM 181, P.O. Box 25082, Oklahoma City, OK 73125. Overnight express payments may be sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM 181, 6500 South MacArthur Blvd., Oklahoma City, OK 73169.
(b) At any time before an order assessing a penalty is referred to the Attorney General for collection, the respondent may offer to compromise for a specific amount by contacting the Office of the Chief Counsel.
12. Amend §?209.303 by revising paragraph (c)(3) to read as follows:
§?209.303 Coverage.
(c) * * *
(3) Are in a position to direct the commission of violations of any of the requirements of parts 213 through 299 of this title, or any of the requirements of 49 U.S.C. ch. 51, or any regulation or order prescribed thereunder.
13. Revise §?209.335 to read as follows:
§?209.335 Penalties.
(a) Any individual who violates §?209.331(c) or §?209.333(a) may be permanently disqualified from performing the safety-sensitive functions described in §?209.303. Any individual who willfully violates §?209.331(c) or §?209.333(a) may also be assessed a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. See 49 CFR part 209, appendix A.
(b) Any railroad that violates §?209.331(a) or (b) or §?209.333(b) may be assessed a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. See 49 CFR part 209, appendix A.
(c) Each day a violation continues shall constitute a separate offense.
14. Revise §?209.405(a)(3) to read as follows:
§?209.405 Reporting of remedial actions.
(a) * * *
(3) Submission of Form FRA F 6180.96. The railroad must return the form via email to the FRA Safety Inspector whose name and email address appear on the form.
15. Revise §?209.407(a)(2) to read as follows:
§?209.407 Delayed reports.
(a) * * *
[top] (2) Sign, date, and submit such written explanation and estimate via
16. Amend part 209 to add a new subpart G, consisting of §§?209.601 through 209.621, to read as follows:
Subpart G-Enforcement, Hearing, and Appeal Procedures for Rail Safety Violations
Sec. 209.601 Civil penalties generally.209.603 Minimum and maximum penalties.209.605 Demand letter.209.607 Reply.209.609 Payment of penalty; compromise.209.611 Informal response and assessment.209.613 Request for hearing.209.615 Hearing.209.617 Presiding officer's decision.209.619 Assessment considerations.209.621 Appeal.
§?209.601 Civil penalties generally.
(a) Sections 209.601 through 209.621 prescribe rules of procedure for the assessment of civil penalties pursuant to the Federal railroad safety laws, 49 U.S.C. Chapters 201 through 213.
(b) When FRA has reason to believe that a person has committed an act which is a violation of any provision of chapter II, subtitle B of this title, or title 49, subtitle V, part A, of the United States Code, for which FRA exercises enforcement responsibility or any waiver or order issued thereunder, it may conduct a proceeding to assess a civil penalty.
§?209.603 Minimum and maximum penalties.
A person who violates a requirement of the Federal railroad safety laws, an order issued thereunder, chapter II, subtitle B, of this title, or title 49, subtitle V, part A, of the United States Code, is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. However, penalties may be assessed against individuals only for willful violations, and a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed, where: (1) a grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons; or (2) a death or injury has occurred. See 49 CFR part 209, appendix A. Each day a violation continues shall constitute a separate offense. See FRA's website at https://railroads.dot.gov/ for a statement of agency civil penalty policy.
§?209.605 Demand letter.
(a) FRA, through the Office of the Chief Counsel, begins a civil penalty proceeding by serving a demand letter on a person charging the person with having violated one or more provisions of chapter II, subtitle B of this title, or title 49, subtitle V, part A, of the United States Code. FRA's website at https://railroads.dot.gov/ contains guidelines used by the Office of the Chief Counsel in making initial penalty assessments.
(b) A demand letter issued under this section includes:
(1) A statement of the provision(s) which the respondent is believed to have violated;
(2) A statement of the factual allegations upon which the proposed civil penalty is being sought;
(3) Notice of the maximum amount of civil penalty for which the respondent may be liable;
(4) Notice of the amount of the civil penalty proposed to be assessed;
(5) A description of the manner in which the respondent should make payment of any money to the United States;
(6) A statement of the respondent's right to present written explanations, information or any materials in answer to the charges or in mitigation of the penalty; and
(7) A statement of the respondent's right to request a hearing and the procedures for requesting a hearing.
