Last updated on December 6th, 2021 at 10:18 pm
Title 49 – Transportation–Volume 4
Subtitle B – Other Regulations Relating to Transportation (Continued)
CHAPTER II – FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 200 – INFORMAL RULES OF PRACTICE FOR PASSENGER SERVICE
§ 200.1 General.
This part prescribes procedures under which applications will be received and heard and by which rules and orders will be issued under subsection 402(e) and section 406 of the Rail Passenger Service Act (45 U.S.C. 562(e) and 566).
§ 200.3 Definitions.
(a) Act means the Rail Passenger Service Act (45 U.S.C. 500 et seq.).
(b) Administrator means the Federal Railroad Administrator, the Deputy Administrator of FRA, or the delegate of either.
(c) Amtrak means the National Railroad Passenger Corporation.
(d) Amtrak trains means trains operated by or on behalf of Amtrak.
(e) Chief Counsel means the Chief Counsel or Acting Chief Counsel of the FRA.
(f) Downgrading of a facility means a reduction in track classification as specified in FRA track safety standards (49 CFR part 213), or any other change in facilities which may increase the time required for a passenger train to operate over the route on which such facility is located.
(g) Facility means railroad tracks, right-of-way, fixed equipment and facilities, real-property appurtenant thereto, and includes signal systems, passenger station and repair tracks, station buildings, platforms, and adjunct facilities such as water, fuel, steam, electric, and air lines.
(h) FRA means the Federal Railroad Administration.
(i) Railroad means a person providing railroad transportation for compensation.
(j) Shipper means a person contracting with one or more railroads for freight transportation.
§ 200.5 Applications.
(a) Each application and objection under this part shall be submitted in writing to: Docket Clerk, Office of the Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(b) Any procedural issues arising from the submission or consideration of applications under this part, such as timeliness and adequacy, shall be heard and decided by the Administration’s panel established under § 200.9.
(c) Any railroad adversely affected by the preference requirement of subsection 402(e) of the Act may apply to the Administrator for an order altering that requirement. Each application shall:
(1) List by endpoints the routes that are so affected; and
(2) Explain for every route listed how the preference requirement of subsection 402(e) will materially lessen the quality of freight service afforded by the applicant to its shippers, including information, data or documents sufficient to support that explanation; and
(3) Include an analysis of whether and by how much Amtrak’s compensation to the railroad should be reduced if the preference requirement is altered.
(d) In accordance with section 406 of the Act, any railroad may apply to the Administrator for approval to downgrade or dispose of its facilities. Each application shall:
(1) List the facilities for proposed downgrading or disposal;
(2) Describe and give the location of each such facility and identify the most recent passenger service that made use of such facilities; and
(3) Contain for each facility an analysis of the costs the railroad could avoid if it were not required to maintain or retain the facility in the condition requested by Amtrak, including information, data and documents sufficient to support the analysis.
(e) In addition to the data provided with their applications, applicants shall furnish the Administrator with any other information that the Administrator finds necessary in order to make the determinations required by the Act.
(f) Each applicant shall promptly notify, by registered or certified mail, any party affected by any application, whether Amtrak or a railroad, of the submission of such application under this part, and shall provide a copy of the application with such notice. An official United States Postal Service receipt from the registered or certified mailing constitutes prima facie evidence of notice.
§ 200.7 Objections.
(a) Amtrak or any other party shall have 30 days from the date an application is received by FRA pursuant to section 402(e) of the Act to object to the proposed alteration of the preference requirement. Such objections shall be in writing and shall reference, by date, railroad, and former passenger routes, the application to which it pertains.
(b) Amtrak shall have 30 days from the date an application is received by FRApursuant to section 406 of the Act to object to any or all of the facility downgradings or disposals proposed in such application. Such objections shall be in writing and shall reference, by date, railroad, and former passenger routes, the application to which it pertains and shall list, by facility description and location, the specific downgradings or disposals to which Amtrak objects.
§ 200.9 Hearings.
(a) Pursuant to any application under this part, a prehearing conference will be held if found necessary or desirable by the Administrator.
(b) Pursuant to any application under this part, an oral hearing will be held if required by statute or if found necessary or desirable by the Administrator.
(c) Hearings shall be conducted by a panel designated by the Administrator, consisting of three FRA employees, including the Chief Counsel or a member of his or her staff who shall serve as chairman of the panel and the Associate Administrator for Intercity Programs or his or her delegate.
(d) Hearings shall be informal fact-finding proceedings, limited to the issues identified by the panel. Sections 556 and 557 of title 5, U.S.C., shall not apply.
(e) All direct evidence shall be reduced to writing and submitted to the Docket Clerk thirty days in advance of the hearing unless this requirement is expressly waived by the panel. Copies shall be furnished to all parties concurrently with the submission to the Docket Clerk.
(f) The panel may provide for oral presentations and cross-examination, and shall apply rules of evidence as it finds necessary.
(g) To the extent deemed appropriate by the panel, interested persons, including members of the public, may participate in the hearings through the submission of written data, oral presentations, or arguments.
§ 200.11 Orders, approvals, and determinations.
(a) The Administrator shall promptly approve the downgrading or disposal of any facility to which Amtrak does not submit a timely objection under this part.
(b) Orders, approvals, and determinations issued by the Administrator’s panel under this part constitute the Administrator’s action and shall be final.
(c) Determinations under this part are not required to be based exclusively on the record of a hearing.
§ 200.13 Publication.
(a) General notice of any hearing under this subpart shall be published in the
(b) Any order, approval, or determination resulting from any hearing held under this part shall be published in the
PART 201 [RESERVED]
PART 207 – RAILROAD POLICE OFFICERS
§ 207.1 Application.
This part applies to all railroads as defined in 49 U.S.C. 20103.
§ 207.2 Definitions.
As used in this part:
(a) Railroad police officer means a peace officer who is commissioned in his or her state of legal residence or state of primary employment and directly employed by or contracted by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.
(b) Commissioned means that a state official has certified or otherwise designated a railroad employee as qualified under the licensing requirements of that state to act as a railroad police officer in that state.
(c) Property means rights-of-way, easements, appurtenant property, equipment, cargo, facilities, and buildings and other structures owned, leased, operated, maintained, or transported by a railroad.
§ 207.3 Designation and commissioning.
(a) A railroad may designate employees to be commissioned by a state authority as railroad police officers to serve in the states in which the railroad owns property.
(b) Except as provided by § 207.6, the designated railroad police officer shall be commissioned by the railroad police officer’s state of legal residence or the railroad police officer’s state of primary employment.
§ 207.4 Notice to State officials.
(a) After the designated railroad police officer is commissioned by a state or states, the railroad shall send, by certified mail, written notice to appropriate officials of every other state in which the railroad police officer shall protect the railroad’s property, personnel, passengers, and cargo. The notice of commission shall contain the following information:
(1) The name of the railroad police officer;
(2) The badge number, identification number, rank, code, or other identifying information assigned to the railroad police officer;
(3) The date of commission;
(4) The state or states where the railroad police officer is commissioned;
(5) The date the railroad police officer received training or retraining regarding the laws of such state or states;
(6) The name of the railroad official who designated the employee as a railroad police officer; and
(7) Color photographs of the types of badges, identification cards, and other identifying materials the railroad uses to identify its railroad police officers.
(b) The railroad shall keep copies of all such notices at a central location.
(c) The authority set forth in § 207.5 shall be effective upon receipt by such state(s) of written notice conforming to the requirements of this section.
§ 207.5 Authority in States where officer not commissioned.
(a) A railroad police officer who is designated by a railroad and commissioned under the laws of any state is authorized to enforce the laws (as specified in paragraph (b) of this section) of any state in which the railroad owns property and to which the railroad has provided notice in accordance with § 207.4.
(b) Under the authority of paragraph (a) of this section, a railroad police officer may enforce only relevant laws for the protection of –
(1) The railroad’s employees, passengers, or patrons;
(2) The railroad’s property or property entrusted to the railroad for transportation purposes;
(3) The intrastate, interstate, or foreign movement of cargo in the railroad’s possession or in possession of another railroad or non-rail carrier while on the railroad property; and
(4) The railroad movement of personnel, equipment, and materials vital to the national defense.
(c) The authority exercised under this part by an officer for whom the railroad has provided notice in accordance with § 207.4 shall be the same as that of a railroad police officer commissioned under the laws of that state.
(d) The railroad police officer’s law enforcement powers shall apply only on railroad property, except that an officer may pursue off railroad property a person suspected of violating the law on railroad property, and an officer may engage off railroad property in law enforcement activities, including, without limitation, investigation and arrest, if permissible under state law.
§ 207.6 Transfers.
(a) General. If a railroad police officer certified or commissioned as a police officer under the laws of a state or jurisdiction transfers primary employment or residence from the certifying or commissioning state to another state or jurisdiction, then the railroad police officer must apply to be certified or commissioned as a police officer under the laws of the state of new primary employment or residence not later than one (1) year after the date of transfer.
(b) Interim period. During the period beginning on the date of transfer and ending one year after the date of transfer, a railroad police officer certified or commissioned as a police officer under the laws of a state may enforce the laws of the new state or jurisdiction in which the railroad police officer resides, to the same extent as provided in § 207.5(a).
§ 207.7 Training.
(a) A state may consider an individual to have met that state’s basic police officer certification or commissioning requirements for qualification as a railroad police officer under this section if that individual:
(1) Has successfully completed a program at a state-recognized police training academy in another state or at a Federal law enforcement training center; and
(2) Is certified or commissioned as a police officer by the other state.
(b) Nothing in this section shall be construed as superseding or affecting any state training requirements related to criminal law, civil procedure, motor vehicle code, any other state law, or state-mandated comparative or annual in-service training academy or Federal law enforcement training center.
PART 209 – RAILROAD SAFETY ENFORCEMENT PROCEDURES
Subpart A – General
§ 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, with respect to the transportation or shipment of hazardous materials by railroad (49 CFR 1.49(s));
(b) Exercise of the authority vested in the Secretary by the Federal Railroad Safety Act of 1970, 45 U.S.C. 421, 431-441, as amended by the Rail Safety Improvement Act of 1988, Public Law 100-342 (June 22, 1988) (49 CFR 1.49(m)); and
(c) Exercise of the authority vested in the Secretary pertaining to railroad safety as set forth in the statutes transferred to the Secretary by section 6(e) of the Department of Transportation Act, 49 App. U.S.C. 1655(e) (49 CFR 1.49 (c), (d), (f), and (g)).
§ 209.3 Definitions.
As used in this part –
Administrator means the Administrator of FRA, the Deputy Administrator of FRA, or the delegate of either.
Associate Administrator means the Associate Administrator for Safety, Federal Railroad Administration, or that person’s delegate as designated in writing.
Chief Counsel means the Chief Counsel of FRA or his or her delegate.
Day means calendar day.
Federal hazardous material transportation law means 49 U.S.C. 5101 et seq.
Federal railroad safety laws means the provisions of law generally at 49 U.S.C. subtitle V, part A or 49 U.S.C. chap. 51 or 57 and the rules, regulations, orders, and standards issued under any of those provisions. See Pub. L. 103-272 (1994). Before recodification, these statutory provisions were contained in the following statutes: (i) the Federal Railroad Safety Act of 1970 (Safety Act) (49 U.S.C. 20101-20117, 20131, 20133-20141, 20143, 21301, 21302, 21304, 21311, 24902, and 24905, and sections 4(b)(1), (i), and (t) of Pub. L. 103-272, formerly codified at 45 U.S.C. 421, 431 et seq.); (ii) the Hazardous Materials Transportation Act (Hazmat Act) (49 U.S.C. 5101 et seq., formerly codified at 49 App. U.S.C. 1801 et seq.); (iii) the Sanitary Food Transportation Act of 1990 (SFTA) (49 U.S.C. 5713, formerly codified at 49 App. U.S.C. 2801 (note)); and those laws transferred to the jurisdiction of the Secretary of Transportation by subsection (e)(1), (2), and (6)(A) of section 6 of the Department of Transportation Act (DOT Act), as in effect on June 1, 1994 (49 U.S.C. 20302, 21302, 20701-20703, 20305, 20502-20505, 20901, 20902, and 80504, formerly codified at 49 App. U.S.C. 1655(e)(1), (2), and (6)(A)). 49 U.S.C. 20111 and 20109, formerly codified at 45 U.S.C. 437 (note) and 441(e). Those laws transferred by the DOT Act include, but are not limited to, the following statutes: (i) the Safety Appliance Acts (49 U.S.C. 20102, 20301, 20302, 20304, 21302, and 21304, formerly codified at 45 U.S.C. 1-14, 16); (ii) the Locomotive Inspection Act (49 U.S.C. 20102, 20701-20703, 21302, and 21304, formerly codified at 45 U.S.C. 22-34); (iii) the Accident Reports Act (49 U.S.C. 20102, 20701, 20702, 20901-20903, 21302, 21304, and 21311, formerly codified at 45 U.S.C. 38-43); (iv) the Hours of Service Act (49 U.S.C. 20102, 21101-21107, 21303, and 21304, formerly codified at 45 U.S.C. 61-64b); and (v) the Signal Inspection Act (49 U.S.C. 20102, 20502-20505, 20902, 21302, and 21304, formerly codified at 49 App. U.S.C. 26).
FRA means the Federal Railroad Administration, U.S. Department of Transportation.
FRA Safety Inspector means an FRA safety inspector, a state inspector participating in railroad safety investigative and surveillance activities under part 212 of this chapter, or any other official duly authorized by FRA.
Motion means a request to a presiding officer to take a particular action.
Person generally includes all categories of entities covered under 1 U.S.C. 1, including but not limited to the following: a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor; however, person, when used to describe an entity that FRA alleges to have committed a violation of the provisions of law formerly contained in the Hazardous Materials Transportation Act or contained in the Hazardous Materials Regulations, has the same meaning as in 49 U.S.C. 5102(9) (formerly codified at 49 App. U.S.C. 1802(11)), i.e., an individual, firm, copartnership, corporation, company, association, joint-stock association, including any trustee, receiver, assignee, or similar representative thereof, or government, Indian tribe, or authority of a government or tribe when offering hazardous material for transportation in commerce or transporting hazardous material to further a commercial enterprise, but such term does not include the United States Postal Service or, for the purposes of 49 U.S.C. 5123-5124 (formerly contained in sections 110 and 111 of the Hazardous Materials Transportation Act and formerly codified at 49 App. U.S.C. 1809-1810), a department, agency, or instrumentality of the Federal Government.
Pleading means any written submission setting forth claims, allegations, arguments, or evidence.
Presiding Officer means any person authorized to preside over any hearing or to make a decision on the record, including an administrative law judge.
Railroad means any form of nonhighway ground transportation that runs on rails or electro-magnetic guideways, including (i) commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and (ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
Railroad carrier means a person providing railroad transportation.
Respondent means a person upon whom FRA has served a notice of probable violation, notice of investigation, or notice of proposed disqualification.
§ 209.5 Service.
(a) Each order, notice, or other document required to be served under this part shall be served personally or by registered or certified mail, except as otherwise provided herein.
(b) Service upon a person’s duly authorized representative constitutes service upon that person.
(c) Service by registered or certified mail is complete upon mailing. An official United States Postal Service receipt from the registered or certified mailing constitutes prima facie evidence of service.
(d) Service of requests for admission and motions may be made by first-class mail, postage prepaid.
(e) Each pleading must be accompanied by a certificate of service specifying how and when service was made.
§ 209.6 Requests for admission.
(a) A party to any proceeding under subpart B, C, or D 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.
(b) Each matter of which an admission is requested shall be deemed to be admitted unless, within 30 days after receipt of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer under oath or objection addressed to the matter, signed by the party.
(c) The sworn answer shall specifically admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. If an objection is made, the reasons therefor shall be stated.
(d) Any matter admitted under this section is conclusively established unless the presiding official permits withdrawal or amendment of the admission for good cause shown.
(e) Upon motion, the presiding officer may order any party to respond to a request for admission.
§ 209.7 Subpoenas; witness fees.
(a) The Chief Counsel may issue a subpoena on his or her own initiative in any matter related to enforcement of the railroad safety laws. However, where a proceeding under subpart B, C, or D of this part has been initiated, only the presiding officer may issue subpoenas, and only upon the written request of any party to the proceeding who makes an adequate showing that the information sought will materially advance the proceeding.
(b) A subpoena may require attendance of a witness at a deposition or hearing or the production of documentary or other tangible evidence in the possession or control of the person served, or both.
(c) A subpoena may be served personally by any person who is not an interested person and is not less than eighteen (18) years of age, or by certified or registered mail.
(d) Service of a subpoena shall be made by delivering a copy of the subpoena in the appropriate manner, as set forth below. Service of a subpoena requiring attendance of a person is not complete unless delivery is accompanied by tender of fees for one day’s attendance and mileage as specified by paragraph (f) of this section. However, when a subpoena is issued upon the request of any officer or agency of the United States, fees and mileage need not be tendered at the time of service but will be paid by FRA at the place and time specified in the subpoena for attendance.
(1) To a natural person by:
(i) Handing it to the person;
(ii) Leaving it at his or her office with the person in charge thereof;
(iii) Leaving it at his or her dwelling place or usual place of abode with some person of suitable age and discretion then residing therein;
(iv) Mailing it by registered or certified mail to him or her at his or her last known address; or
(v) 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) Handing a copy of the subpoena to a registered agent for service or to any officer, director, or agent in charge of any office of the person;
(ii) Mailing it by registered or certified mail to any representative listed in paragraph (d)(2)(i) of this section at his or her last known address; or
(iii) Any method whereby actual notice is given to such representative (and the fees are made available) prior to the return date.
(e) The original subpoena bearing a certificate of service shall be filed in accordance with § 209.9.
(f) A witness subpoenaed by the FRA shall be entitled to the same fees and mileage as would be paid to a witness in a proceeding in the district courts of the United States. See 28 U.S.C. 1821. The witness fees and mileage shall be paid by the person requesting that the subpoena be issued. In an appropriate case, the Chief Counsel or the hearing officer may direct the person requesting issuance of a subpoena for the production of documentary or other tangible evidence to reimburse the responding person for actual costs of producing and/or transporting such evidence.
(g) Notwithstanding the provisions of paragraph (f) of this section, and upon request, witness fees and mileage or the costs of producing other evidence may be paid by the FRA if the official who issued the subpoena determines on the basis of good cause shown that:
(1) The presence of the subpoenaed witness or evidence will materially advance the proceedings; and
(2) The party at whose instance the subpoena was issued would suffer a serious financial hardship if required to pay the witness fees and mileage.
(h) Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than ten (10) days after the date of service of such subpoena, apply in writing to the official who issued the subpoena, or if that person is unavailable, to the Chief Counsel, to quash or modify the subpoena. The application shall contain a brief statement of the reasons relied upon in support of the action sought therein. The issuing official or the Chief Counsel, as the case may be, may:
(1) Deny the application;
(2) Quash or modify the subpoena; or
(3) In the case of subpoena to produce documentary or other tangible evidence, condition denial of the application upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the evidence.
(i) If there is a refusal to obey a subpoena served upon any person under the provisions of this section, the FRA may request the Attorney General to seek the aid of the United States District Court for any district in which the person is found to compel that person, after notice, to appear and give testimony, or to appear and produce the subpoenaed documents before the FRA, or both.
(j) Attendance of any FRA employee engaged in an investigation which gave rise to a proceeding under subpart B or C 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.
§ 209.8 Depositions in formal proceedings.
(a) Any party to a proceeding under subpart B, C, or D 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.
(b) Any party desiring to take the deposition of a witness shall file and serve a written motion setting forth the name of the witness; the date, time, and place of the deposition; the subject matter of the witness’ expected testimony; whether any party objects to the taking of the deposition; and the reasons for taking such deposition. Such motion shall be granted only upon a showing of good cause. Good cause exists to take a person’s deposition when the information sought is relevant to the subject matter involved in the proceeding and:
(1) The information is not obtainable from some other source that is more convenient, less burdensome, and less expensive; or
(2) The request is not unreasonably cumulative, unduly burdensome, or unduly expensive, taking into account the needs of the case, limitations on the parties’ resources, and the importance of the issues in the case.
(c) Such notice as the presiding officer shall order will be given for the taking of a deposition, but this shall not be less than 10 days’ written notice unless the parties agree to a shorter period.
(d) Each witness testifying upon deposition shall be sworn and the adverse party shall have the right to cross-examine. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing, subscribed by the witness, and certified by the reporter.
(e) Depositions taken under this section may be used for discovery, to contradict or impeach the testimony of the deponent as a witness, or as evidence in the proceeding as permitted by paragraph (f) of this section and in accordance with the limitations of Fed. R. Civ. Pro. 32 as though it were applicable to these proceedings.
(f) Subject to such objections to the questions and answers as were noted at the time of taking the deposition and as would be valid were the witness personally present and testifying, such deposition may be offered in evidence by any party to the proceeding.
§ 209.9 Filing.
All materials filed with FRA or any FRA officer in connection with a proceeding under subpart B, C, or D of this part shall be submitted in duplicate to the Assistant Chief Counsel for Safety, (RCC-30), Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, except that documents produced in accordance with a subpoena shall be presented at the place and time specified by the subpoena.
§ 209.11 Request for confidential treatment.
(a) This section governs the procedures for requesting confidential treatment of any document filed with or otherwise provided to FRA in connection with its enforcement of statutes or FRA regulations related to railroad safety. For purposes of this section, “enforcement” shall include receipt of documents required to be submitted by FRA regulations, and all investigative and compliance activities, in addition to the development of violation reports and recommendations for prosecution.
(b) A request for confidential treatment with respect to a document or portion thereof may be made on the basis that the information is –
(1) Exempt from the mandatory disclosure requirements of the Freedom of Information Act (5 U.S.C. 552);
(2) Required to be held in confidence by 18 U.S.C. 1905; or
(3) Otherwise exempt by law from public disclosure.
(c) Any document containing information for which confidential treatment is requested shall be accompanied at the time of filing by a statement justifying nondisclosure and referring to the specific legal authority claimed.
(d) Any document containing any information for which confidential treatment is requested shall be marked “CONFIDENTIAL” or “CONTAINS CONFIDENTIAL INFORMATION” in bold letters. If confidentiality is requested as to the entire document, or if it is claimed that nonconfidential information in the document is not reasonably segregable from confidential information, the accompanying statement of justification shall so indicate. If confidentiality is requested as to a portion of the document, then the person filing the document shall file together with the document a second copy of the document from which the information for which confidential treatment is requested has been deleted. If the person filing a document of which only a portion is requested to be held in confidence does not submit a second copy of the document with the confidential information deleted. FRA may assume that there is no objection to public disclosure of the document in its entirety.
(e) FRA retains the right to make its own determination with regard to any claim of confidentiality. Notice of a decision by the FRA to deny a claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.
§ 209.13 Consolidation.
At the time a matter is set for hearing under subpart B, C, or D 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.
§ 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, and D of this part. However, all relevant and material evidence shall be received into the record.
§ 209.17 Motions.
Motions shall be in writing, filed with the presiding officer, and copies served upon the parties in accordance with § 209.5, except that oral motions may be made during the course of any hearing or appearance before the presiding officer. Each motion shall state the particular order, ruling, or action desired and the grounds therefor. Unless otherwise specified by the presiding officer, any objection to a written motion must be filed within 10 days after receipt of the motion.
Subpart B – Hazardous Materials Penalties
Civil Penalties
§ 209.101 Civil penalties generally.
(a) Sections 209.101 through 209.121 prescribe rules of procedure for the assessment of civil penalties pursuant to the Federal hazardous materials transportation safety law, 49 U.S.C. Chapter 51.
(b) When the FRA has reason to believe that a person has knowingly committed an act which is a violation of any provision of subchapter B or C of chapter I, subtitle B of this title for which the FRA exercises enforcement responsibility or any waiver or order issued thereunder, it may conduct a proceeding to assess a civil penalty.
§ 209.103 Minimum and maximum penalties.
(a) A person who knowingly violates a requirement of the Federal hazardous materials transportation laws, an order issued thereunder, subchapter A or C of chapter I, subtitle B, of this title, or a special permit or approval issued under subchapter A or C of chapter I, subtitle B, of this title is liable for a civil penalty of not more than $84,425 for each violation, except that –
(1) The maximum civil penalty for a violation is $196,992 if the violation results in death, serious illness, or severe injury to any person, or substantial destruction of property; and
(2) A minimum $508 civil penalty applies to a violation related to training.
(b) When the violation is a continuing one, each day of the violation constitutes a separate offense. 49 U.S.C. 5123.
(c) The maximum and minimum civil penalties described in paragraph (a) of this section apply to violations occurring on or after May 3, 2021.
§ 209.105 Notice of probable violation.
(a) FRA, through 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 www.fra.dot.gov contains guidelines used by the chief counsel in making initial penalty assessments.
(b) A notice of probable violation 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) The FRA may amend the notice of probable violation at any time prior to the entry of an order assessing a civil penalty. If the amendment contains any new material allegation of fact, the respondant is given an opportunity to respond. In an amended notice, FRA may change the civil penalty amount proposed to be assessed up to and including the maximum penalty amount of $84,425 for each violation, except that if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property, FRA may change the penalty amount proposed to be assessed up to and including the maximum penalty amount of $196,992.
§ 209.107 Reply.
(a) Within thirty (30) days of the service of a notice of probable violation issued under § 209.105, the respondent may –
(1) Pay as provided in § 209.109(a) and thereby close the case;
(2) Make an informal response as provided in § 209.111; or
(3) Request a hearing as provided in § 209.113.
(b) The Chief Counsel may extend the thirty (30) 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 his or her right to appear and contest the allegations and authorizes the Chief Counsel, without further notice to the respondent, to find the facts to be as alleged in the notice of probable violation and to assess an appropriate civil penalty.
§ 209.109 Payment of penalty; compromise.
(a) Payment of a civil penalty may be made by certified check, money order, or credit card. Payments made by certified check or money order should be made payable to the Federal Railroad Administration and sent to DOT/FRA, Mike Monroney Aero Center, General Accounting Division, AMZ-300, P.O. Box 25082, Oklahoma City, OK 73125. Overnight express payments may be sent to DOT/FRA, Mike Monroney Aero Center, General Accounting Division, AMZ-300, 6500 South MacArthur Blvd. Headquarters Building, Room 176, Oklahoma City, OK 73169. Payment by credit card must be made via the Internet at https://www.pay.gov/paygov/. Instructions for online payment are found on the Web site.
(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 contracting the Chief Counsel.
§ 209.111 Informal response and assessment.
(a) If a respondent elects to make an informal response to a notice of probable violation, respondent shall submit to 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 his or her informal written response a request for a conference. Upon receipt of such a request, the Chief Counsel arranges for a conference as soon as practicable at a time and place of mutual convenience.
(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 Chief Counsel in reviewing the notice of proposed violation and determining the fact of violation and the amount of any penalty to be assessed.
(d) After consideration of an informal response, including any relevant information presented at a conference, the Chief Counsel may dismiss the notice of probable violation in whole or in part. If he or she does not dismiss it in whole, he or she may issue an order assessing a civil penalty.
§ 209.113 Request for hearing.
(a) If a respondent elects to request a hearing, he or she must submit a written request to the Chief Counsel referring to the case number which appeared on the notice of the probable violation. The request must –
(1) State the name and 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 which complies with the requirements of paragraph (a) of this section, the Chief Counsel schedules a hearing for the earliest practicable date.
(c) The Chief Counsel or the hearing officer appointed under § 209.115 may grant extensions of the time of the commencement of the hearing for good cause shown.
§ 209.115 Hearing.
(a) When a hearing is requested and scheduled under § 209.113, a hearing officer designated by 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, or at a place convenient to the respondent. 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 which may expedite the hearing or aid in the disposition of an issue raised, therein.
(c) The Chief Counsel has the burden of providing the facts alleged in the notice of proposed violation 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 his or her own behalf or through counsel of his or her choice. The respondent or his or her counsel may offer relevant information including testimony which he or she believes should be considered in defense of the allegations or which 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.
§ 209.117 Presiding officer’s decision.
(a) After consideration of the evidence of record, the presiding officer may dismiss the notice of probable violation in whole or in part. If the presiding officer does not dismiss it in whole, he or she 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 § 209.121, 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.
§ 209.119 Assessment considerations.
The assessment of a civil penalty under § 209.117 is made only after considering:
(a) The nature and circumstances of the violation;
(b) The extent and gravity of the violation;
(c) The degree of the respondent’s culpabilty;
(d) The respondent’s history of prior offenses;
(e) The respondent’s ability to pay;
(f) The effect on the respondent’s ability to continue in business; and
(g) Such other matters as justice may require.
§ 209.121 Appeal.
(a) Any party aggrieved by a presiding officer’s decision or order issued under § 209.117 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.
Criminal Penalties
§ 209.131 Criminal penalties generally.
A person who knowingly violates 49 U.S.C. 5104(b) or § 171.2(l) of this title or willfully or recklessly violates a requirement of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued thereunder shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both, except the maximum amount of imprisonment shall be 10 years in any case in which the violation involves the release of a hazardous material which results in death or bodily injury to any person.
§ 209.133 Referral for prosecution.
If an inspector, including a certified state inspector under part 212 of this chapter, or another employee of FRA becomes aware of a possible knowing violation of 49 U.S.C. 5104(b) or a willful or reckless violation of the Federal hazardous materials transportation law or a regulation issued under those laws for which FRA exercises enforcement responsibility, he or she shall report it to the Chief Counsel. If evidence exists tending to establish a prima facie case, and if it appears that assessment of a civil penalty would not be an adequate deterrent to future violations, the Chief Counsel refers the report to the Department of Justice for criminal prosecution of the offender.
Subpart C – Compliance Orders
§ 209.201 Compliance orders generally.
(a) This subpart prescribes rules of procedure leading to the issuance of compliance orders pursuant to the Federal railroad safety laws at 49 U.S.C. 5121(a) and/or 20111(b).
(b) The FRA may commence a proceeding under this subpart when FRA has reason to believe that a person is engaging in conduct or a pattern of conduct that involves one or more violations of the Federal railroad safety laws or any regulation or order issued under those laws for which FRA exercises enforcement authority.
§ 209.203 Notice of investigation.
(a) FRA begins a compliance order proceeding by serving a notice of investigation on the respondent.
(b) The notice of investigation contains:
(1) A statement of the legal authority for the proceeding;
(2) A statement of the factual allegations upon which the remedial action is being sought; and
(3) A statement of the remedial action being sought in the form of a proposed compliance order.
(c) The FRA may amend the notice of investigation at any time prior to the entry of a final compliance order. If an amendment includes any new material allegation of fact or seeks new or additional remedial action, the respondent is given an opportunity to respond.
§ 209.205 Reply.
(a) Within thirty (30) days of service of a notice of investigation, the respondent may file a reply with the FRA. The Chief Counsel may extend the time for filing for good cause shown.
(b) The reply must be in writing, signed by the person filing it, and state with respect to each factual allegation whether it is admitted or denied. Even though formally denied, a factual allegation set forth in a notice of investigation is considered to be admitted for purposes of the proceeding unless:
(1) Opposed by the affidavit of an individual having personal knowledge of the subject matter;
(2) Challenged as defective on its face together with a supporting explanation as to why it is believed to be defective; or
(3) Otherwise actively put at issue through the submission of relevant evidence.
(c) The reply must set forth any affirmative defenses and include a statement of the form and nature of proof by which those defenses are to be established.
(d) If it is necessary to respond to an amendment to the notice of investigation, the respondent may amend the reply concerning the substance of matters contained in the amendment to the notice at any time before the issuance of an order under § 209.211.
(e) If the respondent elects not to contest one or more factual allegations, he or she should so state in the reply. An election not to contest a factual allegation is an admission of that allegation solely for the purpose of issuing a compliance order. That election constitutes a waiver of hearing as to that allegation but does not, by itself, constitute a waiver of the right to be heard on other issues. In connection with a statement of election not to contest a factual allegation, the respondent may propose an appropriate order for issuance by the Administrator or propose the negotiation of a consent order.
(f) Failure of the respondent to file a reply within the period provided constitutes a waiver of his or her right to appear and contest the allegation and authorizes the Administrator, without further notice to the respondent, to find the facts to be as alleged in the notice of proposed violation and to issue an appropriate order directing compliance.
§ 209.207 Consent order.
(a) At any time before the issuance of an order under § 209.211, the Chief Counsel and the respondent may execute an agreement proposing the entry by consent of an order directing compliance. The Administrator may accept the proposed order by signing it. If the Administrator rejects the proposed order, he or she directs that the proceeding continue.
(b) An agreement submitted to the Administrator under this section must include:
(1) A proposed compliance order suitable for the Administrator’s signature;
(2) An admission of all jurisdictional facts;
(3) An express waiver of further procedural steps and of all right to seek judicial review or otherwise challenge or contest the validity of the order; and
(4) An acknowledgment that the notice of investigation may be used to construe the terms of the order.
§ 209.209 Hearing.
(a) When a respondent files a reply contesting allegations in a notice of investigation issued under § 209.203 or when the FRA and the respondent fail to agree upon an acceptable consent order, the hearing officer designated by the Chief Counsel convenes and presides over a hearing on the proposed compliance order.
(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;
(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, ad- journ 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 compliance orders and permitted by law which may expedite the hearing or aid in the disposition of an issue raised therein.
(c) The Chief Counsel has the burden of providing the facts alleged in the notice of investigation 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 his or her own behalf or through counsel of his or her choice. The respondent or his or her counsel may offer relevant information, including testimony which he or she believes should be considered in defense of the allegations or which may bear on the remedial action being sought, 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 therefor.
§ 209.211 Presiding officer’s decision.
(a) After consideration of evidence, the presiding officer may dismiss the notice of investigation or issue a compliance order. 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) A compliance order issued under this section is effective twenty (20) days from service on the respondent unless otherwise provided therein.
§ 209.213 Appeal.
(a) Any party aggrieved by a presiding officer’s decision may file an appeal with the Administrator. The appeal must be filed within twenty (20) days after service of the presiding officer’s decision.
(b) Prior to rendering a final determination on an appeal, the Administrator may remand the case for further proceedings before the hearing officer.
(c) The filing of an appeal does not stay the effectiveness of a compliance order unless the Administrator expressly so provides.
§ 209.215 Time limitation.
A proceeding for the issuance of a compliance order under the Federal Railroad Safety Act of 1970, as amended, shall be completed within twelve (12) months after issuance of the notice of investigation.
Subpart D – Disqualification Procedures
§ 209.301 Purpose and scope.
(a) This subpart prescribes the rules of practice for administrative proceedings relating to the determination of an individual’s fitness for performing safety-sensitive functions under the Federal railroad safety laws at 49 U.S.C. 20111(c).
(b) The purpose of this subpart is to prevent accidents and casualties in railroad operations that result from the presence in the work force of railroad employees, including managers and supervisors, and agents of railroads who have demonstrated their unfitness to perform the safety-sensitive functions described in § 209.303 by violating any rule, regulation, order or standard prescribed by FRA. Employees and agents who evidence such unfitness may be disqualified, under specified terms and conditions, temporarily or permanently, from performing such safety-sensitive functions.
(c) This subpart does not preempt a railroad from initiating disciplinary proceedings and imposing disciplinary sanctions against its employees, including managers and supervisors, under its collective bargaining agreements or in the normal and customary manner. Disqualification determinations made under this subpart shall have no effect on prior or subsequent disciplinary actions taken against such employees by railroads.
§ 209.303 Coverage.
This subpart applies to the following individuals:
(a) Railroad employees who are assigned to perform service subject to the Hours of Service Act (49 U.S.C. Chapt. 211) during a duty tour, whether or not the person has performed or is currently performing such service, and any person who performs such service.
(b) Railroad employees or agents who:
(1) Inspect, install, repair, or maintain track and roadbed;
(2) Inspect, repair or maintain, locomotives, passenger cars, and freight cars;
(3) Conduct training and testing of employees when the training or testing is required by the FRA’s safety regulations; or
(4) Perform service subject to the Transportation of Hazardous Materials laws (49 U.S.C. Ch. 51), or any regulation or order prescribed thereunder;
(c) Railroad managers, supervisors, or agents when they:
(1) Perform the safety-sensitive functions listed in paragraphs (a) and (b) of this section;
(2) Supervise and otherwise direct the performance of the safety-sensitive functions listed in paragraphs (a) and (b) of this section; or
(3) Are in a position to direct the commission of violations of any of the requirements of parts 213 through 241 of this title, or any of the requirements of 49 U.S.C. Ch. 51, or any regulation or order prescribed thereunder.
§ 209.305 Notice of proposed disqualification.
(a) FRA, through the Chief Counsel, begins a disqualification proceeding by serving a notice of proposed disqualification on the respondent charging him or her with having violated one or more rules, regulations, orders, or standards promulgated by FRA, which render the respondent unfit to perform safety-sensitive functions described in § 209.303.
(b) The notice of proposed disqualification issued under this section shall contain:
(1) A statement of the rule(s), regulation(s), order(s), or standard(s) that the respondent is alleged to have violated;
(2) A statement of the factual allegations that form the basis of the initial determination that the respondent is not fit to perform safety-sensitive functions;
(3) A statement of the effective date, duration, and other conditions, if any, of the disqualification order;
(4) A statement of the respondent’s right to answer the charges in writing and furnish affidavits and any other documentary evidence in support of the answer;
(5) A statement of the respondent’s right to make an informal response to the Chief Counsel;
(6) A statement of the respondent’s right to request a hearing and the procedures for requesting a hearing;
(7) A statement of the respondent’s right to counsel or other designated representative; and
(8) Notice of the consequences of the respondent’s failure to take any of the actions described in § 209.307(a).
(c) The Chief Counsel shall enclose with the notice of proposed disqualification a copy of the material that is relied on in support of the charges. Nothing in this section precludes the Chief Counsel from presenting at a subsequent hearing under § 209.321 any evidence of the charges set forth in the notice that the Chief Counsel acquires after service thereof on the respondent. The Chief Counsel, however, shall serve a copy of any such evidence on the respondent at or before the prehearing conference required under § 209.319. Failure to furnish such evidence to respondent at or before the prehearing conference bars its introduction at the hearing.
(d) The Chief Counsel shall provide a copy of the notice of proposed disqualification to the railroad that employs the respondent.
§ 209.307 Reply.
(a) Within 30 days after receipt of the notice of proposed disqualification issued under § 209.305, the respondent shall reply in writing to the charges. The respondent may furnish affidavits and any other documentary evidence in support of the reply. Further, the respondent may elect to –
(1) Stipulate to the charges and consent to the imposition of the disqualification order under the conditions set forth in the notice;
(2) Make an informal response as provided in § 209.309; or
(3) Request a hearing as provided in § 209.311.
(b) The Chief Counsel may extend the reply period for good cause shown, provided the request for extension is served before the expiration of the period provided in paragraph (a) of this section.
(c) Failure of the respondent to reply to the notice of proposed disqualification within the period provided in paragraph (a) of this section or an extension thereto provided under paragraph (b) of this section constitutes a waiver of the respondent’s right to appear and contest the charges or the proposed disqualification. Respondent’s failure to reply authorizes the Chief Counsel, without further notice to the respondent, to find the respondent unfit for the performance of the safety-sensitive functions described in § 209.303 and to order the respondent disqualified from performing them for the period and under the other conditions described in the notice of proposed disqualification. The Chief Counsel shall serve respondent with the disqualification order and provide a copy of the order to the railroad by which the respondent is employed.
§ 209.309 Informal response.
(a) If the respondent elects to make an informal response to a notice of proposed disqualification, he or she shall submit to 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 disqualification.
(b) The respondent may include in an informal written response a request for a conference. Upon receipt of such a request, the Chief Counsel shall arrange for a conference at a time and place designated by the Chief Counsel.
(c) Written explanations, information, or materials submitted by the respondent and relevant information presented during any conference held under this section shall be considered by the Chief Counsel in reviewing the notice of proposed disqualification, including the question of the respondent’s fitness and the conditions of any disqualification that may be imposed.
(d) After consideration of an informal response, including any relevant information presented at a conference, the Chief Counsel shall take one of the following actions:
(1) Dismiss all the charges and terminate the notice of proposed disqualification;
(2) Dismiss some of the charges and mitigate the proposed disqualification;
(3) Mitigate the proposed disqualification; or
(4) Sustain the charges and proposed disqualification.
(e) Should the Chief Counsel sustain, in whole or in part, the charges and proposed disqualification and reach settlement with the respondent, the Chief Counsel shall issue an appropriate disqualification order reflecting the settlement and shall provide a copy of that order to the railroad by which the respondent is employed. The duration of the disqualification period may be less than, but shall be no greater than, the period set forth in the notice. Any settlement reached shall be evidenced by a written agreement, which shall include declarations from the respondent stipulating to the charges contained in the disqualification order, consenting to the imposition of the disqualification under the conditions set forth in the disqualification order, and waiving his or her right to a hearing.
(f) If settlement of the charges against the respondent is not achieved, the Chief Counsel shall terminate settlement discussions no later than 30 days from service of the informal response upon the Chief Counsel by serving respondent written notice of termination of settlement negotiations.
(g) By electing to make an informal response to a notice of proposed disqualification, the respondent does not waive the right to a hearing. However, the respondent must submit the hearing request required by § 209.311(a) within l0 days after receipt of the notice of termination of settlement negotiations from the Chief Counsel. Failure to submit such a request constitutes a waiver of the respondent’s right to appear and contest the charges or the proposed disqualification.
(h) The Chief Counsel may extend the period for requesting a hearing for good cause shown, provided the request for extension is served before the expiration of the period provided in paragraph (g) of this section.
§ 209.311 Request for hearing.
(a) If the respondent elects to request a hearing, he or she must submit a written request within the time periods specified in § 209.307(a) or § 209.309(g) to the Chief Counsel referring to the case number that appears on the notice of proposed disqualification. The request must contain the following:
(1) The name, address, and telephone number of the respondent and of the respondent’s designated representative, if any;
(2) A specific response admitting, denying, or explaining each allegation of the notice of disqualification order.
(3) A description of the claims and defenses to be raised by the respondent at the hearing; and
(4) The signature of the respondent or the representative, if any.
(b) Upon receipt of a request for a hearing complying with the requirements of paragraph (a) of this section, the Chief Counsel shall arrange for the appointment of a presiding officer and transmit the disqualification file to the presiding officer, who shall schedule the hearing for the earliest practicable date within the time period set by § 209.321(a) of this subpart.
(c) Upon assignment of a presiding officer, further matters in the proceeding generally are conducted by and through the presiding officer, except that the Chief Counsel and respondent may settle or voluntarily dismiss the case without order of the presiding officer. The Chief Counsel shall promptly notify the presiding officer of any settlement or dismissal of the case.
§ 209.313 Discovery.
(a) Disqualification proceedings shall be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed for preparation of the party’s case. These regulations are intended to provide a simple, timely, and relatively economical system for discovery. They shall be interpreted and applied so as to avoid delay and facilitate adjudication of the case.
(b) Discovery may be obtained by requests for admission under § 209.6, requests for production of documentary or other tangible evidence under § 209.7, and depositions under § 209.8.
(c) A party may initiate the methods of discovery permitted under paragraph (b) of this section at any time after respondent requests a hearing under § 209.311.
(d) Discovery shall be completed within 90 days after receipt of respondent’s request for a hearing under § 209.311. Upon motion for good cause shown, the presiding officer may extend this time period for an additional 30 days. The presiding officer may grant an additional 30 day extension only when the party requesting the extension shows by clear and convincing evidence that the party was unable to complete discovery within the prescribed time period through no fault or lack of due diligence of such party, and that denial of the request would result in irreparable prejudice.
(e) If a party fails to comply with a discovery order or an order to compel, the presiding officer may:
(1) Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order;
(2) Prohibit the party failing to comply with such order from introducing evidence relating to the information sought;
(3) Draw an inference in favor of the requesting party with regard to the information sought; and
(4) Permit the requesting party to introduce secondary evidence concerning the information sought.
§ 209.315 Subpoenas.
Once a notice of proposed disqualification has been issued in a particular matter, only the presiding officer may issue, deny, quash, or modify subpoenas under this subpart in accordance with § 209.7.
§ 209.317 Official record.
The notice of proposed disqualification, respondent’s reply, exhibits, and verbatim record of testimony, if a hearing is held, and all pleadings, stipulations, and admissions filed and rulings and orders entered in the course of the proceeding shall constitute the exclusive and official record.
§ 209.319 Prehearing conference.
(a) The parties shall confer with the presiding officer, either in person or by telephone, for a conference at least 10 days before the hearing to consider:
(1) Formulation and simplification of the issues;
(2) Stipulations, admissions of fact, and admissions of the contents and authenticity of documents;
(3) Advance rulings from the presiding officer on the admissibility of evidence;
(4) Identification of witnesses, including the scope of their testimony, and of hearing exhibits;
(5) Possibility of settlement; and
(6) Such other matters as the presiding officer deems necessary to expedite the disposition of the proceeding.
(b) The record shall show the matters disposed of by order and by agreement in such a prehearing conference. The subsequent course of the hearing shall be controlled by such action.
(c) The prehearing conference shall be held within 150 days after receipt of respondent’s request for a hearing under § 209.311.
§ 209.321 Hearing.
(a) Upon receipt of a hearing request complying with § 209.311, an administrative hearing for review of a notice of proposed disqualification shall be conducted by a presiding officer, who can be any person authorized by the FRA Administrator, including an administrative law judge. The hearing shall begin within 180 days from receipt of respondent’s hearing request. Notice of the time and place of the hearing shall be given to the parties at least 20 days before the hearing. Testimony by witnesses shall be given under oath and the hearing shall be recorded verbatim. The hearing shall be open to the public, unless the presiding official determines that it would be in the best interests of the respondent, a witness, or other affected persons, to close all or any part of it. If the presiding official makes such a determination, an appropriate order, which sets forth the reasons therefor, shall be entered.
(b) The presiding officer 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 as provided in § 209.8;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, 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 and permitted by law that may expedite the hearing or aid in the disposition of an issue raised therein.
(c) FRA has the burden of proof, by a preponderance of the evidence, as to the facts alleged in the notice of proposed disqualification, the reasonableness of the conditions of the qualification proposed, and, except as provided in § 209.329(a), the respondent’s lack of fitness to perform safety-sensitive functions. The Chief Counsel may offer relevant evidence, including testimony, in support of the allegations contained in the notice of proposed disqualification and conduct such cross-examination as may be required for a full disclosure of the material facts.
(d) The respondent may appear and be heard on respondent’s own behalf or through respondent’s designated representative. The respondent may offer relevant evidence, including testimony, in defense of the allegations or in mitigation of the proposed disqualification and conduct such cross-examination as may be required for a full disclosure of the material facts. Respondent has the burden of proof, by a preponderance of the evidence, as to any affirmative defense, including that respondent’s actions were in obedience to the direct order of a railroad supervisor or higher level official.
(e) The record shall be closed at the conclusion of the hearing, unless the parties request the opportunity to submit proposed findings and conclusions. When the presiding officer allows the parties to submit proposed findings and conclusions, documents previously identified for introduction into evidence, briefs, or other posthearing submissions the record shall be left open for such time as the presiding officer grants for that purpose.
§ 209.323 Initial decision.
(a) The presiding officer shall prepare an initial decision after the closing of the record. The initial decision may dismiss the notice of proposed disqualification, in whole or in part, sustain the charges and proposed disqualification, or sustain the charges and mitigate the proposed disqualification.
(b) If the presiding officer sustains the charges and the proposed disqualification, dismisses some of the charges, or mitigates the proposed disqualification, the presiding officer shall issue and serve an appropriate order disqualifying respondent from engaging in the safety-sensitive functions described in § 209.303. If the presiding officer dismisses all of the charges set forth in notice of proposed disqualification, a dismissal order shall be issued and served.
(c) Each initial decision shall contain:
(1) Findings of fact and conclusions of law, as well as the reasons or bases therefor, upon all the material issues of fact and law presented on the record;
(2) An order, as described in paragraph (b) of this section;
(3) The dates any disqualification is to begin and end and other conditions, if any, that the respondent must satisfy before the disqualification order is discharged;
(4) The date upon which the decision will become final, as prescribed in § 209.325; and
(5) Notice of the parties’ appeal rights, as prescribed in § 209.327.
(d) The decision shall be served upon the FRA Chief Counsel and the respondent. The Chief Counsel shall provide a copy of the disqualification order to the railroad by which the respondent is employed.
§ 209.325 Finality of decision.
(a) The initial decision of the presiding officer shall become final 35 days after issuance. Such decisions are not precedent.
(b) Exception. The initial decision shall not become final if, within 35 days after issuance of the decision, any party files an appeal under § 209.327. The timely filing of such an appeal shall stay the order in the initial decision.
§ 209.327 Appeal.
(a) Any party aggrieved by an initial decision issued under § 209.323 may file an appeal. The appeal must be filed within 35 days of issuance of the initial decision with the Federal Railroad Administrator, 1200 New Jersey Avenue, SE., Washington, DC 20590. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the initial decision, supported by reference to applicable laws and regulations, and with specific reference to the record. If the Administrator has played any role in investigating, prosecuting, or deciding to prosecute the particular case, the Administrator shall recuse him or herself and delegate his or her authority under this section to a person not so involved.
(b) A party may file a reply to an appeal within 25 days of service of the appeal. If the party relies on evidence contained in the record for the reply, the party shall specifically refer to the pertinent evidence in the record.
(c) The Administrator may extend the period for filing an appeal or a response for good cause shown, provided the written request for extension is served before the expiration of the applicable period provided in paragraph (a) or (b) of this section.
(d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator’s own initiative or upon written motion by any party, the Administrator may determine that oral argument will contribute substantially to the development of the issues on appeal and may grant the parties an opportunity for oral argument.
(e) The Administrator may affirm, reverse, alter, or modify the decision of the presiding officer, or may remand the case for further proceedings before the presiding officer. The Administrator shall inform the parties and the presiding officer of his or her decision.
(f) The decision of the Administrator is final, constitutes final agency action, and is not subject to further administrative review.
§ 209.329 Assessment considerations.
(a) Proof of a respondent’s willful violation of one of the requirements of parts 213 through 241 (excluding parts 225, 228, and 233) of this title, or of one of the requirements of 49 U.S.C. Chapt. 51, or any regulation or order prescribed thereunder, establishes a rebuttable presumption that the respondent is unfit to perform the safety-sensitive functions described in § 209.303. Where such presumption arises, the respondent has the burden of establishing that, taking account of the factors in paragraph (b) of this section, he or she is fit to perform the foregoing safety-sensitive functions for the period and under the other conditions, if any, proposed in the notice of proposed disqualification.
(b) In determining respondent’s lack of fitness to perform safety-sensitive functions and the duration and other conditions, if any, of appropriate disqualification orders under §§ 209.309, 209.323, and 209.327, the factors to be considered, to the extent each is pertinent to the respondent’s case, include but are not limited to the following:
(1) The nature and circumstances of the violation, including whether the violation was intentional, technical, or inadvertent, was committed willfully, or was frequently repeated;
(2) The adverse impact or the potentially adverse impact of the violation on the health and safety of persons and the safety of property;
(3) The employing railroad’s operating rules, safety rules, and repair and maintenance standards;
(4) Repair and maintenance standards adopted by the railroad industry;
(5) The consistency of the conditions of the proposed disqualification with disqualification orders issued against other employees of the employing railroad for the same or similar violations;
(6) Whether the respondent was on notice of any safety regulations that were violated or whether the respondent had been warned about the conduct in question;
(7) The respondent’s past record of committing violations of safety regulations, including previous FRA warnings issued, disqualifications imposed, civil penalties assessed, railroad disciplinary actions, and criminal convictions therefor;
(8) The civil penalty scheduled for the violation of the safety regulation in question;
(9) Mitigating circumstances surrounding the violation, such as the existence of an emergency situation endangering persons or property and the need for the respondent to take immediate action; and
(10) Such other factors as may be warranted in the public interest.
§ 209.331 Enforcement of disqualification order.
(a) A railroad that employs or formerly employed an individual serving under a disqualification order shall inform prospective or actual employers of the terms and conditions of the order upon receiving notice that the disqualified employee is being considered for employment with or is employed by another railroad to perform any of the safety-sensitive functions described in § 209.303.
(b) A railroad that is considering hiring an individual to perform the safety-sensitive functions described in § 209.303 shall ascertain from the individual’s previous employer, if such employer was a railroad, whether the individual is subject to a disqualification order.
(c) An individual subject to a disqualification order shall inform his or her employer of the order and provide a copy thereof within 5 days after receipt of the order. Such an individual shall likewise inform any prospective employer who is considering hiring the individual to perform any of the safety-sensitive functions described in § 209.303 of the order and provide a copy thereof within 5 days after receipt of the order or upon application for the position, whichever first occurs.
§ 209.333 Prohibitions.
(a) An individual subject to a disqualification order shall not work for any railroad in any manner inconsistent with the order.
(b) A railroad shall not employ any individual subject to a disqualification order in any manner inconsistent with the order.
§ 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 $1,000 and not more than $5,000 per violation.
(b) Any railroad that violates § 209.331 (a) or (b) or § 209.333(b) may be assessed a civil penalty of at least $5,000 and not more than $11,000 per violation.
(c) Each day a violation continues shall constitute a separate offense.
§ 209.337 Information collection.
The information collection requirements in § 209.331 of this part have been reviewed by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, (44 U.S.C. 3501 et seq.) and have been assigned OMB control number 2130-0529.
Subpart E – Reporting of Remedial Actions
§ 209.401 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and casualties arising from the operation of a railroad that result from a railroad’s failure to remedy certain violations of the Federal railroad safety laws for which assessment of a civil penalty has been recommended.
(b) To achieve this purpose, this subpart requires that if an FRA Safety Inspector notifies a railroad both that assessment of a civil penalty will be recommended for its failure to comply with a provision of the Federal railroad safety laws and that a remedial actions report must be submitted, the railroad shall report to the FRA Safety Inspector, within 30 days after the end of the calendar month in which such notification is received, actions taken to remedy that failure.
(c) This subpart does not relieve the railroad of the underlying responsibility to comply with a provision of the Federal railroad safety laws. The 30-day period after the end of the calendar month in which notification is received is intended merely to provide the railroad with an opportunity to prepare its report to FRA, and does not excuse continued noncompliance.
(d) This subpart requires the submission of remedial actions reports for the general categories of physical defects, recordkeeping and reporting violations, and filing violations, where the railroad can literally and specifically correct a failure to comply with a provision of the Federal railroad safety laws, as reasonably determined by the FRA Safety Inspector. No railroad is required to submit a report for a failure involving either a completed or past transaction or a transaction that it can no longer remedy.
§ 209.403 Applicability.
This subpart applies to any railroad that receives written notification from an FRA Safety Inspector both (i) that assessment of a civil penalty will be recommended for its failure to comply with a provision of the Federal railroad safety laws and (ii) that it must submit a remedial actions report.
§ 209.405 Reporting of remedial actions.
(a) Except as provided in § 209.407, each railroad that has received written notification on Form FRA F 6180.96 from an FRA Safety Inspector both that assessment of a civil penalty will be recommended for the railroad’s failure to comply with a provision of the Federal railroad safety laws and that it must submit a remedial actions report, shall report on this form all actions that it takes to remedy that failure. The railroad shall submit the completed form to the FRA Safety Inspector within 30 days after the end of the calendar month in which the notification is received.
(1) Date of receipt of notification. If the FRA Safety Inspector provides written notification to the railroad by first class mail, then for purposes of determining the calendar month in which notification is received, the railroad shall be presumed to have received the notification five business days following the date of mailing.
(2) Completion of Form FRA F 6180.96, including selection of railroad remedial action code. Each railroad shall complete the remedial actions report in the manner prescribed on the report form. The railroad shall select the one remedial action code on the reporting form that most accurately reflects the action or actions that it took to remedy the failure, such as, repair or replacement of a defective component without movement, movement of a locomotive or car for repair (where permitted) and its subsequent repair, completion of a required test or inspection, removal of a noncomplying item from service but not for repair (where permitted), reduction of operating speed (where sufficient to achieve compliance), or any combination of actions appropriate to remedy the noncompliance cited. Any railroad selecting the remedial action code “other remedial actions” shall also furnish FRA with a brief narrative description of the action or actions taken.
(3) Submission of Form FRA F 6180.96. The railroad shall return the form by first class mail to the FRA Safety Inspector whose name and address appear on the form.
(b) Any railroad concluding that the violation alleged on the inspection report may not have occurred may submit the remedial actions report with an appropriate written explanation. Failure to raise all pertinent defenses does not foreclose the railroad from doing so in response to a penalty demand.
§ 209.407 Delayed reports.
(a) If a railroad cannot initiate or complete remedial actions within 30 days after the end of the calendar month in which the notification is received, it shall –
(1) Prepare, in writing, an explanation of the reasons for such delay and a good faith estimate of the date by which it will complete the remedial actions, stating the name and job title of the preparer and including either:
(i) A photocopy of both sides of the Form FRA F 6180.96 on which the railroad received notification; or
(ii) The following information:
(A) The inspection report number;
(B) The inspection date; and
(C) The item number; and
(2) Sign, date, and submit such written explanation and estimate, by first class mail, to the FRA Safety Inspector whose name and address appear on the notification, within 30 days after the end of the calendar month in which the notification is received.
(b) Within 30 days after the end of the calendar month in which all such remedial actions are completed, the railroad shall report in accordance with the remedial action code procedures referenced in § 209.405(a). The additional time provided by this section for a railroad to submit a delayed report shall not excuse it from liability for any continuing violation of a provision of the Federal railroad safety laws.
§ 209.409 Penalties.
Any person who violates any requirement of this subpart or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. Each day a violation continues shall constitute a separate offense. A person may also be subject to the criminal penalties provided for in 49 U.S.C. 21311 (formerly codified in 45 U.S.C. 438(e)) for knowingly and willfully falsifying reports required by this subpart.
Subpart F – Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions Pursuant to 49 CFR § 172.820
§ 209.501 Review of rail transportation safety and security route analysis.
(a) Review of route analysis. If the Associate Administrator for Safety determines that a railroad carrier’s route selection, analysis and documentation pursuant to § 172.820 of chapter I of this title is deficient and fails to establish that the route chosen by the carrier poses the least overall safety and security risk, the Associate Administrator shall issue a written notice of review (“Notice”) to the railroad carrier. The Notice shall specifically address each deficiency found in the railroad carrier’s route analysis. The Notice may also include suggested mitigation measures that the railroad carrier may take to remedy the deficiencies found, including selection of an alternative commercially feasible routing.
(b) Conference to resolve deficiencies. After issuing the Notice, the Associate Administrator conferences with the railroad carrier for a thirty (30)-day period, or such longer period as provided by the Associate Administrator, to resolve the deficiencies identified in the Notice. The Associate Administrator keeps a record of all written correspondence with the railroad carrier and a summary of each meeting and telephone conversation with the railroad carrier that pertains to the Notice.
(c) Consultation with and comment from other agencies. If, after the close of the conference period, the Associate Administrator concludes that the issues identified have not been satisfactorily resolved, the Associate Administrator:
(1) Consults with the Transportation Security Administration (“TSA”) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) regarding the safety and security of the route proposed by the railroad carrier and any alternative route(s) over which the carrier is authorized to operate that are being considered by the Associate Administrator and prepares a written summary of the recommendations from TSA and PHMSA;
(2) Obtains the comments of the Surface Transportation Board (“STB”) regarding whether the alternative route(s) being considered by the Associate Administrator would be commercially practicable; and
(3) Fully considers the input of TSA, PHMSA and the STB and renders a decision pursuant to paragraph (d) of this section which shall be administratively final.
(d) Decision. (1) If the Associate Administrator finds that the route analysis and documentation provided by the railroad carrier are sufficient to support the route selected by the carrier or that valid issues of commercial practicability preclude an alternative route, the Associate Administrator concludes the review without further action and so notifies the railroad carrier in writing.
(2) If the Associate Administrator concludes that the railroad carrier’s route analysis does not support the railroad carrier’s original selected route, that safety and security considerations establish a significant preference for an alternative route, and that the alternative route is commercially practicable, the Associate Administrator issues a second written notice (2nd Notice) to the railroad carrier that:
(i) Specifically identifies deficiencies found in the railroad carrier’s route analysis, including a clear description of the risks on the selected route that have not been satisfactorily mitigated;
(ii) Explains why the available data and reasonable inferences indicate that a commercially practicable alternative route poses fewer overall safety and security risks than the route selected by the railroad carrier; and
(iii) Directs the railroad carrier, beginning within twenty (20) days of the issuance date of the 2nd Notice on the railroad carrier, to temporarily use the alternative route that the Associate Administrator determines poses the least overall safety and security risk until such time as the railroad carrier has adequately mitigated the risks identified by the Associate Administrator on the original route selected by the carrier.
(e) Actions following 2nd Notice and re-routing directive. When issuing a 2nd Notice that directs the use of an alternative route, the Associate Administrator shall make available to the railroad carrier the administrative record relied upon by the Associate Administrator in issuing the 2nd Notice, including the recommendations of TSA, PHMSA and STB to FRA made pursuant to paragraphs (c)(1) and (2) of this section. Within twenty (20) days of the issuance date of the Associate Administrator’s 2nd Notice, the railroad carrier may:
(1) Comply with the Associate Administrator’s directive to use an alternative route while the carrier works to address the deficiencies in its route analysis identified by the Associate Administrator; or
(2) File a petition for judicial review of the Associate Administrator’s 2nd Notice, pursuant to paragraph (g) of this section.
(f) Review and decision by Associate Administrator on revised route analysis submitted in response to 2nd Notice. Upon submission of a revised route analysis containing an adequate showing by the railroad carrier that its original selected route poses the least overall safety and security risk, the Associate Administrator notifies the carrier in writing that the carrier may use its original selected route.
(g) Appellate review. If a railroad carrier is aggrieved by final agency action, it may petition for review of the final decision in the appropriate United States court of appeals as provided in 49 U.S.C. 5127. The filing of the petition for review does not stay or modify the force and effect of the final agency action unless the Associate Administrator or the Court orders otherwise.
(h) Time. In computing any period of time prescribed by this part, the day of any act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days.
Appendix A to Part 209 – Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws
The Federal Railroad Administration (“FRA”) enforces the Federal railroad safety statutes under delegation from the Secretary of Transportation. See 49 CFR 1.49(c), (d), (f), (g), (m), and (oo). 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). 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”) (then codified at 45 U.S.C. 421 et seq.), and a group of statutes enacted prior to 1970 referred to collectively herein as the “older safety statutes”: the Safety Appliance Acts (then codified at 45 U.S.C. 1-16); the Locomotive Inspection Act (then codified at 45 U.S.C. 22-34); the Accident Reports Act (then codified at 45 U.S.C. 38-43); the Hours of Service Act (then codified at 45 U.S.C. 61-64b); and the Signal Inspection Act (then codified at 49 App. U.S.C. 26). 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 209-244. The Rail Safety Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988) (“RSIA”) raised the maximum civil penalties available under the railroad safety laws and made individuals liable for willful violations of those laws. FRA also enforces the hazardous materials transportation laws (49 U.S.C. ch. 51 and uncodified provisions) (formerly the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., which was also repealed by Public Law 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 front lines in the civil penalty process are the FRA safety inspectors: FRA employs over 300 inspectors, and their work is supplemented by approximately 100 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 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, he or she prepares a violation report, which is essentially a recommendation to the FRA Office of 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 regional 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 Safety headquarters. Violation reports that are technically and legally sufficient and in accord with FRA policy are sent from the regional office to the Office of Chief Counsel.
The exercise of this discretion at the field and regional 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 Chief Counsel’s Safety Division reviews each violation report it receives from the regional offices for legal sufficiency and assesses penalties based on those allegations that survive that review. Historically, the Division has returned to the regional offices less than five percent of the reports submitted in a given year, often with a request for further work and resubmission.
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. Over its history, FRA has had to request that the Attorney General bring suit to collect a penalty on only a very few occasions.
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, held either in Washington or another mutually agreed on location, 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 the mail or over the telephone, 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 check is submitted to FRA’s accounting division covering the full amount agreed on.
Cases brought under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., are, due to certain statutory requirements, handled under more formal administrative procedures. See 49 CFR part 209, subpart B.
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 Safety Division of the Office of 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 him or her 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. 1809(a)) would subject individuals to civil penalties in more situations than the record warranted. Instead, FRA wanted the authority to penalize those who violate the safety laws through a purposeful act of free will.
Thus, FRA considers a “willful” violation to be one that is an intentional, voluntary act committed either with knowledge of the relevant law or reckless disregard for whether the act violated the requirements of the law. Accordingly, neither a showing of evil purpose (as is sometimes required in certain criminal cases) nor actual knowledge of the law is necessary to prove a willful violation, but a level of culpability higher than negligence must be demonstrated. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Brock v. Morello Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and Donovan v. Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).
Reckless disregard for the requirements of the law can be demonstrated in many ways. Evidence that a person was trained on or made aware of the specific rule involved – or, as is more likely, its corresponding industry equivalent – would suffice. Moreover, certain requirements are so obviously fundamental to safe railroading (e.g., the prohibition against disabling an automatic train control device) that any violation of them, regardless of whether the person was actually aware of the prohibition, should be seen as reckless disregard of the law. See Brock, supra, 809 F.2d 164. Thus, a lack of subjective knowledge of the law is no impediment to a finding of willfulness. If it were, a mere denial of the content of the particular regulation would provide a defense. Having proposed use of the word “willful,” FRA believes it was not intended to insulate from liability those who simply claim – contrary to the established facts of the case – they had no reason to believe their conduct was wrongful.
A willful violation entails knowledge of the facts constituting the violation, but actual, subjective knowledge need not be demonstrated. It will suffice to show objectively what the alleged violator must have known of the facts based on reasonable inferences drawn from the circumstances. For example, a person shown to have been responsible for performing an initial terminal 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, he or she 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, he or she does not do so of his or her 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 his participation in such movements could not be used against him in any disqualification proceeding brought by FRA.
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 informal 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 inspector or the regional director informs the individual in writing of his or her intention to seek assessment of a civil penalty and the fact that a violation report has been transmitted to the Office of Chief Counsel. This ensures that the individual has the opportunity to seek counsel, preserve documents, or take any other necessary steps to aid his or her defense at the earliest possible time.
Second, if the Office of Chief Counsel concludes that the case is meritorious and issues a penalty demand letter, that letter makes clear that FRA encourages discussion, through the mail, over the telephone or in person, of any defenses or mitigating factors the individual may wish to raise. That letter also advises the individual that he or she 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, FRA sends the individual a letter warning of its intention to request that the Attorney General sue for the initially proposed amount and giving the person a sufficient interval (e.g., 30 days) to decide if that is the only alternative.
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.
Although informal, face-to-face meetings are encouraged during the negotiation of a civil penalty charge, the RSIA does not require that FRA give individuals or railroads the opportunity for a formal, trial-type administrative hearing as part of the civil penalty process. FRA does not provide that opportunity because such administrative hearings would be likely to add significantly to the costs an individual would have to bear in defense of a safety claim (and also to FRA’s enforcement expenses) without shedding any more light on what resolution of the matter is fair than would the informal procedures set forth here. Of course, should an individual or railroad decide not to settle, that person would be entitled to a trial de novo when FRA, through the Attorney General, sued to collect the penalty in the appropriate United States district court.
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 Federal rail safety laws, regulations, or orders. Id., secs. 3, 13-15, 17. Pursuant to sec. 16 of RSIA, the penalty for a violation of the Hours of Service Act 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, and regulations and orders under those statutes, the maximum penalty was raised from $2,500 to $10,000 per violation, except that where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, the penalty was raised to a maximum of $20,000 per violation (“the aggravated maximum penalty”).
The Rail Safety Enforcement and Review Act (RSERA), Pub. L. 102-365, 106 Stat. 972, enacted in 1992, increased the maximum penalty from $1,000 to $10,000, and provided for an aggravated maximum penalty of $20,000 for a violation of the Hours of Service Act, making these penalty amounts uniform with those of FRA’s other safety laws, regulations, and orders. RSERA also increased the minimum civil monetary penalty from $250 to $500 for all of FRA’s safety regulatory provisions and orders. Id., sec. 4(a).
The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 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 periodically adjusted, pursuant to the Inflation Act, through rulemaking.
The Rail Safety Improvement Act of 2008 (“RSIA of 2008”), enacted October 16, 2008, raised 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
Effective June 25, 2012, the aggravated maximum penalty was raised from $100,000 to $105,000 pursuant to the Inflation Act.
On November 2, 2015, President Barack Obama signed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Inflation Act). Pub. L. 114-74, Sec. 701. Under the 2015 Inflation Act, agencies must make a catch-up adjustment for civil monetary penalties with the new penalty levels published by July 1, 2016, to take effect no later than August 1, 2016. Moving forward, agencies must make annual inflationary adjustments, starting January 15, 2017, based on Office of Management and Budget guidance. Under the 2015 Inflation Act, effective April 3, 2017, the minimum civil monetary penalty was raised from $839 to $853, the ordinary maximum civil monetary penalty was raised from $27,455 to $27,904, and the aggravated maximum civil monetary penalty was raised from $109,819 to $111,616. Effective November 27, 2018, the minimum civil monetary penalty was raised from $853 to $870, the ordinary maximum civil monetary penalty was raised from $27,904 to $28,474, and the aggravated maximum civil monetary penalty was raised from $111,616 to $113,894. Effective July 31, 2019, the minimum civil monetary penalty was raised from $870 to $892, the ordinary maximum civil monetary penalty was raised from $28,474 to $29,192, and the aggravated maximum civil monetary penalty was raised from $113,894 to $116,766. Effective January 11, 2021, the minimum civil monetary penalty was raised from $892 to $908, the ordinary maximum civil monetary penalty was raised from $29,192 to $29,707, and the aggravated maximum civil monetary penalty was raised from $116,766 to $118,826. Effective May 3, 2021, the minimum civil monetary penalty was raised from $908 to $919, the ordinary maximum civil monetary penalty was raised from $29,707 to $30,058, and the aggravated maximum civil monetary penalty was raised from $118,826 to $120,231.
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 www.fra.dot.gov. For each regulation in this part or order, the schedule shows two amounts within the $919 to $30,058 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.
The schedule amounts 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. The Senate report on the bill that became the RSIA stated:
It is expected that the Secretary would act expeditiously to set penalty levels commensurate with the severity of the violations, with imposition of the maximum penalty reserved for violation of any regulation where warranted by exceptional circumstances. S. Rep. No. 100-153, 10th Cong., 2d Sess. 8 (1987).
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 $120,231 per violation where a pattern of repeated violations or a grossly negligent violation has created an imminent hazard of death or injury or has caused death or injury. FRA indicates in the penalty demand letter when it uses the higher penalty amount instead of the penalty amount listed in the schedule.
The Safety Act and, as amended by the RSIA, the older safety statutes apply to “railroads.” Section 202(e) of the Safety Act defines railroad as follows:
The term “railroad” as used in this title means all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, as well as any commuter rail service which was operated by the Consolidated Rail Corporation as of January 1, 1979, and (2) high speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.
Prior to 1988, the older safety statutes had applied only to common carriers engaged in interstate or foreign commerce by rail. The Safety Act, by contrast, was intended to reach as far as the Commerce Clause of the Constitution (i.e., to all railroads that affect interstate commerce) rather than be limited to common carriers actually engaged in interstate commerce. In reporting out the bill that became the 1970 Safety Act, the House Committee on Interstate and Foreign Commerce stated:
The Secretary’s authority to regulate extends to all areas of railroad safety. This legislation is intended to encompass all those means of rail transportation as are commonly included within the term. Thus, “railroad” is not limited to the confines of “common carrier by railroad” as that language is defined in the Interstate Commerce Act.
FRA’s jurisdiction was bifurcated until, in 1988, the RSIA amended the older safety statutes to make them coextensive with the Safety Act by making them applicable to railroads and incorporating the Safety Act’s definition of the term (e.g.,45 U.S.C. 16, as amended). The RSIA also made clear that FRA’s safety jurisdiction is not confined to entities using traditional railroad technology. The new definition of “railroad” emphasized that all non-highway high speed ground transportation systems – regardless of technology used – would be considered railroads.
Thus, with the exception of self-contained urban rapid transit systems, FRA’s statutory jurisdiction extends to all entities that can be construed as railroads by virtue of their providing non-highway ground transportation over rails or electromagnetic guideways, and will extend to future railroads using other technologies not yet in use. For policy reasons, however, FRA does not exercise jurisdiction under all of its regulations to the full extent permitted by statute. Based on its knowledge of where the safety problems were occurring at the time of its regulatory action and its assessment of the practical limitations on its role, FRA has, in each regulatory context, decided that the best option was to regulate something less than the total universe of railroads.
For example, all of FRA’s regulations exclude from their reach railroads whose entire operations are confined to an industrial installation (i.e., “plant railroads”), such as those in steel mills that do not go beyond the plant’s boundaries. E.g., 49 CFR 225.3(a)(1) (accident reporting regulations). Some rules exclude passenger operations that are not part of the general railroad system (such as some tourist railroads) only if they meet the definition of “insular.” E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade crossing signal safety). Other regulations exclude not only plant railroads but all other railroads that are not operated as a part of, or over the lines of, the general railroad system of transportation. E.g., 49 CFR 214.3 (railroad workplace safety).
By “general railroad system of transportation,” FRA refers to the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Much of this network is interconnected, so that a rail vehicle can travel across the nation without leaving the system. However, mere physical connection to the system does not bring trackage within it. For example, trackage within an industrial installation that is connected to the network only by a switch for the receipt of shipments over the system is not a part of the system.
Moreover, portions of the network may lack a physical connection but still be part of the system by virtue of the nature of operations that take place there. For example, the Alaska Railroad is not physically connected to the rest of the general system but is part of it. The Alaska Railroad exchanges freight cars with other railroads by car float and exchanges passengers with interstate carriers as part of the general flow of interstate commerce. Similarly, an intercity high speed rail system with its own right of way would be part of the general system although not physically connected to it. The presence on a rail line of any of these types of railroad operations is a sure indication that such trackage is part of the general system: the movement of freight cars in trains outside the confines of an industrial installation, the movement of intercity passenger trains, or the movement of commuter trains within a metropolitan or suburban area. Urban rapid transit operations are ordinarily not part of the general system, but may have sufficient connections to that system to warrant exercise of FRA’s jurisdiction (see discussion of passenger operations, below). Tourist railroad operations are not inherently part of the general system and, unless operated over the lines of that system, are subject to few of FRA’s regulations.
The boundaries of the general system are not static. For example, a portion of the system may be purchased for the exclusive use of a single private entity and all connections, save perhaps a switch for receiving shipments, severed. Depending on the nature of the operations, this could remove that portion from the general system. The system may also grow, as with the establishment of intercity service on a brand new line. However, the same trackage cannot be both inside and outside of the general system depending upon the time of day. If trackage is part of the general system, restricting a certain type of traffic over that trackage to a particular portion of the day does not change the nature of the line – it remains the general system.
Of course, even where a railroad operates outside the general system, other railroads that are definitely part of that system may have occasion to enter the first railroad’s property (e.g., a major railroad goes into a chemical or auto plant to pick up or set out cars). In such cases, the railroad that is part of the general system remains part of that system while inside the installation; thus, all of its activities are covered by FRA’s regulations during that period. The plant railroad itself, however, does not get swept into the general system by virtue of the other railroad’s activity, except to the extent it is liable, as the track owner, for the condition of its track over which the other railroad operates during its incursion into the plant. Of course, in the opposite situation, where the plant railroad itself operates beyond the plant boundaries on the general system, it becomes a railroad with respect to those particular operations, during which its equipment, crew, and practices would be subject to FRA’s regulations.
In some cases, the plant railroad leases track immediately adjacent to its plant from the general system railroad. Assuming such a lease provides for, and actual practice entails, the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant, the lease would remove the plant railroad’s operations on that trackage from the general system for purposes of FRA’s regulations, as it would make that trackage part and parcel of the industrial installation. (As explained above, however, the track itself would have to meet FRA’s standards if a general system railroad operated over it. See 49 CFR 213.5 for the rules on how an owner of track may assign responsibility for it.) A lease or practice that permitted other types of movements by general system railroads on that trackage would, of course, bring it back into the general system, as would operations by the plant railroad indicating it was moving cars on such trackage for other than its own purposes (e.g., moving cars to neighboring industries for hire).
FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. There are two exceptions: (1) operations of less than 24-inch gage (which, historically, have never been considered railroads under the Federal railroad safety laws); and (2) operations that are off the general system and “insular” (defined below).
Insularity is an issue only with regard to tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist operation to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public’except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser’would be affected by the operation. A tourist operation will not be considered insular if one or more of the following exists on its line:
•A public highway-rail crossing that is in use;
•An at-grade rail crossing that is in use;
•A bridge over a public road or waters used for commercial navigation; or
•A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.
When tourist operations are conducted on the general system, FRA exercises jurisdiction over them, and all of FRA’s pertinent regulations apply to those operations unless a waiver is granted or a rule specifically excepts such operations (e.g., the passenger equipment safety standards contain an exception for these operations, 49 CFR 238.3(c)(3), even if conducted on the general system). When a tourist operation is conducted only on track used exclusively for that purpose it is not part of the general system. The fact that a tourist operation has a switch that connects it to the general system does not make the tourist operation part of the general system if the tourist trains do not enter the general system and the general system railroad does not use the tourist operation’s trackage for any purpose other than delivering or picking up shipments to or from the tourist operation itself.
If a tourist operation off the general system is insular, FRA does not exercise jurisdiction over it, and none of FRA’s rules apply. If, however, such an operation is not insular, FRA exercises jurisdiction over the operation, and some of FRA’s rules (i.e., those that specifically apply beyond the general system to such operations) will apply. For example, FRA’s rules on accident reporting, steam locomotives, and grade crossing signals apply to these non-insular tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of FRA’s procedural rules (49 CFR parts 209, 211, and 216) and the Federal railroad safety statutes themselves.
In drafting safety rules, FRA has a specific obligation to consider financial, operational, or other factors that may be unique to tourist operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider those factors in determining whether any particular rule will apply to tourist operations. Therefore, although FRA asserts jurisdiction quite broadly over these operations, we work to ensure that the rules we issue are appropriate to their somewhat special circumstances.
It is important to note that FRA’s exercise of its regulatory authority on a given matter does not preclude it from subsequently amending its regulations on that subject to bring in railroads originally excluded. More important, the self-imposed restrictions on FRA’s exercise of regulatory authority in no way constrain its exercise of emergency order authority under section 203 of the Safety Act. That authority was designed to deal with imminent hazards not dealt with by existing regulations and/or so dangerous as to require immediate, ex parte action on the government’s part. Thus, a railroad excluded from the reach of any of FRA’s regulations is fully within the reach of FRA’s emergency order authority, which is coextensive with FRA’s statutory jurisdiction over all railroads.
Under the Federal railroad safety laws, FRA has jurisdiction over all railroads except “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.” 49 U.S.C. 20102. Within the limits imposed by this authority, FRA exercises jurisdiction over all railroad passenger operations, regardless of the equipment they use, unless FRA has specifically stated below an exception to its exercise of jurisdiction for a particular type of operation. This policy is stated in general terms and does not change the reach of any particular regulation under its applicability section. That is, while FRA may generally assert jurisdiction over a type of operation here, a particular regulation may exclude that kind of operation from its reach. Therefore, this statement should be read in conjunction with the applicability sections of all of FRA’s regulations.
FRA exercises jurisdiction over all intercity passenger operations. Because of the nature of the service they provide, standard gage intercity operations are all considered part of the general railroad system, even if not physically connected to other portions of the system. Other intercity passenger operations that are not standard gage (such as a magnetic levitation system) are within FRA’s jurisdiction even though not part of the general system.
FRA exercises jurisdiction over all commuter operations. Congress apparently intended that FRA do so when it enacted the Federal Railroad Safety Act of 1970, and made that intention very clear in the 1982 and 1988 amendments to that act. FRA has attempted to follow that mandate consistently. A commuter system’s connection to other railroads is not relevant under the rail safety statutes. In fact, FRA considers commuter railroads to be part of the general railroad system regardless of such connections.
FRA will presume that an operation is a commuter railroad if there is a statutory determination that Congress considers a particular service to be commuter rail. For example, in the Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter authorities. If that presumption does not apply, and the operation does not meet the description of a system that is presumptively urban rapid transit (see below), FRA will determine whether a system is commuter or urban rapid transit by analyzing all of the system’s pertinent facts. FRA is likely to consider an operation to be a commuter railroad if:
•The system serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area,
•The system’s primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function, and
•The vast bulk of the system’s trains are operated in the morning and evening peak periods with few trains at other hours.
Examples of commuter railroads include Metra and the Northern Indiana Commuter Transportation District in the Chicago area; Virginia Railway Express and MARC in the Washington area; and Metro-North, the Long Island Railroad, New Jersey Transit, and the Port Authority Trans Hudson (PATH) in the New York area.
The federal railroad safety statutes give FRA authority over “commuter or other short-haul railroad passenger service in a metropolitan or suburban area.” 49 U.S.C. 20102. This means that, in addition to commuter service, there are other short-haul types of service that Congress intended that FRA reach. For example, a passenger system designed primarily to move intercity travelers from a downtown area to an airport, or from an airport to a resort area, would be one that does not have the transportation of commuters within a metropolitan area as its primary purpose. FRA would ordinarily exercise jurisdiction over such a system as “other short-haul service” unless it meets the definition of urban rapid transit and is not connected in a significant way to the general system.
One type of short-haul passenger service requires special treatment under the safety statutes: “rapid transit operations in an urban area.” Only these operations are excluded from FRA’s jurisdiction, and only if they are “not connected to the general railroad system.” FRA will presume that an operation is an urban rapid transit operation if the system is not presumptively a commuter railroad (see discussion above) the operation is a subway or elevated operation with its own track system on which no other railroad may operate, has no highway-rail crossings at grade, operates within an urban area, and moves passengers from station to station within the urban area as one of its major functions.
Where neither the commuter railroad nor urban rapid transit presumptions applies, FRA will look at all of the facts pertinent to a particular operation to determine its proper characterization. FRA is likely to consider an operation to be urban rapid transit if:
•The operation serves an urban area (and may also serve its suburbs),
•Moving passengers from station to station within the urban boundaries is a major function of the system and there are multiple station stops within the city for that purpose (such an operation could still have the transportation of commuters as one of its major functions without being considered a commuter railroad), and
•The system provides frequent train service even outside the morning and evening peak periods.
Examples of urban rapid transit systems include the Metro in the Washington, D.C. area, CTA in Chicago, and the subway systems in New York, Boston, and Philadelphia. The type of equipment used by such a system is not determinative of its status. However, the kinds of vehicles ordinarily associated with street railways, trolleys, subways, and elevated railways are the types of vehicles most often used for urban rapid transit operations.
FRA can exercise jurisdiction over a rapid transit operation only if it is connected to the general railroad system, but need not exercise jurisdiction over every such operation that is so connected. FRA is aware of several different ways that rapid transit operations can be connected to the general system. Our policy on the exercise of jurisdiction will depend upon the nature of the connection(s). In general, a connection that involves operation of transit equipment as a part of, or over the lines of, the general system will trigger FRA’s exercise of jurisdiction. Below, we review some of the more common types of connections and their effect on the agency’s exercise of jurisdiction. This is not meant to be an exhaustive list of connections.
Certain types of connections to the general railroad system will cause FRA to exercise jurisdiction over the rapid transit line to the extent it is connected. FRA will exercise jurisdiction over the portion of a rapid transit operation that is conducted as a part of or over the lines of the general system. For example, rapid transit operations are conducted on the lines of the general system where the rapid transit operation and other railroad use the same track. FRA will exercise its jurisdiction over the operations conducted on the general system. In situations involving joint use of the same track, it does not matter that the rapid transit operation occupies the track only at times when the freight, commuter, or intercity passenger railroad that shares the track is not operating. While such time separation could provide the basis for waiver of certain of FRA’s rules (see 49 CFR part 211), it does not mean that FRA will not exercise jurisdiction. However, FRA will exercise jurisdiction over only the portions of the rapid transit operation that are conducted on the general system. For example, a rapid transit line that operates over the general system for a portion of its length but has significant portions of street railway that are not used by conventional railroads would be subject to FRA’s rules only with respect to the general system portion. The remaining portions would not be subject to FRA’s rules. If the non-general system portions of the rapid transit line are considered a “rail fixed guideway system” under 49 CFR part 659, those rules, issued by the Federal Transit Administration (FTA), would apply to them.
Another connection to the general system sufficient to warrant FRA’s exercise of jurisdiction is a railroad crossing at grade where the rapid transit operation and other railroad cross each other’s tracks. In this situation, FRA will exercise its jurisdiction sufficiently to assure safe operations over the at-grade railroad crossing. FRA will also exercise jurisdiction to a limited extent over a rapid transit operation that, while not operated on the same tracks as the conventional railroad, is connected to the general system by virtue of operating in a shared right-of-way involving joint control of trains. For example, if a rapid transit line and freight railroad were to operate over a movable bridge and were subject to the same authority concerning its use (e.g., the same tower operator controls trains of both operations), FRA will exercise jurisdiction in a manner sufficient to ensure safety at this point of connection. Also, where transit operations share highway-rail grade crossings with conventional railroads, FRA expects both systems to observe its signal rules. For example, FRA expects both railroads to observe the provision of its rule on grade crossing signals that requires prompt reports of warning system malfunctions. See 49 CFR part 234. FRA believes these connections present sufficient intermingling of the rapid transit and general system operations to pose significant hazards to one or both operations and, in the case of highway-rail grade crossings, to the motoring public. The safety of highway users of highway-rail grade crossings can best be protected if they get the same signals concerning the presence of any rail vehicles at the crossing and if they can react the same way to all rail vehicles.
Although FRA could exercise jurisdiction over a rapid transit operation based on any connection it has to the general railroad system, FRA believes there are certain connections that are too minimal to warrant the exercise of its jurisdiction. For example, a rapid transit system that has a switch for receiving shipments from the general system railroad is not one over which FRA would assert jurisdiction. This assumes that the switch is used only for that purpose. In that case, any entry onto the rapid transit line by the freight railroad would be for a very short distance and solely for the purpose of dropping off or picking up cars. In this situation, the rapid transit line is in the same situation as any shipper or consignee; without this sort of connection, it cannot receive or offer goods by rail.
Mere use of a common right-of-way or corridor in which the conventional railroad and rapid transit operation do not share any means of train control, have a rail crossing at grade, or operate over the same highway-rail grade crossings would not trigger FRA’s exercise of jurisdiction. In this context, the presence of intrusion detection devices to alert one or both carriers to incursions by the other one would not be considered a means of common train control. These common rights of way are often designed so that the two systems function completely independently of each other. FRA and FTA will coordinate with rapid transit agencies and railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit trains and conventional equipment.
Where these very minimal connections exist, FRA will not exercise jurisdiction unless and until an emergency situation arises involving such a connection, which is a very unlikely event. However, if such a system is properly considered a rail fixed guideway system, FTA’s rules (49 CFR part 659) will apply to it.
FTA’s rules on rail fixed guideway systems (49 CFR part 659) apply to any rapid transit systems or portions thereof not subject to FRA’s rules. On rapid transit systems that are not sufficiently connected to the general railroad system to warrant FRA’s exercise of jurisdiction (as explained above), FTA’s rules will apply exclusively. On those rapid transit systems that are connected to the general system in such a way as warrant exercise of FRA’s jurisdiction, only those portions of the rapid transit system that are connected to the general system will generally be subject to FRA’s rules.
A rapid transit railroad may apply to FRA for a waiver of any FRA regulations. See 49 CFR part 211. FRA will seek FTA’s views whenever a rapid transit operation petitions FRA for a waiver of its safety rules. In granting or denying any such waiver, FRA will make clear whether its rules do not apply to any segments of the operation so that it is clear where FTA’s rules do apply.
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. See 45 U.S.C. 437(a) and (d), and 49 App. U.S.C. 1808(a). 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 to the regional director and the FRA Administrator. See 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 45 U.S.C. 439 and 49 App. U.S.C. 1810.
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. Chapter 51, and 49 CFR 209.131, 133. The Accident Reports Act, 45 U.S.C. 39, also contains criminal penalties.
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, or both, create an emergency situation involving a hazard of death or injury to persons * * *” 45 U.S.C. 432(a). 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.
Appendix B to Part 209 – Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
These guidelines establish benchmarks to be used in determining initial civil penalty assessments for violations of the Hazardous Materials Regulations (HMR). The guideline penalty amounts reflect the best judgment of the FRA Office of Railroad Safety (RRS) and of the Safety Law Division of the Office of Chief Counsel (RCC) on the relative severity of the various violations routinely encountered by FRA inspectors on a scale of amounts up to the maximum $84,425 penalty, except the maximum civil penalty is $196,992 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property, and a minimum $508 penalty applies to a violation related to training. (49 U.S.C. 5123) Unless otherwise specified, the guideline amounts refer to average violations, that is, violations involving a hazardous material with a medium level of hazard, and a violator with an average compliance history. In an “average violation,” the respondent has committed the acts due to a failure to exercise reasonable care under the circumstances (“knowingly”). For some sections, the guidelines contain a breakdown according to relative severity of the violation, for example, the guidelines for shipping paper violations at 49 CFR 172.200 through 172.203. All penalties in these guidelines are subject to change depending upon the circumstances of the particular case. The general duty sections, for example §§ 173.1 and 174.7, are not ordinarily cited as separate violations; they are primarily used as explanatory citations to demonstrate applicability of a more specific section where applicability is otherwise unclear.
FRA believes that infractions of the regulations that lead to personal injury are especially serious; this is directly in line with Department of Transportation policy that hazardous materials are only safe for transportation when they are securely sealed in a proper package. (Some few containers, such as tank cars of carbon dioxide, are designed to vent off excess internal pressure. They are exceptions to the “securely sealed” rule.) “Personal injury” has become somewhat of a term of art, especially in the fields of occupational safety and of accident reporting. To avoid confusion, these penalty guidelines use the notion of “human contact” to trigger penalty aggravation. In essence, any contact by a hazardous material on a person during transportation is a per se injury and proof will not be required regarding the extent of the physical contact or its consequences. When a violation of the Federal hazardous material transportation law, an order issued thereunder, the Hazardous Materials Regulations or a special permit, approval, or order issued under those regulations results in death, serious illness or severe injury to any person, or substantial destruction of property, a maximum penalty of at least $84,425 and up to and including $196,992 shall always be assessed initially.