(c) FRA may amend the demand letter at any time prior to completion of a fully executed settlement agreement or the entry of an order assessing a civil penalty. If the amendment contains any new material allegation of fact, the respondent is given an opportunity to respond. In an amended demand letter, FRA may change the civil penalty amount proposed to be assessed, up to the maximum penalty amount for each violation. However, if the violation is: (1) a grossly negligent violation, or a pattern of repeated violations, that has caused an imminent hazard of death or injury to individuals; or (2) has caused death or injury, FRA may change the penalty amount proposed to be assessed up to the aggravated maximum penalty amount.
§?209.607 Reply.
(a) Within sixty (60) days of the service of a demand letter issued under §?209.605, the respondent may-
(1) Pay as provided in §?209.609(a) and thereby close the case;
(2) Make an informal response as provided in §?209.611; or
(3) Request a hearing as provided in §?209.613.
(b) The Office of the Chief Counsel may extend the sixty (60) days period for good cause shown.
(c) Failure of the respondent to reply by taking one of the three actions described in paragraph (a) of this section, within the period provided, constitutes a waiver of the right to appear and contest the allegations, and authorizes the Office of the Chief Counsel, without further notice to the respondent, to find the facts to be as alleged in the demand letter and to assess an appropriate civil penalty.
§?209.609 Payment of penalty; compromise.
(a) Payment of a civil penalty may be made by credit card, certified check, money order, or wire transfer. Payment by credit card must be made via the internet at https://www.pay.gov/paygov/. Instructions for online payment are found on the website. Payments made by certified check or money order should be made payable to the Federal Railroad Administration and sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM 181, P.O. Box 25082, Oklahoma City, OK 73125. Overnight express payments may be sent to DOT/FRA, M.M.A.C., AMK-324, HQ-RM 181, 6500 South MacArthur Blvd., Oklahoma City, OK 73169.
(b) At any time before an order assessing a penalty is referred to the Attorney General for collection, the respondent may offer to compromise for a specific amount by contacting the Office of the Chief Counsel.
§?209.611 Informal response and assessment.
(a) If a respondent elects to make an informal response to a demand letter, respondent must submit to the Office of the Chief Counsel such written explanations, information, or other materials as respondent may desire in answer to the charges or in mitigation of the proposed penalty.
(b) The respondent may include in the informal written response a request for a conference. Upon receipt of such a request, the Office of the Chief Counsel arranges for a conference as soon as practicable.
(c) Written explanations, information, or materials submitted by the respondent, and relevant information presented during any conference held under this section, are considered by the Office of the Chief Counsel in reviewing the demand letter and determining the fact of violation and the amount of any penalty to be assessed.
[top] (d) After consideration of an informal response, including any relevant information presented at a conference,
§?209.613 Request for hearing.
(a) If a respondent elects to request a hearing, the respondent must submit a written request to the Office of the Chief Counsel referring to the case number which appeared on the demand letter. The request must-
(1) State the name and email address of the respondent and of the person signing the request, if different from the respondent;
(2) State with respect to each allegation whether it is admitted or denied; and
(3) State with particularity the issues to be raised by the respondent at the hearing.
(b) After a request for hearing that complies with the requirements of paragraph (a) of this section, the Office of the Chief Counsel schedules a hearing for the earliest practicable date.
(c) The Office of the Chief Counsel, or the hearing officer appointed under §?209.615, may grant extensions of the time of the commencement of the hearing for good cause shown.
§?209.615 Hearing.
(a) When a hearing is requested and scheduled under §?209.613, a hearing officer designated by the Office of the Chief Counsel convenes and presides over the hearing. If requested by respondent, and if practicable, the hearing is held in the general vicinity of the place where the alleged violation occurred, at a place convenient to the respondent, or virtually. Testimony by witnesses shall be given under oath and the hearing shall be recorded verbatim.
(b) The presiding official may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by §?209.7;
(3) Adopt procedures for the submission of evidence in written form;
(4) Take or cause depositions to be taken;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, and adjourn and otherwise regulate the course of the hearing;
(8) Hold conferences for settlement, simplification of the issues or any other proper purpose; and
(9) Take any other action authorized by, or consistent with, the provisions of this subpart pertaining to civil penalties and permitted by law that may expedite the hearing or aid in the disposition of an issue raised, therein.
(c) The Office of the Chief Counsel has the burden of providing the facts alleged in the demand letter and may offer such relevant information as may be necessary fully to inform the presiding officer as to the matter concerned.
(d) The respondent may appear and be heard on the respondent's own behalf or through counsel of the respondent's choice. The respondent or respondent's counsel may offer relevant information, including testimony, which they believe should be considered in defense of the allegations, or that may bear on the penalty proposed to be assessed, and conduct such cross-examination as may be required for a full disclosure of the material facts.
(e) At the conclusion of the hearing, or as soon thereafter as the hearing officer shall provide, the parties may file proposed findings and conclusions, together with supporting reasons.
§?209.617 Presiding officer's decision.
(a) After consideration of the evidence of record, the presiding officer may dismiss the demand letter in whole or in part. If the presiding officer does not dismiss it in whole, the presiding officer will issue and serve on the respondent an order assessing a civil penalty. The decision of the presiding officer will include a statement of findings and conclusions as well as the reasons therefor on all material issues of fact, law, and discretion.
(b) If, within twenty (20) days after service of an order assessing a civil penalty, the respondent does not pay the civil penalty or file an appeal as provided in §?209.621, the case may be referred to the Attorney General with a request that an action to collect the penalty be brought in the appropriate United States District Court. In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review.
§?209.619 Assessment considerations.
The assessment of a civil penalty under §?209.617 is made only after considering:
(a) the nature, circumstances, extent, and gravity of the violation;
(b) with respect to the violator, the degree of culpability, any history of violations, the ability to pay, and any effect on the ability to continue to do business; and
(c) other matters that justice requires.
§?209.621 Appeal.
(a) Any party aggrieved by a presiding officer's decision or order issued under §?209.617 assessing a civil penalty may file an appeal with the Administrator. The appeal must be filed within twenty (20) days of service of the presiding officer's order.
(b) Prior to rendering a final determination on an appeal, the Administrator may remand the case for further proceedings before the hearing officer.
(c) In the case of an appeal by a respondent, if the Administrator affirms the assessment and the respondent does not pay the civil penalty within twenty (20) days after service of the Administrator's decision on appeal, the matter may be referred to the Attorney General with a request that an action to collect the penalty be brought in the appropriate United States District Court. In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review.
17. Amend appendix A to part 209 by:
a. Revising the first paragraph;
b. Revising the section under the heading " The Civil Penalty Process; "
c. Revising the section under the heading " Civil Penalties Against Individuals; "
d. Revising the seventh paragraph under the heading " Penalty Schedules; Assessment of Maximum Penalties "; and
e. Revising the section under the heading " Extraordinary Remedies. "
The revisions read as follows:
Appendix A to Part 209-Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws.
[top] The Federal Railroad Administration ("FRA") enforces the Federal railroad safety statutes under delegation from the Secretary of Transportation. See 49 CFR 1.88 and 1.89. Those statutes include 49 U.S.C. ch. 201-213 and uncodified provisions of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A, 122 Stat. 4848), the Fixing America's Surface Transportation Act (Pub. L. 114-94, Dec. 4, 2015), and the Infrastructure Investment and Jobs Act (Pub. L. 117-58, Nov. 15, 2021). On July 4, 1994, the day before the enactment of Public Law 103-272, 108 Stat. 745, the Federal railroad safety statutes included the Federal Railroad Safety Act of 1970 ("Safety Act"), and a group of statutes enacted prior to 1970 referred to collectively herein as the "older safety statutes": the Safety Appliance Acts; the Locomotive Inspection Act; the Accident Reports Act; the Hours of Service Act; and the Signal Inspection Act. Effective July 5, 1994, Public Law 103-272 repealed certain general and permanent laws related to transportation, including these rail safety laws (the Safety Act and the older safety statutes), and reenacted them as revised by that law but without substantive change in title 49 of the U.S. Code, ch. 201-213. Regulations implementing the Federal rail safety laws are found at 49 CFR parts 209-
FRA also enforces the hazardous materials transportation laws (49 U.S.C. ch. 51 and uncodified provisions) (formerly the Hazardous Materials Transportation Act, which was also repealed by Pub. L. 103-272, July 5, 1994, and reenacted as revised but without substantive change) as it pertains to the shipment or transportation of hazardous materials by rail.