These guidelines are a preliminary assessment tool for FRA’s use. They create no rights in any party. FRA is free to vary from them when it deems appropriate and may amend them from time to time without prior notice. Moreover, FRA is not bound by any amount it initially proposes should litigation become necessary. In fact, FRA reserves the express authority to amend the NOPV to seek a penalty of up to $84,425 for each violation, and up to $196,992 for any violation resulting in death, serious illness or severe injury to any person, or substantial destruction of property, at any time prior to issuance of an order. FRA periodically makes minor updates and revisions to these guidelines, and the most current version may be found on FRA’s Web site at http://www.fra.dot.gov.
Appendix C to Part 209 – FRA’s Policy Statement Concerning Small Entities
This policy statement required by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) explains FRA’s communication and enforcement policies concerning small entities subject to the federal railroad safety laws. These policies have been developed to take into account the unique concerns and operations of small businesses in the administration of the national railroad safety program, and will continue to evolve to meet the needs of the railroad industry. For purposes of this policy statement, the Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the “excessive demand” provisions of the Equal Justice Act (5 U.S.C. 504 (a)(4), and 28 U.S.C. 2412 (d)(1)(D)), Class III railroads, contractors and hazardous materials shippers meeting the economic criteria established for Class III railroads in 49 CFR 1201.1-1, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less constitute the class of organizations considered “small entities” or “small businesses.”
FRA understands that small entities in the railroad industry have significantly different characteristics than larger carriers and shippers. FRA believes that these differences necessitate careful consideration in order to ensure that those entities receive appropriate treatment on compliance and enforcement matters, and enhance the safety of railroad operations. 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.
It is FRA’s policy that all agency personnel respond in a timely and comprehensive fashion to the inquiries of small entities concerning rail safety statutes, safety regulations, and interpretations of these statutes and regulations. Also, FRA personnel provide guidance to small entities, as needed, in applying the law to specific facts and situations that arise in the course of railroad operations. These agency communications take many forms, and are tailored to meet the needs of the requesting party.
FRA inspectors provide training on the requirements of all railroad safety statutes and regulations for new and existing small businesses upon request. Also, FRA inspectors often provide impromptu training sessions in the normal course of their inspection duties. FRA believes that this sort of preventive, rather than punitive, communication greatly enhances railroad safety. FRA’s Office of Safety and Office of Chief Counsel regularly provide oral and written responses to questions raised by small entities concerning the plain meaning of the railroad safety standards, statutory requirements, and interpretations of the law. As required by the SBREFA, when FRA issues a final rule that has a significant impact on a substantial number of small entities, FRA will also issue a compliance guide for small entities concerning that rule.
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. In some regions of the country where the concentration of small entities is particularly high, FRA Regional Administrators have established programs in which all small entities in the region meet with FRA regional specialists on a regular basis to discuss new regulations, persistent safety concerns, emerging technology, and compliance issues. Also, FRA regional offices hold periodic conferences, in which specific blocks of time are set aside to meet with small businesses and hear their concerns.
In addition to these communication practices, FRA has instituted an innovative partnership program that expands the extent to which small entities participate in the development of policy and process. The Railroad Safety Advisory Committee (RSAC) has been established to advise the agency on the development and revision of railroad safety standards. The committee consists of a wide range of industry representatives, including organizations that represent the interests of small business. The small entity representative groups that sit on the RSAC may appoint members of their choice to participate in the development of new safety standards. This reflects FRA’s policy that small business interests must be heard and considered in the development of new standards to ensure that FRA does not impose unnecessary economic burdens on small businesses, and to create more effective standards. Finally, FRA’s Web site (http://www.fra.dot.gov) makes pertinent agency information available instantly to the public.
FRA’s longstanding policy of open communication with small entities is apparent in these practices. FRA will make every effort to develop new and equally responsive communication procedures as is warranted by new developments in the railroad industry.
FRA has adopted an enforcement policy that addresses the unique nature of small entities in the imposition of civil penalties and resolution of those assessments. Pursuant to FRA’s statutory authority, and as described in 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 addition to the seriousness of the violation and the person’s history of compliance, FRA inspectors consider “such other factors as the immediate circumstances make relevant.” In the context of violations by small entities, those factors include whether the violations were made in good faith e.g., based on an honest misunderstanding of the law), and whether the small entity has moved quickly and thoroughly to remedy the violation(s). In general, the presence of both good faith and prompt remedial action militates against taking a civil penalty action, especially if the violations are isolated events. On the other hand, violations involving willful actions and/or posing serious health, safety, or environmental threats should ordinarily result in enforcement actions, regardless of the entity’s size.
Once FRA has assessed a civil penalty, it is authorized to adjust or compromise the initial penalty claims based on a wide variety of mitigating factors, unless FRA must terminate the claim for some reason. FRA has the discretion to reduce the penalty as it deems fit, but not below the statutory minimums. The mitigating criteria FRA evaluates are found in the railroad safety statutes and SBREFA: 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 impacts an assessment might exact on the entity’s continued business; and evidence that the entity acted in good faith. FRA staff attorneys regularly invite small entities to present any information related to these factors, and reduce civil penalty assessments based on the value and integrity of the information presented. Staff attorneys conduct conference calls or meet with small entities to discuss pending violations, and explain FRA’s view on the merits of any defenses or mitigating factors presented that may have resulted or failed to result in penalty reductions. Among the “other factors” FRA considers at this stage is the promptness and thoroughness of the entity’s remedial action to correct the violations and prevent a recurrence. Small entities should be sure to address these factors in communications with FRA concerning civil penalty cases. Long-term solutions to compliance problems will be given great weight in FRA’s determinations of a final settlement offer.
Finally, under FRA’s Safety Assurance and Compliance Program (SACP), FRA identifies systemic safety hazards that continue to occur in a carrier or shipper operation, and in cooperation with the subject business, develops an improvement plan to eliminate those safety concerns. Often, the plan provides small entities with a reasonable time frame 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.
FRA’s small entity enforcement policy is flexible and comprehensive. FRA’s first priority in its compliance and enforcement activities is public and employee safety. However, FRA is committed to obtaining compliance and enhancing safety with reasoned, fair methods that do not inflict undue hardship on small entities.
PART 210 – RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS
Subpart A – General Provisions
§ 210.1 Scope of part.
This part prescribes minimum compliance regulations for enforcement of the Railroad Noise Emission Standards established by the Environmental Protection Agency in 40 CFR part 201.
§ 210.3 Applicability.
(a) Except as provided in paragraph (b) of this section, the provisions of this part apply to the total sound emitted by moving rail cars and locomotives (including the sound produced by refrigeration and air conditioning units that are an integral element of such equipment), active retarders, switcher locomotives, car coupling operations, and load cell test stands, operated by a railroad as defined in 45 U.S.C. 22, under the conditions described in this part and in 40 CFR part 201.
(b) The provisions of this part do not apply to –
(1) Steam locomotives;
(2) Street, suburban, or interurban electric railways unless operated as a part of the general railroad system of transportation;
(3) Sound emitted by warning devices, such as horns, whistles, or bells when operated for the purpose of safety;
(4) Special purpose equipment that may be located on or operated from rail cars;
(5) As prescribed in 40 CFR 201.10, the provisions of 40 CFR 201.11 (a) and (b) and (c) do not apply to gas turbinepowered locomotives or any locomotive type that cannot be connected by any standard method to a load cell; or
(6) Inert retarders.
§ 210.5 Definitions.
(a) Statutory definitions. All terms used in this part and defined in the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.) have the definition set forth in that Act.
(b) Definitions in standards. All terms used in this part and defined in § 201.1 of the Railroad Noise Emission Standards, 40 CFR 201.1, have the definition set forth in that section.
(c) Additional definitions. As used in this part –
Administrator means the Federal Railroad Administrator, the Deputy Administrator, or any official of FRA to whom the Administrator has delegated authority to act in the Administrator’s stead.
Consist of a locomotive and rail cars means one or more locomotives coupled to a rail car or rail cars.
FRA means the Federal Railroad Administration.
Inert retarder means a device or system for holding a classified cut of cars and preventing it from rolling out the bottom of a railyard.
Inspector means FRA inspectors or FRA specialists.
Noise defective means the condition in which railroad equipment is found to exceed the Railroad Noise Emission Standards, 40 CFR part 201.
Railroad equipment means rail cars, locomotives, active retarders, and load cell test stands.
Standards means the Railroad Noise Emission Standards, 40 CFR part 201. (See appendix A in this part for a listing.)
§ 210.7 Responsibility for noise defective railroad equipment.
Any railroad that uses railroad equipment that is noise defective or engages in a car coupling operating that results in excessive noise according to the criteria established in this part and in the Standards is responsible for compliance with this part. Subject to § 210.9, such railroad shall –
(a) Correct the noise defect;
(b) Remove the noise defective railroad equipment from service; or
(c) Modify the car coupling procedure to bring it within the prescribed noise limits.
§ 210.9 Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.
A locomotive, rail car, or consist of a locomotive and rail cars that is noise defective may be moved no farther than the nearest forward facility where the noise defective conditions can be eliminated only after the locomotive, rail car, or consist of a locomotive and rail cars has been inspected and been determined to be safe to move.
§ 210.11 Waivers.
(a) Any person may petition the Administrator for a waiver of compliance with any requirement in this part. A waiver of compliance with any requirement prescribed in the Standards may not be granted under this provision.
(b) Each petition for a waiver under this section must be filed in the manner and contain information required by 49 CFR part 211.
(c) If the Administrator finds that a waiver of compliance applied for under paragraph (a) of this section is in the public interest and is consistent with railroad noise abatement and safety, the Administrator may grant a waiver subject to any condition he deems necessary. Notice of each waiver granted, including a statement of the reasons therefor, will be published in the
§ 210.13 Penalty.
Any person who operates railroad equipment subject to the Standards in violation of any requirement of this part or of the Standards is liable to penalty as prescribed in section 11 of the Noise Control Act of 1972 (42 U.S.C. 4910), as amended.
Subpart B – Inspection and Testing
§ 210.21 Scope of subpart.
This subpart prescribes the compliance criteria concerning the requirements for inspection and testing of railroad equipment or operations covered by the Standards.
§ 210.23 Authorization.
(a) An inspector is authorized to perform any noise test prescribed in the Standards and in the procedures of this part at any time, at any appropriate location, and without prior notice to the railroad, for the purpose of determining whether railroad equipment is in compliance with the Standards.
(b)(1) An inspector is authorized to request that railroad equipment and appropriate railroad personnel be made available for a passby or stationary noise emission test, as prescribed in the Standards and in the procedures of this part, and to conduct such test, at a reasonable time and location, for the purpose of determining whether the railroad equipment is in compliance with the Standards.
(2) If the railroad has the capability to perform an appropriate noise emission test, as prescribed in the Standards and in the procedures of this part, an inspector is authorized to request that the railroad test railroad equipment. The railroad shall perform the appropriate test as soon as practicable.
(3) The request referred to in this paragraph will be in writing, will state the grounds upon which the inspector has reason to believe that the railroad equipment does not conform to the Standards, and will be presented to an appropriate operating official of the railroad.
(4) Testing or submission for testing is not required if the cause of the noise defect is readily apparent and the inspector verifies that it is corrected by the replacement of defective components or by instituting a normal maintenance or repair procedure.
(c)(1) An inspector is authorized to inspect or examine a locomotive, rail car, or consist of a locomotive and rail cars operated by a railroad, or to request that the railroad inspect or examine the locomotive, rail car, or consist of a locomotive and rail cars, whenever the inspector has reason to believe that it does not conform to the requirements of the Standards.
(2) An inspector may request that a railroad conduct an inspection or examination of a locomotive, rail car, or consist of a locomotive and rail cars on the basis of an excessive noise emission level measured by a passby test. If, after such inspection or examination, no mechanical condition that would result in a noise defect can be found and the inspector verifies that no such mechanical condition exists, the locomotive, rail car, or consist of a locomotive and rail cars may be continued in service.
(3) The requests referred to in this paragraph will be in writing, will state the grounds upon which the inspector has reason to believe that the locomotive, rail car, or consist of a locomotive and rail cars does not conform to the Standards, and will be presented to an appropriate operating official of the railroad.
(4) The inspection or examination referred to in this paragraph may be conducted only at recognized inspection points or scheduled stopping points.
§ 210.25 Measurement criteria and procedures.
The parameters and procedures for the measurement of the noise emission levels are prescribed in the Standards.
(a) Quantities measured are defined in § 201.21 of the Standards.
(b) Requirements for measurement instrumentation are prescribed in § 201.22 of the Standards. In addition, the following calibration procedures shall be used:
(1)(i) The sound level measurement system including the microphone shall be calibrated and appropriately adjusted at one or more nominal frequencies in the range from 250 through 1000 Hz at the beginning of each series of measurements, at intervals not exceeding 1 (one) hour during continual use, and immediately following a measurement indicating a violation.
(ii) The sound level measurement system shall be checked not less than once each year by its manufacturer, a representative of its manufacturer, or a person of equivalent special competence to verify that its accuracy meets the manufacturer’s design criteria.
(2) An acoustical calibrator of the microphone coupler type designed for the sound level measurement system in use shall be used to calibrate the sound level measurement system in accordance with paragraph (b)(1)(i) of this section. The calibration must meet or exceed the accuracy requirements specified in section 5.4.1 of the American National Standard Institute Standards, “Method for Measurement of Sound Pressure Levels,” (ANSI S1.13-1971) for field method measurements.
(c) Acoustical environment, weather conditions, and background noise requirements are prescribed in § 201.23 of the Standards. In addition, a measurement tolerance of 2 dB(A) for a given measurement will be allowed to take into account the effects of the factors listed below and the interpretations of these effects by enforcement personnel:
(1) The common practice of reporting field sound level measurements to the nearest whole decibel;
(2) Variations resulting from commercial instrument tolerances;
(3) Variations resulting from the topography of the noise measurement site;
(4) Variations resulting from atmospheric conditions such as wind, ambient temperature, and atmospheric pressure; and
(5) Variations resulting from reflected sound from small objects allowed within the test site.
§ 210.27 New locomotive certification.
(a) A railroad shall not operate a locomotive built after December 31, 1979, unless the locomotive has been certified to be in compliance with the Standards.
(b) The certification prescribed in this section shall be determined for each locomotive model, by either –
(1) Load cell testing in accordance with the criteria prescribed in the Standards; or
(2) Passby testing in accordance with the criteria prescribed in the Standards.
(c) If passby testing is used under paragraph (b)(2) of this section, it shall be conducted with the locomotive operating at maximum rated horsepower output.
§ 210.29 Operation standards (moving locomotives and rail cars).
The operation standards for the noise emission levels of moving locomotives, rail cars, or consists of locomotives and rail cars are prescribed in the Standards and duplicated in appendix A of this part.
(a) Measurements for compliance shall be made in compliance with the provisions of subpart C of the Standards and the following:
(1) Consists of locomotives containing at least one locomotive unit manufactured prior to December 31, 1979, shall be evaluated for compliance in accordance with § 201.12(a) of the Standards, unless a locomotive within the consist is separated by at least 10 rail car lengths or 500 feet from other locomotives in the consist, in which case such separated locomotives may be evaluated for compliance according to their respective built dates.
(2) Consists of locomotives composed entirely of locomotive units manufactured after December 31, 1979, shall be evaluated for compliance in accordance with § 201.12(b) of the Standards.
(3) If the inspector cannot establish the built dates of all locomotives in a consist of locomotives measured under moving conditions, evaluation for compliance shall be made in accordance with § 201.12(a) of the Standards.
(b) Noise emission standards for rail cars operating under moving conditions are contained in § 201.13 of the Standards and are stated in appendix A of this part. If speed measurement equipment used by the inspector at the time of the measurement is not operating within an accuracy of 5 miles per hour, evaluation for compliance shall be made in accordance with § 201.13(2) of the Standards.
(c) Locomotives and rail cars tested pursuant to the procedures prescribed in this part and in the Standards shall be considered in noncompliance whenever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels prescribed in appendix A of this part.
§ 210.31 Operation standards (stationary locomotives at 30 meters).
(a) For stationary locomotives at load cells:
(1) Each noise emission test shall begin after the engine of the locomotive has attained the normal cooling water operating temperature as prescribed by the locomotive manufacturer.
(2) Noise emission testing in idle or maximum throttle setting shall start after a 40 second stabilization period in the throttle setting selected for the test.
(3) After the stabilization period as prescribed in paragraph (a)(2) of this section, the A-weighted sound level reading in decibels shall be observed for an additional 30-second period in the throttle setting selected for the test.
(4) The maximum A-weighted sound level reading in decibels that is observed during the 30-second period of time prescribed in paragraph (a)(3) of this section shall be used for test measurement purposes.
(b) The following data determined by any locomotive noise emission test conducted after December 31, 1976, shall be recorded in the “Remarks” section on the reverse side of Form F 6180.49:
(1) Location of test;
(2) Type of test;
(3) Date of test; and
(4) The A-weighted sound level reading in decibels obtained during the passby test, or the readings obtained at idle throttle setting and maximum throttle setting during a load cell test.
(c) Any locomotive subject to this part that is found not to be in compliance with the Standards as a result of a passby test shall be subjected to a load cell test or another passby test prior to return to service, except that no such retest shall be required if the cause of the noise defect is readily apparent and is corrected by the replacement of defective components or by a normal maintenance or repair procedure.
(d) The last entry recorded on Form F 6180.49 as required in paragraph (b) of this section shall be transcribed to a new Form FRA F 6180.49 when it is posted in the locomotive cab.
(e) Locomotives tested pursuant to the procedures prescribed in this part and in the Standards shall be considered in noncompliance wherever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels precribed in appendix A of this part.
§ 210.33 Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).
(a) Measurement on receiving property of the noise emission levels from switcher locomotives, load cell test stands, car coupling operations, and retarders shall be performed in accordance with the requirements of 40 CFR part 201 and § 210.25 of this part.
(b) These sources shall be considered in noncompliance whenever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels prescribed in appendix A of this part.
Appendix A to Part 210 – Summary of Noise Standards, 40 CFR Part 201
| Paragraph and section | Noise source | Noise standard – A weighted sound level in dB | Noise measure 1 | Measurement location |
|---|---|---|---|---|
| 201.11(a) | Stationary, Idle Throttle Setting | 73 | L | 30 m (100 ft) |
| 201.11(a) | Stationary, All Other Throttle Settings | 93 | ……do | Do. |
| 201.12(a) | Moving | 96 | L | Do. |
| 201.11(b) | Stationary, Idle Throttle Setting | 70 | L | Do. |
| 201.11(b) | Stationary, All Other Throttle Settings | 87 | ……do | Do. |
| 201.12(b) | Moving | 90 | L | Do. |
| 201.11(c) and 201.12(c) | 65 | L 2 | Receiving property | |
| 201.11(c) | Stationary, Idle Throttle Setting | 70 | L | 30 m (100 ft) |
| 201.11(c) | Stationary, All Other Throttle Settings | 87 | ……do | Do. |
| 201.12(c) | Moving | 90 | L | Do. |
| 201.13(1) | Moving at Speeds of 45 mph or Less | 88 | ……do | Do. |
| 201.13(2) | Moving at Speeds Greater than 45 mph | 93 | ……do | Do. |
| 201.14 | Retarders | 83 | L | Receiving property |
| 201.15 | Car-Coupling Operations | 92 | ……do | Do. |
| 201.16 | 65 | L 2 | Do. | |
| 201.16(a) | Primary Standard | 78 | L | 30 m (100 ft). |
| 201.16(b) | Secondary Standard if 30-m Measurement Not Feasible | 65 | L | Receiving property located more than 120 m from Load Cell. |
1 L
2 L
Appendix B to Part 210 – Switcher Locomotive Enforcement Policy
The EPA standards require that the noise emissions from all switcher locomotives in a particular facility be less than prescribed levels measured at 30 meters, under all operating modes. This requirement is deemed to be met unless “receiving property” noise due to switcher locomotives exceeds 65 dB(A), when measured in accordance with subpart C of 40 CFR part 201. The 65 dB(A) receiving property standard is the “trigger” for requiring the 30-meter test of switcher locomotives.
The purpose underlying FRA’s enforcement of the noise standards is to reduce the impact of rail operations noise on receiving properties. In some instances, measures other than the 30-meter test approach may more effectively reduce the noise levels at receiving properties; therefore, FRA enforcement efforts will focus on abatement procedures that will achieve a reduction of receiving property noise levels to less than 65 dB(A).
For example, a parked, idling locomotive, even if equipped with exhaust silencing that meets the stationary locomotive standard (30-meter test), may cause the receiving property standard to be exceeded if located on trackage adjacent to the receiving property. In that case, application of the 30-meter test to other switcher locomotives at the facility may not serve to reduce the receiving property noise level. On the other hand, operational changes by the railroad could significantly reduce receiving property noise levels. In such case, FRA would consider retesting after abatement measures have been taken. If the receiving property noise level is below the trigger and the abatement action is adopted, FRA would not make a 30-meter test of the switcher locomotives at the facility.
PART 211 – RULES OF PRACTICE
Subpart A – General
§ 211.1 General.
(a) This part prescribes rules of practice that apply to rulemaking and waiver proceedings, review of emergency orders issued under 45 U.S.C. 432, and miscellaneous safety-related proceedings and informal safety inquiries. The specific time limits for disposition of proceedings apply only to proceedings initiated after December 31, 1976, under the Federal Railroad Safety Act of 1970 (45 U.S.C. 421 et seq.). When warranted, FRA will extend these time limits in individual proceedings. However, each proceeding under the Federal Railroad Safety Act shall be disposed of within 12 months after the date it is initiated. A proceeding shall be deemed to be initiated and the time period for its disposition shall begin on the date a petition or application that complies with the requirements of this chapter is received by the person designated in § 211.7.
(b) As used in this part –
(1) Administrator means the Federal Railroad Administrator or the Deputy Administrator or the delegate of either of them.
(2) Waiver includes exemption.
(3) Safety Act means the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421 et seq.).
(4) Docket Clerk means the Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 or the Docket Clerk, U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(5) Railroad Safety Board means the Railroad Safety Board, Office of Safety, Federal Railroad Administration, Washington, DC 20590.
(c) Records relating to proceedings and inquiries subject to this part are available for inspection as provided in part 7 of this title.
§ 211.3 Participation by interested persons.
Any person may participate in proceedings and inquiries subject to this part by submitting written information or views. The Administrator may also permit any person to participate in additional proceedings, such as informal appearances, conferences, or hearings at which a transcript or minutes are kept, to assure informed administrative action and protect the public interest.
§ 211.5 Regulatory docket.
(a)(1) Records of the Federal Railroad Administration created after November 1, 1998, concerning each proceeding subject to this part are maintained in current docket form by the Federal Docket Management System. These records include rulemaking and waiver petitions, emergency orders, notices, comments received in response to notices, hearing transcripts, final rules, denials of rulemaking petitions, grants and denial of waiver and other petitions. Also included are records pertaining to applications for special approval under §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, signal applications under parts 235 and 236 of this chapter, and informal safety inquiries under § 211.61.
(2) Any person may examine docketed material created after November 1, 1998:
(i) At the U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Copies of docketed materials may be obtained upon payment of the fees prescribed by the Federal Docket Management System, or
(ii) Through the Internet at http://www.regulations.gov. All docketed materials are available for viewing and may be downloaded for electronic storage or printing. There is no charge for this service.
(b) Records of the Federal Railroad Administration created before November 1, 1998, concerning each proceeding subject to this part are available in FRA’s Docket Office, 1200 New Jersey Avenue, SE., Washington, DC 20590. Any person may examine docketed material at that location during normal business hours. Copies of docketed material may be obtained upon payment of the fees prescribed in part 7 of this title.
(c) Any person may examine docketed material in the office where it is maintained. Copies of docketed material other than commercially prepared transcripts may be obtained upon payment of the fees prescribed in part 7 of this title.
§ 211.7 Filing requirements.
(a) Any person may petition the Administrator for issuance, amendment, repeal or permanent or temporary waiver of any rule or regulation. A petition for waiver must be submitted at least 3 months before the proposed effective date, unless good cause is shown for not doing so.
(b)(1) All petitions and applications subject to this part, including applications for special approval under §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted to the FRA Docket Clerk. Each petition received shall be acknowledged in writing. The acknowledgment shall contain the docket number assigned to the petition or application and state the date the petition or application was received. Within 60 days following receipt, FRA will advise the petitioner or applicant of any deficiencies in its petition or application.
(2) All comments submitted in response to a notice and other material pertaining to proceedings subject to this part, including comments submitted in response to requests for special approval under § 211.55 and § 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted to the Federal Docket Management System and shall contain the assigned docket number for that proceeding. The form of such submissions may be in written or electronic form consistent with the standards and requirements established by the Federal Docket Management System and posted on its web site at http://www.regulations.gov.
§ 211.9 Content of rulemaking and waiver petitions.
Each petition for rulemaking or waiver must:
(a) Set forth the text or substance of the rule, regulation, standard or amendment proposed, or specify the rule, regulation or standard that the petitioner seeks to have repealed or waived, as the case may be;
(b) Explain the interest of the petitioner, and the need for the action requested; in the case of a petition for waiver, explain the nature and extent of the relief sought, and identify and describe the persons, equipment, installations and locations to be covered by the waiver;
(c) Contain sufficient information to support the action sought including an evaluation of anticipated impacts of the action sought; each evaluation shall include an estimate of resulting costs to the private sector, to consumers, and to Federal, State and local governments as well as an evaluation of resulting benefits, quantified to the extent practicable. Each petition pertaining to safety regulations must also contain relevant safety data.
Subpart B – Rulemaking Procedures
§ 211.11 Processing of petitions for rulemaking.
(a) General. Each petition for rulemaking filed as prescribed in §§ 211.7 and 211.9 is referred to the head of the office responsible for the subject matter of the petition to review and recommend appropriate action to the Administrator. No public hearing or oral argument is held before the Administrator decides whether the petition should be granted. However, a notice may be published in the
(b) Grants. If the Administrator determines that a rulemaking petition complies with the requirements of § 211.9 and that rulemaking is justified, he initiates a rulemaking proceeding by publishing an advance notice or notice of proposed rulemaking in the
(c) Denials. If the Administrator determines that a rulemaking petition does not comply with the requirements of § 211.9 or that rulemaking is not justified, he denies the petition. If the petition pertains to railroad safety, the Administrator may also initiate an informal safety inquiry under § 211.61.
(d) Notification; closing of docket. Whenever the Administrator grants or denies a rulemaking petition, a notice of the grant or denial is mailed to the petitioner. If the petition is denied, the proceeding is terminated and the docket for that petition is closed.
§ 211.13 Initiation and completion of rulemaking proceedings.
The Administrator initiates all rulemaking proceedings on his own motion by publishing an advance notice of proposed rulemaking or a notice of proposed rulemaking in the
§ 211.15 Notice and participation.
(a) Except as provided in paragraph (c) of this section, or when the Administrator finds for good cause that notice is impractical, unnecessary, or contrary to the public interest (and incorporates the findings and a brief statement of the reasons therefore in the rules issued), an advance notice or notice of proposed rulemaking is published in the
(b) Unless the Administrator determines that notice and public rulemaking proceedings are necessary or desirable, interpretive rules, general statements of policy, and rules relating to organization, procedure, or practice, including those relating to agency management or personnel, are prescribed as final without notice or other public rulemaking proceedings.
(c) An advance notice or notice of proposed rulemaking is issued and interested persons are invited to participate in rulemaking proceedings with respect only to those procedural and substantive rules of general applicability relating to public property, loans, grants, benefits, or contracts which the Administrator has determined to be of substantial public interest.
§ 211.17 Publication and contents of notices.
Each advance notice or notice of proposed rulemaking is published in the
(a) A statement of the time, place and nature of the proposed rulemaking proceeding;
(b) A reference to the authority under which it is issued;
(c) A description of the subjects or issues involved or the substance or terms of the proposed rule;
(d) A statement of the time within which written comments must be submitted and the required number of copies; and
(e) A statement of how and to what extent interested persons may participate in the proceeding.
§ 211.19 Petitions for extensions of time to comment.
(a) Any person may petition the Administrator for an extension of time to submit comments in response to an advance notice or notice of proposed rulemaking. The petition must be received by the FRA Docket Clerk not later than 10 days before expiration of the time stated in the notice and must contain reference to the FRA docket number for the proceeding involved. The filing of the petition does not automatically extend the time for petitioner’s comments.
(b) The Administrator grants the petition only if the petitioner shows a substantive interest in the proposed rule and good cause for the extension, and if time permits and the extension is in the public interest. Extensions will not be granted unless time permits and will not exceed one month. If an extension is granted, it is granted as to all persons and a notice of the extension is published in the
§ 211.21 Consideration of comments received.
All timely comments are considered before final action is taken on a rulemaking proposal. Late-filed comments will be considered so far as possible without incurring additional expense or delay.
§ 211.23 Additional public proceedings.
The Administrator may conduct other public proceedings that he finds necessary or desirable. For example, he may invite interested persons to present oral arguments, participate in conferences, or appear at informal hearings.
§ 211.25 Hearings.
(a) A hearing will be held if required by statute or the Administrator finds it necessary or desirable.
(b) Except for statutory hearings required to be on the record –
(1) Hearings are fact-finding proceedings, and there are no formal pleadings or adverse parties;
(2) Any rule issued in a proceeding in which a hearing is held is not based exclusively on the record of the hearing; and
(3) Hearings are conducted in accordance with section 553 of title 5, U.S.C.; section 556 and 557 of title 5 do not apply to hearings held under this part.
(c) The Administrator conducts or designates a representative to conduct any hearing held under this part. The Chief Counsel serves or designates a member of his staff to serve as legal officer at the hearing.
§ 211.27 Publication of adopted rules and withdrawal of notices.
Whenever the Administrator adopts a final rule or withdraws an advance notice or notice of proposed rulemaking, the final rule or a notice of withdrawal is published in the
§ 211.29 Petitions for reconsideration of a final rule.
(a) Any person may petition the Administrator for reconsideration of any rule issued under this part. Except for good cause shown, such a petition must be submitted not later than 60 days after publication of the rule in the
(b) If the petitioner requests consideration of additional facts, he must state the reason they were not presented to the Administrator within the allotted time.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator specifically provides otherwise, and publishes notice thereof in the
§ 211.31 Proceedings on petitions for reconsideration of a final rule.
(a) The Administrator may grant or deny, in whole or in part, any petition for reconsideration of a final rule without further proceedings. Each petition shall be decided not later than 4 months after its receipt by the Docket Clerk. In the event he determines to reconsider a rule, the Administrator may amend the rule or initiate a new rulemaking proceeding. An appropriate notice is published in the
(b) Whenever the Administrator determines that a petition should be granted or denied, a notice of the grant or denial of a petition for reconsideration is sent to the petitioner. When a petition is granted, a notice is published in the
(c) The Administrator may consolidate petitions relating to the same rule.
§ 211.33 Direct final rulemaking procedures.
(a) Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the
(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,
(2) Are nonsubstantive clarifications or corrections to existing rules,
(3) Update existing forms, and
(4) Make minor changes in the substantive rules regarding statistics and reporting requirements.
(b) The
(c) If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the
(d) If the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the
(e) An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule.
Subpart C – Waivers
§ 211.41 Processing of petitions for waiver of safety rules.
(a) General. Each petition for a permanent or temporary waiver of a safety rule, regulation or standard filed as prescribed in §§ 211.7 and 211.9, is referred to the Railroad Safety Board for decision and decided not later than 9 months after receipt.
(b) Notice and hearing. If required by statute or the Administrator or the Railroad Safety Board deems it desirable, a notice is published in the
(c) Grants. If the Railroad Safety Board determines that the petition complies with the requirements of § 211.9 and that a waiver is justified, it grants the petition. Conditions may be imposed on the grant of waiver if the Board concludes they are necessary to assure safety or are in the public interest.
(d) Denials. If the Railroad Safety Board determines that the petition does not comply with the requirements of § 211.9 or that a waiver is not justified, it denies the petition.
(e) Notification. Whenever the Railroad Safety Board grants or denies a petition, a notice of that grant or denial is sent to the petitioner. When a petition has been decided, interested persons are also notified or a notice is published in the
(f) Petition for reconsideration. Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in § 211.57. Each petition shall be processed in accordance with § 211.59.
§ 211.43 Processing of other waiver petitions.
(a) General. Except as provided in § 211.41, each petition for a permanent or temporary waiver of a rule, regulation or standard shall be filed and processed as prescribed in §§ 211.7 and 211.9.
(b) Notice and hearing. If required by statute or the Administrator deems it desirable, a notice is published in the
(c) Grants. If the Administrator determines that the petition complies with the requirements of § 211.9 and that a waiver is justified, he grants the waiver. Conditions may be imposed on the grant of waiver if the Administrator concludes they are necessary to achieve the purposes of programs affected by the grant of waiver or are otherwise in the public interest.
(d) Denials. If the Administrator determines that the petition does not comply with the requirements of § 211.9 or that a waiver is not justified, he denies the waiver.
(e) Notification. Whenever the Administrator grants or denies a petition, a notice of the grant or denial is sent to the petitioner. When a petition has been decided, interested persons are also notified or a notice is published in the
(f) Petitions for reconsideration. Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in § 211.57. Each petition shall be processed in accordance with § 211.59.
§ 211.45 Petitions for emergency waiver of safety rules.
(a) General. This section applies only to petitions for waiver of a safety rule, regulation, or standard that FRA determines are directly related to the occurrence of, or imminent threat of, an emergency event or an emergency situation. For purposes of this section, the terms “emergency event” and “emergency situation” mean a natural or manmade disaster, such as a hurricane, flood, earthquake, mudslide, forest fire, snowstorm, terrorist act, biological outbreak, release of a dangerous radiological, chemical, explosive, or biological material, or a war-related activity, that poses a risk of death, serious illness, severe injury, or substantial property damage. The disaster may be local, regional, or national in scope.
(b) Emergency Relief Docket. Each calendar year FRA creates an Emergency Relief Docket (ERD) in the publicly accessible Federal eRulemaking Portal (FeP). The FeP can be accessed 24 hours a day, seven days a week, via the Internet at the docket’s Web site at http://www.regulations.gov. All documents in the FeP are available for inspection and copying on the Web site or are available for examination at the DOT Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 during regular business hours (9 a.m.-5 p.m.). By January 31st of each year, FRA publishes a notice in the
(c) Determining the existence of an emergency event or an emergency situation. If the Administrator determines that an emergency event or an emergency situation identified in paragraph (a) of this section has occurred, or that an imminent threat of it occurring exists, and determines that public safety or recovery efforts require that the provisions of this section be implemented, the Administrator will activate the Emergency Relief Docket identified in paragraph (b) of this section. In determining whether an emergency exists, the Administrator may consider declarations of emergency made by local, State, or Federal officials, and determinations by the Federal government that a credible threat of a terrorist attack exists.
(d) Notification. When possible, FRA will post the FRA Administrator’s determination described in paragraph (c) of this section on its Web site at http://www.fra.dot.gov. FRA will also place the FRA Administrator’s determination in the ERD as soon as practicable.
(e) Content of petitions for emergency waivers. Petitions submitted to FRA pursuant to this section should specifically address how the petition is related to the emergency, and to the extent practicable, contain the information required under § 211.9(a) and (b). The petition should at a minimum describe the following: how the petitioner or public is affected by the emergency (including the impact on railroad operations); what FRA regulations are implicated by the emergency (e.g., movement of defective equipment); how waiver of the implicated regulations would benefit petitioner during the emergency; and how long the petitioner expects to be affected by the emergency.
(f) Filing requirements. Petitions filed under this section, shall be submitted using any of the following methods:
(1) E-mail to FRA at: [email protected];
(2) Facsimile to FRA at: 202-493-6309; or
(3) Mail to FRA at: FRA Docket Clerk, Office of Chief Counsel, RCC-10, Mail Stop 10, 1200 New Jersey Ave. SE., Washington, DC 20590, facsimile no. 202-493-6068.
(g) FRA Handling and Initial Review. Upon receipt and initial review of a petition for waiver, to verify that it meets the criteria for use of these emergency procedures, FRA will add the petition to the ERD. The FeP numbers each document that is added to a docket. (For example, the first document submitted to the docket in 2009 will be identified as FRA-2009-XXX-1.) Thus, each petition submitted to the ERD will have a unique document number which should be identified on all communications related to petitions contained in this docket. If FRA determines that the petition does not meet the criteria for use of these emergency procedures, FRA will notify the petitioner and will process the petition under normal waiver procedures of this subpart.
(h) Comments. Although the Administrator may waive compliance with any part of a regulation prescribed or order issued without prior notice and comment, comments may be submitted. Comments should be submitted as soon as possible, after a petition is available on the FeP. Any comment received will be considered to the extent practicable. All comments should identify the appropriate ERD and should identify the specific document number of the petition designated by the FeP in the ERD. Interested parties commenting on a petition under this section should also include in their comments to the ERD telephone numbers at which their representatives may be reached. Interested parties may submit their comments using any of the following methods:
(1) E-mail to FRA at: [email protected].
(2) Facsimile to FRA at: 202-493-6309.
(3) Mail to the Docket Clerk, DOT Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 or electronically via the internet at http://www.regulations.gov. Any comments or information sent directly to FRA will be immediately provided to the DOT FeP for inclusion in the ERD.
(i) Request for hearing. Although the Administrator may waive compliance with any part of a regulation prescribed or order issued without prior notice and comment, parties desiring a public hearing on any petition being processed under this section must notify FRA through the comment process identified in paragraph (h) of this section within 72 hours from the close of business on the day that the petition is entered into and available on the FeP. In response to a request for a public hearing, FRA may:
(1) Arrange a telephone conference between all interested parties to provide an opportunity for oral comment;
(2) Arrange a public hearing pursuant to the provisions contained in 49 CFR part 211; or
(3) Determine that a public hearing is unnecessary, inconsistent with safety, or not in the public interest.
(j) Decisions. FRA may grant a petition for waiver without prior notice and comment if the Administrator determines that it is in the public interest to grant the waiver; the waiver is not inconsistent with railroad safety; and the waiver is necessary to address an actual or impending emergency situation or emergency event. The Administrator will state in the decision issued under this section the reasons for granting the waiver.
(1) FRA reserves the right to reopen any docket and reconsider any decision made pursuant to these emergency procedures based upon its own initiative or based upon information or comments otherwise received.
(2) FRA decision letters, either granting or denying a petition, will be posted in the appropriate ERD and will reference the document number of the petition to which it relates.
(3) A waiver under this section may be issued for a period of not more that 60 days and may be renewed upon application to the Administrator only after notice and an opportunity for a hearing on the waiver. The Administrator will immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this part.
(4) In granting a waiver under this section, the Administrator will consult and coordinate with other Federal agencies, as appropriate, for matters that may significantly impact such agencies.
Subpart D – Emergency Orders
§ 211.47 Review procedures.
(a) As specified in section 203, Public Law 91-458, 84 Stat. 972 (45 U.S.C. 432), opportunity for review of Emergency orders issued under that section will be provided in accordance with section 554 of title 5 of the U.S.C. Petitions for such review must be submitted in writing to the Office of Chief Counsel, Federal Railroad Administration, Washington, DC 20590. Upon receipt of a petition, FRA will immediately contact the petitioner and make the necessary arrangements for a conference to be held at the earliest date acceptable to the petitioner. At this conference, the petitioner will be afforded an opportunity to submit facts, arguments and proposals for modification or withdrawal of the Emergency order. If the controversy is not resolved at the conference and a hearing is desired, the petitioner must submit a written request for a hearing within 15 days after the conference. The hearing will commence within 14 calendar days f receipt of the request and will be conducted in accordance with sections 556 and 575, title 5, U.S.C. Each petition for review shall be decided not later than 3 months after receipt.
(b) Unless stayed or modified by the Administrator, the requirements of each Emergency order shall remain in effect and be observed pending decision on a petition for review.
Subpart E – Miscellaneous Safety-Related Proceedings and Inquiries
§ 211.51 Tests.
(a) Pursuant to the Department of Transportation Act (80 Stat. 931, 49 U.S.C. 1651 et seq.), the Federal Railroad Safety Act of 1970 (84 Stat. 971, 45 U.S.C. 421, 431-441), or both, the Administrator may temporarily suspend compliance with a substantive rule of the Federal Railroad Administration, if:
(1) The suspension is necessary to the conduct of a Federal Railroad Administration approved test program designed to evaluate the effectiveness of new technology or operational approaches or instituted in furtherance of a present or proposed rulemaking proceeding;
(2) The suspension is limited in scope and application to such relief as may be necessary to facilitate the conduct of the test program; and
(3) The suspension is conditioned on the observance of standards sufficient to assure safety.
(b) When required by statute, a notice is published in the
(c) When the Administrator approves suspension of compliance with any rule in connection with a test program, a description of the test program containing an explanatory statement responsive to paragraph (a) of this section is published in the
§ 211.53 Signal applications.
Applications for approval of discontinuance or material modification of a signal system authorized by part 235 or waiver of a requirement of part 236 of this chapter must be submitted in accordance with § 211.7, handled in accordance with procedures set forth in part 235 or 236, respectively, and decided not later than 9 months after receipt. When a decision is issued, the applicant and other interested parties are notified or a notice is published in the
§ 211.55 Special approvals.
Requests for special approval pertaining to safety not otherwise provided for in this chapter, must be submitted in accordance with § 211.7; specifying the action requested. These requests shall be considered by the Railroad Safety Board and appropriate action shall be taken not later than 9 months after receipt. When a decision is issued, the requestor and other interested parties are notified or a notice is published in the
§ 211.57 Petitions for reconsideration.
(a) Any person may petition the Administrator for reconsideration of final action taken in proceedings subject to subpart C or E of this part.
(b) The petition must specify with particularity the grounds for modification or revocation of the action in question.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator specifically provides otherwise, and gives notice to interested parties or publishes notice in the
§ 211.59 Proceedings on petitions for reconsideration.
(a) The Administrator may invite public comment or seek a response from the party at whose request the final action was taken before deciding a petition for reconsideration submitted under § 211.57.
(b) The Administrator may reaffirm, modify, or revoke the final action without further proceedings and shall issue notification of his decision to the petitioner and other interested parties or publish a notice in the
§ 211.61 Informal safety inquiries.
The Administrator may conduct informal safety inquiries to collect information on selected topics relating to railroad safety. A notice of each such inquiry will be published in the
Subpart F – Interim Procedures for the Review of Emergency Orders
§ 211.71 General.
(a) This subpart consists of interim procedures for the review of emergency orders issued under section 203 of the Federal Railroad Safety Act of 1970, supplementing § 211.47 of this part.
(b) Proceedings under this subpart are subject to the requirements of 5 U.S.C. 554-559.
(c) Notwithstanding § 211.1 of this part, as used in this subpart Administrator means the Federal Railroad Administrator or Deputy Administrator.
§ 211.73 Presiding officer; powers.
(a) An administrative hearing for the review of an emergency order is presided over by the Administrator or by an administrative law judge designated at the request of FRA pursuant to 5 CFR 930.213.
(b) The presiding officer may exercise the powers of the FRA to regulate the conduct of the hearing and associated proceedings for the purpose of achieving a prompt and fair determination of all material issues in controversy.
(c) The final decision of the presiding officer shall set forth findings and conclusions based on the administrative record. That decision may set aside, modify or affirm the requirements of the emergency order under review.
(d) Except as provided in § 211.77, the decision of the presiding officer is administratively final.
§ 211.75 Evidence.
(a) The Federal Rules of Evidence for United States Courts and Magistrates shall be employed as general guidelines for the introduction of evidence in proceedings under this subpart. However, except as provided in paragraph (b) of this section, all relevant and probative evidence offered by a party shall be received in evidence.
(b) The presiding officer may deny the admission of evidence which is determined to be –
(1) Unduly repetitive; or
(2) So extensive and lacking in relevance or probative effect that its admission would impair the prompt, orderly, and fair resolution of the proceeding.
§ 211.77 Appeal to the Administrator.
(a) Any party aggrieved by the final decision of a presiding officer (other than the Administrator) may appeal to the Administrator. The appeal must be filed within twenty (20) days from issuance of the presiding officer’s decision and must set forth the specific exceptions of the party to the decision, making reference to the portions of the administrative record which are believed to support the exceptions. The notice of appeal and any supporting papers shall be accompanied by a certificate stating that they have been served on all parties to the proceeding.
(b) [Reserved]
1. By statute, the Federal Railroad Administration (FRA) may grant a waiver of any rule or order if the waiver “is in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). Waiver petitions are reviewed by FRA’s Railroad Safety Board (the “Safety Board”) under the provisions of 49 CFR part 211. Waiver petitions must contain the information required by 49 CFR 211.9. The Safety Board can, in granting a waiver, impose any conditions it concludes are necessary to assure safety or are in the public interest. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety.
2. Light rail equipment, commonly referred to as trolleys or street railways, is not designed to be used in situations where there is a reasonable likelihood of a collision with much heavier and stronger conventional rail equipment. However, existing conventional railroad tracks and rights-of-way provide attractive opportunities for expansion of light rail service.
3. Light rail operators who intend to share use of the general railroad system trackage with conventional equipment and/or whose operations constitute commuter service (see appendix A of 49 CFR part 209 for relevant definitions) will either have to comply with FRA’s safety rules or obtain a waiver of appropriate rules. Light rail operators whose operations meet the definition of urban rapid transit and who will share a right-of-way or corridor with a conventional railroad but will not share trackage with that railroad will be subject to only those rules that pertain to any significant point of connection to the general system, such as a rail crossing at grade, a shared method of train control, or shared highway-rail grade crossings.
4. Shared use of track refers to situations where light rail transit operators conduct their operations over the lines of the general system, and includes light rail operations that are wholly separated in time (temporally separated) from conventional operations as well as light rail operations operating on the same trackage at the same time as conventional rail equipment (simultaneous joint use). Where shared use of general system trackage is contemplated, FRA believes a comprehensive waiver request covering all rules for which a waiver is sought makes the most sense. FRA suggests that a petitioner caption such a waiver petition as a Petition for Approval of Shared Use so as to distinguish it from other types of waiver petitions. The light rail operator should file the petition. All other affected railroads will be able to participate in the waiver proceedings by commenting on the petition and providing testimony at a hearing on the petition if anyone requests such a hearing. If any other railroad will be affected by the proposed operation in such a way as to necessitate a waiver of any FRA rule, that railroad may either join with the light rail operator in filing the comprehensive petition or file its own petition.
5. In situations where the light rail operator is an urban rapid transit system that will share a right-of-way or corridor with the conventional railroad but not share trackage, any waiver petition should cover only the rules that may apply at any significant points of connection between the rapid transit line and the other railroad. A Petition for Approval of Shared Use would not be appropriate in such a case.
Where a light rail operator is uncertain whether the planned operation will be subject to FRA’s safety jurisdiction and, if so, to what extent, the operator may wish to obtain FRA’s views on the jurisdictional issues before filing a waiver petition. In that case, the light rail operator (here including a transit authority that may not plan to actually operate the system itself) should write to FRA requesting such a determination. The letter should be addressed to Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590, with a copy to the Associate Administrator for Safety at the same address at Mail Stop 25. The letter should address the criteria (found in 49 CFR part 209, appendix A) FRA uses to determine whether it has jurisdiction over a rail operation and to distinguish commuter from urban rapid transit service. A complete description of the nature of the contemplated operation is essential to an accurate determination. FRA will attempt to respond promptly to such a request. Of course, FRA’s response will be based only on the facts as presented by the light rail operator. If FRA subsequently learns that the facts are different from those presented or have changed substantially, FRA may revise its initial determination.
1. Like all waiver petitions, a Petition for Approval of Shared Use will be reviewed by the Safety Board. A non-voting FTA liaison to the Safety Board will participate in an advisory capacity in the Safety Board’s consideration of all such petitions. This close cooperation between the two agencies will ensure that FRA benefits from the insights, particularly with regard to operational and financial issues, that FTA can provide about light rail operations, as well as from FTA’s knowledge of and contacts with state safety oversight programs. This working relationship will also ensure that FTA has a fuller appreciation of the safety issues involved in each specific shared use operation and a voice in shaping the safety requirements that will apply to such operations.
2. FRA resolves each waiver request on its own merits based on the information presented and the agency’s own investigation of the issues. In general, the greater the safety risks inherent in a proposed operation the greater will be the mitigation measures required. While FRA cannot state in advance what kinds of waivers will be granted or denied, we can provide guidance to those who may likely be requesting waivers to help ensure that their petitions address factors that FRA will no doubt consider important.
3. FRA’s procedural rules give a general description of what any waiver petition should contain, including an explanation of the nature and extent of the relief sought; a description of the persons, equipment, installations, and locations to be covered by the waiver; an evaluation of expected costs and benefits; and relevant safety data. 49 CFR 211.9. The procedural rules, of course, are not specifically tailored to situations involving light rail operations over the general system, where waiver petitions are likely to involve many of FRA’s regulatory areas. In such situations, FRA suggests that a Petition for Approval of Shared Use address the following general factors.
A. Description of operations. You should explain the frequency and speeds of all operations on the line and the nature of the different operations. You should explain the nature of any connections between the light rail and conventional operations.
•If the light rail line will operate on any segments (e.g., a street railway portion) that will not be shared by a conventional railroad, describe those segments and their connection with the shared use segments. If the petitioner has not previously sought and received a determination from FRA concerning jurisdictional issues, explain, using the criteria set out in 49 CFR part 209, Appendix A, whether the light rail operation is, in the petitioner’s view, a commuter operation or urban rapid transit.
•You should describe precisely what the respective hours of operation will be for each type of equipment on the shared use segments. If light rail and conventional operations will occur only at different times of day, describe what means of protection will ensure that the different types of equipment are not operated simultaneously on the same track, and how protection will be provided to ensure that, where one set of operations begins and the other ends, there can be no overlap that would possibly result in a collision.
•If the light rail and conventional operations will share trackage during the same time periods, the petitioners will face a steep burden of demonstrating that extraordinary safety measures will be taken to adequately reduce the likelihood of a collision between conventional and light rail equipment to the point where the safety risks associated with joint use would be acceptable. You should explain the nature of such simultaneous joint use, the system of train control, the frequency and proximity of both types of operations, the training and qualifications of all operating personnel in both types of operations, and all methods that would be used to prevent collisions. You should also include a quantitative risk assessment concerning the risk of collision between the light rail and conventional equipment under the proposed operating scenario.
B. Description of equipment. (1) You should describe all equipment that will be used by the light rail and conventional operations. Where the light rail equipment does not meet the standards of 49 CFR part 238, you should provide specifics on the crash survivability of the light rail equipment, such as static end strength, sill height, strength of corner posts and collision posts, side strength, etc.
(2) Given the structural incompatibility of light rail and conventional equipment, FRA has grave concerns about the prospect of operating these two types of equipment simultaneously on the same track. If the light rail and conventional operations will share trackage during the same time periods, you should provide an engineering analysis of the light rail equipment’s resistance to damage in various types of collisions, including a worst case scenario involving a failure of the collision avoidance systems resulting in a collision between light rail and conventional equipment at track speeds.
C. Alternative safety measures to be employed in place of each rule for which waiver is sought. The petition should specify exactly which rules the petitioner desires to be waived. For each rule, the petition should explain exactly how a level of safety at least equal to that afforded by the FRA rule will be provided by the alternative measures the petitioner proposes.
(1) Most light rail operations that entail some shared use of the general system will also have segments that are not on the general system. FTA’s rules on rail fixed guideway systems will probably apply to those other segments. If so, the petition for waiver of FRA’s rules should explain how the system safety program plan adopted under FTA’s rules may affect safety on the portions of the system where FRA’s rules apply. Under certain circumstances, effective implementation of such a plan may provide FRA sufficient assurance that adequate measures are in place to warrant waiver of certain FRA rules.
(2) In its petition, the light rail operator may want to certify that the subject matter addressed by the rule to be waived is addressed by the system safety plan and that the light rail operation will be monitored by the state safety oversight program. That is likely to expedite FRA’s processing of the petition. FRA will analyze information submitted by the petitioner to demonstrate that a safety matter is addressed by the light rail operator’s system safety plan. Alternately, conditional approval may be requested at an early stage in the project, and FRA would thereafter review the system safety program plan’s status to determine readiness to commence operations. Where FRA grants a waiver, the state agency will oversee the area addressed by the waiver, but FRA will actively participate in partnership with FTA and the state agency to address any safety problems.
D. Documentation of agreement with affected railroads. Conventional railroads that will share track with the light rail operation need not join as a co-petitioner in the light rail operator’s petition. However, the petition should contain documentation of the precise terms of the agreement between the light rail operator and the conventional railroad concerning any actions that the conventional railroad must take to ensure effective implementation of alternative safety measures. For example, if temporal separation is planned, FRA expects to see the conventional railroad’s written acceptance of its obligations to ensure that the separation is achieved. Moreover, if the arrangements for the light rail service will require the conventional railroad to employ any alternative safety measures rather than strictly comply with FRA’s rules, that railroad will have to seek its own waiver (or join in the light rail operator’s petition).
Even where there is no shared use of track, light rail operators may be subject to certain FRA rules based on limited, but significant connections to the general system.
1. Rail crossings at grade. Where a light rail operation and a conventional railroad have a crossing at grade, several FRA rules may apply to the light rail operation at the point of connection. If movements at the crossing are governed by a signal system, FRA’s signal rules (49 CFR parts 233, 235, and 236) apply, as do the signal provisions of the hours of service statute, 49 U.S.C. 21104. To the extent radio communication is used to direct the movements, the radio rules (part 220) apply. The track rules (part 213) cover any portion of the crossing that may affect the movement of the conventional railroad. Of course, if the conventional railroad has responsibility for compliance with certain of the rules that apply at that point (for example, where the conventional railroad maintains the track and signals and dispatches all trains), the light rail operator will not have compliance responsibility for those rules and would not need a waiver.
2. Shared train control systems. Where a light rail operation is governed by the same train control system as a conventional railroad (e.g., at a moveable bridge that they both traverse), the light rail operator will be subject to applicable FRA rules (primarily the signal rules in parts 233, 235, and 236) if it has maintenance or operating responsibility for the system.
3. Highway-Rail Grade Crossings. Light rail operations over highway-rail grade crossings also used by conventional trains will be subject to FRA’s rules on grade crossing signal system safety (part 234) and the requirement to have auxiliary lights on locomotives (49 CFR 229.125). Even if the conventional railroad maintains the crossing, the light rail operation will still be responsible for reporting and taking appropriate actions in response to warning system malfunctions.
In any of these shared right-of-way situations involving significant connections, the light rail operator may petition for a waiver of any rules that apply to its activities.
Operators of light rail systems are likely to apply for waivers of many FRA rules. FRA offers the following suggestions on factors petitioners may want to address concerning specific areas of regulation. (All “part” references are to title 49 CFR.) Parts 209 (Railroad Safety Enforcement Procedures), 211 (Rules of Practice), 212 (State Safety Participation), and 216 (Special Notice and Emergency Order Procedures) are largely procedural rules that are unlikely to be the subject of waivers, so those parts are not discussed further. For segments of a light rail line not involving operations over the general system, assuming the light rail operation meets the definition of “rapid transit,” FRA’s standards do not apply and the petition need not address those segments with regard to each specific rule from which waivers are sought with regard to shared use trackage.
A. Track safety standards (part 213). For general system track used by both the conventional and light rail lines, the track standards apply and a waiver is very unlikely. A light rail operation that owns track over which the conventional railroad operates may wish to consider assigning responsibility for that track to the other railroad. If so, the track owner must follow the procedure set forth in 49 CFR 213.5(c). Where such an assignment occurs, the owner and assignee are responsible for compliance.
B. Signal systems reporting requirements (part 233). This part contains reporting requirements with respect to methods of train operation, block signal systems, interlockings, traffic control systems, automatic train stop, train control, and cab signal systems, or other similar appliances, methods, and systems. If a signal system failure occurs on general system track which is used by both conventional and light rail lines, and triggers the reporting requirements of this part, the light rail operator must file, or cooperate fully in the filing of, a signal system report. The petition should explain whether the light rail operator or conventional railroad is responsible for maintaining the signal system. Assuming that the light rail operator (or a contractor hired by this operator) has responsibility for maintaining the signal system, that entity is the logical choice to file each signal failure report, and a waiver is very unlikely. Moreover, since a signal failure first observed by a light rail operator can later have catastrophic consequences for a conventional railroad using the same track, a waiver would jeopardize rail safety on that general system trackage. Even if the conventional railroad is responsible for maintaining the signal systems, the light rail operator must still assist the railroad in reporting all signal failures by notifying the conventional railroad of such failures.
C. Grade crossing signal system safety (part 234). This part contains minimum standards for the maintenance, inspection, and testing of highway-rail grade crossing warning systems, and also prescribes standards for the reporting of system failures and minimum actions that railroads must take when such warning systems malfunction. If a grade crossing accident or warning activation failure occurs during light rail operations on general system track that is used by both conventional and light rail lines, the light rail operator must submit, or cooperate with the other railroad to ensure the submission of, a report to FRA within the required time frame (24 hours for an accident report, or 15 days for a grade crossing signal system activation failure report). The petition should explain whether the light rail operator or conventional railroad is responsible for maintaining the grade crossing devices. Assuming that the light rail operator (or a contractor hired by this operator) has responsibility for maintaining the grade crossing devices, that entity is the logical choice to file each grade crossing signal failure report, and a waiver is very unlikely. Moreover, since a grade crossing warning device failure first observed by a light rail operator can later have catastrophic consequences for a conventional railroad using the same track, a waiver would jeopardize rail safety on that general system trackage. However, if the conventional railroad is responsible for maintaining the grade crossing devices, the light rail operator will still have to assist the railroad in reporting all grade crossing signal failures. Moreover, regardless of which railroad is responsible for maintenance of the grade crossing signals, any railroad (including a light rail operation) operating over a crossing that has experienced an activation failure, partial activation, or false activation must take the steps required by this rule to ensure safety at those locations. While the maintaining railroad will retain all of its responsibilities in such situations (such as contacting train crews and notifying law enforcement agencies), the operating railroad must observe requirements concerning flagging, train speed, and use of the locomotive’s audible warning device.
D. Approval of signal system modifications (part 235). This part contains instructions governing applications for approval of a discontinuance or material modification of a signal system or relief from the regulatory requirements of part 236. In the case of a signal system located on general system track which is used by both conventional and light rail lines, a light rail operation is subject to this part only if it (or a contractor hired by the operator) owns or has responsibility for maintaining the signal system. If the conventional railroad does the maintenance, then that railroad would file any application submitted under this part; the light rail operation would have the right to protest the application under § 235.20. The petition should discuss whether the light rail operator or conventional railroad is responsible for maintaining the signal system.
E. Standards for signal and train control systems (part 236). This part contains rules, standards, and instructions governing the installation, inspection, maintenance, and repair of signal and train control systems, devices, and appliances. In the case of a signal system located on general system track which is used by both conventional and light rail lines, a light rail operation is subject to this part only if it (or a contractor hired by the operation) owns or has responsibility for installing, inspecting, maintaining, and repairing the signal system. If the light rail operation has these responsibilities, a waiver would be unlikely because a signal failure would jeopardize the safety of both the light rail operation and the conventional railroad. If the conventional railroad assumes all of the responsibilities under this part, the light rail operation would not need a waiver, but it would have to abide by all operational limitations imposed this part and by the conventional railroad. The petition should discuss whether the light rail operator or conventional railroad has responsibility for installing, inspecting, maintaining, and repairing the signal system.
A. Railroad noise emission compliance regulations (part 210). FRA issued this rule under the Noise Control Act of 1972, 42 U.S.C. 4916, rather than under its railroad safety authority. Because that statute included a definition of “railroad” borrowed from one of the older railroad safety laws, this part has an exception for “street, suburban, or interurban electric railways unless operated as a part of the general railroad system of transportation.” 49 CFR 210.3(b)(2). The petition should address whether this exception may apply to the light rail operation. Note that this exception is broader than the sole exception to the railroad safety statutes (i.e., urban rapid transit not connected to the general system). The greater the integration of the light rail and conventional operations, the less likely this exception would apply.
If the light rail equipment would normally meet the standards in this rule, there would be no reason to seek a waiver of it. If it appears that the light rail system would neither meet the standards nor fit within the exception, the petition should address noise mitigation measures used on the system, especially as part of a system safety program. Note, however, that FRA lacks the authority to waive certain Environmental Protection Agency standards (40 CFR part 201) that underlie this rule. See 49 CFR 210.11(a).
B. Railroad freight car safety standards (part 215). A light rail operator is likely to move freight cars only in connection with maintenance-of-way work. As long as such cars are properly stenciled in accordance with section 215.305, this part does not otherwise apply, and a waiver would seem unnecessary.
C. Rear end marking devices (part 221). This part requires that each train occupying or operating on main line track be equipped with, display, and continuously illuminate or flash a marking device on the trailing end of the rear car during periods of darkness or other reduced visibility. The device, which must be approved by FRA, must have specific intensity, beam arc width, color, and flash rate characteristics. A light rail operation seeking a waiver of this part will need to explain how other marking devices with which it equips its vehicles, or other means such as train control, will provide the same assurances as this part of a reduced likelihood of collisions attributable to the failure of an approaching train to see the rear end of a leading train in time to stop short of it during periods of reduced visibility. The petition should describe the light rail vehicle’s existing marking devices (e.g., headlights, brakelights, taillights, turn signal lights), and indicate whether the vehicle bears reflectors. If the light rail system will operate in both a conventional railroad environment and in streets mixed with motor vehicles, the petition should discuss whether adapting the design of the vehicle’s lighting characteristics to conform to FRA’s regulations would adversely affect the safety of its operations in the street environment. A light rail system that has a system safety program developed under FTA’s rules may choose to discuss how that program addresses the need for equivalent levels of safety when its vehicles operate on conventional railroad corridors.
D. Safety glazing standards (part 223). This part provides that passenger car windows be equipped with FRA-certified glazing materials in order to reduce the likelihood of injury to railroad employees and passengers from the breakage and shattering of windows and avoid ejection of passengers from the vehicle in a collision. This part, in addition to requiring the existence of at least four emergency windows, also requires window markings and operating instructions for each emergency window, as well as for each window intended for emergency access, so as to provide the necessary information for evacuation of a passenger car. FRA will not permit operations to occur on the general system in the absence of effective alternatives to the requirements of this part that provide an equivalent level of safety. The petition should explain what equivalent safeguards are in place to provide the same assurance as part 223 that passengers and crewmembers are safe from the effects of objects striking a light rail vehicle’s windows. The petition should also discuss the design characteristics of its equipment when it explains how the safety of its employees and passengers will be assured during an evacuation in the absence of windows meeting the specific requirements of this part. A light rail system that has a system safety program plan developed under FTA’s rule may be able to demonstrate that the plan satisfies the safety goals of this part.
E. Locomotive safety standards (part 229). (1) This part contains minimum safety standards for all locomotives, except those propelled by steam power. FRA recognizes that due to the unique characteristics of light rail equipment, some of these provisions may be irrelevant to light rail equipment, and that others may not fit properly in the context of light rail operations. A waiver petition should explain precisely how the light rail system’s practices will provide for the safe condition and operation of its locomotive equipment.
(2) FRA is not likely to waive completely the provision (section 229.125) of this rule concerning auxiliary lights designed to warn highway motorists of an approaching train. In order to reduce the risk of grade crossing accidents, it is important that all locomotives used by both conventional railroads and light rail systems present the same distinctive profile to motor vehicle operators approaching grade crossings on the general railroad system. If uniformity is sacrificed by permitting light rail systems to operate locomotives through the same grade crossings traversed by conventional trains with light arrangements placed in different locations on the equipment, safety could be compromised. Accordingly, the vehicle design should maintain the triangular pattern required of other locomotives and cab cars to the extent practicable.
(3) FRA is aware that light rail headlights are likely to produce less than 200,000 candela. While some light rail operators may choose to satisfy the requirements of section 229.125 by including lights on their equipment of different candlepower controlled by dimmer switches, the headlights on the majority of light rail vehicles will likely not meet FRA’s minimum requirement. However, based on the nature of the operations of light rail transit, FRA recognizes that waivers of the minimum candela requirement for transit vehicle headlights seems appropriate.
F. Safety appliance laws (49 U.S.C. 20301-20305). (1) Since certain safety appliance requirements (e.g., automatic couplers) are statutory, they can only be “waived” by FRA under the exemption conditions set forth in 49 U.S.C. 20306. Because exemptions requested under this statutory provision do not involve a waiver of a safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not required to follow the rules of practice for waivers contained in part 211. However, whenever appropriate, FRA will combine its consideration of any request for an exemption under § 20306 with its review under part 211 of a light rail operation’s petition for waivers of FRA’s regulations.
(2) FRA may grant exemptions from the statutory safety appliance requirements in 49 U.S.C. 20301-20305 only if application of such requirements would “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations.” 49 U.S.C. 20306. The exemption for technological improvements was originally enacted to further the implementation of a specific type of freight car, but the legislative history shows that Congress intended the exemption to be used elsewhere so that “other types of railroad equipment might similarly benefit.” S. Rep. 96-614 at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.
(3) FRA recognizes the potential public benefits of allowing light rail systems to take advantage of underutilized urban freight rail corridors to provide service that, in the absence of the existing right-of-way, would be prohibitively expensive. Any petitioner requesting an exemption for technological improvements should carefully explain how being forced to comply with the existing statutory safety appliance requirements would conflict with the exemption exceptions set forth at 49 U.S.C. 20306. The petition should also show that granting the exemption is in the public interest and is consistent with assuring the safety of the light rail operator’s employees and passengers.
G. Safety appliance standards (part 231). (1) The regulations in this part specify the requisite location, number, dimensions, and manner of application of a variety of railroad car safety appliances (e.g., handbrakes, ladders, handholds, steps), and directly implement a number of the statutory requirements found in 49 U.S.C. 20301-20305. These very detailed regulations are intended to ensure that sufficient safety appliances are available and able to function safely and securely as intended.
(2) FRA recognizes that due to the unique characteristics of light rail equipment, some of these provisions may be irrelevant to light rail operation, and that others may not fit properly in the context of light rail operations (e.g., crewmembers typically do not perform yard duties from positions outside and adjacent to the light rail vehicle or near the vehicle’s doors). However, to the extent that the light rail operation encompasses the safety risks addressed by the regulatory provisions of this part, a waiver petition should explain precisely how the light rail system’s practices will provide for the safe operation of its passenger equipment. The petition should focus on the design specifications of the equipment, and explain how the light rail system’s operating practices, and its intended use of the equipment, will satisfy the safety purpose of the regulations while providing at least an equivalent level of safety.
H. Passenger equipment safety standards (part 238). This part prescribes minimum Federal safety standards for railroad passenger equipment. Since a collision on the general railroad system between light rail equipment and conventional rail equipment could prove catastrophic, because of the significantly greater mass and structural strength of the conventional equipment, a waiver petition should describe the light rail operation’s system safety program that is in place to minimize the risk of such a collision. The petition should discuss the light rail operation’s operating rules and procedures, train control technology, and signal system. If the light rail operator and conventional railroad will operate simultaneously on the same track, the petition should include a quantitative risk assessment that incorporates design information and provide an engineering analysis of the light rail equipment and its likely performance in derailment and collision scenarios. The petitioner should also demonstrate that risk mitigation measures to avoid the possibility of collisions, or to limit the speed at which a collision might occur , will be employed in connection with the use of the equipment on a specified shared-use rail line. This part also contains requirements concerning power brakes on passenger trains, and a petitioner seeking a waiver in this area should refer to these requirements, not those found in 49 CFR part 232.
A. Railroad workplace safety (part 214). (1) This part contains standards for protecting bridge workers and roadway workers. The petition should explain whether the light rail operator or conventional railroad is responsible for bridge work on shared general system trackage. If the light rail operator does the work and does similar work on segments outside of the general system, it may wish to seek a waiver permitting it to observe OSHA standards throughout its system.
(2) There are no comparable OSHA standards protecting roadway workers. The petition should explain which operator is responsible for track and signal work on the shared segments. If the light rail operator does this work, the petition should explain how the light rail operator protects these workers. However, to the extent that protection varies significantly from FRA’s rules, a waiver permitting use of the light rail system’s standards could be very confusing to train crews of the conventional railroad who follow FRA’s rules elsewhere. A waiver of this rule is unlikely. A petition should address how such confusion would be avoided and safety of roadway workers would be ensured.
B. Railroad operating rules (part 217). This part requires filing of a railroad’s operating rules and that employees be instructed and tested on compliance with them. A light rail operation would not likely have difficulty complying with this part. However, if a waiver is desired, the light rail system should explain how other safeguards it has in place provide the same assurance that operating employees are trained and periodically tested on the rules that govern train operation. A light rail system that has a system safety program plan developed under FTA’s rules may be in a good position to give such an assurance.
C. Railroad operating practices (part 218). This part requires railroads to follow certain practices in various aspects of their operations (protection of employees working on equipment, protection of trains and locomotives from collisions in certain situations, prohibition against tampering with safety devices, protection of occupied camp cars). Some of these provisions (e.g., camp cars) may be irrelevant to light rail operations. Others may not fit well in the context of light rail operations. To the extent the light rail operation presents the risks addressed by the various provisions of this part, a waiver provision should explain precisely how the light rail system’s practices will address those risks. FRA is not likely to waive the prohibition against tampering with safety devices, which would seem to present no particular burden to light rail operations. Moreover, blue signal regulations, which protect employees working on or near equipment, are not likely to be waived to the extent that such work is performed on track shared by a light rail operation and a conventional railroad, where safety may best be served by uniformity.
D. Control of alcohol and drug use (part 219). FRA will not permit operations to occur on the general system in the absence of effective rules governing alcohol and drug use by operating employees. FTA’s own rules may provide a suitable alternative for a light rail system that is otherwise governed by those rules. However, to the extent that light rail and conventional operations occur simultaneously on the same track, FRA is not likely to apply different rules to the two operations, particularly with respect to post-accident testing, for which FRA requirements are more extensive (e.g., section 219.11(f) addresses the removal, under certain circumstances, of body fluid and/or tissue samples taken from the remains of any railroad employee who performs service for a railroad). (FRA recognizes that in the event of a fatal train accident involving a transit vehicle, whether involving temporal separation or simultaneous use of the same track, the National Transportation Safety Board will likely investigate and obtain its own toxicology test results.)
E. Railroad communications (part 220). A light rail operation is likely to have an effective system of radio communication that may provide a suitable alternative to FRA’s rules. However, the greater the need for radio communication between light rail personnel (e.g., train crews or dispatchers) and personnel of the conventional railroad (e.g., train crews, roadway workers), the greater will be the need for standardized communication rules and, accordingly, the less likely will be a waiver.
F. Railroad accident/incident reporting (part 225). (1) FRA’s accident/incident information is very important in the agency’s decisionmaking on regulatory issues and strategic planning. A waiver petition should indicate precisely what types of accidents and incidents it would report, and to whom, under any alternative it proposes. FRA is not likely to waive its reporting requirements concerning train accidents or highway-rail grade crossing collisions that occur on the general railroad system. Reporting of accidents under FTA’s rules is quite different and would not provide an effective substitute. However, with regard to employee injuries, the light rail operation may, absent FRA’s rules, otherwise be subject to reporting requirements of FTA and OSHA and may have an interest in uniform reporting of those injuries wherever they occur on the system. Therefore, it is more likely that FRA would grant a waiver with regard to reporting of employee injuries.
(2) Any waiver FRA may grant in the accident/incident reporting area would have no effect on FRA’s authority to investigate such incidents or on the duties of light rail operators and any other affected railroads to cooperate with those investigations. See sections 225.31 and 225.35 and 49 U.S.C. 20107 and 20902. Light rail operators should anticipate that FRA will investigate any serious accident or injury that occurs on the shared use portion of their lines, even if it occurs during hours when only the light rail trains are operating. Moreover, there may be instances when FRA will work jointly with FTA and the state agency to investigate the cause of a transit accident that occurs off the general system under circumstances that raise concerns about the safety of operations on the shared use portions. For example, if a transit operator using the same light rail equipment on the shared and non-shared-use portions of its operation has a serious accident on the non-shared-use portion, FRA may want to determine whether the cause of the accident pointed to a systemic problem with the equipment that might impact the transit system’s operations on the general system. Similarly, where human error might be a factor, FRA may want to determine whether the employee potentially at fault also has safety responsibilities on the general system and, if so, take appropriate action to ensure that corrective action is taken. FRA believes its statutory investigatory authority extends as far as necessary to address any condition that might reasonably be expected to create a hazard to railroad operations within its jurisdiction.
G. Hours of service laws (49 U.S.C. 21101-21108). (1) The hours of service laws apply to all railroads subject to FRA’s jurisdiction, and govern the maximum work hours and minimum off-duty periods of employees engaged in one or more of the three categories of covered service described in 49 U.S.C. 21101. If an individual performs more than one kind of covered service during a tour of duty, then the most restrictive of the applicable limitations control. Under current law, a light rail operation could request a waiver of the substantive provisions of the hours of service laws only under the “pilot project” provision described in 49 U.S.C. 21108, provided that the request is based upon a joint petition submitted by the railroad and its affected labor organizations. Because waivers requested under this statutory provision do not involve a waiver of a safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not required to follow the rules of practice for waivers contained in part 211. However, whenever appropriate, FRA will combine its consideration of any request for a waiver under § 21108 with its review under part 211 of a light rail operation’s petition for waivers of FRA’s regulations.
(2) If such a statutory waiver is desired, the light rail system will need to assure FRA that the waiver of compliance is in the public interest and consistent with railroad safety. The waiver petition should include a discussion of what fatigue management strategies will be in place for each category of covered employees in order to minimize the effects of fatigue on their job performance. However, FRA is unlikely to grant a statutory waiver covering employees of a light rail operation who dispatch the trains of a conventional railroad or maintain a signal system affecting shared use trackage.
H. Hours of service recordkeeping (part 228). This part prescribes reporting and recordkeeping requirements with respect to the hours of service of employees who perform the job functions set forth in 49 U.S.C. 21101. As a general rule, FRA anticipates that any waivers granted under this part will only exempt the same groups of employees for whom a light rail system has obtained a waiver of the substantive provisions of the hours of service laws under 49 U.S.C. 21108. Since it is important that FRA be able to verify that a light rail operation is complying with the on- and off-duty restrictions of the hour of service laws for all employees not covered by a waiver of the laws’ substantive provisions, it is unlikely that any waiver granted of the reporting and recordkeeping requirements would exclude those employees. However, in a system with fixed work schedules that do not approach 12 hours on duty in the aggregate, it may be possible to utilize existing payroll records to verify compliance.
I. Passenger train emergency preparedness (part 239). This part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of emergency preparedness plans by railroads connected with the operation of passenger trains. FRA’s expectation is that by requiring affected railroads to provide sufficient emergency egress capability and information to passengers, along with mandating that these railroads coordinate with local emergency response officials, the risk of death or injury from accidents and incidents will be lessened. A waiver petition should state whether the light rail system has an emergency preparedness plan in place under a state system safety program developed under FTA’s rules for the light rail operator’s separate street railway segments. Under a system safety program, a light rail operation is likely to have an effective plan for dealing with emergency situations that may provide an equivalent alternative to FRA’s rules. To the extent that the light rail operation’s plan relates to the various provisions of this part, a waiver petition should explain precisely how each of the requirements of this part is being addressed. The petition should especially focus on the issues of communication, employee training, passenger information, liaison relationships with emergency responders, and marking of emergency exits.
J. Qualification and certification of locomotive engineers (part 240). This part contains minimum Federal safety requirements for the eligibility, training, testing, certification, and monitoring of locomotive engineers. Those who operate light rail trains may have significant effects on the safety of light rail passengers, motorists at grade crossings, and, to the extent trackage is shared with conventional railroads, the employees and passengers of those railroads. The petition should describe whether a light rail system has a system safety plan developed under FTA’s rules that is likely to have an effective means of assuring that the operators, or “engineers,” of its equipment receive the necessary training and have proper skills to operate a light rail vehicle in shared use on the general railroad system. The petition should explain what safeguards are in place to ensure that light rail engineers receive at least an equivalent level of training, testing, and monitoring on the rules governing train operations to that received by locomotive engineers employed by conventional railroads and certified under part 240. Any light rail system unable to meet this burden would have to fully comply with the requirements of part 240. Moreover, where a transit system intends to operate simultaneously on the same track with conventional equipment, FRA will not be inclined to waive the part 240 requirements. In that situation, FRA’s paramount concern would be uniformity of training and qualifications of all those operating trains on the general system, regardless of the type of equipment.
1. The foregoing discussion of factors to address in a petition for approval of shared use concerns all such petitions and, accordingly, is quite general. FRA is willing to provide more specific guidance on where waivers may be likely with regard to light rail operations that are time-separated from conventional operations. FRA’s greatest concern with regard to shared use of the general system is a collision between light rail and conventional trains on the same track. Because the results could well be catastrophic, FRA places great emphasis on avoiding such collisions. The surest way to guarantee that such collisions will not occur is to strictly segregate light rail and conventional operations by time of day so that the two types of equipment never share the same track at the same time. This is not to say that FRA will not entertain waiver petitions that rely on other methods of collision avoidance such as sophisticated train control systems. However, petitioners who do not intend to separate light rail from conventional operations by time of day will face a steep burden of demonstrating an acceptable level of safety. FRA does not insist that all risk of collision be eliminated. However, given the enormous severity of the likely consequences of a collision, the demonstrated risk of such an event must be extremely remote.
2. There are various ways of providing such strict separation by time. For example, freight operations could be limited to the hours of midnight to 5 a.m. when light rail operations are prohibited. Or, there might be both a nighttime and a mid-day window for freight operation. The important thing is that the arrangement not permit simultaneous operation on the same track by clearly defining specific segments of the day when only one type of operation may occur. Mere spacing of train movements by a train control system does not constitute this temporal separation.
3. FRA is very likely to grant waivers of many of its rules where complete temporal separation between light rail and conventional operations is demonstrated in the waiver request. The chart below lists each of FRA’s railroad safety rules and provides FRA’s view on whether it is likely to grant a waiver in a particular area where temporal separation is assured. Where the “Likely Treatment” column says “comply” a waiver is not likely, and where it says “waive” a waiver is likely. Of course, FRA will consider each petition on its own merits and one should not presume, based on the chart, that FRA will grant or deny any particular request in a petition. This chart is offered as general guidance as part of a statement of policy, and as such does not alter any safety rules or obligate FRA to follow it in every case. This chart assumes that the operations of the local rail transit agency on the general railroad system are completely separated in time from conventional railroad operations, and that the light rail operation poses no atypical safety hazards. FRA’s procedural rules on matters such as enforcement (49 CFR parts 209 and 216), and its statutory authority to investigate accidents and injuries and take emergency action to address an imminent hazard of death or injury, would apply to these operations in all cases.
4. Where waivers are granted, a light rail operator would be expected to operate under a system safety plan developed in accordance with the FTA state safety oversight program. The state safety oversight agency would be responsible for the safety oversight of the light rail operation, even on the general system, with regard to aspects of that operation for which a waiver is granted. (The “Comments” column of the chart shows “State Safety Oversight” where waivers conditioned on such state oversight are likely.) FRA will coordinate with FTA and the state agency to address any serious safety problems. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety. On certain subjects where waivers are not likely, the “Comments” column of the chart makes special note of some important regulatory requirements that the light rail system will have to observe even if it is not primarily responsible for compliance with that particular rule.
Possible Waivers for Light Rail Operations on the General Railroad System Based on Separation in Time From Conventional Operations
| Title 49 CFR part | Subject of rule | Likely treatment | Comments |
|---|---|---|---|
| 213 | Track safety standards | Comply (assuming light rail operator owns track or has been assigned responsibility for it) | If the conventional RR owns the track, light rail will have to observe speed limits for class of track. |
| 233, 235, 236 | Signal and train control | Comply (assuming light rail operator or its contractor has responsibility for signal maintenance) | If conventional RR maintains signals, light rail will have to abide by operational limitations and report signal failures. |
| 234 | Grade crossing signals | Comply (assuming light rail operator or its contractor has responsibility for crossing devices) | If conventional RR maintains devices, light rail will have to comply with sections concerning crossing accidents, activation failures, and false activations. |
| 213, Appendix C | Bridge safety policy | Not a rule. Compliance voluntary. | |
| 210 | Noise emission | Waive | State safety oversight. |
| 215 | Freight car safety standards | Waive | State safety oversight. |
| 221 | Rear end marking devices | Waive | State safety oversight. |
| 223 | Safety glazing standards | Waive | State safety oversight. |
| 229 | Locomotive safety standards | Waive, except for arrangement of auxiliary lights, which is important for grade crossing safety | State safety oversight. |
| 231* | Safety appliance standards | Waive | State safety oversight; see note below on statutory requirements. |
| 238 | Passenger equipment standards | Waive | State safety oversight. |
| 214 | Bridge worker | Waive | OSHA standards. |
| 214 | Roadway worker safety | Comply | |
| 217 | Operating rules | Waive | State safety oversight. |
| 218 | Operating practices | Waive, except for prohibition on tampering with safety devices related to signal system, and blue signal rules on shared track | State safety oversight. |
| 219 | Alcohol and drug | Waive if FTA rule otherwise applies | FTA rule may apply. |
| 220 | Radio communications | Waive, except to extent communications with freight trains and roadway workers are necessary | State safety oversight. |
| 225 | Accident reporting and investigation | Comply with regard to train accidents and crossing accidents; waive as to injuries; FRA accident investigation authority not subject to waiver | Employee injuries would be reported under FTA or OSHA rules. |
| 228** | Hours of service recordkeeping | Waive (in concert with waiver of statute); waiver not likely for personnel who dispatch conventional RR or maintain signal system on shared use track | See note below on possible waiver of statutory requirements. |
| 239 | Passenger train emergency preparedness | Waive | State safety oversight. |
| 240 | Engineer certification | Waive | State safety oversight. |
*
**
PART 212 – STATE SAFETY PARTICIPATION REGULATIONS
Subpart A – General
§ 212.1 Purpose and scope.
This part establishes standards and procedures for State participation in investigative and surveillance activities under the Federal railroad safety laws and regulations.
§ 212.3 Definitions.
As used in this part:
(a) Administrator means the Federal Railroad Administrator or the Deputy Administrator or the delegate of either of them.
(b) Associate Administrator means the Associate Administrator for Safety, Federal Railroad Administration (FRA), or the Deputy Associate Administrator for Safety, FRA.
(c) FRA means the Federal Railroad Administration.
(d) Federal railroad safety laws means the following enactments, together with regulations and orders issued under their authority:
(1) The Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421, 431-441);
(2) The Safety Appliance Acts, as amended (45 U.S.C. 1-16);
(3) The Locomotive Inspection Act, as amended (45 U.S.C. 22-34);
(4) The Signal Inspection Act, as amended (49 U.S.C. 26);
(5) The Accident Reports Act, as amended (45 U.S.C. 38-42);
(6) The Hours of Service Act, as amended (45 U.S.C. 61-64(b); and
(7) The Hazardous Materials Transportation Act (49 app. U.S.C. 1801 et seq.), as it pertains to shipment or transportation by railroad.
(e) Manufacturer means a person that manufactures, fabricates, marks, maintains, reconditions, repairs, or tests containers which are represented, marked, certified, or sold for use in the bulk transportation of hazardous materials by railroad.
(f) Shipper means a person that offers a hazardous material for transportation or otherwise causes it to be transported.
(g) Planned compliance inspections means investigative and surveillance activities described in the annual work plan required by § 212.109 of this part that provide basic surveillance of railroad facilities, equipment and/or operations for the purpose of determining the level of compliance with relevant Federal safety requirements.
§ 212.5 Filing.
Each State agency desiring to conduct investigative and surveillance activities must submit to the Associate Administrator for Safety, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, the documentation which contains the information prescribed by §§ 212.105 and 212.107.
Subpart B – State/Federal Roles
§ 212.101 Program principles.
(a) The purpose of the national railroad safety program is to promote safety in all areas of railroad operations in order to reduce deaths, injuries and damage to property resulting from railroad accidents.
(b)(1) The national railroad safety program is carried out in part through the issuance of mandatory Federal safety requirements and through inspection efforts designed to monitor compliance with those requirements. FRA and State inspections determine the extent to which the railroads, shippers, and manufacturers have fulfilled their obligations with respect to inspection, maintenance, training, and supervision. The FRA and participating States do not conduct inspections of track, equipment, signal systems, operating practices, and hazardous materials handling for the railroads, shippers, and manufacturers.
(2) The national railroad safety program is also carried out through routine inspections, accident investigations, formal and informal educational efforts, complaint investigations, safety assessments, special inquiries, regulatory development, research and similar initiatives.
(c) It is the policy of the FRA to maintain direct oversight of railroad, shipper, and manufacturer conditions and practices relevant to safety by conducting inspections and investigations in concert with participating State agencies.
(d) The principal role of the State Safety Participation Program in the national railroad safety effort is to provide an enhanced investigative and surveillance capability through assumption, by participating State agencies, of responsibility for planned routine compliance inspections. The FRA encourages further State contributions to the national railroad safety program consistent with overall program needs, individual State capabilities, and the willingness of the States to undertake additional investigative and surveillance activities.
(e) It is the policy of the FRA to promote the growth and vitality of the State Safety Participation Program through liaison with State government, coordination of Federal and State investigative and surveillance activities, and training of inspection personnel.
(a) Subject to the requirements of this part, a State agency with jurisdiction under State law may participate in investigative and surveillance activities concerning Federal railroad safety laws and regulations by entering into an agreement under § 212.105 for the exercise of specified authority.
(b) Subject to requirements of this part, a State agency with jurisdiction under State law may participate in investigative and surveillance activities with respect to particular rules, regulations, orders or standards issued under the regulatory authority of the Federal Railroad Safety Act of 1970 by filing an annual certification under § 212.107.
§ 212.105 Agreements.
(a) Scope. The principal method by which States may participate in investigative and surveillance activities is by agreement with FRA. An agreement may delegate investigative and surveillance authority with respect to all or any part of the Federal railroad safety laws.
(b) Duration. An agreement may be for a fixed term or for an indefinite duration.
(c) Amendments. An agreement may be amended to expand or contract its scope by consent of FRA and the State.
(d) Common terms. Each agreement entered into under this section provides that:
(1) The State agency is delegated certain specified authority with respect to investigative and surveillance activities;
(2) The delgation is effective only to the extent it is carried out through personnel recognized by the State and the FRA (pursuant to subpart C of this part) to be qualified to perform the particular investigative and surveillance activities to which the personnel are assigned; and
(3) The State agency agrees to provide the capability necessary to assure coverage of facilities, equipment, and operating practices through planned routine compliance inspections for all, or a specified part of, the territory of the State.
(e) Request for agreement. A request for agreement shall contain the following information:
(1) An opinion of the counsel for the State agency stating that:
(i) The agency has jurisdiction over the safety practices of the facilities, equipment, rolling stock, and operations of railroads in that State and whether the agency has jurisdiction over shippers and manufacturers;
(ii) The agency has the authority and capability to conduct investigative and surveillance activities in connection with the rules, regulations, orders, and standards issued by the Administrator under the Federal railroad safety laws; and
(iii) State funds may be used for this purpose.
(2) A statement that the State agency has been furnished a copy of each Federal safety statute, rule, regulation, order, or standard pertinent to the State’s participation;
(3) The names of the railroads operating in the State together with the number of miles of main and branch lines operated by each railroad in the State;
(4) The name, title and telephone number of the person designated by the agency to coordinate the program; and
(5) A description of the organization, programs, and functions of the agency with respect to railroad safety.
(f) Developmental agreement. Consistent with national program requirements, the Associate Administrator may enter into an agreement under this section prior to the qualification of inspection personnel of the State under subpart C of this part. In such a case, the agreement shall (1) specify the date at which the State will assume investigative and surveillance duties, and (2) refer to any undertaking by the FRA to provide training for State inspection personnel, including a schedule for the training courses that will be made available.
(g) Action on request. The Associate Administrator responds to a request for agreement by entering into an agreement based on the request, by declining the request, or by suggesting modifications.
§ 212.107 Certification.
(a) Scope. In the event the FRA and the State agency do not agree on terms for the participation of the State under § 212.105 of this part and the State wishes to engage in investigative and surveillance activities with respect to any rule, regulation, order, or standard issued under the authority of the Federal Railroad Safety Act of 1970, the State shall file an annual certification with respect to such activities.
(b) Content. The annual certification shall be filed not less than 60 days before the beginning of the Federal fiscal year to which it applies, shall contain the information required by § 212.105(e) of this part and, in addition, shall certify that:
(1) The State agency has the authority and capability to conduct investigative and surveillance activities under the requirements of this part with respect to each rule, regulation, order or standard for which certification is submitted; and
(2) The State agency will, at a minimum, conduct planned compliance inspections meeting the level of effort prescribed in the applicable appendix to this part.
(c) Action on certification. The Associate Administrator responds to the filing of an annual certification within 60 days of its receipt by accepting it or by rejecting it for cause stated.
(d) Delegation of authority. Acceptance of an annual certification constitutes a delegation of authority to conduct investigative and surveillance activities only to the extent that the delegation is carried out through personnel recognized by the State and the FRA (pursuant to subpart C of this part) to be qualified to perform the particular investigative and surveillance activities to which the personnel are assigned.
§ 212.109 Joint planning of inspections.
Prior to the beginning of each calendar year, each participating State applying for grant assistance under subpart D of this part shall develop, in conjunction with the FRA Regional Director of the region in which the State is located, an annual work plan for the conduct of investigative and surveillance activities by the State agency. The plan shall include a program of inspections designed to monitor the compliance of the railroads, shippers, and manufacturers operating within the State (or portion thereof) with applicable Federal railroad safety laws and regulations. In the event the participating State and the FRA Regional Director cannot agree on an annual work plan, the Associate Administrator for Safety shall review the matter.