The Civil Penalty Process
The front lines in the civil penalty process are the FRA safety inspectors: FRA employs over 300 inspectors, and their work is supplemented by approximately 200 inspectors from States participating in enforcement of the federal rail safety laws. These inspectors routinely inspect the equipment, track, and signal systems and observe the operations of the nation's railroads. They also investigate hundreds of complaints filed annually by those alleging noncompliance with the laws. When an inspection or complaint investigation reveals noncompliance with the laws, each noncomplying condition or action is listed on an inspection report. Where the inspector determines that the best method of promoting compliance is to assess a civil penalty, the inspector prepares a violation report, which is essentially a recommendation to the FRA Office of the Chief Counsel to assess a penalty based on the evidence provided in or with the report.
In determining which instances of noncompliance merit penalty recommendations, the inspector considers:
(1) The inherent seriousness of the condition or action;
(2) The kind and degree of potential safety hazard the condition or action poses in light of the immediate factual situation;
(3) Any actual harm to persons or property already caused by the condition or action;
(4) The offending person's ( i.e., railroad's or individual's) general level of current compliance as revealed by the inspection as a whole;
(5) The person's recent history of compliance with the relevant set of regulations, especially at the specific location or division of the railroad involved;
(6) Whether a remedy other than a civil penalty (ranging from a warning on up to an emergency order) is more appropriate under all of the facts; and
(7) Such other factors as the immediate circumstances make relevant.
The civil penalty recommendation is reviewed at the district level by a specialist in the subject matter involved, who requires correction of any technical flaws and determines whether the recommendation is consistent with national enforcement policy in similar circumstances. Guidance on that policy in close cases is sometimes sought from Office of Railroad Safety headquarters. Violation reports that are technically and legally sufficient and in accord with FRA policy are sent from the district office to the Office of the Chief Counsel.
The exercise of this discretion at the field and headquarters levels is a vital part of the enforcement process, ensuring that the exacting and time-consuming civil penalty process is used to address those situations most in need of the deterrent effect of penalties. FRA exercises that discretion with regard to individual violators in the same manner it does with respect to railroads.
The Office of the Chief Counsel's Office of Safety Law reviews each violation report it receives from the district offices for legal sufficiency and assesses penalties based on those allegations that survive that review.
Where the violation was committed by a railroad, penalties are assessed by issuance of a penalty demand letter that summarizes the claims, encloses the violation report with a copy of all evidence on which FRA is relying in making its initial charge, and explains that the railroad may pay in full or submit, orally or in writing, information concerning any defenses or mitigating factors. The railroad safety statutes, in conjunction with the Federal Claims Collection Act, authorize FRA to adjust or compromise the initial penalty claims based on a wide variety of mitigating factors. This system permits the efficient collection of civil penalties in amounts that fit the actual offense without resort to time-consuming and expensive litigation.
Once penalties have been assessed, the railroad is given a reasonable amount of time to investigate the charges. Larger railroads usually make their case before FRA in an informal conference covering a number of case files that have been issued and investigated since the previous conference. Thus, in terms of the negotiating time of both sides, economies of scale are achieved that would be impossible if each case were negotiated separately. The settlement conferences include technical experts from both FRA and the railroad as well as lawyers for both parties. In addition to allowing the two sides to make their cases for the relative merits of the various claims, these conferences also provide a forum for addressing current compliance problems. Smaller railroads usually prefer to handle negotiations through email or over the phone, often on a single case at a time. Once the two sides have agreed to an amount on each case, that agreement is put in writing and a payment is submitted to FRA's accounting division covering the full amount agreed on.
Civil Penalties Against Individuals
The RSIA amended the penalty provisions of the railroad safety statutes to make them applicable to any "person (including a railroad and any manager, supervisor, official, or other employee or agent of a railroad)" who fails to comply with the regulations or statutes. E.g., section 3 of the RSIA, amending section 209 of the Safety Act. However, the RSIA also provided that civil penalties may be assessed against individuals "only for willful violations."
Thus, any individual meeting the statutory description of "person" is liable for a civil penalty for a willful violation of, or for willfully causing the violation of, the safety statutes or regulations. Of course, as has traditionally been the case with respect to acts of noncompliance by railroads, the FRA field inspector exercises discretion in deciding which situations call for a civil penalty assessment as the best method of ensuring compliance. The inspector has a range of options, including an informal warning, a more formal warning letter issued by the Office of the Chief Counsel, recommendation of a civil penalty assessment, recommendation of disqualification or suspension from safety-sensitive service, or, under the most extreme circumstances, recommendation of emergency action.
The threshold question in any alleged violation by an individual will be whether that violation was "willful." (Note that section 3(a) of the RSIA, which authorizes suspension or disqualification of a person whose violation of the safety laws has shown the person to be unfit for safety-sensitive service, does not require a showing of willfulness. Regulations implementing that provision are found at 49 CFR part 209, subpart D.) FRA proposed this standard of liability when, in 1987, it originally proposed a statutory revision authorizing civil penalties against individuals. FRA believed then that it would be too harsh a system to collect fines from individuals on a strict liability basis, as the safety statutes permit FRA to do with respect to railroads. FRA also believed that even a reasonable care standard ( e.g., the Hazardous Materials Transportation Act's standard for civil penalty liability, 49 U.S.C. 5123) would subject individuals to civil penalties in more situations than the record warranted. Instead, FRA wanted the authority to penalize those who violate the safety laws through a purposeful act of free will.
Thus, FRA considers a "willful" violation to be one that is an intentional, voluntary act committed either with knowledge of the relevant law or reckless disregard for whether the act violated the requirements of the law. Accordingly, neither a showing of evil purpose (as is sometimes required in certain criminal cases) nor actual knowledge of the law is necessary to prove a willful violation, but a level of culpability higher than negligence must be demonstrated. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Brock v. Morello Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and Donovan v. Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).
[top] Reckless disregard for the requirements of the law can be demonstrated in many ways. Evidence that a person was trained on or made aware of the specific rule involved-or, as is more likely, its corresponding industry equivalent-would suffice. Moreover, certain requirements are so obviously fundamental to safe railroading ( e.g., the prohibition against disabling an automatic train control device) that any violation of them, regardless of whether the person was actually aware of the prohibition, should be seen as reckless disregard of the law. See Brock, supra, 809 F.2d 164. Thus, a lack of subjective knowledge of the law is no impediment to a finding of willfulness. If it were, a mere denial of knowledge of the content of the particular regulation would provide a defense. Having proposed use of the word "willful," FRA believes it was not intended
A willful violation entails knowledge of the facts constituting the violation, but actual, subjective knowledge need not be demonstrated. It will suffice to show objectively what the alleged violator must have known of the facts based on reasonable inferences drawn from the circumstances. For example, a person shown to have been responsible for performing an initial terminal air brake test that was not in fact performed would not be able to defend against a charge of a willful violation simply by claiming subjective ignorance of the fact that the test was not performed. If the facts, taken as a whole, demonstrated that the person was responsible for doing the test and had no reason to believe it was performed by others, and if that person was shown to have acted with actual knowledge of or reckless disregard for the law requiring such a test, the person would be subject to a civil penalty.
This definition of "willful" fits squarely within the parameters for willful acts laid out by Congress in the RSIA and its legislative history. Section 3(a) of the RSIA amends the Safety Act to provide:
For purposes of this section, an individual shall be deemed not to have committed a willful violation where such individual has acted pursuant to the direct order of a railroad official or supervisor, under protest communicated to the supervisor. Such individual shall have the right to document such protest.
As FRA made clear when it recommended legislation granting individual penalty authority, a railroad employee should not have to choose between liability for a civil penalty or insubordination charges by the railroad. Where an employee (or even a supervisor) violates the law under a direct order from a supervisor, the employee does not do so of the employee's free will. Thus, the act is not a voluntary one and, therefore, not willful under FRA's definition of the word. Instead, the action of the person who has directly ordered the commission of the violation is itself a willful violation subjecting that person to a civil penalty. As one of the primary sponsors of the RSIA said on the Senate floor:
This amendment also seeks to clarify that the purpose of imposing civil penalties against individuals is to deter those who, of their free will, decide to violate the safety laws. The purpose is not to penalize those who are ordered to commit violations by those above them in the railroad chain of command. Rather, in such cases, the railroad official or supervisor who orders the others to violate the law would be liable for any violations his order caused to occur. One example is the movement of railroad cars or locomotives that are actually known to contain certain defective conditions. A train crew member who was ordered to move such equipment would not be liable for a civil penalty, and that his participation in such movements could not be used against him in any disqualification proceeding brought by FRA.