§ 212.111 Monitoring and other inspections.
(a) It is the policy of the FRA to monitor State investigative and surveillance practices at the program level.
(b) It is the policy of the FRA to coordinate its direct inspection and investigative functions in participating States with the responsible State agency, providing prior advice to the States whenever practicable.
(c) The FRA may conduct such monitoring of State investigative and surveillance practices and such other inspection and investigation as may be necessary to aid in the enforcement of the Federal railroad safety laws.
§ 212.113 Program termination.
(a) A State agency participating in investigative and surveillance activities by agreement or certification shall provide thirty (30) days notice of its intent to terminate its participation.
(b) The Administrator may, on his own initiative, terminate the participation of a State agency if, after at least thirty (30) days notice an opportunity for oral hearing under section 553 of title 5 U.S.C., the State agency does not establish that it has complied and is complying with:
(1) The requirements of this part;
(2) Relevant directives, enforcement manuals, and written interpretations of law and regulations provided by the FRA for guidance of the program; and
(3) The rule of national uniformity of laws, rules, regulations, orders, and standards relating to railroad safety as expressed in section 205 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 434).
§ 212.115 Enforcement actions.
(a) Except as provided in paragraph (b) of this section, the FRA reserves exclusive authority to assess and compromise penalties, to issue emergency orders and compliance orders, institute or cause to be instituted actions for collection of civil penalties or for injunctive relief, and to commence any and all other enforcement actions under the Federal railroad safety laws.
(b)(1) Section 207(a) of the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 436(a)), authorizes a participating State to bring an action for assessment and collection of a civil penalty in a Federal district court of proper venue, if the FRA has not acted on a request for civil penalty assessment originated by the State, within sixty (60) days of receipt, by assessing the penalty or by determining in writing that no violation occurred.
(2) Section 207(b) of the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 436(b)), authorizes a participating State to bring an action for injunctive relief in a Federal district court of proper venue, if the FRA has not acted on a request to initiate such an action within fifteen (15) days of receipt, by referring the matter to the Attorney General for litigation, by undertaking other enforcement action, or by determining in writing that no violation has occurred.
(3) For purposes of this paragraph, a request for legal action is deemed to be received when a legally sufficient investigative report specifying the action requested is received by the designated FRA offices.
(c)(1) Requests for civil penalty assessments and other administrative actions shall be submitted to the FRA Regional Director for Railroad Safety for the FRA region in which the State is located.
(2) Requests for the institution of injunctive actions shall be submitted simultaneously to –
(i) The FRA Regional Director for Railroad Safety for the FRA region in which the State is located and
(ii) The Enforcement Division, Office of Chief Counsel, FRA, Washington, DC 20590.
Subpart C – State Inspection Personnel
§ 212.201 General qualifications of State inspection personnel.
(a) This subpart prescribes the minimum qualification requirements for State railroad safety inspectors, compliance inspectors and inspector apprentices. A State agency may establish more stringent or additional requirements for its employees.
(b) An inspector, compliance inspector, or apprentice inspector shall be recognized as qualified under this part by the State agency and the Associate Administrator prior to assuming the responsibilities of the position.
(c) Each inspector, compliance inspectors and apprentice inspector shall be a bona fide employee of the State agency.
(d) Each inspector, compliance inspector, and apprentice inspector shall demonstrate:
(1) The ability to read and comprehend written materials such as training and enforcement manuals, regulations, operating and safety rules of the railroad, and similar materials;
(2) The ability to compose narrative reports of investigative findings that are clear, complete, and grammatically acceptable;
(3) The ability to record data on standard report forms with a high degree of accuracy;
(4) The ability to communicate orally; and
(5) Basic knowledge of rail transportation functions, the organization of railroad, shipper, and manufacturer companies, and standard industry rules for personal safety.
(e) Each inspector shall demonstrate a thorough knowledge of:
(1) Railroad rules, practices, record systems, and terminology common to operating and maintenance functions; and
(2) The scope and major requirements of all of the Federal railroad safety laws and regulations.
(f) In addition to meeting the requirements of this section, each inspector and apprentice inspector shall meet the applicable requirements of §§ 212.203 through 212.229 of this subpart.
§ 212.203 Track inspector.
(a) The track inspector is required, at a minimum, to be able to conduct independent inspections of track structures for the purpose of determining compliance with the Track Safety Standards (49 CFR part 213), to make reports of those inspections, and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The track inspector is required, at a minimum to have at least four years of recent experience in track construction or maintenance. A bachelor’s degree in engineering or a related technical specialization may be substituted for two of the four years of this experience requirement and successful completion of the apprentice training program may be substituted for the four years of this experience requirement.
(c) The track inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of track nomenclature, track inspection techniques, track maintenance methods, and track equipment;
(2) The ability to understand and detect deviations from:
(i) Track maintenance standards accepted in the industry; and
(ii) The Track Safety Standards (49 CFR part 213).
(3) Knowledge of operating practices and vehicle/track interaction sufficient to understand the safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of the requirements of the Track Safety Standards, including the remedial action required to bring defective track into compliance with the standards.
§ 212.205 Apprentice track inspector.
(a) The apprentice track inspector must be enrolled in a program of training prescribed by the Associate Administrator leading to qualification as a track inspector. The apprentice track inspector may not participate in investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) An apprentice track inspector shall demonstrate basic knowledge of track inspection techniques, track maintenance methods, and track equipment prior to being enrolled in the program.
§ 212.207 Signal and train control inspector.
(a) The signal and train control inspector is required, at a minimum, to be able to conduct independent inspections of all types of signal and train control systems for the purpose of determining compliance with the Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236), to make reports of those inspections, and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The signal and train inspector is required, at a minimum, to have at least four years of recent experience in signal construction or maintenance. A bachelor’s degree in electrical engineering or a related technical specialization may be substituted for two of the four years of this experience requirement and successful completion of the apprentice training program may be substituted for the four years of this requirement.
(c) The signal and train control inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of signal and train control systems, maintenance practices, test and inspection techniques;
(2) The ability to understand and detect deviations from:
(i) Signal and train control maintenance standards accepted in the industry; and
(ii) The Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236).
(3) The ability to examine plans and records, to make inspections of signal train control systems and to determine adequacy of stopping distances from prescribed speeds;
(4) Knowledge of operating practices and signal systems sufficient to understand the safety significance of deviations and combination of deviations; and
(5) Specialized knowledge of the requirements of the Rules, Standards and Instructions for Railroad Signal Systems, including the remedial action required to bring signal and train control systems into compliance with the standards.
§ 212.209 Train control inspector.
(a) The train control inspector is required, at a minimum, to be able to conduct independent inspections of automatic cab signal, automatic train stop, and automatic train control devices on board locomotives for the purpose of determining compliance with subpart E of the Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236) and to recommend the institution of enforcement action when appropriate to promote compliance.
(b) The train control inspector is required, at a minimum, to have at least four years of recent experience in locomotive construction or maintenance. A bachelor’s degree in electrical engineering or a related technical specialization may be substituted for two of the four years of this experience requirement and successful completion of the apprentice training program may be substituted for the four year experience requirement.
(c) The train control inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of the various train control systems used on board locomotives, locomotive air brake systems and test and inspection procedures;
(2) The ability to understand and detect deviations from:
(i) Train control maintenance standards accepted in the industry; and
(ii) Subpart E of the Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236);
(3) Knowledge of operating practices and train control systems sufficient to understand the safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of the requirements of subpart E of the Rules, Standards and Instructions for Railroad Signal Systems, including the remedial action required to bring train control systems used on board locomotives into compliance with the standards.
§ 212.211 Apprentice signal and train control inspector.
(a) The apprentice signal and train control inspector must be enrolled in a program of training prescribed by the Associate Administrator leading to qualification as a signal and train control inspector. The apprentice inspector may not participate in the investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) Prior to being enrolled in the program the apprentice inspector shall demonstrate:
(1) Working knowledge of basic electricity and the ability to use electrical test equipment in direct current and alternating current circuits; and
(2) A basic knowledge of signal and train control inspection and maintenance methods and procedures.
§ 212.213 Motive power and equipment (MP&E) inspector.
(a) The MP&E inspector is required, at a minimum, to be able to conduct independent inspections of railroad equipment for the purpose of determining compliance with all sections of the Freight Car Safety Standards (49 CFR part 215), Safety Glazing Standards (49 CFR part 223), Locomotive Safety Standards (49 CFR part 229), Safety Appliance Standards (49 CFR part 231), and Power Brake Standards (49 CFR part 232), to make reports of those inspections and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The MP&E inspector is required, at a minimum, to have at least four years of recent experience in the construction or maintenance of railroad rolling equipment. A bachelor’s degree in engineering or a related technical specialization may be substituted for two of the four years of this experience requirement and successful completion of the apprentice training program may be substituted for the four year experience requirement.
(c) The MP&E inspector shall demonstrate the following qualifications:
(1) A comprehensive knowledge of construction, testing, inspecting and repair of railroad freight cars, passenger cars, locomotives and air brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad equipment maintenance standards accepted in the industry; and
(ii) The Freight Car Safety Standards, Safety Glazing Standards, Locomotive Safety Standards, Safety Appliance Standards and Power Brake Standards.
(3) The knowledge of railroad operating procedures associated with the operation of freight cars, passenger cars, locomotives and air brakes sufficient to understand the safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of proper remedial action to be taken in order to bring defective freight cars, passenger cars, locomotives, and air brakes into compliance with applicable Federal standards.
§ 212.215 Locomotive inspector.
(a) The locomotive inspector is required, at a minimum, to be able to conduct independent inspections of locomotives and air brake systems for the purpose of determining compliance with applicable sections of the Safety Glazing Standards (49 CFR part 223), Locomotive Safety Standards (49 CFR part 229), Safety Appliance Standards (49 CFR part 231) and Power Brake Standards (49 CFR part 232), to make reports of those inspections and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The locomotive inspector is required, at a minimum, to have at least four years of experience in locomotive construction or maintenance. A bachelor’s degree in mechanical engineering or a related technical specialization may be substituted for two of the four years of this experience requirement and successful completion of the apprentice training program may be substituted for the four year experience requirement.
(c) The locomotive inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of construction, testing, inspecting and repair of locomotive and air brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad equipment maintenance standards accepted in the industry; and
(ii) Safety Glazing Standards, Locomotive Safety Standards, Safety Appliance Standards and Power Brake Standards;
(3) The knowledge of railroad operating procedures associated with the operation of locomotives and air brakes sufficient to understand the safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of proper remedial action to be taken in order to bring defective locomotives, and air brakes into compliance with applicable Federal standards.
§ 212.217 Car inspector.
(a) The car inspector is required, at a minimum, to be able to conduct independent inspections of railroad rolling stock for the purpose of determining compliance with all sections of the Freight Car Safety Standards (49 CFR part 215), Safety Glazing Standards (49 CFR part 223), Safety Appliance Standards (49 CFR part 231) and Power Brake Standards (49 CFR part 232), to make reports of those inspections and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The car inspector is required, at a minimum, to have at least two years of recent experience in freight car or passenger car construction, maintenance or inspection. Successful completion of the apprentice training program may be substituted for this two year experience requirement.
(c) The car inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of the construction and testing of freight and passenger cars and air brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad freight and passenger car maintenance standards accepted in the industry; and
(ii) The Freight Car Safety Standards (49 CFR part 215), Safety Glazing Standards (49 CFR part 223), Safety Appliance Standards (49 CFR part 231) and Power Brake Standards (49 CFR part 232);
(3) The knowledge of railroad operating procedures associated with the operation of freight and passenger cars and air brakes sufficient to understand the safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of proper remedial action to be taken in order to bring defective freight and passenger car equipment and air brakes into compliance with applicable Federal standards.
§ 212.219 Apprentice MP&E inspector.
(a) The apprentice MP&E inspector must be enrolled in a program of training prescribed by the Associate Administrator leading to qualification as an MP&E inspector. The apprentice may not participate in investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) An apprentice MP&E inspector shall demonstrate basic knowledge of railroad equipment and air brake inspection, testing and maintenance, prior to being enrolled in the program.
§ 212.221 Operating practices inspector.
(a) The operating practices inspector is required, at a minimum, to be able to conduct independent inspections for the purpose of determining compliance with all sections of the Federal operating practice regulations (49 CFR parts 217, 218, 219, 220, 221, 225 and 228) and the Hours of Service Act (45 U.S.C. 61-64b), to make reports of those inspections, and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The operating practices inspector is required at a minimum to have at least four years of recent experience in developing or administering railroad operating rules. Successful completion of the apprentice training program may be substituted for this four year experience requirement.
(c) The operating practices inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of railroad operating practices, railroad operating rules, duties of railroad employees, and general railroad nomenclature;
(2) The ability to understand and detect deviations from:
(i) Railroad operating rules accepted in the industry; and
(ii) Federal operating practice regulations;
(3) Knowledge of operating practices and rules sufficient to understand the safety significance of deviations; and
(4) Specialized knowledge of the requirements of the Federal operating practices regulations listed in paragraph (a) of this section, including the remedial action required to bring railroad operations into compliance with the regulations.
§ 212.223 Operating practices compliance inspector.
(a) The operating practices compliance inspector is required, at a minimum, to be able to conduct independent inspections for the purpose of determining compliance with the requirements of the following:
(1) Operating Rules – blue flag (49 CFR part 218);
(2) Control of Alcohol and Drug Use (49 CFR part 219);
(3) Rear End Marking Device Regulations (49 CFR part 221);
(4) Railroad accidents/incidents: reports classification and investigations (49 CFR part 225); and
(5) Hours of Service Act (45 U.S.C. 61-64b) and implementing regulations (49 CFR part 228); to make reports of those inspections and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The operating practices compliance inspector is required, at a minimum, to have at least two years of recent experience in developing or administering railroad operating rules. Successful completion of the apprentice training program may be substituted for the two year experience requirement.
(c) The compliance inspector shall demonstrate the following specific qualifications.
(1) A basic knowledge of railroad operations, duties of railroad employees and general railroad safety as it relates to the protection of railroad employees;
(2) A basic knowledge of railroad rules and practices;
(3) The ability to understand and detect deviations from the requirements cited in paragraph (a) of this section; and
(4) Specialized knowledge of the requirements of the Federal operating practices regulations listed in paragraph (a) of this section, including the remedial action required to bring defective conditions into compliance with the applicable Federal standards.
§ 212.225 Apprentice operating practices inspector.
(a) The apprentice operating practices inspector must be enrolled in a program of training prescribed by the Associate Administrator leading to qualification as an inspector. The apprentice inspector may not participate in investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) An apprentice operating practices inspector shall demonstrate basic knowledge of railroad operating practices, railroad operating rules and general duties of railroad employees prior to being enrolled in the program.
§ 212.227 Hazardous materials inspector.
(a) The hazardous materials inspector is required, at a minimum, to be able to conduct independent inspections to determine compliance with all pertinent sections of the Federal hazardous materials regulations (49 CFR parts 171 through 174, and 179), to make reports of those inspections and findings, and to recommend the institution of enforcement actions when appropriate to promote compliance.
(b) The hazardous materials inspector is required, at a minimum, to have at least two years of recent experience in developing, administering, or performing managerial functions related to compliance with the hazardous materials regulations; four years of recent experience in performing functions related to compliance with the hazardous materials regulations; or a bachelor’s degree in a related technical specialization. Successful completion of the apprentice training program may be substituted for this requirement.
(c) The hazardous materials inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of the transportation and operating procedures employed in the railroad, shipping, or manufacturing industries associated with the transportation of hazardous materials;
(2) Knowledge and ability to understand and detect deviations from the Department of Transportation’s Hazardous Materials Regulations, including Federal requirements and industry standards for the manufacturing of bulk packaging used in the transportation of hazardous materials by railroad;
(3) Knowledge of the physical and chemical properties and chemical hazards associated with hazardous materials that are transported by railroad;
(4) Knowledge of the proper remedial actions required to bring railroad, shipper, and/or manufacturing facilities into compliance with the Federal regulations; and
(5) Knowledge of the proper remedial actions required when a hazardous materials transportation accident or incident occurs.
§ 212.229 Apprentice hazardous materials inspector.
(a) The apprentice hazardous materials inspector must be enrolled in a program of training prescribed by the Associate Administrator for Safety leading to qualification as a hazardous materials inspector. The apprentice may not participate in investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) An apprentice hazardous materials inspector shall demonstrate a basic knowledge of the chemical hazards associated with hazardous materials that are transported by railroad, including requirements such as shipping papers, marking, labeling, placarding, and the manufacturing and maintenance of packagings associated with these shipments.
§ 212.231 Highway-rail grade crossing inspector.
(a) The highway-rail grade crossing inspector is required, at a minimum, to be able to conduct independent inspections of all types of highway-rail grade crossing warning systems for the purpose of determining compliance with Grade Crossing Signal System Safety Rules (49 CFR part 234), to make reports of those inspections, and to recommend institution of enforcement actions when appropriate to promote compliance.
(b) The highway-rail grade crossing inspector is required, at a minimum, to have at least four years of recent experience in highway-rail grade crossing construction or maintenance. A bachelor’s degree in engineering or a related technical specialization may be substituted for two of the four years of this experience requirement. Successful completion of an apprentice training program under § 212.233 may be substituted for the four years of this experience requirement.
(c) The highway-rail grade crossing inspector shall demonstrate the following specific qualifications:
(1) A comprehensive knowledge of highway-rail grade crossing nomenclature, inspection techniques, maintenance requirements, and methods;
(2) The ability to understand and detect deviations from:
(i) Grade crossing signal system maintenance, inspection and testing standards accepted in the industry; and
(ii) The Grade Crossing Signal System Safety Rules (49 CFR part 234);
(3) Knowledge of operating practices and highway-rail grade crossing systems sufficient to understand the safety significance of deviations and combinations of deviations from § 212.231(c)(2) (i) and (ii);
(4) Specialized knowledge of the requirements of the Grade Crossing Signal System Safety Rules (49 CFR part 234), including the remedial action required to bring highway-rail grade crossing signal systems into compliance with those Rules;
(5) Specialized knowledge of highway-rail grade crossing standards contained in the Manual on Uniform Traffic Control Devices; and
(6) Knowledge of railroad signal systems sufficient to ensure that highway-rail grade crossing warning systems and inspections of those systems do not adversely affect the safety of railroad signal systems.
(d) A State signal and train control inspector qualified under this part and who has demonstrated the ability to understand and detect deviations from the Grade Crossing Signal System Safety Rules (49 CFR part 234) is deemed to meet all requirements of this section and is qualified to conduct independent inspections of all types of highway-rail grade crossing warning systems for the purpose of determining compliance with Grade Crossing Signal System Safety Rules (49 CFR part 234), to make reports of those inspections, and to recommend institution of enforcement actions when appropriate to promote compliance.
§ 212.233 Apprentice highway-rail grade crossing inspector.
(a) An apprentice highway-rail grade crossing inspector shall be enrolled in a program of training prescribed by the Associate Administrator for Safety leading to qualification as a highway-rail grade crossing inspector. The apprentice inspector may not participate in investigative and surveillance activities, except as an assistant to a qualified State or FRA inspector while accompanying that qualified inspector.
(b) Prior to being enrolled in the program the apprentice inspector shall demonstrate:
(1) Working basic knowledge of electricity;
(2) The ability to use electrical test equipment in direct current and alternating current circuits; and
(3) A basic knowledge of highway-rail grade crossing inspection and maintenance methods and procedures.
§ 212.235 Inapplicable qualification requirements.
The Associate Administrator may determine that a specific requirement of this subpart is inapplicable to an identified position created by a State agency if it is not relevant to the actual duties of the position. The determination is made in writing.
PART 213 – TRACK SAFETY STANDARDS
Subpart A – General
§ 213.1 Scope of part.
(a) This part prescribes minimum safety requirements for railroad track that is part of the general railroad system of transportation. In general, the requirements prescribed in this part apply to specific track conditions existing in isolation. Therefore, a combination of track conditions, none of which individually amounts to a deviation from the requirements in this part, may require remedial action to provide for safe operations over that track. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part.
(b) Subparts A through F apply to track Classes 1 through 5. Subpart G and 213.2, 213.3, 213.15, and 213.240 apply to track over which trains are operated at speeds in excess of those permitted over Class 5 track.
§ 213.3 Application.
(a) Except as provided in paragraph (b) of this section, this part applies to all standard gage track in the general railroad system of transportation.
(b) This part does not apply to track:
(1) Located inside an installation that is not part of the general railroad system of transportation (i.e., a plant railroad). As used in this part, a plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that track by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation. Similarly, this exclusion does not apply to track over which a general system railroad operates, even if that track is located within a plant railroad;
(2) Used exclusively for tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation. As used in this part, tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track); or
(3) Used exclusively for rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
§ 213.4 Excepted track.
A track owner may designate a segment of track as excepted track provided that –
(a) The segment is identified in the timetable, special instructions, general order, or other appropriate records which are available for inspection during regular business hours;
(b) The identified segment is not located within 30 feet of an adjacent track which can be subjected to simultaneous use at speeds in excess of 10 miles per hour;
(c) The identified segment is inspected in accordance with 213.233(c) and 213.235 at the frequency specified for Class 1 track;
(d) The identified segment of track is not located on a bridge including the track approaching the bridge for 100 feet on either side, or located on a public street or highway, if railroad cars containing commodities required to be placarded by the Hazardous Materials Regulations (49 CFR part 172), are moved over the track; and
(e) The railroad conducts operations on the identified segment under the following conditions:
(1) No train shall be operated at speeds in excess of 10 miles per hour;
(2) No occupied passenger train shall be operated;
(3) No freight train shall be operated that contains more than five cars required to be placarded by the Hazardous Materials Regulations (49 CFR part 172); and
(4) The gage on excepted track shall not be more than 4 feet 10
(f) A track owner shall advise the appropriate FRA Regional Office at least 10 days prior to removal of a segment of track from excepted status.
§ 213.5 Responsibility for compliance.
(a) Except as provided in paragraph (b) of this section, any owner of track to which this part applies who knows or has notice that the track does not comply with the requirements of this part, shall –
(1) Bring the track into compliance;
(2) Halt operations over that track; or
(3) Operate under authority of a person designated under § 213.7(a), subject to conditions set forth in this part. If the operation is on continuous welded rail (CWR) track, the person under whose authority operations are conducted must also be designated under § 213.7(c).
(b) If an owner of track to which this part applies designates a segment of track as “excepted track” under the provisions of § 213.4, operations may continue over that track without complying with the provisions of subparts B, C, D, and E of this part, unless otherwise expressly stated.
(c) If an owner of track to which this part applies assigns responsibility for the track to another person (by lease or otherwise), written notification of the assignment shall be provided to the appropriate FRA Regional Office at least 30 days in advance of the assignment. The notification may be made by any party to that assignment, but shall be in writing and include the following –
(1) The name and address of the track owner;
(2) The name and address of the person to whom responsibility is assigned (assignee);
(3) A statement of the exact relationship between the track owner and the assignee;
(4) A precise identification of the track;
(5) A statement as to the competence and ability of the assignee to carry out the duties of the track owner under this part; and
(6) A statement signed by the assignee acknowledging the assignment to him of responsibility for purposes of compliance with this part.
(d) The Administrator may hold the track owner or the assignee or both responsible for compliance with this part and subject to penalties under § 213.15.
(e) A common carrier by railroad which is directed by the Surface Transportation Board to provide service over the track of another railroad under 49 U.S.C. 11123 is considered the owner of that track for the purposes of the application of this part during the period the directed service order remains in effect.
(f) When any person, including a contractor for a railroad or track owner, performs any function required by this part, that person is required to perform that function in accordance with this part.
§ 213.7 Designation of qualified persons to supervise certain renewals and inspect track.
(a) Each track owner to which this part applies shall designate qualified persons to supervise restorations and renewals of track under traffic conditions. Each person designated shall have –
(1) At least –
(i) 1 year of experience in railroad track maintenance under traffic conditions; or
(ii) A combination of experience in track maintenance and training from a course in track maintenance or from a college level educational program related to track maintenance.
(2) Demonstrated to the owner that he or she –
(i) Knows and understands the requirements of this part that apply to the restoration and renewal of the track for which he or she is responsible;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(3) Authorization from the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements of this part.
(b) Each track owner to which this part applies shall designate qualified persons to inspect track for defects. Each person designated shall have –
(1) At least –
(i) 1 year of experience in railroad track inspection; or
(ii) A combination of experience in track inspection and training from a course in track inspection or from a college level educational program related to track inspection;
(2) Demonstrated to the owner that he or she –
(i) Knows and understands the requirements of this part that apply to the inspection of the track for which he or she is responsible;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(3) Authorization from the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements of this part, pending review by a qualified person designated under paragraph (a) of this section.
(c) Individuals designated under paragraphs (a) or (b) of this section that inspect continuous welded rail (CWR) track or supervise the installation, adjustment, and maintenance of CWR track in accordance with the written procedures of the track owner shall have:
(1) Current qualifications under either paragraph (a) or (b) of this section;
(2) Successfully completed a comprehensive training course specifically developed for the application of written CWR procedures issued by the track owner;
(3) Demonstrated to the track owner that the individual:
(i) Knows and understands the requirements of those written CWR procedures;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(4) Authorization from the track owner to prescribe remedial actions to correct or safely compensate from deviation from the requirements in these procedures and successfully completed a recorded examination on those procedures as part of the qualification process.
(d) Persons not fully qualified to supervise certain renewals and inspect track as required in paragraphs (a) through (c) of this section, but with at least one year of maintenance-of-way or signal experience, may pass trains over broken rails and pull aparts provided that –
(1) The track owner determines the person to be qualified and, as part of doing so, trains, examines, and re-examines the person periodically within two years after each prior examination on the following topics as they relate to the safe passage of trains over broken rails or pull aparts: rail defect identification, crosstie condition, track surface and alinement, gage restraint, rail end mismatch, joint bars, and maximum distance between rail ends over which trains may be allowed to pass. The sole purpose of the examination is to ascertain the person’s ability to effectively apply these requirements and the examination may not be used to disqualify the person from other duties. A minimum of four hours training is required for initial training;
(2) The person deems it safe and train speeds are limited to a maximum of 10 m.p.h. over the broken rail or pull apart;
(3) The person shall watch all movements over the broken rail or pull apart and be prepared to stop the train if necessary; and
(4) Person(s) fully qualified under § 213.7 are notified and dispatched to the location promptly for the purpose of authorizing movements and effecting temporary or permanent repairs.
(e) With respect to designations under paragraph (a) through (d) of this section, each track owner shall maintain records of –
(1) Each designation in effect;
(2) The date each designation was made; and
(3) The basis for each designation, including the method used to determine that the designated person is qualified.
(f) Each track owner shall keep designation records required under paragraph (e) of this section readily available for inspection or copying by the Federal Railroad Administration during regular business hours, following reasonable notice.
§ 213.9 Classes of track: operating speed limits.
(a) Except as provided in paragraph (b) of this section and §§ 213.57(b), 213.59(a), 213.113(a), and 213.137(b) and (c), the following maximum allowable operating speeds apply –
[In miles per hour]
| Over track that meets all of the requirements prescribed in this part for – | The maximum allowable operating speed for freight trains is – | The maximum allowable operating speed for passenger trains is – |
|---|---|---|
| Excepted track | 10 | N/A |
| Class 1 track | 10 | 15 |
| Class 2 track | 25 | 30 |
| Class 3 track | 40 | 60 |
| Class 4 track | 60 | 80 |
| Class 5 track | 80 | 90 |
(b) If a segment of track does not meet all of the requirements of its intended class, it is reclassified to the next lowest class of track for which it does meet all of the requirements of this part. However, if the segment of track does not at least meet the requirements of Class 1 track, operations may continue at Class 1 speeds for a period of not more than 30 days without bringing the track into compliance, under the authority of a person designated under § 213.7(a), after that person determines that operations may safely continue and subject to any limiting conditions specified by such person.
§ 213.11 Restoration or renewal of track under traffic conditions.
If during a period of restoration or renewal, track is under traffic conditions and does not meet all of the requirements prescribed in this part, the work on the track shall be under the continuous supervision of a person designated under § 213.7(a) and, as applicable, § 213.7(c). The work on the track shall also be subject to any limiting conditions specified by such person. The operating speed cannot be more than the maximum allowable speed under § 213.9 for the class of track concerned. The term “continuous supervision” as used in this section means the physical presence of that person at the job site. However, since the work may be performed over a large area, it is not necessary that each phase of the work be done under the visual supervision of that person.
§ 213.13 Measuring track not under load.
When unloaded track is measured to determine compliance with requirements of this part, the amount of rail movement, if any, that occurs while the track is loaded must be added to the measurements of the unloaded track.
§ 213.14 Application of requirements to curved track.
Unless otherwise provided in this part, requirements specified for curved track apply only to track having a curvature greater than 0.25 degree.
§ 213.15 Penalties.
(a) Any person who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. “Person” means an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; any employee of such owner, manufacturer, lessor, lessee, or independent contractor; and anyone held by the Federal Railroad Administrator to be responsible under § 213.5(d) or § 213.303(c). Each day a violation continues shall constitute a separate offense. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
(b) Any person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311.
§ 213.17 Waivers.
(a) Any owner of track to which this part applies, or other person subject to this part, may petition the Federal Railroad Administrator for a waiver from any or all requirements prescribed in this part. The filing of such a petition does not affect that person’s responsibility for compliance with that requirement while the petition is being considered.
(b) Each petition for a waiver under this section shall be filed in the manner and contain the information required by part 211 of this chapter.
(c) If the Administrator finds that a waiver is in the public interest and is consistent with railroad safety, the Administrator may grant the exemption subject to any conditions the Administrator deems necessary. Where a waiver is granted, the Administrator publishes a notice containing the reasons for granting the waiver.
§ 213.19 Information collection.
(a) The information collection requirements of this part were reviewed by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and are assigned OMB control number 2130-0010.
(b) The information collection requirements are found in the following sections: §§ 213.4, 213.5, 213.7, 213.17, 213.57, 213.119, 213.122, 213.233, 213.237, 213.241, 213.303, 213.305, 213.317, 213.329, 213.333, 213.339, 213.341, 213.343, 213.345, 213.353, 213.361, 213.369.
Subpart B – Roadbed
§ 213.31 Scope.
This subpart prescribes minimum requirements for roadbed and areas immediately adjacent to roadbed.
§ 213.33 Drainage.
Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.
§ 213.37 Vegetation.
Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not –
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals:
(1) Along the right-of-way, and
(2) At highway-rail crossings; (This paragraph (b)(2) is applicable September 21, 1999.)
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
Subpart C – Track Geometry
§ 213.51 Scope.
This subpart prescribes requirements for the gage, alinement, and surface of track, and the elevation of outer rails and speed limitations for curved track.
§ 213.53 Gage.
(a) Gage is measured between the heads of the rails at right-angles to the rails in a plane five-eighths of an inch below the top of the rail head.
(b) Gage shall be within the limits prescribed in the following table –
| Class of track | The gage must be at least – | But not more than – |
|---|---|---|
| Excepted track | N/A | 4′10 |
| Class 1 track | 4′8″ | 4′10″. |
| Class 2 and 3 track | 4′8″ | 4′9 |
| Class 4 and 5 track | 4′8″ | 4′9 |
§ 213.55 Track alinement.
(a) Except as provided in paragraph (b) of this section, alinement may not deviate from uniformity more than the amount prescribed in the following table:
| Class of track | Tangent track | Curved track | |
|---|---|---|---|
| The deviation of the mid-offset from a 62-foot line 1 may not be more than – (inches) | The deviation of the mid-ordinate from a 31-foot chord 2 may not be more than – (inches) | The deviation of the mid-ordinate from a 62-foot chord 2 may not be more than – (inches) | |
| Class 1 track | 5 | 3 N/A | 5 |
| Class 2 track | 3 | 3 N/A | 3 |
| Class 3 track | 1 | 1 | 1 |
| Class 4 track | 1 | 1 | 1 |
| Class 5 track | |||
1 The ends of the line shall be at points on the gage side of the line rail, five-eighths of an inch below the top of the railhead. Either rail may be used as the line rail; however, the same rail shall be used for the full length of that tangential segment of the track.
2 The ends of the chord shall be at points on the gage side of the outer rail, five-eighths of an inch below the top of the railhead.
3 N/A – Not Applicable
(b) For operations at a qualified cant deficiency, E
| Class of track | Curved track | |
|---|---|---|
| The deviation of the mid-ordinate from a 31-foot chord 1 may not be more than – (inches) | The deviation of the mid-ordinate from a 62-foot chord 1 may not be more than – (inches) | |
| Class 1 track 2 | 3 N/A | 1 |
| Class 2 track 2 | 3 N/A | 1 |
| Class 3 track | 1 | |
| Class 4 track | ||
| Class 5 track | ||
1 The ends of the chord shall be at points on the gage side of the outer rail, five-eighths of an inch below the top of the railhead.
2 Restraining rails or other systems may be required for derailment prevention.
3 N/A – Not Applicable
§ 213.57 Curves; elevation and speed limitations.
(a) The maximum elevation of the outside rail of a curve may not be more than 8 inches on track Classes 1 and 2, and 7 inches on track Classes 3 through 5. The outside rail of a curve may not be lower than the inside rail by design, except when engineered to address specific track or operating conditions; the limits in § 213.63 apply in all cases.
(b) The maximum allowable posted timetable operating speed for each curve is determined by the following formula –
D = Degree of curvature (degrees).
(c) All vehicles are considered qualified for operating on track with a cant deficiency, E
(d) Each vehicle type must be approved by FRA to operate on track with a qualified cant deficiency, E
(1) When positioned on a track with a uniform superelevation equal to the proposed cant deficiency:
(i) No wheel of the vehicle type unloads to a value less than 60 percent of its static value on perfectly level track; and
(ii) For passenger cars, the roll angle between the floor of the equipment and the horizontal does not exceed 8.6 degrees; or
(2) When operating through a constant radius curve at a constant speed corresponding to the proposed cant deficiency, and a test plan is submitted to and approved by FRA in accordance with § 213.345(e) and (f):
(i) The steady-state (average) load on any wheel, throughout the body of the curve, is not less than 60 percent of its static value on perfectly level track; and
(ii) For passenger cars, the steady-state (average) lateral acceleration measured on the floor of the carbody does not exceed 0.15g.
(e) The track owner or railroad shall transmit the results of the testing specified in paragraph (d) of this section to FRA’s Associate Administrator for Railroad Safety/Chief Safety Officer (FRA) requesting approval for the vehicle type to operate at the desired curving speeds allowed under the formula in paragraph (b) of this section. The request shall be made in writing and contain, at a minimum, the following information –
(1) A description of the vehicle type involved, including schematic diagrams of the suspension system(s) and the estimated location of the center of gravity above top of rail;
(2) The test procedure,
(3) For vehicle types not subject to parts 229 or 238 of this chapter, procedures or standards in effect that relate to the maintenance of all safety-critical components of the suspension system(s) for the particular vehicle type. Safety-critical components of the suspension system are those that impact or have significant influence on the roll of the carbody and the distribution of weight on the wheels.
(f) In approving the request made pursuant to paragraph (e) of this section, FRA may impose conditions necessary for safely operating at the higher curving speeds. Upon FRA approval of the request, the track owner or railroad shall notify FRA in writing no less than 30 calendar days prior to the proposed implementation of the approved higher curving speeds allowed under the formula in paragraph (b) of this section. The notification shall contain, at a minimum, identification of the track segment(s) on which the higher curving speeds are to be implemented.
(g) The documents required by this section must be provided to FRA by:
(1) The track owner; or
(2) A railroad that provides service with the same vehicle type over trackage of one or more track owner(s), with the written consent of each affected track owner.
(h)(1) Vehicle types permitted by FRA to operate at cant deficiencies, E
(2) Vehicle types permitted by FRA to operate at cant deficiencies, E
(i) For vehicle types intended to operate at any curving speed producing more than 5 inches of cant deficiency, the following provisions of subpart G of this part shall apply: §§ 213.333(a) through (g), (j)(1), (k) and (m), 213.345, and 213.369(f).
(j) As used in this section –
(1) Vehicle means a locomotive, as defined in § 229.5 of this chapter; a freight car, as defined in § 215.5 of this chapter; a passenger car, as defined in § 238.5 of this chapter; and any rail rolling equipment used in a train with either a freight car or a passenger car.
(2) Vehicle type means like vehicles with variations in their physical properties, such as suspension, mass, interior arrangements, and dimensions that do not result in significant changes to their dynamic characteristics.
§ 213.59 Elevation of curved track; runoff.
(a) If a curve is elevated, the full elevation shall be provided throughout the curve, unless physical conditions do not permit. If elevation runoff occurs in a curve, the actual minimum elevation shall be used in computing the maximum allowable posted timetable operating speed for that curve under § 213.57(b).
(b) Elevation runoff shall be at a uniform rate, within the limits of track surface deviation prescribed in § 213.63, and it shall extend at least the full length of the spirals. If physical conditions do not permit a spiral long enough to accommodate the minimum length of runoff, part of the runoff may be on tangent track.
§ 213.63 Track surface.
(a) Except as provided in paragraph (b) of this section, each track owner shall maintain the surface of its track within the limits prescribed in the following table:
| Track surface (inches) | Class of track | ||||
|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | |
| The runoff in any 31 feet of rail at the end of a raise may not be more than | 3 | 3 | 2 | 1 | 1 |
| The deviation from uniform profile on either rail at the mid-ordinate of a 62-foot chord may not be more than | 3 | 2 | 2 | 2 | 1 |
| The deviation from zero crosslevel at any point on tangent or reverse crosslevel elevation on curves may not be more than | 3 | 2 | 1 | 1 | 1 |
| The difference in crosslevel between any two points less than 62 feet apart may not be more than * 1 2 | 3 | 2 | 2 | 1 | 1 |
| *Where determined by engineering decision prior to June 22, 1998, due to physical restrictions on spiral length and operating practices and experience, the variation in crosslevel on spirals per 31 feet may not be more than | 2 | 1 | 1 | 1 | |
1 Except as limited by § 213.57(a), where the elevation at any point in a curve equals or exceeds 6 inches, the difference in crosslevel within 62 feet between that point and a point with greater elevation may not be more than 1
2 However, to control harmonics on Class 2 through 5 jointed track with staggered joints, the crosslevel differences shall not exceed 1
(b) For operations at a qualified cant deficiency, E
| Track surface (inches) | Class of track | ||||
|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | |
| The deviation from uniform profile on either rail at the mid-ordinate of a 31-foot chord may not be more than | N/A 1 | N/A 1 | 1 | 1 | 1 |
| The deviation from uniform profile on either rail at the mid-ordinate of a 62-foot chord may not be more than | 2 | 2 | 1 | 1 | 1 |
| The difference in crosslevel between any two points less than 10 feet apart (short warp) shall not be more than | 2 | 2 | 1 | 1 | 1 |
1 N/A – Not Applicable.
§ 213.65 Combined track alinement and surface deviations.
On any curved track where operations are conducted at a qualified cant deficiency, E
Subpart D – Track Structure
§ 213.101 Scope.
This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of rails.
§ 213.103 Ballast; general.
Unless it is otherwise structurally supported, all track shall be supported by material which will –
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
§ 213.109 Crossties.
(a) Crossties shall be made of a material to which rail can be securely fastened.
(b) Each 39-foot segment of track shall have at a minimum –
(1) A sufficient number of crossties that in combination provide effective support that will –
(i) Hold gage within the limits prescribed in § 213.53(b);
(ii) Maintain surface within the limits prescribed in § 213.63; and
(iii) Maintain alinement within the limits prescribed in § 213.55;
(2) The minimum number and type of crossties specified in paragraph (b)(4) of this section and described in paragraph (c) or (d), as applicable, of this section effectively distributed to support the entire segment;
(3) At least one non-defective crosstie of the type specified in paragraphs (c) and (d) of this section that is located at a joint location as specified in paragraph (e) of this section; and
(4) The minimum number of crossties as indicated in the following table.
| FRA track class | Tangent track, turnouts, and curves | |
|---|---|---|
| Tangent track and curved track less than or equal to 2 degrees | Turnouts and curved track greater than 2 degrees | |
| Class 1 | 5 | 6 |
| Class 2 | 8 | 9 |
| Class 3 | 8 | 10 |
| Class 4 and 5 | 12 | 14 |
(c) Crossties, other than concrete, counted to satisfy the requirements set forth in paragraph (b)(4) of this section shall not be –
(1) Broken through;
(2) Split or otherwise impaired to the extent the crosstie will allow the ballast to work through, or will not hold spikes or rail fasteners;
(3) So deteriorated that the crosstie plate or base of rail can move laterally
(4) Cut by the crosstie plate through more than 40 percent of a crosstie’s thickness.
(d) Concrete crossties counted to satisfy the requirements set forth in paragraph (b)(4) of this section shall not be –
(1) Broken through or deteriorated to the extent that prestressing material is visible;
(2) Deteriorated or broken off in the vicinity of the shoulder or insert so that the fastener assembly can either pull out or move laterally more than
(3) Deteriorated such that the base of either rail can move laterally more than
(4) Deteriorated or abraded at any point under the rail seat to a depth of
(5) Deteriorated such that the crosstie’s fastening or anchoring system, including rail anchors (see § 213.127(b)), is unable to maintain longitudinal rail restraint, or maintain rail hold down, or maintain gage due to insufficient fastener toeload; or
(6) Configured with less than two fasteners on the same rail except as provided in § 213.127(c).
(e) Class 1 and 2 track shall have one crosstie whose centerline is within 24 inches of each rail joint (end) location. Class 3, 4, and 5 track shall have either one crosstie whose centerline is within 18 inches of each rail joint location or two crossties whose centerlines are within 24 inches either side of each rail joint location. The relative position of these crossties is described in the following three diagrams:
(1) Each rail joint in Class 1 and 2 track shall be supported by at least one crosstie specified in paragraphs (c) and (d) of this section whose centerline is within 48 inches as shown in Figure 1.
(2) Each rail joint in Class 3, 4, and 5 track shall be supported by either at least one crosstie specified in paragraphs (c) and (d) of this section whose centerline is within 36 inches as shown in Figure 2, or:
(3) Two crossties, one on each side of the rail joint, whose centerlines are within 24 inches of the rail joint location as shown in Figure 3.
(f) For track constructed without crossties, such as slab track, track connected directly to bridge structural components, track over servicing pits, etc., the track structure shall meet the requirements of paragraph (b)(1) of this section.
§ 213.110 Gage restraint measurement systems.
(a) A track owner may elect to implement a Gage Restraint Measurement System (GRMS), supplemented by the use of a Portable Track Loading Fixture (PTLF), to determine compliance with the crosstie and fastener requirements specified in §§ 213.109 and 213.127 provided that –
(1) The track owner notifies the appropriate FRA Regional office at least 30 days prior to the designation of any line segment on which GRMS technology will be implemented; and
(2) The track owner notifies the appropriate FRA Regional office at least 10 days prior to the removal of any line segment from GRMS designation.
(b) Initial notification under paragraph (a)(1) of this section shall include –
(1) Identification of the line segment(s) by timetable designation, milepost limits, class of track, or other identifying criteria; and
(2) The most recent record of million gross tons of traffic per year over the identified segment(s).
(c)(1) The track owner shall also provide to FRA sufficient technical data to establish compliance with the following minimum design requirements of a GRMS vehicle:
(2) Gage restraint shall be measured between the heads of rail –
(i) At an interval not exceeding 16 inches;
(ii) Under an applied vertical load of no less than 10 kips per rail; and
(iii) Under an applied lateral load that provides for a lateral/vertical load ratio of between 0.5 and 1.25
(d) Load severity is defined by the formula:
(e) The measured gage values shall be converted to a Projected Loaded Gage 24 (PLG24) as follows –
The A factor shall not exceed a value of 3.184 under any valid loading configuration.
(f) The measured gage and load values shall be converted to a Gage Widening Projection (GWP) as follows:
(g) The GRMS vehicle shall be capable of producing output reports that provide a trace, on a constant-distance scale, of all parameters specified in paragraph (l) of this section.
(h) The GRMS vehicle shall be capable of providing an exception report containing a systematic listing of all exceptions, by magnitude and location, to all the parameters specified in paragraph (l) of this section.
(i) The exception reports required by this section shall be provided to the appropriate person designated as fully qualified under § 213.7 prior to the next inspection required under § 213.233.
(j) The track owner shall institute the necessary procedures for maintaining the integrity of the data collected by the GRMS and PTLF systems. At a minimum, the track owner shall –
(1) Maintain and make available to the Federal Railroad Administration documented calibration procedures on each GRMS vehicle which, at a minimum, shall specify a daily instrument verification procedure that will ensure correlation between measurements made on the ground and those recorded by the instrumentation with respect to loaded and unloaded gage parameters; and
(2) Maintain each PTLF used for determining compliance with the requirements of this section such that the 4,000-pound reading is accurate to within five percent of that reading.
(k) The track owner shall provide training in GRMS technology to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of this section. The training program shall be made available to the Federal Railroad Administration upon request. At a minimum, the training program shall address –
(1) Basic GRMS procedures;
(2) Interpretation and handling of exception reports generated by the GRMS vehicle;
(3) Locating and verifying defects in the field;
(4) Remedial action requirements;
(5) Use and calibration of the PTLF; and
(6) Recordkeeping requirements.
(l) The GRMS record of lateral restraint shall identify two exception levels. At a minimum, the track owner shall initiate the required remedial action at each exception level as defined in the following table –
| GRMS parameters 1 | If measurement value exceeds | Remedial action required |
|---|---|---|
| UTG | 58 inches | (1) Immediately protect the exception location with a 10 m.p.h. speed restriction, then verify location; (2) Restore lateral restraint and maintain in compliance with PTLF criteria as described in paragraph (m) of this section; and (3) Maintain compliance with § 213.53(b) as measured with the PTLF. |
| LTG | 58 inches | |
| PLG24 | 59 inches | |
| GWP | 1 inch | |
| LTG | 57 2 | (1) Limit operating speed to no more than the maximum allowable under § 213.9 for Class 3 track, then verify location; (2) Maintain in compliance with PTLF criteria as described in paragraph (m) of this section; and (3) Maintain compliance with § 213.53(b) as measured with the PTLF. |
| PLG24 | 58 inches | |
| GWP | 0.75 inch | |
1 Definitions for the GRMS parameters referenced in this table are found in paragraph (p) of this section.
2 This note recognizes that good track will typically increase in total gage by as much as one-quarter of an inch due to outward rail rotation under GRMS loading conditions. For Class 2 and 3 track, the GRMS LTG values are also increased by one-quarter of inch to a maximum of 58 inches. However, for any class of track, GRMS LTG values in excess of 58 inches are considered First Level exceptions and the appropriate remedial action(s) must be taken by the track owner. This 1/4-inch increase in allowable gage applies only to GRMS LTG. For gage measured by traditional methods, or with the use of the PTLF, the table in § 213.53(b) applies.
(m) Between GRMS inspections, the PTLF may be used as an additional analytical tool to assist fully qualified § 213.7 individuals in determining compliance with the crosstie and fastener requirements of §§ 213.109 and 213.127. When the PTLF is used, whether as an additional analytical tool or to fulfill the requirements of paragraph (l), it shall be used subject to the following criteria –
(1) At any location along the track that the PTLF is applied, that location will be deemed in compliance with the crosstie and fastener requirements specified in §§ 213.109 and 213.127 provided that –
(i) The total gage widening at that location does not exceed
(ii) The gage of the track under 4,000 pounds of applied force does not exceed the allowable gage prescribed in § 213.53(b) for the class of track.
(2) Gage widening in excess of
(3) A person designated as fully qualified under § 213.7 retains the discretionary authority to prescribe additional remedial actions for those locations which comply with the requirements of paragraph (m)(1)(i) and (ii) of this section.
(4) When a functional PTLF is not available to a fully qualified person designated under § 213.7, the criteria for determining crosstie and fastener compliance shall be based solely on the requirements specified in §§ 213.109 and 213.127.
(5) If the PTLF becomes non-functional or is missing, the track owner will replace or repair it before the next inspection required under § 213.233.
(6) Where vertical loading of the track is necessary for contact with the lateral rail restraint components, a PTLF test will not be considered valid until contact with these components is restored under static loading conditions.
(n) The track owner shall maintain a record of the two most recent GRMS inspections at locations which meet the requirements specified in § 213.241(b). At a minimum, records shall indicate the following –
(1) Location and nature of each First Level exception; and
(2) Nature and date of remedial action, if any, for each exception identified in paragraph (n)(1) of this section.
(o) The inspection interval for designated GRMS line segments shall be such that –
(1) On line segments where the annual tonnage exceeds two million gross tons, or where the maximum operating speeds for passenger trains exceeds 30 mph, GRMS inspections must be performed annually at an interval not to exceed 14 months; or
(2) On line segments where the annual tonnage is two million gross tons or less and the maximum operating speed for passenger trains does not exceed 30 mph, the interval between GRMS inspections must not exceed 24 months.
(p) As used in this section –
(1) Gage Restraint Measurement System (GRMS) means a track loading vehicle meeting the minimum design requirements specified in this section.
(2) Gage Widening Projection (GWP) means the measured gage widening, which is the difference between loaded and unloaded gage, at the applied loads, projected to reference loads of 16 kips of lateral force and 33 kips of vertical force.
(3) L/V ratio means the numerical ratio of lateral load applied at a point on the rail to the vertical load applied at that same point. GRMS design requirements specify an L/V ratio of between 0.5 and 1.25.
(4) Load severity means the amount of lateral load applied to the fastener system after friction between rail and tie is overcome by any applied gage-widening lateral load.
(5) Loaded Track Gage (LTG) means the gage measured by the GRMS vehicle at a point no more than 12 inches from the lateral load application point.
(6) Portable Track Loading Fixture (PTLF) means a portable track loading device capable of applying an increasing lateral force from 0 to 4,000 pounds on the web/base fillet of each rail simultaneously.
(7) Projected Loaded Gage (PLG) means an extrapolated value for loaded gage calculated from actual measured loads and deflections. PLG 24 means the extrapolated value for loaded gage under a 24,000 pound lateral load and a 33,000 pound vertical load.
(8) Unloaded Track Gage (UTG) means the gage measured by the GRMS vehicle at a point no less than 10 feet from any lateral or vertical load.
§ 213.113 Defective rails.
(a) When an owner of track learns that a rail in the track contains any of the defects listed in the table contained in paragraph (c) of this section, a person designated under § 213.7 shall determine whether the track may continue in use. If the designated person determines that the track may continue in use, operation over the defective rail is not permitted until –
(1) The rail is replaced or repaired; or
(2) The remedial action prescribed in the table contained in paragraph (c) of this section is initiated.
(b) When an owner of track learns that a rail in the track contains an indication of any of the defects listed in the table contained in paragraph (c) of this section, the track owner shall verify the indication. Except as provided in § 213.240, the track owner must verify the indication within four hours, unless the track owner has an indication of the existence of a defect that requires remedial action A, A2, or B identified in the table contained in paragraph (c) of this section, in which case the track owner must immediately verify the indication. If the indication is verified, the track owner must –
(1) Replace or repair the rail; or
(2) Initiate the remedial action prescribed in the table contained in paragraph (c) of this section.
(c) A track owner who learns that a rail contains one of the following defects shall prescribe the remedial action specified if the rail is not replaced or repaired, in accordance with this paragraph’s table:
(d) As used in this section –
(1) Bolt hole crack means a crack across the web, originating from a bolt hole, and progressing on a path either inclined upward toward the rail head or inclined downward toward the base. Fully developed bolt hole cracks may continue horizontally along the head/web or base/web fillet, or they may progress into and through the head or base to separate a piece of the rail end from the rail. Multiple cracks occurring in one rail end are considered to be a single defect. However, bolt hole cracks occurring in adjacent rail ends within the same joint must be reported as separate defects.
(2) Broken base means any break in the base of the rail.
(3) Compound fissure means a progressive fracture originating from a horizontal split head that turns up or down, or in both directions, in the head of the rail. Transverse development normally progresses substantially at a right angle to the length of the rail.
(4) Crushed head means a short length of rail, not at a joint, which has drooped or sagged across the width of the rail head to a depth of
(5) Damaged rail means any rail broken or otherwise damaged by a derailment, broken, flat, or unbalanced wheel, wheel slipping, or similar causes.
(6) Defective weld means a field or plant weld containing any discontinuities or pockets, exceeding 5 percent of the rail head area individually or 10 percent in the aggregate, oriented in or near the transverse plane, due to incomplete penetration of the weld metal between the rail ends, lack of fusion between weld and rail end metal, entrainment of slag or sand, under-bead or shrinkage cracking, or fatigue cracking. Weld defects may originate in the rail head, web, or base, and in some cases, cracks may progress from the defect into either or both adjoining rail ends. If the weld defect progresses longitudinally through the weld section, the defect is considered a split web for purposes of remedial action required by this section.
(7) Detail fracture means a progressive fracture originating at or near the surface of the rail head. These fractures should not be confused with transverse fissures, compound fissures, or other defects which have internal origins. Detail fractures may arise from shelled spots, head checks, or flaking.
(8) Engine burn fracture means a progressive fracture originating in spots where driving wheels have slipped on top of the rail head. In developing downward these fractures frequently resemble the compound or even transverse fissures with which they should not be confused or classified.
(9) Flattened rail means a short length of rail, not at a joint, which has flattened out across the width of the rail head to a depth of
(10) Head and web separation means a progressive fracture, longitudinally separating the head from the web of the rail at the head fillet area.
(11) Horizontal split head means a horizontal progressive defect originating inside of the rail head, usually
(12) Ordinary break means a partial or complete break in which there is no sign of a fissure, and in which none of the other defects described in this paragraph (d) is found.
(13) Piped rail means a vertical split in a rail, usually in the web, due to failure of the shrinkage cavity in the ingot to unite in rolling.
(14) Split web means a lengthwise crack along the side of the web and extending into or through it.
(15) Transverse fissure means a progressive crosswise fracture starting from a crystalline center or nucleus inside the head from which it spreads outward as a smooth, bright, or dark round or oval surface substantially at a right angle to the length of the rail. The distinguishing features of a transverse fissure from other types of fractures or defects are the crystalline center or nucleus and the nearly smooth surface of the development which surrounds it.
(16) Vertical split head means a vertical split through or near the middle of the head, and extending into or through it. A crack or rust streak may show under the head close to the web or pieces may be split off the side of the head.
§ 213.115 Rail end mismatch.
Any mismatch of rails at joints may not be more than that prescribed by the following table –
| Class of track | Any mismatch of rails at joints may not be more than the following – | |
|---|---|---|
| On the tread of the rail ends (inch) | On the gage side of the rail ends (inch) | |
| Class 1 track | ||
| Class 2 track | ||
| Class 3 track | ||
| Class 4 and 5 track | ||
§ 213.118 Continuous welded rail (CWR); plan review and approval.
(a) Each track owner with track constructed of CWR shall have in effect and comply with a plan that contains written procedures which address: the installation, adjustment, maintenance, and inspection of CWR; inspection of CWR joints; and a training program for the application of those procedures.
(b) The track owner shall file its CWR plan with the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). Within 30 days of receipt of the submission, FRA will review the plan for compliance with this subpart. FRA will approve, disapprove or conditionally approve the submitted plan, and will provide written notice of its determination.
(c) The track owner’s existing plan shall remain in effect until the track owner’s new plan is approved or conditionally approved and is effective pursuant to paragraph (d) of this section.
(d) The track owner shall, upon receipt of FRA’s approval or conditional approval, establish the plan’s effective date. The track owner shall advise in writing FRA and all affected employees of the effective date.
(e) FRA, for cause stated, may, subsequent to plan approval or conditional approval, require revisions to the plan to bring the plan into conformity with this subpart. Notice of a revision requirement shall be made in writing and specify the basis of FRA’s requirement. The track owner may, within 30 days of the revision requirement, respond and provide written submissions in support of the original plan. FRA renders a final decision in writing. Not more than 30 days following any final decision requiring revisions to a CWR plan, the track owner shall amend the plan in accordance with FRA’s decision and resubmit the conforming plan. The conforming plan becomes effective upon its submission to FRA.
§ 213.119 Continuous welded rail (CWR); plan contents.
The track owner shall comply with the contents of the CWR plan approved or conditionally approved under § 213.118. The plan shall contain the following elements –
(a) Procedures for the installation and adjustment of CWR which include –
(1) Designation of a desired rail installation temperature range for the geographic area in which the CWR is located; and
(2) De-stressing procedures/methods which address proper attainment of the desired rail installation temperature range when adjusting CWR.
(b) Rail anchoring or fastening requirements that will provide sufficient restraint to limit longitudinal rail and crosstie movement to the extent practical, and specifically addressing CWR rail anchoring or fastening patterns on bridges, bridge approaches, and at other locations where possible longitudinal rail and crosstie movement associated with normally expected train-induced forces, is restricted.
(c) CWR joint installation and maintenance procedures which require that –
(1) Each rail shall be bolted with at least two bolts at each CWR joint;
(2) In the case of a bolted joint installed during CWR installation after October 21, 2009, the track owner shall either, within 60 days –
(i) Weld the joint;
(ii) Install a joint with six bolts; or
(iii) Anchor every tie 195 feet in both directions from the joint; and
(3) In the case of a bolted joint in CWR experiencing service failure or a failed bar with a rail gap present, the track owner shall either –
(i) Weld the joint;
(ii) Replace the broken bar(s), replace the broken bolts, adjust the anchors and, within 30 days, weld the joint;
(iii) Replace the broken bar(s), replace the broken bolts, install one additional bolt per rail end, and adjust anchors;
(iv) Replace the broken bar(s), replace the broken bolts, and anchor every tie 195 feet in both directions from the CWR joint; or
(v) Replace the broken bar(s), replace the broken bolts, add rail with provisions for later adjustment pursuant to paragraph (d)(2) of this section, and reapply the anchors.
(d) Procedures which specifically address maintaining a desired rail installation temperature range when cutting CWR, including rail repairs, in-track welding, and in conjunction with adjustments made in the area of tight track, a track buckle, or a pull-apart. Rail repair practices shall take into consideration existing rail temperature so that –
(1) When rail is removed, the length installed shall be determined by taking into consideration the existing rail temperature and the desired rail installation temperature range; and
(2) Under no circumstances should rail be added when the rail temperature is below that designated by paragraph (a)(1) of this section, without provisions for later adjustment.
(e) Procedures which address the monitoring of CWR in curved track for inward shifts of alinement toward the center of the curve as a result of disturbed track.
(f) Procedures which govern train speed on CWR track when –
(1) Maintenance work, track rehabilitation, track construction, or any other event occurs which disturbs the roadbed or ballast section and reduces the lateral or longitudinal resistance of the track; and
(2) The difference between the average rail temperature and the average rail neutral temperature is in a range that causes buckling-prone conditions to be present at a specific location; and
(3) In formulating the procedures under paragraphs (f)(1) and (f)(2) of this section, the track owner shall –
(i) Determine the speed required, and the duration and subsequent removal of any speed restriction based on the restoration of the ballast, along with sufficient ballast re-consolidation to stabilize the track to a level that can accommodate expected train-induced forces. Ballast re-consolidation can be achieved through either the passage of train tonnage or mechanical stabilization procedures, or both; and
(ii) Take into consideration the type of crossties used.
(g) Procedures which prescribe when physical track inspections are to be performed.
(1) At a minimum, these procedures shall address inspecting track to identify –
(i) Buckling-prone conditions in CWR track, including –
(A) Locations where tight or kinky rail conditions are likely to occur; and
(B) Locations where track work of the nature described in paragraph (f)(1)(i) of this section has recently been performed; and
(ii) Pull-apart prone conditions in CWR track, including locations where pull-apart or stripped-joint rail conditions are likely to occur; and
(2) In formulating the procedures under paragraph (g)(1) of this section, the track owner shall –
(i) Specify when the inspections will be conducted; and
(ii) Specify the appropriate remedial actions to be taken when either buckling-prone or pull-apart prone conditions are found.
(h) Procedures which prescribe the scheduling and conduct of inspections to detect cracks and other indications of potential failures in CWR joints. In formulating the procedures under this paragraph, the track owner shall –
(1) Address the inspection of joints and the track structure at joints, including, at a minimum, periodic on-foot inspections;
(2) Identify joint bars with visible or otherwise detectable cracks and conduct remedial action pursuant to § 213.121;
(3) Specify the conditions of actual or potential joint failure for which personnel must inspect, including, at a minimum, the following items:
(i) Loose, bent, or missing joint bolts;
(ii) Rail end batter or mismatch that contributes to instability of the joint; and
(iii) Evidence of excessive longitudinal rail movement in or near the joint, including, but not limited to; wide rail gap, defective joint bolts, disturbed ballast, surface deviations, gap between tie plates and rail, or displaced rail anchors;
(4) Specify the procedures for the inspection of CWR joints that are imbedded in highway-rail crossings or in other structures that prevent a complete inspection of the joint, including procedures for the removal from the joint of loose material or other temporary material;
(5) Specify the appropriate corrective actions to be taken when personnel find conditions of actual or potential joint failure, including on-foot follow-up inspections to monitor conditions of potential joint failure in any period prior to completion of repairs;
(6) Specify the timing of periodic inspections, which shall be based on the configuration and condition of the joint:
(i) Except as provided in paragraphs (h)(6)(ii) through (h)(6)(iv) of this section, track owners must specify that all CWR joints are inspected, at a minimum, in accordance with the intervals identified in the following table:
Minimum Number of Inspections per Calendar Year
1
| Freight trains operating over track with an annual tonnage of: | Passenger trains operating over track with an annual tonnage of: | ||||
|---|---|---|---|---|---|
| Less than 40 mgt | 40 to 60 mgt | Greater than 60 mgt | Less than 20 mgt | Greater than or equal to 20 mgt | |
| Class 5 & above | 2 | 3 2 | 4 2 | 3 2 | 3 2 |
| Class 4 | 2 | 3 2 | 4 2 | 2 | 3 2 |
| Class 3 | 1 | 2 | 2 | 2 | 2 |
| Class 2 | 0 | 0 | 0 | 1 | 1 |
| Class 1 | 0 | 0 | 0 | 0 | 0 |
| Excepted Track | 0 | 0 | 0 | n/a | n/a |
| 4 = Four times per calendar year, with one inspection in each of the following periods: January to March, April to June, July to September, and October to December; and with consecutive inspections separated by at least 60 calendar days. | |||||
| 3 = Three times per calendar year, with one inspection in each of the following periods: January to April, May to August, and September to December; and with consecutive inspections separated by at least 90 calendar days. | |||||
| 2 = Twice per calendar year, with one inspection in each of the following periods: January to June and July to December; and with consecutive inspections separated by at least 120 calendar days. | |||||
| 1 = Once per calendar year, with consecutive inspections separated by at least 180 calendar days. | |||||
1 Where a track owner operates both freight and passenger trains over a given segment of track, and there are two different possible inspection interval requirements, the more frequent inspection interval applies.
2 When extreme weather conditions prevent a track owner from conducting an inspection of a particular territory within the required interval, the track owner may extend the interval by up to 30 calendar days from the last day that the extreme weather condition prevented the required inspection.
(ii) Consistent with any limitations applied by the track owner, a passenger train conducting an unscheduled detour operation may proceed over track not normally used for passenger operations at a speed not to exceed the maximum authorized speed otherwise allowed, even though CWR joints have not been inspected in accordance with the frequency identified in paragraph (h)(6)(i) of this section, provided that:
(A) All CWR joints have been inspected consistent with requirements for freight service; and
(B) The unscheduled detour operation lasts no more than 14 consecutive calendar days. In order to continue operations beyond the 14-day period, the track owner must inspect the CWR joints in accordance with the requirements of paragraph (h)(6)(i) of this section.
(iii) Tourist, scenic, historic, or excursion operations, if limited to the maximum authorized speed for passenger trains over the next lower class of track, need not be considered in determining the frequency of inspections under paragraph (h)(6)(i) of this section.
(iv) All CWR joints that are located in switches, turnouts, track crossings, lift rail assemblies or other transition devices on moveable bridges must be inspected on foot at least monthly, consistent with the requirements in § 213.235; and all records of those inspections must be kept in accordance with the requirements in § 213.241. A track owner may include in its § 213.235 inspections, in lieu of the joint inspections required by paragraph (h)(6)(i) of this section, CWR joints that are located in track structure that is adjacent to switches and turnouts, provided that the track owner precisely defines the parameters of that arrangement in the CWR plans.
(7) Specify the recordkeeping requirements related to joint bars in CWR, including the following:
(i) The track owner shall keep a record of each periodic and follow-up inspection required to be performed by the track owner’s CWR plan, except for those inspections conducted pursuant to § 213.235 for which track owners must maintain records pursuant to § 213.241. The record shall be prepared on the day the inspection is made and signed by the person making the inspection. The record shall include, at a minimum, the following items: the boundaries of the territory inspected; the nature and location of any deviations at the joint from the requirements of this part or of the track owner’s CWR plan, with the location identified with sufficient precision that personnel could return to the joint and identify it without ambiguity; the date of the inspection; the remedial action, corrective action, or both, that has been taken or will be taken; and the name or identification number of the person who made the inspection.
(ii) [Reserved]
(8) In lieu of the requirements for the inspection of rail joints contained in paragraphs (h)(1) through (h)(7) of this section, a track owner may seek approval from FRA to use alternate procedures.
(i) The track owner shall submit the proposed alternate procedures and a supporting statement of justification to the Associate Administrator.
(ii) If the Associate Administrator finds that the proposed alternate procedures provide an equivalent or higher level of safety than the requirements in paragraphs (h)(1) through (h)(7) of this section, the Associate Administrator will approve the alternate procedures by notifying the track owner in writing. The Associate Administrator will specify in the written notification the date on which the procedures will become effective, and after that date, the track owner shall comply with the procedures. If the Associate Administrator determines that the alternate procedures do not provide an equivalent level of safety, the Associate Administrator will disapprove the alternate procedures in writing, and the track owner shall continue to comply with the requirements in paragraphs (h)(1) through (h)(7) of this section.
(iii) While a determination is pending with the Associate Administrator on a request submitted pursuant to paragraph (h)(8) of this section, the track owner shall continue to comply with the requirements contained in paragraphs (h)(1) through (h)(7) of this section.
(i) The track owner shall have in effect a comprehensive training program for the application of these written CWR procedures, with provisions for annual re-training, for those individuals designated under § 213.7(c) as qualified to supervise the installation, adjustment, and maintenance of CWR track and to perform inspections of CWR track. The track owner shall make the training program available for review by FRA upon request.
(j) The track owner shall prescribe and comply with recordkeeping requirements necessary to provide an adequate history of track constructed with CWR. At a minimum, these records must include:
(1) Rail temperature, location, and date of CWR installations. Each record shall be retained for at least one year;
(2) A record of any CWR installation or maintenance work that does not conform to the written procedures. Such record shall include the location of the rail and be maintained until the CWR is brought into conformance with such procedures; and
(3) Information on inspection of rail joints as specified in paragraph (h)(7) of this section.
(k) The track owner shall make readily available, at every job site where personnel are assigned to install, inspect or maintain CWR, a copy of the track owner’s CWR procedures and all revisions, appendices, updates, and referenced materials related thereto prior to their effective date. Such CWR procedures shall be issued and maintained in one CWR standards and procedures manual.
(l) As used in this section –
Adjusting/de-stressing means a procedure by which a rail’s neutral temperature is re-adjusted to the desired value. It typically consists of cutting the rail and removing rail anchoring devices, which provides for the necessary expansion and contraction, and then re-assembling the track.
Annual re-training means training every calendar year.
Buckling incident means the formation of a lateral misalignment sufficient in magnitude to constitute a deviation from the Class 1 requirements specified in § 213.55. These normally occur when rail temperatures are relatively high and are caused by high longitudinal compressive forces.
Buckling-prone condition means a track condition that can result in the track being laterally displaced due to high compression forces caused by critical rail temperature combined with insufficient track strength and/or train dynamics.
Continuous welded rail (CWR) means rail that has been welded together into lengths exceeding 400 feet. Rail installed as CWR remains CWR, regardless of whether a joint or plug is installed into the rail at a later time.
Corrective actions mean those actions which track owners specify in their CWR plans to address conditions of actual or potential joint failure, including, as applicable, repair, restrictions on operations, and additional on-foot inspections.
CWR joint means any joint directly connected to CWR.
Desired rail installation temperature range means the rail temperature range, within a specific geographical area, at which forces in CWR should not cause a buckling incident in extreme heat, or a pull apart during extreme cold weather.
Disturbed track means the disturbance of the roadbed or ballast section, as a result of track maintenance or any other event, which reduces the lateral or longitudinal resistance of the track, or both.
Mechanical stabilization means a type of procedure used to restore track resistance to disturbed track following certain maintenance operations. This procedure may incorporate dynamic track stabilizers or ballast consolidators, which are units of work equipment that are used as a substitute for the stabilization action provided by the passage of tonnage trains.
Pull apart or stripped joint means a condition when no bolts are mounted through a joint on the rail end, rending the joint bar ineffective due to excessive expansive or contractive forces.
Pull-apart prone condition means a condition when the actual rail temperature is below the rail neutral temperature at or near a joint where longitudinal tensile forces may affect the fastenings at the joint.
Rail anchors mean those devices which are attached to the rail and bear against the side of the crosstie to control longitudinal rail movement. Certain types of rail fasteners also act as rail anchors and control longitudinal rail movement by exerting a downward clamping force on the upper surface of the rail base.
Rail neutral temperature is the temperature at which the rail is neither in compression nor tension.
Rail temperature means the temperature of the rail, measured with a rail thermometer.
Remedial actions mean those actions which track owners are required to take as a result of requirements of this part to address a non-compliant condition.
Tight/kinky rail means CWR which exhibits minute alinement irregularities which indicate that the rail is in a considerable amount of compression.
Tourist, scenic, historic, or excursion operations mean railroad operations that carry passengers with the conveyance of the passengers to a particular destination not being the principal purpose.
Track lateral resistance means the resistance provided by the rail/crosstie structure against lateral displacement.
Track longitudinal resistance means the resistance provided by the rail anchors/rail fasteners and the ballast section to the rail/crosstie structure against longitudinal displacement.
Train-induced forces means the vertical, longitudinal, and lateral dynamic forces which are generated during train movement and which can contribute to the buckling potential of the rail.
Unscheduled detour operation means a short-term, unscheduled operation where a track owner has no more than 14 calendar days’ notice that the operation is going to occur.
§ 213.121 Rail joints.
(a) Each rail joint, insulated joint, and compromise joint shall be of a structurally sound design and dimensions for the rail on which it is applied.
(b) If a joint bar on Classes 3 through 5 track is cracked, broken, or because of wear allows excessive vertical movement of either rail when all bolts are tight, it shall be replaced.
(c) If a joint bar is cracked or broken between the middle two bolt holes it shall be replaced.
(d) In the case of conventional jointed track, each rail shall be bolted with at least two bolts at each joint in Classes 2 through 5 track, and with at least one bolt in Class 1 track.
(e) In the case of continuous welded rail track, each rail shall be bolted with at least two bolts at each joint.
(f) Each joint bar shall be held in position by track bolts tightened to allow the joint bar to firmly support the abutting rail ends and to allow longitudinal movement of the rail in the joint to accommodate expansion and contraction due to temperature variations. When no-slip, joint-to-rail contact exists by design, the requirements of this paragraph do not apply. Those locations when over 400 feet in length, are considered to be continuous welded rail track and shall meet all the requirements for continuous welded rail track prescribed in this part.
(g) No rail shall have a bolt hole which is torch cut or burned in Classes 2 through 5 track. For Class 2 track, this paragraph (g) is applicable September 21, 1999.
(h) No joint bar shall be reconfigured by torch cutting in Classes 3 through 5 track.
§ 213.122 Torch cut rail.
(a) Except as a temporary repair in emergency situations no rail having a torch cut end shall be used in Classes 3 through 5 track. When a rail end is torch cut in emergency situations, train speed over that rail end shall not exceed the maximum allowable for Class 2 track. For existing torch cut rail ends in Classes 3 through 5 track the following shall apply –
(1) Within one year of September 21, 1998, all torch cut rail ends in Class 5 track shall be removed;
(2) Within two years of September 21, 1998, all torch cut rail ends in Class 4 track shall be removed; and
(3) Within one year of September 21, 1998, all torch cut rail ends in Class 3 track over which regularly scheduled passenger trains operate, shall be inventoried by the track owner.
(b) Following the expiration of the time limits specified in paragraphs (a)(1), (2), and (3) of this section, any torch cut rail end not removed from Classes 4 and 5 track, or any torch cut rail end not inventoried in Class 3 track over which regularly scheduled passenger trains operate, shall be removed within 30 days of discovery. Train speed over that rail end shall not exceed the maximum allowable for Class 2 track until removed.
§ 213.123 Tie plates.
(a) In Classes 3 through 5 track where timber crossties are in use there shall be tie plates under the running rails on at least eight of any 10 consecutive ties.
(b) In Classes 3 through 5 track no metal object which causes a concentrated load by solely supporting a rail shall be allowed between the base of the rail and the bearing surface of the tie plate. This paragraph (b) is applicable September 21, 1999.)
§ 213.127 Rail fastening systems.
(a) Track shall be fastened by a system of components that effectively maintains gage within the limits prescribed in § 213.53(b). Each component of each such system shall be evaluated to determine whether gage is effectively being maintained.
(b) If rail anchors are applied to concrete crossties, the combination of the crossties, fasteners, and rail anchors must provide effective longitudinal restraint.
(c) Where fastener placement impedes insulated joints from performing as intended, the fastener may be modified or removed, provided that the crosstie supports the rail.
§ 213.133 Turnouts and track crossings generally.
(a) In turnouts and track crossings, the fastenings shall be intact and maintained so as to keep the components securely in place. Also, each switch, frog, and guard rail shall be kept free of obstructions that may interfere with the passage of wheels.
(b) Classes 3 through 5 track shall be equipped with rail anchoring through and on each side of track crossings and turnouts, to restrain rail movement affecting the position of switch points and frogs. For Class 3 track, this paragraph (b) is applicable September 21, 1999.)
(c) Each flangeway at turnouts and track crossings shall be at least 1
§ 213.135 Switches.
(a) Each stock rail must be securely seated in switch plates, but care shall be used to avoid canting the rail by overtightening the rail braces.
(b) Each switch point shall fit its stock rail properly, with the switch stand in either of its closed positions to allow wheels to pass the switch point. Lateral and vertical movement of a stock rail in the switch plates or of a switch plate on a tie shall not adversely affect the fit of the switch point to the stock rail. Broken or cracked switch point rails will be subject to the requirements of § 213.113, except that where remedial actions C, D, or E require the use of joint bars, and joint bars cannot be placed due to the physical configuration of the switch, remedial action B will govern, taking into account any added safety provided by the presence of reinforcing bars on the switch points.
(c) Each switch shall be maintained so that the outer edge of the wheel tread cannot contact the gage side of the stock rail.
(d) The heel of each switch rail shall be secure and the bolts in each heel shall be kept tight.
(e) Each switch stand and connecting rod shall be securely fastened and operable without excessive lost motion.
(f) Each throw lever shall be maintained so that it cannot be operated with the lock or keeper in place.
(g) Each switch position indicator shall be clearly visible at all times.
(h) Unusually chipped or worn switch points shall be repaired or replaced. Metal flow shall be removed to insure proper closure.
(i) Tongue & Plain Mate switches, which by design exceed Class 1 and excepted track maximum gage limits, are permitted in Class 1 and excepted track.
§ 213.137 Frogs.
(a) Except as provided in paragraph (e) of this section, the flangeway depth measured from a plane across the wheel-bearing area of a frog on Class 1 track shall not be less than 1
(b) If a frog point is chipped, broken, or worn more than five-eighths inch down and 6 inches back, operating speed over the frog shall not be more than 10 m.p.h.
(c) If the tread portion of a frog casting is worn down more than three-eighths inch below the original contour, operating speed over that frog shall not be more than 10 m.p.h.
(d) Where frogs are designed as flange-bearing, flangeway depth may be less than that shown for Class 1 if operated at Class 1 speeds.
(e) The flange depth requirements in paragraph (a) do not apply to a frog designed as a flange-bearing frog (FBF) used in a crossing diamond in Classes 2 through 5 track, provided that the crossing angle is greater than 20 degrees unless movable guard rails are used.
§ 213.139 Spring rail frogs.
(a) The outer edge of a wheel tread shall not contact the gage side of a spring wing rail.
(b) The toe of each wing rail shall be solidly tamped and fully and tightly bolted.
(c) Each frog with a bolt hole defect or head-web separation shall be replaced.
(d) Each spring shall have compression sufficient to hold the wing rail against the point rail.
(e) The clearance between the holddown housing and the horn shall not be more than one-fourth of an inch.
§ 213.141 Self-guarded frogs.
(a) The raised guard on a self-guarded frog shall not be worn more than three-eighths of an inch.
(b) If repairs are made to a self-guarded frog without removing it from service, the guarding face shall be restored before rebuilding the point.
§ 213.143 Frog guard rails and guard faces; gage.
(a) The guard check and guard face gages in frogs shall be within the following limits –
Table 1 to § 213.143(
| Class of track | Guard check gage | Guard face gage |
|---|---|---|
| The distance between the gage line of a frog to the guard line 1 of its guard rail or guarding face, measured across the track at right angles to the gage line, 2 may not be less than – | The distance between guard lines, 1 measured across the track at right angles to the gage line, 2 may not be more than – | |
| Class 1 track | 4′6 | 4′5 |
| Class 2 track | 4′6 | 4′5 |
| Class 3 and 4 track | 4′6 | 4′5 |
| Class 5 track | 3 4′6 | 4′5″ |
1 A line along that side of the flangeway which is nearer to the center of the track and at the same elevation as the gage line.
2 A line five-eighths of an inch below the top of the center line of the head of the running rail, or corresponding location of the tread portion of the track structure.
3 See paragraph (b) of this section.
(b) For any heavy-point frog (HPF) on Class 5 track, the guard check gage may be less than 4′6
(1) Each HPF and guard rails on both rails through the turnout are equipped with at least three serviceable through-gage plates with elastic rail fasteners and guard rail braces that permit adjustment of the guard check gage without removing spikes or other fasteners from the crossties; and
(2) Each HPF bears an identifying mark applied by either the track owner, railroad, or the frog manufacturer that identifies the frog as an HPF.
Subpart E – Track Appliances and Track-Related Devices
§ 213.201 Scope.
This subpart prescribes minimum requirements for certain track appliances and track-related devices.
§ 213.205 Derails.
(a) Each derail shall be clearly visible.
(b) When in a locked position, a derail shall be free of lost motion which would prevent it from performing its intended function.
(c) Each derail shall be maintained to function as intended.
(d) Each derail shall be properly installed for the rail to which it is applied. (This paragraph (d) is applicable September 21, 1999.)
Subpart F – Inspection
§ 213.231 Scope.
This subpart prescribes requirements for the frequency and manner of inspecting track to detect deviations from the standards prescribed in this part.
§ 213.233 Visual track inspections.
(a) All track shall be inspected in accordance with the schedule prescribed in paragraph (c) of this section by a person designated under § 213.7.
(b) Each inspection shall be made on foot or by traversing the track in a vehicle at a speed that allows the person making the inspection to visually inspect the track structure for compliance with this part. However, mechanical, electrical, and other track inspection devices may be used to supplement visual inspection. If a vehicle is used for visual inspection, the speed of the vehicle may not be more than 5 m.p.h. when traversing track crossings and turnouts; otherwise, the inspection vehicle speed shall be at the sole discretion of the inspector, based on track conditions and inspection requirements. When traversing the track in a vehicle, the inspection will be subject to the following conditions –
(1) One inspector in a vehicle may inspect up to two tracks at one time provided that the inspector’s visibility remains unobstructed by any cause and that the second track is not centered more than 30 feet from the track the inspector traverses;
(2) Two inspectors in one vehicle may inspect up to four tracks at a time provided that the inspectors’ visibility remains unobstructed by any cause and that each track being inspected is centered within 39 feet from the track the inspectors traverse;
(3) Each main track must be traversed by the vehicle or inspected on foot at least once every two weeks, and each siding must be traversed by the vehicle or inspected on foot at least once every month; and
(4) Track inspection records shall indicate which track(s) are traversed by the vehicle or inspected on foot as outlined in paragraph (b)(3) of this section.
(c) Each track inspection shall be made in accordance with the following schedule –
| Class of track | Type of track | Required frequency |
|---|---|---|
| Excepted track, and Class 1, 2, and 3 track | Main track and sidings | Weekly 1 with at least 3 calendar days’ interval between inspections, or before use, if the track is used less than once a week, or twice weekly with at least 1 calendar day interval between inspections, if the track carries passenger trains 2 or more than 10 million gross tons of traffic during the preceding calendar year. |
| Excepted track and Class 1, 2, and 3 track | Other than main track and sidings | Monthly with at least 20 calendar days interval between inspections. |
| Class 4 and 5 track | Twice weekly with at least 1 calendar day interval between inspections. |
1 An inspection week is defined as a seven (7) day period beginning on Sunday and ending on Saturday.
2 “Twice weekly” inspection requirement for track carrying regularly scheduled passenger trains does not apply where passengers train service consists solely of tourist, scenic, historic, or excursion operations as defined in 49 CFR 238.5 and the following conditions are met for an inspection week: (1) No passenger service is operated during the inspection week, or (2) if passenger service is operated during the inspection week: (i) The passenger service is operated only on a weekend or a 3-day extended weekend (weekend plus a contiguous Monday or Friday), and (ii) an inspection is conducted no more than 1 calendar day before a weekend or 3-day extended weekend on which passenger service is to be operated.
(d) If the § 213.7 qualified person making the inspection finds a deviation from the requirements of this part, the inspector shall immediately initiate remedial action. Any subsequent movements to facilitate repairs on track that is out of service must be authorized by a § 213.7 qualified person.
Except as provided in paragraph (b) of this section, no part of this section will in any way be construed to limit the inspector’s discretion as it involves inspection speed and sight distance.
§ 213.234 Automated inspection of track constructed with concrete crossties.
(a) General. Except for track described in paragraph (c) of this section, the provisions in this section are applicable on and after July 1, 2012. In addition to the track inspection required under § 213.233, for Class 3 main track constructed with concrete crossties over which regularly scheduled passenger service trains operate, and for Class 4 and 5 main track constructed with concrete crossties, automated inspection technology shall be used as indicated in paragraph (b) of this section, as a supplement to visual inspection, by Class I railroads (including Amtrak), Class II railroads, other intercity passenger railroads, and commuter railroads or small governmental jurisdictions that serve populations greater than 50,000. Automated inspection shall identify and report exceptions to conditions described in § 213.109(d)(4).
(b) Frequency of automated inspections. Automated inspections shall be conducted at the following frequencies:
(1) If annual tonnage on Class 4 and 5 main track and Class 3 main track with regularly scheduled passenger service, exceeds 40 million gross tons (mgt) annually, at least twice each calendar year, with no less than 160 days between inspections.
(2) If annual tonnage on Class 4 and 5 main track and Class 3 main track with regularly scheduled passenger service is equal to or less than 40 mgt annually, at least once each calendar year.
(3) On Class 3, 4, and 5 main track with exclusively passenger service, either an automated inspection or walking inspection must be conducted once per calendar year.
(4) Track not inspected in accordance with paragraph (b)(1) or (b)(2) of this section because of train operation interruption shall be reinspected within 45 days of the resumption of train operations by a walking or automated inspection. If this inspection is conducted as a walking inspection, the next inspection shall be an automated inspection as prescribed in this paragraph.
(c) Nonapplication. Sections of tangent track 600 feet or less constructed of concrete crossties, including, but not limited to, isolated track segments, experimental or test track segments, highway-rail crossings, and wayside detectors, are excluded from the requirements of this section.
(d) Performance standard for automated inspection measurement system. The automated inspection measurement system must be capable of indicating and processing rail seat deterioration requirements that specify the following:
(1) An accuracy, to within
(2) A distance-based sampling interval, which shall not exceed five feet; and
(3) Calibration procedures and parameters assigned to the system, which assure that indicated and recorded values accurately represent rail seat deterioration.
(e) Exception reports to be produced by system; duty to field-verify exceptions. The automated inspection measurement system shall produce an exception report containing a systematic listing of all exceptions to § 213.109(d)(4), identified so that an appropriate person(s) designated as fully qualified under § 213.7 can field-verify each exception.
(1) Exception reports must be provided to or be made available to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of § 213.234.
(2) Each exception must be located and field-verified no later than 48 hours after the automated inspection.
(3) All field-verified exceptions are subject to all the requirements of this part.
(4) Exception reports must note areas identified between
(f) Recordkeeping requirements. The track owner shall maintain and make available to FRA a record of the inspection data and the exception record for the track inspected in accordance with this paragraph for a minimum of two years. The exception reports must include the following:
(1) Date and location of limits of the inspection;
(2) Type and location of each exception;
(3) Results of field verification; and
(4) Remedial action if required.
(g) Procedures for integrity of data. The track owner shall institute the necessary procedures for maintaining the integrity of the data collected by the measurement system. At a minimum, the track owner shall do the following:
(1) Maintain and make available to FRA documented calibration procedures of the measurement system that, at a minimum, specify an instrument verification procedure that ensures correlation between measurements made on the ground and those recorded by the instrumentation; and
(2) Maintain each instrument used for determining compliance with this section such that it accurately provides an indication of the depth of rail seat deterioration in accordance with paragraph (d)(1) of this section.
(h) Training. The track owner shall provide annual training in handling rail seat deterioration exceptions to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of § 213.234. At a minimum, the training shall address the following:
(1) Interpretation and handling of the exception reports generated by the automated inspection measurement system;
(2) Locating and verifying exceptions in the field and required remedial action; and
(3) Recordkeeping requirements.
§ 213.235 Inspection of switches, track crossings, and lift rail assemblies or other transition devices on moveable bridges.
(a) Except as provided in paragraph (c) of this section, each switch, turnout, track crossing, and moveable bridge lift rail assembly or other transition device shall be inspected on foot at least monthly.
(b) Each switch in Classes 3 through 5 track that is held in position only by the operating mechanism and one connecting rod shall be operated to all of its positions during one inspection in every 3 month period.
(c) In the case of track that is used less than once a month, each switch, turnout, track crossing, and moveable bridge lift rail assembly or other transition device shall be inspected on foot before it is used.
§ 213.237 Inspection of rail.
(a) In addition to the inspections required by § 213.233, each track owner shall conduct internal rail inspections sufficient to maintain service failure rates per rail inspection segment in accordance with this paragraph (a) for a 12-month period, as determined by the track owner and calculated within 45 days of the end of the period. These rates shall not include service failures that occur in rail that has been replaced through rail relay since the time of the service failure. Rail used to repair a service failure defect is not considered relayed rail. The service failure rates shall not exceed –
(1) 0.1 service failure per year per mile of track for all Class 4 and 5 track;
(2) 0.09 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains or is a hazardous materials route; and
(3) 0.08 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains and is a hazardous materials route.
(b) Each rail inspection segment shall be designated by the track owner no later than March 25, 2014 for track that is Class 4 or 5 track, or Class 3 track that carries regularly-scheduled passenger trains or is a hazardous materials route and is used to determine the milepost limits for the individual rail inspection frequency.
(1) To change the designation of a rail inspection segment or to establish a new segment pursuant to this section, a track owner must submit a detailed request to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). Within 30 days of receipt of the submission, FRA will review the request. FRA will approve, disapprove, or conditionally approve the submitted request, and will provide written notice of its determination.
(2) The track owner’s existing designation shall remain in effect until the track owner’s new designation is approved or conditionally approved by FRA.
(3) The track owner shall, upon receipt of FRA’s approval or conditional approval, establish the designation’s effective date. The track owner shall advise in writing FRA and all affected railroad employees of the effective date.
(c) Internal rail inspections on Class 4 and 5 track, or Class 3 track with regularly-scheduled passenger trains or that is a hazardous materials route, shall not exceed a time interval of 370 days between inspections or a tonnage interval of 30 million gross tons (mgt) between inspections, whichever is shorter. Internal rail inspections on Class 3 track that is without regularly-scheduled passenger trains and not a hazardous materials route must be inspected at least once each calendar year, with no more than 18 months between inspections, or at least once every 30 mgt, whichever interval is longer, but in no case may inspections be more than 5 years apart.
(1) Any rail used as a replacement plug rail in track that is required to be tested in accordance with this section must have been tested for internal rail flaws.
(2) The track owner must verify that any plug rail installed after March 25, 2014 has not accumulated more than a total of 30 mgt in previous and new locations since its last internal rail flaw test, before the next test on the rail required by this section is performed.
(3) If plug rail not in compliance with this paragraph (c) is in use after March 25, 2014, trains over that rail must not exceed Class 2 speeds until the rail is tested in accordance with this section.
(d) If the service failure rate target identified in paragraph (a) of this section is not achieved, the track owner must inform FRA of this fact within 45 days of the end of the defined 12-month period in which the performance target is exceeded. In addition, the track owner may provide to FRA an explanation as to why the performance target was not achieved and provide a remedial action plan.
(1) If the performance target rate is not met for two consecutive years, then for the area where the greatest number of service failures is occurring, either:
(i) The inspection tonnage interval between tests must be reduced to 10 mgt; or
(ii) The class of track must be reduced to Class 2 until the target service failure rate is achieved.
(2) In cases where a single service failure would cause the rate to exceed the applicable service failure rate as designated in paragraph (a) of this section, the service failure rate will be considered to comply with paragraph (a) of this section unless a second such failure occurs within a designated 12-month period. For the purposes of this paragraph (d)(2), a period begins no earlier than January 24, 2014.
(e) Each defective rail shall be marked with a highly visible marking on both sides of the web and base except that, where a side or sides of the web and base are inaccessible because of permanent features, the highly visible marking may be placed on or next to the head of the rail.
(f) Inspection equipment shall be capable of detecting defects between joint bars, in the area enclosed by joint bars.
(g) If the person assigned to operate the rail defect detection equipment (i.e., the qualified operator) determines that a valid search for internal defects could not be made over a particular length of track, that particular length of track may not be considered as internally inspected under paragraphs (a) and (c) of this section.