133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator Exon).
It should be noted that FRA will apply the same definition of "willful" to corporate acts as is set out here with regard to individual violations. Although railroads are strictly liable for violations of the railroad safety laws and deemed to have knowledge of those laws, FRA's penalty schedules contain, for each regulation, a separate amount earmarked as the initial assessment for willful violations. Where FRA seeks such an extraordinary penalty from a railroad, it will apply the definition of "willful" set forth above. In such cases-as in all civil penalty cases brought by FRA-the aggregate knowledge and actions of the railroad's managers, supervisors, employees, and other agents will be imputed to the railroad. Thus, in situations that FRA decides warrant a civil penalty based on a willful violation, FRA will have the option of citing the railroad and/or one or more of the individuals involved. In cases against railroads other than those in which FRA alleges willfulness or in which a particular regulation imposes a special standard, the principles of strict liability and presumed knowledge of the law will continue to apply.
The RSIA gives individuals the right to protest a direct order to violate the law and to document the protest. FRA will consider such protests and supporting documentation in deciding whether and against whom to cite civil penalties in a particular situation. Where such a direct order has been shown to have been given as alleged, and where such a protest is shown to have been communicated to the supervisor, the person or persons communicating it will have demonstrated their lack of willfulness. Any documentation of the protest will be considered along with all other evidence in determining whether the alleged order to violate was in fact given.
However, the absence of such a protest will not be viewed as warranting a presumption of willfulness on the part of the employee who might have communicated it. The statute says that a person who communicates such a protest shall be deemed not to have acted willfully; it does not say that a person who does not communicate such a protest will be deemed to have acted willfully. FRA would have to prove from all the pertinent facts that the employee willfully violated the law. Moreover, the absence of a protest would not be dispositive with regard to the willfulness of a supervisor who issued a direct order to violate the law. That is, the supervisor who allegedly issued an order to violate will not be able to rely on the employee's failure to protest the order as a complete defense. Rather, the issue will be whether, in view of all pertinent facts, the supervisor intentionally and voluntarily ordered the employee to commit an act that the supervisor knew would violate the law or acted with reckless disregard for whether it violated the law.
FRA exercises the civil penalty authority over individuals through procedures very similar to those used with respect to railroad violations. However, FRA varies those procedures somewhat to account for differences that may exist between the railroad's ability to defend itself against a civil penalty charge and an individual's ability to do so. First, when the field inspector decides that an individual's actions warrant a civil penalty recommendation and drafts a violation report, the Office of Railroad Safety informs the individual in writing of its intention to seek assessment of a civil penalty and the fact that a violation report has been transmitted to the Office of the Chief Counsel. This ensures that the individual has the opportunity to seek counsel, preserve documents, or take any other necessary steps to aid the individual's defense at the earliest possible time.
Second, if the Office of the Chief Counsel concludes that the case is meritorious and issues a penalty demand letter, that letter makes clear that FRA encourages discussion of any defenses or mitigating factors the individual may wish to raise. That letter also advises the individual that the individual may wish to obtain representation by an attorney and/or labor representative. During the negotiation stage, FRA considers each case individually on its merits and gives due weight to whatever information the alleged violator provides.
Finally, in the unlikely event that a settlement cannot be reached, the individual may request an administrative hearing, or FRA may issue an order assessing civil penalty, per the enforcement, hearing, and appeal procedures for rail safety violations in part 209, subpart G.
FRA believes that the intent of Congress would be violated if individuals who agree to pay a civil penalty or are ordered to do so by a court are indemnified for that penalty by the railroad or another institution (such as a labor organization). Congress intended that the penalties have a deterrent effect on individual behavior that would be lessened, if not eliminated, by such indemnification.
Penalty Schedules; Assessment of Maximum Penalties
FRA's traditional practice has been to issue penalty schedules assigning to each particular regulation or order specific dollar amounts for initial penalty assessments. The schedule (except where issued after notice and an opportunity for comment) constitutes a statement of agency policy and was historically issued as an appendix to the relevant part of the Code of Federal Regulations. Schedules are now published on FRA's website at https://railroads.dot.gov/, and they are adjusted yearly for inflation. As of December 30, 2024, for each regulation in this part or order, the schedule shows two amounts within the $1,114 to $36,439 range in separate columns, the first for ordinary violations, the second for willful violations (whether committed by railroads or individuals). In one instance-49 CFR part 231-the schedule refers to sections of the relevant FRA defect code rather than to sections of the CFR text. Of course, the defect code, which is simply a reorganized version of the CFR text used by FRA to facilitate computerization of inspection data, is substantively identical to the CFR text.
[top]
Extraordinary Remedies
While civil penalties are the primary enforcement tool under the federal railroad safety laws, more extreme measures are available under certain circumstances. FRA has authority to issue orders directing compliance with the Federal Railroad Safety Act, the Hazardous Materials Transportation Act, the older safety statutes, or regulations issued under any of those statutes. Such an order may issue only after notice and opportunity for a hearing in accordance with the procedures set forth in 49 CFR part 209, subpart C. FRA inspectors also have the authority to issue a special notice requiring repairs where a locomotive or freight car is unsafe for further service or where a segment of track does not meet the standards for the class at which the track is being operated. Such a special notice may be appealed in accordance with 49 CFR part 216, subpart B.
FRA may, through the Attorney General, also seek injunctive relief in federal district court to restrain violations or enforce rules issued under the railroad safety laws. See 49 U.S.C. 20112.
FRA also has the authority to issue, after notice and an opportunity for a hearing, an order prohibiting an individual from performing safety-sensitive functions in the rail industry for a specified period. This disqualification authority is exercised under procedures found at 49 CFR part 209, subpart D.
Criminal penalties are available for knowing violations of 49 U.S.C. 5104(b), or for willful or reckless violations of the Federal hazardous materials transportation law or a regulation issued under that law. See 49 U.S.C. ch. 51, and 49 CFR 209.131, 209.133. Criminal penalties may also be available for certain record and report violations. 49 U.S.C. 21311.
Perhaps FRA's most sweeping enforcement tool is its authority to issue emergency safety orders where "an unsafe condition or practice, or a combination of unsafe conditions or practices, causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment . . . ." See 49 U.S.C. 20104. After its issuance, such an order may be reviewed in a trial-type hearing. See 49 CFR 211.47 and 216.21 through 216.27. The emergency order authority is unique because it can be used to address unsafe conditions and practices whether or not they contravene an existing regulatory or statutory requirement. Given its extraordinary nature, FRA has used the emergency order authority sparingly.
18. Amend appendix B to part 209 by revising the sixth sentence of the third paragraph. The revisions read as follows:
Appendix B to Part 209-Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
* * * FRA periodically makes minor updates and revisions to these guidelines, and the most current version may be found on FRA's website at https://railroads.dot.gov/.
19. Amend appendix C to part 209, by:
a. Under the heading "Small Entity Communication Policy,"
i. Revising the third paragraph; and
ii. Revising the last sentence of the fourth paragraph.
b. Under the heading "Small Entity Enforcement Policy," revising the third paragraph.
The revisions read as follows:
Appendix C to Part 209-FRA's Policy Statement Concerning Small Entities
Small Entity Communication Policy
It is FRA's policy to maintain frequent and open communications with the national representatives of the primary small entity associations and to consult with these organizations before embarking on new policies that may impact the interests of small businesses. Additionally, FRA's Office of Railroad Safety has two Safety Management Teams dedicated to short line railroads and staff from those Safety Management Teams regularly meet with short line railroads that meet FRA's definition of "small entities" to discuss new regulations, persistent safety concerns, emerging technology, compliance issues, and any other relevant issues related to railroad safety. Contact information for each of FRA's Safety Management Teams is available online at https://railroads.dot.gov.
* * * Finally, FRA's website ( https://railroads.dot.gov/ ) makes pertinent agency information available to the public.
Small Entity Enforcement Policy
Finally, FRA works to identify systemic safety hazards that continue to occur in carrier or shipper operations, including small business operations. Often FRA personnel will work to assist the subject operations to develop a plan to address those hazards and often, the plan provides small entities with a reasonable timeframe in which to make improvements without the threat of civil penalty. If FRA determines that the entity has failed to comply with the improvement plan, however, enforcement action is initiated.
Issued in Washington, DC.
Kyle D. Fields,
Chief Counsel.
[FR Doc. 2025-12124 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-06-P