(h) If a valid search for internal defects could not be conducted, the track owner shall, before expiration of the time or tonnage limits in paragraph (a) or (c) of this section –
(1) Conduct a valid search for internal defects;
(2) Reduce operating speed to a maximum of 25 m.p.h. until such time as a valid search can be made; or
(3) Replace the rail that had not been inspected.
(i) The person assigned to operate the rail defect detection equipment must be a qualified operator as defined in § 213.238 and have demonstrated proficiency in the rail flaw detection process for each type of equipment the operator is assigned.
(j) As used in this section –
(1) Hazardous materials route means track over which a minimum of 10,000 car loads or intermodal portable tank car loads of hazardous materials as defined in 49 CFR 171.8 travel over a period of one calendar year; or track over which a minimum of 4,000 car loads or intermodal portable tank car loads of the hazardous materials specified in 49 CFR 172.820 travel, in a period of one calendar year.
(2) Plug rail means a length of rail that has been removed from one track location and stored for future use as a replacement rail at another location.
(3) Service failure means a broken rail occurrence, the cause of which is determined to be a compound fissure, transverse fissure, detail fracture, or vertical split head.
(4) Valid search means a continuous inspection for internal rail defects where the equipment performs as intended and equipment responses are interpreted by a qualified operator as defined in § 213.238.
§ 213.238 Qualified operator.
(a) Each provider of rail flaw detection shall have a documented training program in place and shall identify the types of rail flaw detection equipment for which each equipment operator it employs has received training and is qualified. A provider of rail flaw detection may be the track owner. A track owner shall not utilize a provider of rail flaw detection that fails to comply with the requirements of this paragraph.
(b) A qualified operator shall be trained and have written authorization from his or her employer to:
(1) Conduct a valid search for internal rail defects utilizing the specific type(s) of equipment for which he or she is authorized and qualified to operate;
(2) Determine that such equipment is performing as intended;
(3) Interpret equipment responses and institute appropriate action in accordance with the employer’s procedures and instructions; and
(4) Determine that each valid search for an internal rail defect is continuous throughout the area inspected and has not been compromised due to environmental contamination, rail conditions, or equipment malfunction.
(c) To be qualified, the operator must have received training in accordance with the documented training program and a minimum of 160 hours of rail flaw detection experience under direct supervision of a qualified operator or rail flaw detection equipment manufacturer’s representative, or some combination of both. The operator must demonstrate proficiency in the rail defect detection process, including the equipment to be utilized, prior to initial qualification and authorization by the employer for each type of equipment.
(d) Each employer shall reevaluate the qualifications of, and administer any necessary recurrent training for, the operator as determined by and in accordance with the employer’s documented program. The reevaluation process shall require that the employee successfully complete a recorded examination and demonstrate proficiency to the employer on the specific equipment type(s) to be operated. Proficiency may be determined by a periodic review of test data submitted by the operator.
(e) Each employer of a qualified operator shall maintain written or electronic records of each qualification in effect. Each record shall include the name of the employee, the equipment to which the qualification applies, date of qualification, and date of the most recent reevaluation, if any.
(f) Any employee who has demonstrated proficiency in the operation of rail flaw detection equipment prior to January 24, 2014, is deemed a qualified operator, regardless of the previous training program under which the employee was qualified. Such an operator shall be subject to paragraph (d) of this section.
(g) Records concerning the qualification of operators, including copies of equipment-specific training programs and materials, recorded examinations, demonstrated proficiency records, and authorization records, shall be kept at a location designated by the employer and available for inspection and copying by FRA during regular business hours.
§ 213.239 Special inspections.
In the event of fire, flood, severe storm, or other occurrence which might have damaged track structure, a special inspection shall be made of the track involved as soon as possible after the occurrence and, if possible, before the operation of any train over that track.
§ 213.240 Continuous rail testing.
(a) Track owners may elect to use continuous rail testing to satisfy the requirements for conducting internal rail inspections under § 213.237 or § 213.339. When a track owner utilizes the continuous rail test inspection process under the requirements of this section, the track owner is exempt from the requirements of § 213.113(b); all other requirements of § 213.113 apply.
(b) Track owners shall adopt the necessary procedures for conducting continuous testing. At a minimum, the procedures must conform to the requirements of this section and ensure the following:
(1) Test data is timely and accurately transmitted and analyzed;
(2) Suspect locations are accurately identified for field verification;
(3) Suspect locations are categorized and prioritized according to their potential severity;
(4) Suspect locations are accurately field-verified; and
(5) Suspect locations will be designated following field verification.
(c) The track owner must designate and record the type of rail test (continuous or stop-and-verify) to be conducted prior to commencing the test over a track segment and make those records available to FRA upon request during regular business hours following reasonable notice. If the type of rail test changes following commencement of the test, the change must be documented and include the time the test was started and when it was changed, and the milepost where the test started and where it was changed. If the track owner intends to conduct a continuous test, the track owner must designate and record whether the test is being conducted to satisfy the requirements for an internal rail inspection under § 213.237 or § 213.339. This documentation must be provided to FRA upon request during regular business hours following reasonable notice.
(d)(1) Continuous rail test inspection vehicle operators must be qualified under § 213.238, with the exception of § 213.238(b)(3).
(2) Internal rail inspection data collected during continuous rail tests must be reviewed and interpreted by a person qualified to interpret the equipment responses. Each employer of a person qualified to interpret equipment responses shall maintain written or electronic records of each qualification in effect, including the name of the employee, the equipment to which the qualification applies, the date of qualification, and the date of the most recent reevaluation of the qualification, if any. Records concerning these qualifications, including copies of training programs, training materials, and recorded examinations shall be kept at a location designated by the employer and available for inspection and copying by FRA during regular business hours, following reasonable notice.
(3) All suspect locations must be field-verified by a person qualified under § 213.238.
(e) At a minimum, the continuous rail test process must produce a report containing a systematic listing of all suspected locations that may contain any of the defects listed in the table in § 213.113(c), identified so that a person qualified under § 213.238 can accurately locate and field-verify each suspected defect.
(1) Except as provided in paragraph (e)(6) of this section, and subject to the requirements of paragraphs (e)(2) and (3) of this section, if the continuous rail test inspection vehicle indicates a suspect location, field verification must be conducted within 84 hours of the indication of the suspect location.
(2) Except as provided in paragraph (e)(6) of this section, and subject to the requirements of paragraph (e)(3) of this section, if the continuous rail test inspection vehicle indicates a suspect location containing a suspected defect that, if verified, requires remedial action A, A2, or B identified in the table contained in § 213.113(c), the track owner must field-verify the suspect location no more than 36 hours from indication of the suspect location.
(3) If the continuous rail test inspection vehicle indicates a broken rail with rail separation, the track owner must have procedures to ensure that adequate protection is immediately implemented.
(4) A suspect location is not considered a defect under § 213.113(c) until it has been field-verified by a person qualified under § 213.238. After the suspect location is field-verified and determined to be a defect, the track owner must immediately perform all required remedial actions prescribed in § 213.113(a).
(5) Any suspected location not field-verified within the time required under paragraphs (e)(1) and (2) of this section must be protected by applying the most restrictive remedial action under § 213.113(c) for the suspected type and size of the suspected defect. The remedial action must be applied over a sufficient segment of track to assure coverage of the suspected defect location until field-verified.
(6) A continuous rail test that is not conducted to satisfy the requirements for an internal rail inspection under § 213.237 or § 213.339, and has been properly designated and recorded by the track owner under paragraph (c) of this section, is exempt from the requirements of paragraphs (e)(1), (2), and (5) of this section.
(f) Each suspect location must be recorded with repeatable accuracy that allows for the location to be accurately located for subsequent verification and, as necessary, remedial action.
(g) Within 45 days following the end of each calendar year, each track owner utilizing continuous rail testing must provide the FRA Associate Administrator for Railroad Safety/Chief Safety Officer with an annual report, in a reasonably usable format, or its native electronic format, containing at least the following information for each track segment requiring internal rail inspection under § 213.237 or § 213.339:
(1) The track owner’s name;
(2) The railroad division and subdivision;
(3) The segment identifier, milepost limits, and length of each segment;
(4) The track number;
(5) The class of track;
(6) The annual million gross tons over the track;
(7) The total number of stop-and-verify rail tests and the total number of continuous rail tests over each track segment;
(8) The total number of defects identified over each track segment; and
(9) The total number of service failures on each track segment.
§ 213.241 Inspection records.
(a) Each owner of track to which this part applies shall keep a record of each inspection required to be performed on that track under this subpart.
(b) Each record of an inspection under §§ 213.4, 213.119, 213.233, and 213.235 shall be prepared on the day the inspection is made and signed or otherwise certified by the person making the inspection. Records shall specify the author of the record, the type of track inspected, date and location of inspection, location and nature of any deviation from the requirements of this part, and the remedial action taken by the person making the inspection. The track owner shall designate the location(s) where each original record shall be maintained for at least one year after the inspection covered by the record. The track owner shall also designate one location, within 100 miles of each State in which it conducts operations, where copies of records that apply to those operations are maintained or can be viewed following 10 days’ notice by the Federal Railroad Administration.
(c) Records of internal rail inspections required by § 213.237 shall specify the –
(1) Date of inspection;
(2) Track inspected, including beginning and end points;
(3) Location and type of defects found under § 213.113;
(4) Size of defects found under § 213.113, if not removed prior to the next train movement;
(5) Initial remedial action taken and the date thereof; and
(6) Location of any track not tested pursuant to § 213.237(g).
(d) The track owner shall retain a rail inspection record under paragraph (c) of this section for at least two years after the inspection and for one year after initial remedial action is taken.
(e) The track owner shall maintain records sufficient to demonstrate the means by which it computes the service failure rate on all track segments subject to the requirements of § 213.237(a) for the purpose of determining compliance with the applicable service failure rate target.
(f) Records of continuous rail testing under § 213.240 shall –
(1) Include all information required under § 213.240(e);
(2) State whether the test is being conducted to satisfy the requirements for an internal rail inspection under § 213.237;
(3) List the date(s) and time(s) of the continuous rail test data collection, including the date and time of the start and end of the test run, and the date and time each suspect location was identified and field-verified;
(4) Include the determination made after field verification of each suspect location, including the:
(i) Location and type of defect found;
(ii) Size of defect; and
(iii) Initial remedial action taken, if required, and the date thereof; and
(5) Be retained for at least two years after the inspection and for at least one year after initial remedial action is taken, whichever is later.
(g) Track owners that elect to utilize continuous rail testing under § 213.240 shall maintain records of all continuous rail testing operations sufficient for monitoring and determining compliance with all applicable regulations and shall make those records available to FRA during regular business hours following reasonable notice.
(h) Track inspection records shall be kept available to persons who performed the inspections and to persons performing subsequent inspections of the track segment.
(i) Each track owner required to keep inspection records under this section shall make those records available for inspection and copying by FRA upon request during regular business hours following reasonable notice.
(j) For purposes of complying with the requirements of this section, a track owner may create, retain, transmit, store, and retrieve records by electronic means provided that –
(1) The system used to generate the electronic record meets all requirements and contains the information required under this subpart;
(2) The track owner monitors its electronic records database to ensure record accuracy;
(3) The electronic system is designed to uniquely identify the author of the record. No two persons shall have the same electronic identity;
(4) The electronic system ensures that each record cannot be modified in any way, or replaced, once the record is completed;
(5) The electronic storage of each record shall be initiated by the person making the inspection within 72 hours following the completion of that inspection; and
(6) Any amendment to a record shall be electronically stored apart from the record which it amends. Each amendment to a record shall be uniquely identified as to the person making the amendment.
Subpart G – Train Operations at Track Classes 6 and Higher
§ 213.301 Scope of subpart.
This subpart applies to all track used for the operation of trains at a speed greater than 90 m.p.h. for passenger equipment and greater than 80 m.p.h. for freight equipment.
§ 213.303 Responsibility for compliance.
(a) Any owner of track to which this subpart applies who knows or has notice that the track does not comply with the requirements of this subpart, shall –
(1) Bring the track into compliance; or
(2) Halt operations over that track.
(b) If an owner of track to which this subpart applies assigns responsibility for the track to another person (by lease or otherwise), notification of the assignment shall be provided to the appropriate FRA Regional Office at least 30 days in advance of the assignment. The notification may be made by any party to that assignment, but shall be in writing and include the following –
(1) The name and address of the track owner;
(2) The name and address of the person to whom responsibility is assigned (assignee);
(3) A statement of the exact relationship between the track owner and the assignee;
(4) A precise identification of the track;
(5) A statement as to the competence and ability of the assignee to carry out the duties of the track owner under this subpart;
(6) A statement signed by the assignee acknowledging the assignment to that person of responsibility for purposes of compliance with this subpart.
(c) The Administrator may hold the track owner or the assignee or both responsible for compliance with this subpart and subject to the penalties under § 213.15.
(d) When any person, including a contractor for a railroad or track owner, performs any function required by this part, that person is required to perform that function in accordance with this part.
§ 213.305 Designation of qualified individuals; general qualifications.
Each track owner to which this subpart applies shall designate qualified individuals responsible for the maintenance and inspection of track in compliance with the safety requirements prescribed in this subpart. Each individual, including a contractor or an employee of a contractor who is not a railroad employee, designated to:
(a) Supervise restorations and renewals of track shall meet the following minimum requirements:
(1) At least;
(i) Five years of responsible supervisory experience in railroad track maintenance in track Class 4 or higher and the successful completion of a course offered by the employer or by a college level engineering program, supplemented by special on the job training emphasizing the techniques to be employed in the supervision, restoration, and renewal of high speed track; or
(ii) A combination of at least one year of responsible supervisory experience in track maintenance in Class 4 or higher and the successful completion of a minimum of 80 hours of specialized training in the maintenance of high speed track provided by the employer or by a college level engineering program, supplemented by special on the job training provided by the employer with emphasis on the maintenance of high speed track; or
(iii) A combination of at least two years of experience in track maintenance in track Class 4 or higher and the successful completion of a minimum of 120 hours of specialized training in the maintenance of high speed track provided by the employer or by a college level engineering program supplemented by special on the job training provided by the employer with emphasis on the maintenance of high speed track.
(2) Demonstrate to the track owner that the individual:
(i) Knows and understands the requirements of this subpart that apply to the restoration and renewal of the track for which he or she is responsible;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(3) Be authorized by the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements of this subpart and successfully completed a recorded examination on this subpart as part of the qualification process.
(b) Inspect track for defects shall meet the following minimum qualifications:
(1) At least:
(i) Five years of responsible experience inspecting track in Class 4 or above and the successful completion of a course offered by the employer or by a college level engineering program, supplemented by special on the job training emphasizing the techniques to be employed in the inspection of high speed track; or
(ii) A combination of at least one year of responsible experience in track inspection in Class 4 or above and the successful completion of a minimum of 80 hours of specialized training in the inspection of high speed track provided by the employer or by a college level engineering program, supplemented by special on the job training provided by the employer with emphasis on the inspection of high speed track; or
(iii) A combination of at least two years of experience in track maintenance in Class 4 or above and the successful completion of a minimum of 120 hours of specialized training in the inspection of high speed track provided by the employer or from a college level engineering program, supplemented by special on the job training provided by the employer with emphasis on the inspection of high speed track.
(2) Demonstrate to the track owner that the individual:
(i) Knows and understands the requirements of this subpart that apply to the inspection of the track for which he or she is responsible.
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(3) Be authorized by the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements in this subpart and successfully completed a recorded examination on this subpart as part of the qualification process.
(c) Individuals designated under paragraphs (a) or (b) of this section that inspect continuous welded rail (CWR) track or supervise the installation, adjustment, and maintenance of CWR in accordance with the written procedures established by the track owner shall have:
(1) Current qualifications under either paragraph (a) or (b) of this section;
(2) Successfully completed a training course of at least eight hours duration specifically developed for the application of written CWR procedures issued by the track owner; and
(3) Demonstrated to the track owner that the individual:
(i) Knows and understands the requirements of those written CWR procedures;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and
(4) Authorization from the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements in those procedures and successfully completed a recorded examination on those procedures as part of the qualification process. The recorded examination may be written, or it may be a computer file with the results of an interactive training course.
(d) Persons not fully qualified to supervise certain renewals and inspect track as outlined in paragraphs (a), (b) and (c) of this section, but with at least one year of maintenance of way or signal experience, may pass trains over broken rails and pull aparts provided that –
(1) The track owner determines the person to be qualified and, as part of doing so, trains, examines, and re-examines the person periodically within two years after each prior examination on the following topics as they relate to the safe passage of trains over broken rails or pull aparts: rail defect identification, crosstie condition, track surface and alinement, gage restraint, rail end mismatch, joint bars, and maximum distance between rail ends over which trains may be allowed to pass. The sole purpose of the examination is to ascertain the person’s ability to effectively apply these requirements and the examination may not be used to disqualify the person from other duties. A minimum of four hours training is adequate for initial training;
(2) The person deems it safe, and train speeds are limited to a maximum of 10 m.p.h. over the broken rail or pull apart;
(3) The person shall watch all movements over the broken rail or pull apart and be prepared to stop the train if necessary; and
(4) Person(s) fully qualified under § 213.305 of this subpart are notified and dispatched to the location as soon as practicable for the purpose of authorizing movements and effectuating temporary or permanent repairs.
(e) With respect to designations under paragraphs (a), (b), (c) and (d) of this section, each track owner shall maintain records of:
(1) Each designation in effect;
(2) The date each designation was made; and
(3) The basis for each designation, including but not limited to:
(i) The exact nature of any training courses attended and the dates thereof; and
(ii) The manner in which the track owner has determined a successful completion of that training course, including test scores or other qualifying results.
(f) Each track owner shall keep these designation records readily available for inspection or copying by the Federal Railroad Administration during regular business hours, following reasonable notice.
§ 213.307 Classes of track: operating speed limits.
(a) Except as provided in paragraph (b) of this section and as otherwise provided in this subpart G, the following maximum allowable speeds apply:
| Over track that meets all of the requirements prescribed in this subpart for – | The maximum allowable operating speed for trains is 1 |
|---|---|
| Class 6 track | 110 m.p.h. |
| Class 7 track | 125 m.p.h. |
| Class 8 track | 160 m.p.h. 2 |
| Class 9 track | 220 m.p.h. 2 |
1 Freight may be transported at passenger train speeds if the following conditions are met:
(1) The vehicles utilized to carry such freight are of equal dynamic performance and have been qualified in accordance with § 213.329 and § 213.345.
(2) The load distribution and securement in the freight vehicle will not adversely affect the dynamic performance of the vehicle. The axle loading pattern is uniform and does not exceed the passenger locomotive axle loadings utilized in passenger service, if any, operating at the same maximum speed.
(3) No carrier may accept or transport a hazardous material, as defined at 49 CFR 171.8, except as provided in Column 9A of the Hazardous Materials Table (49 CFR 172.101) for movement in the same train as a passenger-carrying vehicle or in Column 9B of the Table for movement in a train with no passenger-carrying vehicles.
2 Operating speeds in excess of 125 m.p.h. are authorized by this part only in conjunction with FRA regulatory approval addressing other safety issues presented by the railroad system. For operations on a dedicated right-of-way, FRA’s regulatory approval may allow for the use of inspection and maintenance criteria and procedures in the alternative to those contained in this subpart, based upon a showing that at least an equivalent level of safety is provided.
(b) If a segment of track does not meet all of the requirements for its intended class, it is to be reclassified to the next lower class of track for which it does meet all of the requirements of this subpart. If a segment does not meet all of the requirements for Class 6, the requirements for Classes 1 through 5 apply.
§ 213.309 Restoration or renewal of track under traffic conditions.
(a) Restoration or renewal of track under traffic conditions is limited to the replacement of worn, broken, or missing components or fastenings that do not affect the safe passage of trains.
(b) The following activities are expressly prohibited under traffic conditions:
(1) Any work that interrupts rail continuity, e.g., as in joint bar replacement or rail replacement;
(2) Any work that adversely affects the lateral or vertical stability of the track with the exception of spot tamping an isolated condition where not more than 15 lineal feet of track are involved at any one time and the ambient air temperature is not above 95 degrees Fahrenheit; and
(3) Removal and replacement of the rail fastenings on more than one tie at a time within 15 feet.
§ 213.311 Measuring track not under load.
When unloaded track is measured to determine compliance with requirements of this subpart, evidence of rail movement, if any, that occurs while the track is loaded shall be added to the measurements of the unloaded track.
§ 213.313 Application of requirements to curved track.
Unless otherwise provided in this part, requirements specified for curved track apply only to track having a curvature greater than 0.25 degree.
§ 213.317 Waivers.
(a) Any owner of track to which this subpart applies may petition the Federal Railroad Administrator for a waiver from any or all requirements prescribed in this subpart.
(b) Each petition for a waiver under this section shall be filed in the manner and contain the information required by §§ 211.7 and 211.9 of this chapter.
(c) If the Administrator finds that a waiver is in the public interest and is consistent with railroad safety, the Administrator may grant the waiver subject to any conditions the Administrator deems necessary. Where a waiver is granted, the Administrator publishes a notice containing the reasons for granting the waiver.
§ 213.319 Drainage.
Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.
§ 213.321 Vegetation.
Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not –
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals:
(1) Along the right of way, and
(2) At highway-rail crossings;
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
§ 213.323 Track gage.
(a) Gage is measured between the heads of the rails at right-angles to the rails in a plane five-eighths of an inch below the top of the rail head.
(b) Gage shall be within the limits prescribed in the following table:
| Class of track | The gage must be at least – | But not more than – | The change of gage within 31 feet must not be greater than – |
|---|---|---|---|
| Class 6 track | 4′8″ | 4′9 | |
| Class 7 track | 4′8″ | 4′9 | |
| Class 8 track | 4′8″ | 4′9 | |
| Class 9 track | 4′8 | 4′9 |
§ 213.327 Track alinement.
(a) Uniformity at any point along the track is established by averaging the measured mid-chord offset values for nine consecutive points that are centered around that point and spaced according to the following table:
| Chord length | Spacing |
|---|---|
| 31′ | 7′9″ |
| 62′ | 15′6″ |
| 124′ | 31′0″ |
(b) Except as provided in paragraph (c) of this section, a single alinement deviation from uniformity may not be more than the amount prescribed in the following table:
| Class of track | Tangent/ Curved track | The deviation from uniformity of the mid-chord offset for a 31-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 62-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 124-foot chord may not be more than – (inches) |
|---|---|---|---|---|
| Class 6 track | Tangent | 1 | ||
| Curved | 1 | |||
| Class 7 track | Tangent | 1 | ||
| Curved | 1 | |||
| Class 8 track | Tangent | 1 | ||
| Curved | ||||
| Class 9 track | Tangent | |||
| Curved |
(c) For operations at a qualified cant deficiency, E
| Class of track | Track type | The deviation from uniformity of the mid-chord offset for a 31-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 62-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 124-foot chord may not be more than – (inches) |
|---|---|---|---|---|
| Class 6 track | Curved | 1 | ||
| Class 7 track | Curved | 1 | ||
| Class 8 track | Curved | |||
| Class 9 track | Curved |
(d) For three or more non-overlapping deviations from uniformity in track alinement occurring within a distance equal to five times the specified chord length, each of which exceeds the limits in the following table, each track owner shall maintain the alinement of the track within the limits prescribed for each deviation:
| Class of track | The deviation from uniformity of the mid-chord offset for a 31-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 62-foot chord may not be more than – (inches) | The deviation from uniformity of the mid-chord offset for a 124-foot chord may not be more than – (inches) |
|---|---|---|---|
| Class 6 track | 1 | ||
| Class 7 track | |||
| Class 8 track | |||
| Class 9 track |
(e) For purposes of complying with this section, the ends of the chord shall be at points on the gage side of the rail, five-eighths of an inch below the top of the railhead. On tangent track, either rail may be used as the line rail; however, the same rail shall be used for the full length of that tangential segment of the track. On curved track, the line rail is the outside rail of the curve.
§ 213.329 Curves; elevation and speed limitations.
(a) The maximum elevation of the outside rail of a curve may not be more than 7 inches. The outside rail of a curve may not be lower than the inside rail by design, except when engineered to address specific track or operating conditions; the limits in § 213.331 apply in all cases.
(b) The maximum allowable posted timetable operating speed for each curve is determined by the following formula:
(c) All vehicles are considered qualified for operating on track with a cant deficiency, E
(d) Each vehicle type must be approved by FRA to operate on track with a qualified cant deficiency, E
(1) When positioned on a track with a uniform superelevation equal to the proposed cant deficiency:
(i) No wheel of the vehicle type unloads to a value less than 60 percent of its static value on perfectly level track; and
(ii) For passenger cars, the roll angle between the floor of the equipment and the horizontal does not exceed 8.6 degrees; or
(2) When operating through a constant radius curve at a constant speed corresponding to the proposed cant deficiency, and a test plan is submitted and approved by FRA in accordance with § 213.345(e) and (f):
(i) The steady-state (average) load on any wheel, throughout the body of the curve, is not less than 60 percent of its static value on perfectly level track; and
(ii) For passenger cars, the steady-state (average) lateral acceleration measured on the floor of the carbody does not exceed 0.15g.
(e) The track owner or railroad shall transmit the results of the testing specified in paragraph (d) of this section to FRA’s Associate Administrator for Railroad Safety/Chief Safety Officer (FRA) requesting approval for the vehicle type to operate at the desired curving speeds allowed under the formula in paragraph (b) of this section. The request shall be made in writing and contain, at a minimum, the following information –
(1) A description of the vehicle type involved, including schematic diagrams of the suspension system(s) and the estimated location of the center of gravity above top of rail;
(2) The test procedure,
(3) For vehicle types not subject to part 238 or part 229 of this chapter, procedures or standards in effect that relate to the maintenance of all safety-critical components of the suspension system(s) for the particular vehicle type. Safety-critical components of the suspension system are those that impact or have significant influence on the roll of the carbody and the distribution of weight on the wheels.
(f) In approving the request made pursuant to paragraph (e) of this section, FRA may impose conditions necessary for safely operating at the higher curving speeds. Upon FRA approval of the request, the track owner or railroad shall notify FRA in writing no less than 30 calendar days prior to the proposed implementation of the approved higher curving speeds allowed under the formula in paragraph (b) of this section. The notification shall contain, at a minimum, identification of the track segment(s) on which the higher curving speeds are to be implemented.
(g) The documents required by this section must be provided to FRA by:
(1) The track owner; or
(2) A railroad that provides service with the same vehicle type over trackage of one or more track owner(s), with the written consent of each affected track owner.
(h) (1) Vehicle types permitted by FRA to operate at cant deficiencies, E
(2) Vehicle types permitted by FRA to operate at cant deficiencies, E
(i) As used in this section and in §§ 213.333 and 213.345 –
(1) Vehicle means a locomotive, as defined in § 229.5 of this chapter; a freight car, as defined in § 215.5 of this chapter; a passenger car, as defined in § 238.5 of this chapter; and any rail rolling equipment used in a train with either a freight car or a passenger car.
(2) Vehicle type means like vehicles with variations in their physical properties, such as suspension, mass, interior arrangements, and dimensions that do not result in significant changes to their dynamic characteristics.
§ 213.331 Track surface.
(a) For a single deviation in track surface, each track owner shall maintain the surface of its track within the limits prescribed in the following table:
| Track surface (inches) | Class of track | |||
|---|---|---|---|---|
| 6 | 7 | 8 | 9 | |
| The deviation from uniform 1 profile on either rail at the mid-ordinate of a 31-foot chord may not be more than | 1 | 1 | ||
| The deviation from uniform profile on either rail at the mid-ordinate of a 62-foot chord may not be more than | 1 | 1 | 1 | |
| Except as provided in paragraph (b) of this section, the deviation from uniform profile on either rail at the mid-ordinate of a 124-foot chord may not be more than | 1 | 1 | 1 | 1 |
| The deviation from zero crosslevel at any point on tangent track may not be more than 2 | 1 | 1 | 1 | 1 |
| Reverse elevation on curves may not be more than | ||||
| The difference in crosslevel between any two points less than 62 feet apart may not be more than 3 | 1 | 1 | 1 | 1 |
| On curved track, the difference in crosslevel between any two points less than 10 feet apart (short warp) may not be more than | 1 | 1 | 1 | |
1 Uniformity for profile is established by placing the midpoint of the specified chord at the point of maximum measurement.
2 If physical conditions do not permit a spiral long enough to accommodate the minimum length of runoff, part of the runoff may be on tangent track.
3 However, to control harmonics on jointed track with staggered joints, the crosslevel differences shall not exceed 1 inch in all of six consecutive pairs of joints, as created by seven low joints. Track with joints staggered less than 10 feet apart shall not be considered as having staggered joints. Joints within the seven low joints outside of the regular joint spacing shall not be considered as joints for purposes of this footnote.
(b) For operations at a qualified cant deficiency, E
| Track surface (inches) | Class of track | |||
|---|---|---|---|---|
| 6 | 7 | 8 | 9 | |
| The difference in crosslevel between any two points less than 10 feet apart (short warp) may not be more than | 1 | 1 | 1 1 | |
| The deviation from uniform profile on either rail at the mid-ordinate of a 124-foot chord may not be more than | 1 | 1 | 1 | 1 |
1 For curves with a qualified cant deficiency, E
(c) For three or more non-overlapping deviations in track surface occurring within a distance equal to five times the specified chord length, each of which exceeds the limits in the following table, each track owner shall maintain the surface of the track within the limits prescribed for each deviation:
| Track surface (inches) | Class of track | |||
|---|---|---|---|---|
| 6 | 7 | 8 | 9 | |
| The deviation from uniform profile on either rail at the mid-ordinate of a 31-foot chord may not be more than | ||||
| The deviation from uniform profile on either rail at the mid-ordinate of a 62-foot chord may not be more than | ||||
| The deviation from uniform profile on either rail at the mid-ordinate of a 124-foot chord may not be more than | 1 | 1 | ||
§ 213.332 Combined track alinement and surface deviations.
(a) This section applies to any curved track where operations are conducted at a qualified cant deficiency, E
(b) For the conditions defined in paragraph (a) of this section, the combination of alinement and surface deviations for the same chord length on the outside rail in a curve and on any of the two rails of a tangent section, as measured by a TGMS, shall comply with the following formula:
§ 213.333 Automated vehicle-based inspection systems.
(a) A qualifying Track Geometry Measurement System (TGMS) shall be operated at the following frequency:
(1) For operations at a qualified cant deficiency, E
(2) For track Class 6, at least once per calendar year with not less than 170 days between inspections. For operations at a qualified cant deficiency, E
(3) For track Class 7, at least twice within any 120-day period with not less than 25 days between inspections.
(4) For track Classes 8 and 9, at least twice within any 60-day period with not less than 12 days between inspections.
(b) A qualifying TGMS shall meet or exceed minimum design requirements which specify that –
(1) Track geometry measurements shall be taken no more than 3 feet away from the contact point of wheels carrying a vertical load of no less than 10 kips per wheel, unless otherwise approved by FRA;
(2) Track geometry measurements shall be taken and recorded on a distance-based sampling interval preferably at 1 foot not exceeding 2 feet; and
(3) Calibration procedures and parameters are assigned to the system which assure that measured and recorded values accurately represent track conditions. Track geometry measurements recorded by the system shall not differ on repeated runs at the same site at the same speed more than
(c) A qualifying TGMS shall be capable of measuring and processing the necessary track geometry parameters to determine compliance with –
(1) For operations at a qualified cant deficiency, E
(2) For track Classes 6 through 9: § 213.323, Track gage; § 213.327, Track alinement; § 213.329, Curves; elevation and speed limitations; § 213.331, Track surface; and for operations at a cant deficiency of more than 5 inches § 213.332, Combined track alinement and surface deviations.
(d) A qualifying TGMS shall be capable of producing, within 24 hours of the inspection, output reports that –
(1) Provide a continuous plot, on a constant-distance axis, of all measured track geometry parameters required in paragraph (c) of this section;
(2) Provide an exception report containing a systematic listing of all track geometry conditions which constitute an exception to the class of track over the segment surveyed.
(e) The output reports required under paragraph (c) of this section shall contain sufficient location identification information which enable field forces to easily locate indicated exceptions.
(f) Following a track inspection performed by a qualifying TGMS, the track owner shall, within two days after the inspection, field verify and institute remedial action for all exceptions to the class of track.
(g) The track owner or railroad shall maintain for a period of one year following an inspection performed by a qualifying TGMS, a copy of the plot and the exception report for the track segment involved, and additional records which:
(1) Specify the date the inspection was made and the track segment involved; and
(2) Specify the location, remedial action taken, and the date thereof, for all listed exceptions to the class.
(h) For track Classes 8 and 9, a qualifying Gage Restraint Measurement System (GRMS) shall be operated at least once per calendar year with at least 170 days between inspections. The lateral capacity of the track structure shall not permit a Gage Widening Projection (GWP) greater than 0.5 inch.
(i) A GRMS shall meet or exceed minimum design requirements specifying that –
(1) Gage restraint shall be measured between the heads of the rail:
(i) At an interval not exceeding 16 inches;
(ii) Under an applied vertical load of no less than 10 kips per rail; and
(iii) Under an applied lateral load that provides a lateral/vertical load ratio of between 0.5 and 1.25,
(2) The measured gage and load values shall be converted to a GWP as follows:
(j) As further specified for the combination of track class, cant deficiencies, and vehicles subject to paragraphs (j)(1) through (3) of this section, a vehicle having dynamic response characteristics that are representative of other vehicles assigned to the service shall be operated over the route at the revenue speed profile. The vehicle shall either be instrumented or equipped with a portable device that monitors onboard instrumentation on trains. Track personnel shall be notified when onboard accelerometers indicate a possible track-related problem. Testing shall be conducted at the frequencies specified in paragraphs (j)(1) through (3) of this section, unless otherwise determined by FRA after reviewing the test data required by this subpart.
(1) For operations at a qualified cant deficiency, E
(2) For operations at track Class 7 speeds, carbody and truck accelerations shall be monitored at least twice within any 60-day period with not less than 12 days between inspections on at least one passenger car of each type that is assigned to the service; and
(3) For operations at track Class 8 or 9 speeds, carbody acceleration shall be monitored at least four times within any 7-day period with not more than 3 days between inspections on at least one non-passenger and one passenger carrying vehicle of each type that is assigned to the service, as appropriate. Truck acceleration shall be monitored at least twice within any 60-day period with not less than 12 days between inspections on at least one passenger carrying vehicle of each type that is assigned to the service, as appropriate.
(k)(1) The instrumented vehicle or the portable device, as required in paragraph (j) of this section, shall monitor lateral and vertical accelerations of the carbody. The accelerometers shall be attached to the carbody on or under the floor of the vehicle, as near the center of a truck as practicable.
(2) In addition, a device for measuring lateral accelerations shall be mounted on a truck frame at a longitudinal location as close as practicable to an axle’s centerline (either outside axle for trucks containing more than 2 axles), or, if approved by FRA, at an alternate location. After monitoring this data for 2 years, or 1 million miles, whichever occurs first, the track owner or railroad may petition FRA for exemption from this requirement.
(3) If any of the carbody lateral, carbody vertical, or truck frame lateral acceleration safety limits in this section’s table of vehicle/track interaction safety limits is exceeded, corrective action shall be taken as necessary. Track personnel shall be notified when the accelerometers indicate a possible track-related problem.
(l) For track Classes 8 and 9, the track owner or railroad shall submit a report to FRA, once each calendar year, which provides an analysis of the monitoring data collected in accordance with paragraphs (j) and (k) of this section. Based on a review of the report, FRA may require that an instrumented vehicle having dynamic response characteristics that are representative of other vehicles assigned to the service be operated over the track at the revenue speed profile. The instrumented vehicle shall be equipped to measure wheel/rail forces. If any of the wheel/rail force limits in this section’s table of vehicle/track interaction safety limits is exceeded, appropriate speed restrictions shall be applied until corrective action is taken.
(m) The track owner or railroad shall maintain a copy of the most recent exception records for the inspections required under paragraphs (j), (k), and (l) of this section, as appropriate.
§ 213.334 Ballast; general.
Unless it is otherwise structurally supported, all track shall be supported by material which will –
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
§ 213.335 Crossties.
(a) Crossties shall be made of a material to which rail can be securely fastened.
(b) Each 39 foot segment of track shall have –
(1) A sufficient number of crossties which in combination provide effective support that will –
(i) Hold gage within the limits prescribed in § 213.323(b);
(ii) Maintain surface within the limits prescribed in § 213.331; and
(iii) Maintain alinement within the limits prescribed in § 213.327.
(2) The minimum number and type of crossties specified in paragraph (c) of this section effectively distributed to support the entire segment; and
(3) Crossties of the type specified in paragraph (c) of this section that are(is) located at a joint location as specified in paragraph (e) of this section.
(c) For non-concrete tie construction, each 39 foot segment of Class 6 track shall have fourteen crossties; Classes 7, 8 and 9 shall have 18 crossties which are not –
(1) Broken through;
(2) Split or otherwise impaired to the extent the crossties will allow the ballast to work through, or will not hold spikes or rail fasteners;
(3) So deteriorated that the tie plate or base of rail can move laterally
(4) Cut by the tie plate through more than 40 percent of a crosstie’s thickness;
(5) Configured with less than 2 rail holding spikes or fasteners per tie plate; or
(6) So unable, due to insufficient fastener toeload, to maintain longitudinal restraint and maintain rail hold down and gage.
(d) For concrete tie construction, each 39 foot segment of Class 6 track shall have fourteen crossties, Classes 7, 8 and 9 shall have 16 crossties which are not –
(1) So deteriorated that the prestress strands are ineffective or withdrawn into the tie at one end and the tie exhibits structural cracks in the rail seat or in the gage of track;
(2) Configured with less than 2 fasteners on the same rail;
(3) So deteriorated in the vicinity of the rail fastener such that the fastener assembly may pull out or move laterally more than
(4) So deteriorated that the fastener base plate or base of rail can move laterally more than
(5) So deteriorated that rail seat abrasion is sufficiently deep so as to cause loss of rail fastener toeload;
(6) Completely broken through; or
(7) So unable, due to insufficient fastener toeload, to maintain longitudinal restraint and maintain rail hold down and gage.
(e) Class 6 track shall have one non-defective crosstie whose centerline is within 18 inches of the rail joint location or two crossties whose center lines are within 24 inches either side of the rail joint location. Class 7, 8, and 9 track shall have two non-defective ties within 24 inches each side of the rail joint.
(f) For track constructed without crossties, such as slab track and track connected directly to bridge structural components, the track structure shall meet the requirements of paragraphs (b)(1)(i), (ii), and (iii) of this section.
(g) In Classes 7, 8 and 9 there shall be at least three non-defective ties each side of a defective tie.
(h) Where timber crossties are in use there shall be tie plates under the running rails on at least nine of 10 consecutive ties.
(i) No metal object which causes a concentrated load by solely supporting a rail shall be allowed between the base of the rail and the bearing surface of the tie plate.
§ 213.337 Defective rails.
(a) When an owner of track to which this part applies learns, through inspection or otherwise, that a rail in that track contains any of the defects listed in the following table, a person designated under § 213.305 shall determine whether or not the track may continue in use. If the person determines that the track may continue in use, operation over the defective rail is not permitted until –
(1) The rail is replaced; or
(2) The remedial action prescribed in the table is initiated –
A. Assign person designated under § 213.305 to visually supervise each operation over defective rail.
A2. Assign person designated under § 213.305 to make visual inspection. That person may authorize operation to continue without visual supervision at a maximum of 10 m.p.h. for up to 24 hours prior to another such visual inspection or replacement or repair of the rail.
B. Limit operating speed over defective rail to that as authorized by a person designated under § 213.305(a)(1)(i) or (ii). The operating speed cannot be over 30 m.p.h.
C. Apply joint bars bolted only through the outermost holes to defect within 20 days after it is determined to continue the track in use. Limit operating speed over defective rail to 30 m.p.h. until joint bars are applied; thereafter, limit speed to 50 m.p.h. When a search for internal rail defects is conducted under § 213.339 and defects are discovered which require remedial action C, the operating speed shall be limited to 50 m.p.h., for a period not to exceed 4 days. If the defective rail has not been removed from the track or a permanent repair made within 4 days of the discovery, limit operating speed over the defective rail to 30 m.p.h. until joint bars are applied; thereafter, limit speed to 50 m.p.h.
D. Apply joint bars bolted only through the outermost holes to defect within 10 days after it is determined to continue the track in use. Limit operating speed over the defective rail to 30 m.p.h. or less as authorized by a person designated under § 213.305(a)(1)(i) or (ii) until joint bars are applied; thereafter, limit speed to 50 m.p.h.
E. Apply joint bars to defect and bolt in accordance with § 213.351(d) and (e).
F. Inspect rail 90 days after it is determined to continue the track in use.
G. Inspect rail 30 days after it is determined to continue the track in use.
H. Limit operating speed over defective rail to 50 m.p.h.
I. Limit operating speed over defective rail to 30 m.p.h.
(b) As used in this section –
(1) Transverse fissure means a progressive crosswise fracture starting from a crystalline center or nucleus inside the head from which it spreads outward as a smooth, bright, or dark, round or oval surface substantially at a right angle to the length of the rail. The distinguishing features of a transverse fissure from other types of fractures or defects are the crystalline center or nucleus and the nearly smooth surface of the development which surrounds it.
(2) Compound fissure means a progressive fracture originating in a horizontal split head which turns up or down in the head of the rail as a smooth, bright, or dark surface progressing until substantially at a right angle to the length of the rail. Compound fissures require examination of both faces of the fracture to locate the horizontal split head from which they originate.
(3) Horizontal split head means a horizontal progressive defect originating inside of the rail head, usually one-quarter inch or more below the running surface and progressing horizontally in all directions, and generally accompanied by a flat spot on the running surface. The defect appears as a crack lengthwise of the rail when it reaches the side of the rail head.
(4) Vertical split head means a vertical split through or near the middle of the head, and extending into or through it. A crack or rust streak may show under the head close to the web or pieces may be split off the side of the head.
(5) Split web means a lengthwise crack along the side of the web and extending into or through it.
(6) Piped rail means a vertical split in a rail, usually in the web, due to failure of the shrinkage cavity in the ingot to unite in rolling.
(7) Broken base means any break in the base of the rail.
(8) Detail fracture means a progressive fracture originating at or near the surface of the rail head. These fractures should not be confused with transverse fissures, compound fissures, or other defects which have internal origins. Detail fractures may arise from shelly spots, head checks, or flaking.
(9) Engine burn fracture means a progressive fracture originating in spots where driving wheels have slipped on top of the rail head. In developing downward they frequently resemble the compound or even transverse fissures with which they should not be confused or classified.
(10) Ordinary break means a partial or complete break in which there is no sign of a fissure, and in which none of the other defects described in this paragraph (b) are found.
(11) Damaged rail means any rail broken or injured by wrecks, broken, flat, or unbalanced wheels, slipping, or similar causes.
(12) Flattened rail means a short length of rail, not a joint, which has flattened out across the width of the rail head to a depth of
(13) Bolt hole crack means a crack across the web, originating from a bolt hole, and progressing on a path either inclined upward toward the rail head or inclined downward toward the base. Fully developed bolt hole cracks may continue horizontally along the head/web or base/web fillet, or they may progress into and through the head or base to separate a piece of the rail end from the rail. Multiple cracks occurring in one rail end are considered to be a single defect. However, bolt hole cracks occurring in adjacent rail ends within the same joint shall be reported as separate defects.
(14) Defective weld means a field or plant weld containing any discontinuities or pockets, exceeding 5 percent of the rail head area individually or 10 percent in the aggregate, oriented in or near the transverse plane, due to incomplete penetration of the weld metal between the rail ends, lack of fusion between weld and rail end metal, entrainment of slag or sand, under-bead or other shrinkage cracking, or fatigue cracking. Weld defects may originate in the rail head, web, or base, and in some cases, cracks may progress from the defect into either or both adjoining rail ends.
(15) Head and web separation means a progressive fracture, longitudinally separating the head from the web of the rail at the head fillet area.
§ 213.339 Inspection of rail in service.
(a) A continuous search for internal defects shall be made of all rail in track at least twice annually with not less than 120 days between inspections.
(b) Inspection equipment shall be capable of detecting defects between joint bars, in the area enclosed by joint bars.
(c) Each defective rail shall be marked with a highly visible marking on both sides of the web and base.
(d) If the person assigned to operate the rail defect detection equipment being used determines that, due to rail surface conditions, a valid search for internal defects could not be made over a particular length of track, the test on that particular length of track cannot be considered as a search for internal defects under § 213.337(a).
(e) If a valid search for internal defects cannot be conducted for reasons described in paragraph (d) of this section, the track owner shall, before the expiration of time limits –
(1) Conduct a valid search for internal defects;
(2) Reduce operating speed to a maximum of 25 miles per hour until such time as a valid search for internal defects can be made; or
(3) Remove the rail from service.
§ 213.341 Initial inspection of new rail and welds.
The track owner shall provide for the initial inspection of newly manufactured rail, and for initial inspection of new welds made in either new or used rail. A track owner may demonstrate compliance with this section by providing for:
(a) In-service inspection. A scheduled periodic inspection of rail and welds that have been placed in service, if conducted in accordance with the provisions of § 213.339, and if conducted not later than 90 days after installation, shall constitute compliance with paragraphs (b) and (c) of this section;
(b) Mill inspection. A continuous inspection at the rail manufacturer’s mill shall constitute compliance with the requirement for initial inspection of new rail, provided that the inspection equipment meets the applicable requirements specified in § 213.339. The track owner shall obtain a copy of the manufacturer’s report of inspection and retain it as a record until the rail receives its first scheduled inspection under § 213.339;
(c) Welding plant inspection. A continuous inspection at a welding plant, if conducted in accordance with the provisions of paragraph (b) of this section, and accompanied by a plant operator’s report of inspection which is retained as a record by the track owner, shall constitute compliance with the requirements for initial inspection of new rail and plant welds, or of new plant welds made in used rail; and
(d) Inspection of field welds. An initial inspection of field welds, either those joining the ends of CWR strings or those made for isolated repairs, shall be conducted not less than one day and not more than 30 days after the welds have been made. The initial inspection may be conducted by means of portable test equipment. The track owner shall retain a record of such inspections until the welds receive their first scheduled inspection under § 213.339.
(e) Each defective rail found during inspections conducted under paragraph (a) or (d) of this section shall be marked with highly visible markings on both sides of the web and base and the remedial action as appropriate under § 213.337 will apply.
§ 213.343 Continuous welded rail (CWR).
Each track owner with track constructed of CWR shall have in effect and comply with written procedures which address the installation, adjustment, maintenance and inspection of CWR, and a training program for the application of those procedures, which shall be submitted to the Federal Railroad Administration by March 21, 1999. FRA reviews each plan for compliance with the following –
(a) Procedures for the installation and adjustment of CWR which include –
(1) Designation of a desired rail installation temperature range for the geographic area in which the CWR is located; and
(2) De-stressing procedures/methods which address proper attainment of the desired rail installation temperature range when adjusting CWR.
(b) Rail anchoring or fastening requirements that will provide sufficient restraint to limit longitudinal rail and crosstie movement to the extent practical, and specifically addressing CWR rail anchoring or fastening patterns on bridges, bridge approaches, and at other locations where possible longitudinal rail and crosstie movement associated with normally expected train-induced forces, is restricted.
(c) Procedures which specifically address maintaining a desired rail installation temperature range when cutting CWR including rail repairs, in-track welding, and in conjunction with adjustments made in the area of tight track, a track buckle, or a pull-apart. Rail repair practices shall take into consideration existing rail temperature so that –
(1) When rail is removed, the length installed shall be determined by taking into consideration the existing rail temperature and the desired rail installation temperature range; and
(2) Under no circumstances should rail be added when the rail temperature is below that designated by paragraph (a)(1) of this section, without provisions for later adjustment.
(d) Procedures which address the monitoring of CWR in curved track for inward shifts of alinement toward the center of the curve as a result of disturbed track.
(e) Procedures which control train speed on CWR track when –
(1) Maintenance work, track rehabilitation, track construction, or any other event occurs which disturbs the roadbed or ballast section and reduces the lateral and/or longitudinal resistance of the track; and
(2) In formulating the procedures under this paragraph (e), the track owner shall –
(i) Determine the speed required, and the duration and subsequent removal of any speed restriction based on the restoration of the ballast, along with sufficient ballast re-consolidation to stabilize the track to a level that can accommodate expected train-induced forces. Ballast re-consolidation can be achieved through either the passage of train tonnage or mechanical stabilization procedures, or both; and
(ii) Take into consideration the type of crossties used.
(f) Procedures which prescribe when physical track inspections are to be performed to detect buckling prone conditions in CWR track. At a minimum, these procedures shall address inspecting track to identify –
(1) Locations where tight or kinky rail conditions are likely to occur;
(2) Locations where track work of the nature described in paragraph (e)(1) of this section have recently been performed; and
(3) In formulating the procedures under this paragraph (f), the track owner shall –
(i) Specify the timing of the inspection; and
(ii) Specify the appropriate remedial actions to be taken when buckling prone conditions are found.
(g) The track owner shall have in effect a comprehensive training program for the application of these written CWR procedures, with provisions for periodic re-training, for those individuals designated under § 213.305(c) of this part as qualified to supervise the installation, adjustment, and maintenance of CWR track and to perform inspections of CWR track.
(h) The track owner shall prescribe recordkeeping requirements necessary to provide an adequate history of track constructed with CWR. At a minimum, these records shall include:
(1) Rail temperature, location and date of CWR installations. This record shall be retained for at least one year; and
(2) A record of any CWR installation or maintenance work that does not conform with the written procedures. Such record shall include the location of the rail and be maintained until the CWR is brought into conformance with such procedures.
(i) As used in this section –
(1) Adjusting/de-stressing means the procedure by which a rail’s temperature is re-adjusted to the desired value. It typically consists of cutting the rail and removing rail anchoring devices, which provides for the necessary expansion and contraction, and then re-assembling the track.
(2) Buckling incident means the formation of a lateral mis-alinement sufficient in magnitude to constitute a deviation of 5 inches measured with a 62-foot chord. These normally occur when rail temperatures are relatively high and are caused by high longitudinal compressive forces.
(3) Continuous welded rail (CWR) means rail that has been welded together into lengths exceeding 400 feet.
(4) Desired rail installation temperature range means the rail temperature range, within a specific geographical area, at which forces in CWR should not cause a buckling incident in extreme heat, or a pull-apart during extreme cold weather.
(5) Disturbed track means the disturbance of the roadbed or ballast section, as a result of track maintenance or any other event, which reduces the lateral or longitudinal resistance of the track, or both.
(6) Mechanical stabilization means a type of procedure used to restore track resistance to disturbed track following certain maintenance operations. This procedure may incorporate dynamic track stabilizers or ballast consolidators, which are units of work equipment that are used as a substitute for the stabilization action provided by the passage of tonnage trains.
(7) Rail anchors means those devices which are attached to the rail and bear against the side of the crosstie to control longitudinal rail movement. Certain types of rail fasteners also act as rail anchors and control longitudinal rail movement by exerting a downward clamping force on the upper surface of the rail base.
(8) Rail temperature means the temperature of the rail, measured with a rail thermometer.
(9) Tight/kinky rail means CWR which exhibits minute alinement irregularities which indicate that the rail is in a considerable amount of compression.
(10) Train-induced forces means the vertical, longitudinal, and lateral dynamic forces which are generated during train movement and which can contribute to the buckling potential.
(11) Track lateral resistance means the resistance provided to the rail/crosstie structure against lateral displacement.
(12) Track longitudinal resistance means the resistance provided by the rail anchors/rail fasteners and the ballast section to the rail/crosstie structure against longitudinal displacement.
(j) Track owners shall revise their CWR plans to include provisions for the inspection of joint bars in accordance with §§ 213.119(g) and (i)(3).
§ 213.345 Vehicle/track system qualification.
(a) General. All vehicle types intended to operate at track Class 6 speeds or above, or at any curving speed producing more than 5 inches of cant deficiency, shall be qualified for operation for their intended track classes in accordance with this subpart. A qualification program shall be used to demonstrate that the vehicle/track system will not exceed the wheel/rail force safety limits and the carbody and truck acceleration criteria specified in § 213.333 –
(1) At any speed up to and including 5 m.p.h. above the proposed maximum operating speed; and
(2) On track meeting the requirements for the class of track associated with the proposed maximum operating speed. For purposes of qualification testing, speeds may exceed the maximum allowable operating speed for the class of track in accordance with the test plan approved by FRA.
(b) Existing vehicle type qualification. Vehicle types previously qualified or permitted to operate at track Class 6 speeds or above or at any curving speeds producing more than 5 inches of cant deficiency prior to March 13, 2013, shall be considered as being successfully qualified under the requirements of this section for operation at the previously operated speeds and cant deficiencies over the previously operated track segment(s).
(c) New vehicle type qualification. Vehicle types not previously qualified under this subpart shall be qualified in accordance with the requirements of this paragraph (c).
(1) Simulations or measurement of wheel/rail forces. For vehicle types intended to operate at track Class 6 speeds, simulations or measurement of wheel/rail forces during qualification testing shall demonstrate that the vehicle type will not exceed the wheel/rail force safety limits specified in § 213.333. Simulations, if conducted, shall be in accordance with paragraph (c)(2) of this section. Measurement of wheel/rail forces, if conducted, shall be performed over a representative segment of the full route on which the vehicle type is intended to operate.
(2) Simulations. For vehicle types intended to operate at track Class 7 speeds or above, or at any curving speed producing more than 6 inches of cant deficiency, analysis of vehicle/track performance (computer simulations) shall be conducted using an industry recognized methodology on:
(i) An analytically defined track segment representative of minimally compliant track conditions (MCAT – Minimally Compliant Analytical Track) for the respective track class(es) as specified in appendix D to this part; and
(ii) A track segment representative of the full route on which the vehicle type is intended to operate. Both simulations and physical examinations of the route’s track geometry shall be used to determine a track segment representative of the route.
(3) Carbody acceleration. For vehicle types intended to operate at track Class 6 speeds or above, or at any curving speed producing more than 5 inches of cant deficiency, qualification testing conducted over a representative segment of the route shall demonstrate that the vehicle type will not exceed the carbody lateral and vertical acceleration safety limits specified in § 213.333.
(4) Truck lateral acceleration. For vehicle types intended to operate at track Class 6 speeds or above, qualification testing conducted over a representative segment of the route shall demonstrate that the vehicle type will not exceed the truck lateral acceleration safety limit specified in § 213.333.
(5) Measurement of wheel/rail forces. For vehicle types intended to operate at track Class 7 speeds or above, or at any curving speed producing more than 6 inches of cant deficiency, qualification testing conducted over a representative segment of the route shall demonstrate that the vehicle type will not exceed the wheel/rail force safety limits specified in § 213.333.
(d) Previously qualified vehicle types. Vehicle types previously qualified under this subpart for a track class and cant deficiency on one route may be qualified for operation at the same class and cant deficiency on another route through analysis or testing, or both, to demonstrate compliance with paragraph (a) of this section in accordance with the following:
(1) Simulations or measurement of wheel/rail forces. For vehicle types intended to operate at any curving speed producing more than 6 inches of cant deficiency, or at curving speeds that both correspond to track Class 7 speeds or above and produce more than 5 inches of cant deficiency, simulations or measurement of wheel/rail forces during qualification testing shall demonstrate that the vehicle type will not exceed the wheel/rail force safety limits specified in § 213.333. Simulations, if conducted, shall be in accordance with paragraph (c)(2) of this section. Measurement of wheel/rail forces, if conducted, shall be performed over a representative segment of the new route.
(2) Carbody acceleration. For vehicle types intended to operate at any curving speed producing more than 5 inches of cant deficiency, or at track Class 7 speeds and above, qualification testing conducted over a representative segment of the new route shall demonstrate that the vehicle type will not exceed the carbody lateral and vertical acceleration safety limits specified in § 213.333.
(3) Truck lateral acceleration. For vehicle types intended to operate at track Class 7 speeds or above, measurement of truck lateral acceleration during qualification testing shall demonstrate that the vehicle type will not exceed the truck lateral acceleration safety limits specified in § 213.333. Measurement of truck lateral acceleration, if conducted, shall be performed over a representative segment of the new route.
(e) Qualification testing plan. To obtain the data required to support the qualification program outlined in paragraphs (c) and (d) of this section, the track owner or railroad shall submit a qualification testing plan to FRA’s Associate Administrator for Railroad Safety/Chief Safety Officer (FRA) at least 60 days prior to testing, requesting approval to conduct the testing at the desired speeds and cant deficiencies. This test plan shall provide for a test program sufficient to evaluate the operating limits of the track and vehicle type and shall include:
(1) Identification of the representative segment of the route for qualification testing;
(2) Consideration of the operating environment during qualification testing, including operating practices and conditions, the signal system, highway-rail grade crossings, and trains on adjacent tracks;
(3) The maximum angle found on the gage face of the designed (newly-profiled) wheel flange referenced with respect to the axis of the wheelset that will be used for the determination of the Single Wheel L/V Ratio safety limit specified in § 213.333;
(4) A target maximum testing speed in accordance with paragraph (a) of this section and the maximum testing cant deficiency;
(5) An analysis and description of the signal system and operating practices to govern operations in track Classes 7 through 9, which shall include a statement of sufficiency in these areas for the class of operation; and
(6) The results of vehicle/track performance simulations that are required by this section.
(f) Qualification testing. Upon FRA approval of the qualification testing plan, qualification testing shall be conducted in two sequential stages as required in this subpart.
(1) Stage-one testing shall include demonstration of acceptable vehicle dynamic response of the subject vehicle as speeds are incrementally increased –
(i) On a segment of tangent track, from acceptable track Class 5 speeds to the target maximum test speed (when the target speed corresponds to track Class 6 and above operations); and
(ii) On a segment of curved track, from the speeds corresponding to 3 inches of cant deficiency to the maximum testing cant deficiency.
(2) When stage-one testing has successfully demonstrated a maximum safe operating speed and cant deficiency, stage-two testing shall commence with the subject equipment over a representative segment of the route as identified in paragraph (e)(1) of this section.
(i) A test run shall be conducted over the route segment at the speed the railroad will request FRA to approve for such service.
(ii) An additional test run shall be conducted at 5 m.p.h. above this speed.
(3) When conducting stage-one and stage-two testing, if any of the monitored safety limits is exceeded on any segment of track intended for operation at track Class 6 speeds or greater, or on any segment of track intended for operation at more than 5 inches of cant deficiency, testing may continue provided that the track location(s) where any of the limits is exceeded be identified and test speeds be limited at the track location(s) until corrective action is taken. Corrective action may include making an adjustment in the track, in the vehicle, or both of these system components. Measurements taken on track segments intended for operations below track Class 6 speeds and at 5 inches of cant deficiency, or less, are not required to be reported.
(4) Prior to the start of the qualification testing program, a qualifying TGMS specified in § 213.333 shall be operated over the intended route within 30 calendar days prior to the start of the qualification testing program.
(g) Qualification testing results. The track owner or railroad shall submit a report to FRA detailing all the results of the qualification program. When simulations are required as part of vehicle qualification, this report shall include a comparison of simulation predictions to the actual wheel/rail force or acceleration data, or both, recorded during full-scale testing. The report shall be submitted at least 60 days prior to the intended operation of the equipment in revenue service over the route.
(h) Based on the test results and all other required submissions, FRA will approve a maximum train speed and value of cant deficiency for revenue service, normally within 45 days of receipt of all the required information. FRA may impose conditions necessary for safely operating at the maximum approved train speed and cant deficiency.
(i) The documents required by this section must be provided to FRA by:
(1) The track owner; or
(2) A railroad that provides service with the same vehicle type over trackage of one or more track owner(s), with the written consent of each affected track owner.
§ 213.347 Automotive or railroad crossings at grade.
(a) There shall be no at-grade (level) highway crossings, public or private, or rail-to-rail crossings at-grade on Class 8 and 9 track.
(b) If train operation is projected at Class 7 speed for a track segment that will include rail-highway grade crossings, the track owner shall submit for FRA’s approval a complete description of the proposed warning/barrier system to address the protection of highway traffic and high speed trains. Trains shall not operate at Class 7 speeds over any track segment having highway-rail grade crossings unless:
(1) An FRA-approved warning/barrier system exists on that track segment; and
(2) All elements of that warning/barrier system are functioning.
§ 213.349 Rail end mismatch.
Any mismatch of rails at joints may not be more than that prescribed by the following table –
| Class of track | Any mismatch of rails at joints may not be more than the following – | |
|---|---|---|
| On the tread of the rail ends (inch) | On the gage side of the rail ends (inch) | |
| Class 6, 7, 8 and 9 | ||
§ 213.351 Rail joints.
(a) Each rail joint, insulated joint, and compromise joint shall be of a structurally sound design and dimensions for the rail on which it is applied.
(b) If a joint bar is cracked, broken, or because of wear allows excessive vertical movement of either rail when all bolts are tight, it shall be replaced.
(c) If a joint bar is cracked or broken between the middle two bolt holes it shall be replaced.
(d) Each rail shall be bolted with at least two bolts at each joint.
(e) Each joint bar shall be held in position by track bolts tightened to allow the joint bar to firmly support the abutting rail ends and to allow longitudinal movement of the rail in the joint to accommodate expansion and contraction due to temperature variations. When no-slip, joint-to-rail contact exists by design, the requirements of this section do not apply. Those locations, when over 400 feet long, are considered to be continuous welded rail track and shall meet all the requirements for continuous welded rail track prescribed in this subpart.
(f) No rail shall have a bolt hole which is torch cut or burned.
(g) No joint bar shall be reconfigured by torch cutting.
§ 213.352 Torch cut rail.
(a) Except as a temporary repair in emergency situations no rail having a torch cut end shall be used. When a rail end with a torch cut is used in emergency situations, train speed over that rail shall not exceed the maximum allowable for Class 2 track. All torch cut rail ends in Class 6 shall be removed within six months of September 21, 1998.
(b) Following the expiration of the time limits specified in paragraph (a) of this section, any torch cut rail end not removed shall be removed within 30 days of discovery. Train speed over that rail shall not exceed the maximum allowable for Class 2 track until removed.
§ 213.353 Turnouts, crossovers, and lift rail assemblies or other transition devices on moveable bridges.
(a) In turnouts and track crossings, the fastenings must be intact and maintained so as to keep the components securely in place. Also, each switch, frog, and guard rail shall be kept free of obstructions that may interfere with the passage of wheels. Use of rigid rail crossings at grade is limited per § 213.347.
(b) Track shall be equipped with rail anchoring through and on each side of track crossings and turnouts, to restrain rail movement affecting the position of switch points and frogs. Elastic fasteners designed to restrict longitudinal rail movement are considered rail anchoring.
(c) Each flangeway at turnouts and track crossings shall be at least 1
(d) For all turnouts and crossovers, and lift rail assemblies or other transition devices on moveable bridges, the track owner shall prepare an inspection and maintenance Guidebook for use by railroad employees which shall be submitted to the Federal Railroad Administration. The Guidebook shall contain at a minimum –
(1) Inspection frequency and methodology including limiting measurement values for all components subject to wear or requiring adjustment.
(2) Maintenance techniques.
(e) Each hand operated switch shall be equipped with a redundant operating mechanism for maintaining the security of switch point position.
§ 213.355 Frog guard rails and guard faces; gage.
The guard check and guard face gages in frogs shall be within the limits prescribed in the following table –
| Class of track | Guard check gage | Guard face gage |
|---|---|---|
| The distance between the gage line of a frog to the guard line 1 of its guard rail or guarding face, measured across the track at right angles to the gage line, 2 may not be less than – | The distance between guard lines, 1 measured across the track at right angles to the gage line, 2 may not be more than – | |
| Class 6, 7, 8 and 9 track | 4′6 | 4′5″ |
1 A line along that side of the flangeway which is nearer to the center of the track and at the same elevation as the gage line.
2 A line five-eighths of an inch below the top of the center line of the head of the running rail, or corresponding location of the tread portion of the track structure.
§ 213.357 Derails.
(a) Each track, other than a main track, which connects with a Class 7, 8 or 9 main track shall be equipped with a functioning derail of the correct size and type, unless railroad equipment on the track, because of grade characteristics cannot move to foul the main track.
(b) For the purposes of this section, a derail is a device which will physically stop or divert movement of railroad rolling stock or other railroad on-track equipment past the location of the device.
(c) Each derail shall be clearly visible. When in a locked position, a derail shall be free of any lost motion which would prevent it from performing its intended function.
(d) Each derail shall be maintained to function as intended.
(e) Each derail shall be properly installed for the rail to which it is applied.
(f) If a track protected by a derail is occupied by standing railroad rolling stock, the derail shall be in derailing position.
(g) Each derail on a track which is connected to a Class 7, 8 or 9 main track shall be interconnected with the signal system.
§ 213.359 Track stiffness.
(a) Track shall have a sufficient vertical strength to withstand the maximum vehicle loads generated at maximum permissible train speeds, cant deficiencies and surface defects. For purposes of this section, vertical track strength is defined as the track capacity to constrain vertical deformations so that the track shall return following maximum load to a configuration in compliance with the vehicle/track interaction safety limits and geometry requirements of this subpart.
(b) Track shall have sufficient lateral strength to withstand the maximum thermal and vehicle loads generated at maximum permissible train speeds, cant deficiencies and lateral alinement defects. For purposes of this section lateral track strength is defined as the track capacity to constrain lateral deformations so that track shall return following maximum load to a configuration in compliance with the vehicle/track interaction safety limits and geometry requirements of this subpart.
§ 213.361 Right of way.
The track owner in Class 8 and 9 shall submit a barrier plan, termed a “right-of-way plan,” to the Federal Railroad Administration for approval. At a minimum, the plan will contain provisions in areas of demonstrated need for the prevention of –
(a) Vandalism;
(b) Launching of objects from overhead bridges or structures into the path of trains; and
(c) Intrusion of vehicles from adjacent rights of way.
§ 213.365 Visual track inspections.
(a) All track shall be visually inspected in accordance with the schedule prescribed in paragraph (c) of this section by a person designated under § 213.305.
(b) Each inspection shall be made on foot or by traversing the track in a vehicle at a speed that allows the person making the inspection to visually inspect the track structure for compliance with this part. However, mechanical, electrical, and other track inspection devices may be used to supplement visual inspection. If a vehicle is used for visual inspection, the speed of the vehicle may not be more than 5 m.p.h. when traversing track crossings and turnouts; otherwise, the inspection vehicle speed shall be at the sole discretion of the inspector, based on track conditions and inspection requirements. When traversing the track in a vehicle, the inspection will be subject to the following conditions –
(1) One inspector in a vehicle may inspect up to two tracks at one time provided that the inspector’s visibility remains unobstructed by any cause and that the second track is not centered more than 30 feet from the track upon which the inspector traverses;
(2) Two inspectors in one vehicle may inspect up to four tracks at a time provided that the inspectors’ visibility remains unobstructed by any cause and that each track being inspected is centered within 39 feet from the track upon which the inspectors traverse;
(3) Each main track must be traversed by a vehicle or inspected on foot at least once every two weeks, and each siding must be traversed by a vehicle or inspected on foot at least once every month; and
(4) Track inspection records shall indicate which track(s) are traversed by the vehicle or inspected on foot as outlined in paragraph (b)(3) of this section.
(c) Each visual track inspection shall be made in accordance with the following schedule –
Table 1 to § 213.365(
| Class of track | Required frequency |
|---|---|
| 6, 7, and 8 | Twice weekly 1 with at least a 2 calendar day’s interval between inspections. |
| 9 | Three times per week. |
1 An inspection week is defined as a seven (7) day period beginning on Sunday and ending on Saturday.
(d) If the § 213.305 qualified person making the inspection finds a deviation from the requirements of this part, the person shall immediately initiate remedial action. Any subsequent movements to facilitate repairs on track that is out of service must be authorized by a § 213.305 qualified person.
(e) Each switch, turnout, track crossing, and lift rail assemblies on moveable bridges shall be inspected on foot at least weekly. The inspection shall be accomplished in accordance with the Guidebook required under § 213.353.
(f) In track Classes 8 and 9, if no train traffic operates for a period of eight hours, a train shall be operated at a speed not to exceed 100 miles per hour over the track before the resumption of operations at the maximum authorized speed.
§ 213.367 Special inspections.
In the event of fire, flood, severe storm, temperature extremes or other occurrence which might have damaged track structure, a special inspection shall be made of the track involved as soon as possible after the occurrence and, if possible, before the operation of any train over that track.
§ 213.369 Inspection records.
(a) Each owner of track to which this part applies shall keep a record of each inspection required to be performed on that track under this subpart.
(b) Except as provided in paragraph (e) of this section, each record of an inspection under § 213.365 shall be prepared on the day the inspection is made and signed or otherwise certified by the person making the inspection. Records shall specify the author of the record, the type of track inspected, date of inspection, location of inspection, nature of any deviation from the requirements of this part, and the remedial action taken by the person making the inspection. The track owner shall designate the location(s) where each original record shall be maintained for at least one year after the inspection covered by the record. The track owner shall also designate one location, within 100 miles of each State in which it conducts operations, where copies of records that apply to those operations are maintained or can be viewed following 10 days’ notice by the Federal Railroad Administration.
(c) Rail inspection records shall specify the date of inspection, the location and nature of any internal defects found, the remedial action taken and the date thereof, and the location of any intervals of track not tested per § 213.339(d). The owner shall retain a rail inspection record for at least two years after the inspection and for one year after remedial action is taken.
(d) Records of continuous rail testing under § 213.240 shall –
(1) Include all information required under § 213.240(e);
(2) State whether the test is being conducted to satisfy the requirements for an internal rail inspection under § 213.339;
(3) List the date(s) and time(s) of the continuous rail test data collection, including the date and time of the start and end of the test run, and the date and time each suspect location was identified and field-verified;
(4) Include the determination made after field verification of each suspect location, including the:
(i) Location and type of defect found;
(ii) Size of defect; and
(iii) Initial remedial action taken, if required, and the date thereof; and
(5) Be retained for at least two years after the inspection and for at least one year after initial remedial action is taken, whichever is later.
(e) Track owners that elect to utilize continuous rail testing under § 213.240 shall maintain records of all continuous rail testing operations sufficient for monitoring and determining compliance with all applicable regulations and shall make those records available to FRA during regular business hours following reasonable notice.
(f) Track inspection records shall be kept available to persons who perform the inspections and to persons performing subsequent inspections.
(g) Each track owner required to keep inspection records under this section shall make those records available for inspection and copying by the Federal Railroad Administration upon request during regular business hours following reasonable notice.
(h) For purposes of compliance with the requirements of this section, a track owner may create, retain, transmit, store, and retrieve records by electronic means provided that –
(1) The system used to generate the electronic record meets all requirements and contains the information required under this subpart;
(2) The track owner monitors its electronic records database to ensure record accuracy;
(3) The electronic system is designed to uniquely identify the author of the record. No two persons shall have the same electronic identity;
(4) The electronic system ensures that each record cannot be modified in any way, or replaced, once the record is completed;
(5) The electronic storage of each record shall be initiated by the person making the inspection within 72 hours following the completion of that inspection; and
(6) Any amendment to a record shall be electronically stored apart from the record which it amends. Each amendment to a record shall be uniquely identified as to the person making the amendment.
(i) Each vehicle/track interaction safety record required under § 213.333(g) and (m) shall be made available for inspection and copying by the FRA at the locations specified in paragraph (b) of this section.
Appendix A to Part 213 – Maximum Allowable Curving Speeds
This appendix contains four tables identifying maximum allowing curving speeds based on 3, 4, 5, and 6 inches of unbalance (cant deficiency), respectively.
Table 1 – Three Inches Unbalance
| Elevation of outer rail (inches) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 0 | 1 | 1 | 2 | 2 | 3 | 3 | 4 | 4 | 5 | 5 | 6 | ||
| Degree of curvature | Maximum allowable operating speed (m.p.h.) | ||||||||||||
| 0°30′ | 93 | 100 | 107 | 113 | 120 | 125 | 131 | 136 | 141 | 146 | 151 | 156 | 160 |
| 0°40′ | 80 | 87 | 93 | 98 | 104 | 109 | 113 | 118 | 122 | 127 | 131 | 135 | 139 |
| 0°50′ | 72 | 77 | 83 | 88 | 93 | 97 | 101 | 106 | 110 | 113 | 117 | 121 | 124 |
| 1°00′ | 65 | 71 | 76 | 80 | 85 | 89 | 93 | 96 | 100 | 104 | 107 | 110 | 113 |
| 1°15′ | 59 | 63 | 68 | 72 | 76 | 79 | 83 | 86 | 89 | 93 | 96 | 99 | 101 |
| 1°30′ | 53 | 58 | 62 | 65 | 69 | 72 | 76 | 79 | 82 | 85 | 87 | 90 | 93 |
| 1°45′ | 49 | 53 | 57 | 61 | 64 | 67 | 70 | 73 | 76 | 78 | 81 | 83 | 86 |
| 2°00′ | 46 | 50 | 53 | 57 | 60 | 63 | 65 | 68 | 71 | 73 | 76 | 78 | 80 |
| 2°15′ | 44 | 47 | 50 | 53 | 56 | 59 | 62 | 64 | 67 | 69 | 71 | 73 | 76 |
| 2°30′ | 41 | 45 | 48 | 51 | 53 | 56 | 59 | 61 | 63 | 65 | 68 | 70 | 72 |
| 2°45′ | 39 | 43 | 46 | 48 | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 66 | 68 |
| 3°00′ | 38 | 41 | 44 | 46 | 49 | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 65 |
| 3°15′ | 36 | 39 | 42 | 44 | 47 | 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 |
| 3°30′ | 35 | 38 | 40 | 43 | 45 | 47 | 49 | 52 | 53 | 55 | 57 | 59 | 61 |
| 3°45′ | 34 | 37 | 39 | 41 | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 59 |
| 4°00′ | 33 | 35 | 38 | 40 | 42 | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 |
| 4°30′ | 31 | 33 | 36 | 38 | 40 | 42 | 44 | 45 | 47 | 49 | 50 | 52 | 53 |
| 5°00′ | 29 | 32 | 34 | 36 | 38 | 40 | 41 | 43 | 45 | 46 | 48 | 49 | 51 |
| 5°30′ | 28 | 30 | 32 | 34 | 36 | 38 | 39 | 41 | 43 | 44 | 46 | 47 | 48 |
| 6°00′ | 27 | 29 | 31 | 33 | 35 | 36 | 38 | 39 | 41 | 42 | 44 | 45 | 46 |
| 6°30′ | 26 | 28 | 30 | 31 | 33 | 35 | 36 | 38 | 39 | 41 | 42 | 43 | 44 |
| 7°00′ | 25 | 27 | 29 | 30 | 32 | 34 | 35 | 36 | 38 | 39 | 40 | 42 | 43 |
| 8°00′ | 23 | 25 | 27 | 28 | 30 | 31 | 33 | 34 | 35 | 37 | 38 | 39 | 40 |
| 9°00′ | 22 | 24 | 25 | 27 | 28 | 30 | 31 | 32 | 33 | 35 | 36 | 37 | 38 |
| 10°00′ | 21 | 22 | 24 | 25 | 27 | 28 | 29 | 30 | 32 | 33 | 34 | 35 | 36 |
| 11°00′ | 20 | 21 | 23 | 24 | 25 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 |
| 12°00′ | 19 | 20 | 22 | 23 | 24 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 |
Table 2 – Four Inches Unbalance
| Elevation of outer rail (inches) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 0 | 1 | 1 | 2 | 2 | 3 | 3 | 4 | 4 | 5 | 5 | 6 | ||
| Degree of curvature | Maximum allowable operating speed (m.p.h.) | ||||||||||||
| 0°30′ | 107 | 113 | 120 | 125 | 131 | 136 | 141 | 146 | 151 | 156 | 160 | 165 | 169 |
| 0°40′ | 93 | 98 | 104 | 109 | 113 | 118 | 122 | 127 | 131 | 135 | 139 | 143 | 146 |
| 0°50′ | 83 | 88 | 93 | 97 | 101 | 106 | 110 | 113 | 117 | 121 | 124 | 128 | 131 |
| 1°00′ | 76 | 80 | 85 | 89 | 93 | 96 | 100 | 104 | 107 | 110 | 113 | 116 | 120 |
| 1°15′ | 68 | 72 | 76 | 79 | 83 | 86 | 89 | 93 | 96 | 99 | 101 | 104 | 107 |
| 1°30′ | 62 | 65 | 69 | 72 | 76 | 79 | 82 | 85 | 87 | 90 | 93 | 95 | 98 |
| 1°45′ | 57 | 61 | 64 | 67 | 70 | 73 | 76 | 78 | 81 | 83 | 86 | 88 | 90 |
| 2°00′ | 53 | 57 | 60 | 63 | 65 | 68 | 71 | 73 | 76 | 78 | 80 | 82 | 85 |
| 2°15′ | 50 | 53 | 56 | 59 | 62 | 64 | 67 | 69 | 71 | 73 | 76 | 78 | 80 |
| 2°30′ | 48 | 51 | 53 | 56 | 59 | 61 | 63 | 65 | 68 | 70 | 72 | 74 | 76 |
| 2°45′ | 46 | 48 | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 66 | 68 | 70 | 72 |
| 3°00′ | 44 | 46 | 49 | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 65 | 67 | 69 |
| 3°15′ | 42 | 44 | 47 | 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 66 |
| 3°30′ | 40 | 43 | 45 | 47 | 49 | 52 | 53 | 55 | 57 | 59 | 61 | 62 | 64 |
| 3°45′ | 39 | 41 | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 59 | 60 | 62 |
| 4°00′ | 38 | 40 | 42 | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 58 | 60 |
| 4°30′ | 36 | 38 | 40 | 42 | 44 | 45 | 47 | 49 | 50 | 52 | 53 | 55 | 56 |
| 5°00′ | 34 | 36 | 38 | 40 | 41 | 43 | 45 | 46 | 48 | 49 | 51 | 52 | 53 |
| 5°30′ | 32 | 34 | 36 | 38 | 39 | 41 | 43 | 44 | 46 | 47 | 48 | 50 | 51 |
| 6°00′ | 31 | 33 | 35 | 36 | 38 | 39 | 41 | 42 | 44 | 45 | 46 | 48 | 49 |
| 6°30′ | 30 | 31 | 33 | 35 | 36 | 38 | 39 | 41 | 42 | 43 | 44 | 46 | 47 |
| 7°00′ | 29 | 30 | 32 | 34 | 35 | 36 | 38 | 39 | 40 | 42 | 43 | 44 | 45 |
| 8°00′ | 27 | 28 | 30 | 31 | 33 | 34 | 35 | 37 | 38 | 39 | 40 | 41 | 42 |
| 9°00′ | 25 | 27 | 28 | 30 | 31 | 32 | 33 | 35 | 36 | 37 | 38 | 39 | 40 |
| 10°00′ | 24 | 25 | 27 | 28 | 29 | 30 | 32 | 33 | 34 | 35 | 36 | 37 | 38 |
| 11°00′ | 23 | 24 | 25 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 |
| 12°00′ | 22 | 23 | 24 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 |
Table 3 – Five Inches Unbalance
| Elevation of outer rail (inches) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 0 | 1 | 1 | 2 | 2 | 3 | 3 | 4 | 4 | 5 | 5 | 6 | ||
| Degree of curvature | Maximum allowable operating speed (m.p.h.) | ||||||||||||
| 0°30′ | 120 | 125 | 131 | 136 | 141 | 146 | 151 | 156 | 160 | 165 | 169 | 173 | 177 |
| 0°40′ | 104 | 109 | 113 | 118 | 122 | 127 | 131 | 135 | 139 | 143 | 146 | 150 | 150 |
| 0°50′ | 93 | 97 | 101 | 106 | 110 | 113 | 117 | 121 | 124 | 128 | 131 | 134 | 137 |
| 1°00′ | 85 | 89 | 93 | 96 | 100 | 104 | 107 | 110 | 113 | 116 | 120 | 122 | 125 |
| 1°15′ | 76 | 79 | 83 | 86 | 89 | 93 | 96 | 99 | 101 | 104 | 107 | 110 | 112 |
| 1°30′ | 69 | 72 | 76 | 79 | 82 | 85 | 87 | 90 | 93 | 95 | 98 | 100 | 102 |
| 1°45′ | 64 | 67 | 70 | 73 | 76 | 78 | 81 | 83 | 86 | 88 | 90 | 93 | 95 |
| 2°00′ | 60 | 63 | 65 | 68 | 71 | 73 | 76 | 78 | 80 | 82 | 85 | 87 | 89 |
| 2°15′ | 56 | 59 | 62 | 64 | 67 | 69 | 71 | 73 | 76 | 78 | 80 | 82 | 84 |
| 2°30′ | 53 | 56 | 59 | 61 | 63 | 65 | 68 | 70 | 72 | 74 | 76 | 77 | 79 |
| 2°45′ | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 66 | 68 | 70 | 72 | 74 | 76 |
| 3°00′ | 49 | 51 | 53 | 56 | 58 | 60 | 62 | 64 | 65 | 67 | 69 | 71 | 72 |
| 3°15′ | 47 | 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 66 | 68 | 70 |
| 3°30′ | 45 | 47 | 49 | 52 | 53 | 55 | 57 | 59 | 61 | 62 | 64 | 65 | 67 |
| 3°45′ | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 59 | 60 | 62 | 63 | 65 |
| 4°00′ | 42 | 44 | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 58 | 60 | 61 | 63 |
| 4°30′ | 40 | 42 | 44 | 45 | 47 | 49 | 50 | 52 | 53 | 55 | 56 | 58 | 59 |
| 5°00′ | 38 | 40 | 41 | 43 | 45 | 46 | 48 | 49 | 51 | 52 | 53 | 55 | 56 |
| 5°30′ | 36 | 38 | 39 | 41 | 43 | 44 | 46 | 47 | 48 | 50 | 51 | 52 | 53 |
| 6°00′ | 35 | 36 | 38 | 39 | 41 | 42 | 44 | 45 | 46 | 48 | 49 | 50 | 51 |
| 6°30′ | 33 | 35 | 36 | 38 | 39 | 41 | 42 | 43 | 44 | 46 | 47 | 48 | 49 |
| 7°00′ | 32 | 34 | 35 | 36 | 38 | 39 | 40 | 42 | 43 | 44 | 45 | 46 | 47 |
| 8°00′ | 30 | 31 | 33 | 34 | 35 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 |
| 9°00′ | 28 | 30 | 31 | 32 | 33 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 |
| 10°00′ | 27 | 28 | 29 | 30 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 |
| 11°00′ | 25 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 |
| 12°00′ | 24 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 35 | 36 |
Table 4 – Six Inches Unbalance
| Elevation of outer rail (inches) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 0 | 1 | 1 | 2 | 2 | 3 | 3 | 4 | 4 | 5 | 5 | 6 | ||
| Degree of curvature | Maximum allowable operating speed (m.p.h.) | ||||||||||||
| 0°30′ | 131 | 136 | 141 | 146 | 151 | 156 | 160 | 165 | 169 | 173 | 177 | 181 | 185 |
| 0°40′ | 113 | 118 | 122 | 127 | 131 | 135 | 139 | 143 | 146 | 150 | 154 | 157 | 160 |
| 0°50′ | 101 | 106 | 110 | 113 | 117 | 121 | 124 | 128 | 131 | 134 | 137 | 140 | 143 |
| 1°00′ | 93 | 96 | 100 | 104 | 107 | 110 | 113 | 116 | 120 | 122 | 125 | 128 | 131 |
| 1°15′ | 83 | 86 | 89 | 93 | 96 | 99 | 101 | 104 | 107 | 110 | 112 | 115 | 117 |
| 1°30′ | 76 | 79 | 82 | 85 | 87 | 90 | 93 | 95 | 98 | 100 | 102 | 105 | 107 |
| 1°45′ | 70 | 73 | 76 | 78 | 81 | 83 | 86 | 88 | 90 | 93 | 95 | 97 | 99 |
| 2°00′ | 65 | 68 | 71 | 73 | 76 | 78 | 80 | 82 | 85 | 87 | 89 | 91 | 93 |
| 2°15′ | 62 | 64 | 67 | 69 | 71 | 73 | 76 | 78 | 80 | 82 | 84 | 85 | 87 |
| 2°30′ | 59 | 61 | 63 | 65 | 68 | 70 | 72 | 74 | 76 | 77 | 79 | 81 | 83 |
| 2°45′ | 56 | 58 | 60 | 62 | 64 | 66 | 68 | 70 | 72 | 74 | 76 | 77 | 79 |
| 3°00′ | 53 | 56 | 58 | 60 | 62 | 64 | 65 | 67 | 69 | 71 | 72 | 74 | 76 |
| 3°15′ | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 66 | 68 | 70 | 71 | 73 |
| 3°30′ | 49 | 52 | 53 | 55 | 57 | 59 | 61 | 62 | 64 | 65 | 67 | 69 | 70 |
| 3°45′ | 48 | 50 | 52 | 53 | 55 | 57 | 59 | 60 | 62 | 63 | 65 | 66 | 68 |
| 4°00′ | 46 | 48 | 50 | 52 | 53 | 55 | 57 | 58 | 60 | 61 | 63 | 64 | 65 |
| 4°30′ | 44 | 45 | 47 | 49 | 50 | 52 | 53 | 55 | 56 | 58 | 59 | 60 | 62 |
| 5°00′ | 41 | 43 | 45 | 46 | 48 | 49 | 51 | 52 | 53 | 55 | 56 | 57 | 59 |
| 5°30′ | 39 | 41 | 43 | 44 | 46 | 47 | 48 | 50 | 51 | 52 | 53 | 55 | 56 |
| 6°00′ | 38 | 39 | 41 | 42 | 44 | 45 | 46 | 48 | 49 | 50 | 51 | 52 | 53 |
| 6°30′ | 36 | 38 | 39 | 41 | 42 | 43 | 44 | 46 | 47 | 48 | 49 | 50 | 51 |
| 7°00′ | 35 | 36 | 38 | 39 | 40 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49 |
| 8°00′ | 33 | 34 | 35 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 |
| 9°00′ | 31 | 32 | 33 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 |
| 10°00′ | 29 | 30 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 41 |
| 11°00′ | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 39 |
| 12°00′ | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 35 | 36 | 37 | 38 |
Appendixes B-C to Part 213 [Reserved]
Appendix D to Part 213 – Minimally Compliant Analytical Track (MCAT) Simulations Used for Qualifying Vehicles To Operate at High Speeds and at High Cant Deficiencies
1. This appendix contains requirements for using computer simulations to comply with the vehicle/track system qualification testing requirements specified in subpart G of this part. These simulations shall be performed using a track model containing defined geometry perturbations at the limits that are permitted for a specific class of track and level of cant deficiency. This track model is known as MCAT, Minimally Compliant Analytical Track. These simulations shall be used to identify vehicle dynamic performance issues prior to service or, as appropriate, a change in service, and demonstrate that a vehicle type is suitable for operation on the track over which it is intended to operate.
2. As specified in § 213.345(c)(2), MCAT shall be used for the qualification of new vehicle types intended to operate at track Class 7 speeds or above, or at any curving speed producing more than 6 inches of cant deficiency. MCAT may also be used for the qualification of new vehicle types intended to operate at speeds corresponding to Class 6 track, as specified in § 213.345(c)(1). In addition, as specified in § 213.345(d)(1), MCAT may be used to qualify on new routes vehicle types that have previously been qualified on other routes and are intended to operate at any curving speed producing more than 6 inches of cant deficiency, or at curving speeds that both correspond to track Class 7 speeds or above and produce more than 5 inches of cant deficiency.
(a) Validation. To validate the vehicle model used for simulations under this part, the track owner or railroad shall obtain vehicle simulation predictions using measured track geometry data, chosen from the same track section over which testing shall be performed as specified in § 213.345(c)(2)(ii). These predictions shall be submitted to FRA in support of the request for approval of the qualification testing plan. Full validation of the vehicle model used for simulations under this part shall be determined when the results of the simulations demonstrate that they replicate all key responses observed during qualification testing.
(b) MCAT layout. MCAT consists of nine segments, each designed to test a vehicle’s performance in response to a specific type of track perturbation. The basic layout of MCAT is shown in figure 1 of this appendix, by type of track (curving or tangent), class of track, and cant deficiency (CD). The values for wavelength, λ, amplitude of perturbation, a, and segment length, d, are specified in this appendix. The bars at the top of figure 1 show which segments are required depending on the speed and degree of curvature. For example, the hunting perturbation section is not required for simulation of curves greater than or equal to 1 degree.
(1) MCAT segments. MCAT’s nine segments contain different types of track deviations in which the shape of each deviation is a versine having wavelength and amplitude varied for each simulation speed as further specified. The nine MCAT segments are defined as follows:
(i) Hunting perturbation (a
(ii) Gage narrowing (a
(iii) Gage widening (a
(iv) Repeated surface (a
(v) Repeated alinement (a
(vi) Single surface (a
(vii) Single alinement (a
(viii) Short warp (a
(ix) Combined perturbation (a
(2) Segment lengths: Each MCAT segment shall be long enough to allow the vehicle’s response to the track deviation(s) to damp out. Each segment shall also have a minimum length as specified in table 1 of this appendix, which references the distances in figure 1 of this appendix. For curved track segments, the perturbations shall be placed far enough in the body of the curve to allow for any spiral effects to damp out.
Table 1 of Appendix D to Part 213 Minimum Lengths of MCAT Segments
| Distances (ft) | ||||||||
|---|---|---|---|---|---|---|---|---|
| d | d | d | d | d | d | d | d | d |
| 1000 | 1000 | 1000 | 1500 | 1000 | 1000 | 1000 | 1000 | 1000 |
(3) Degree of curvature.
(i) For each simulation involving assessment of curving performance, the degree of curvature, D, which generates a particular level of cant deficiency, E
(ii) Table 2 of this appendix depicts the degree of curvature for use in MCAT simulations of both passenger and freight equipment performance on Class 2 through 9 track, based on the equation in paragraph (b)(3)(i) of this appendix. The degree of curvature for use in MCAT simulations of equipment performance on Class 1 track is not depicted; it would be based on the same equation using an appropriate superelevation. The degree of curvature for use in MCAT simulations of freight equipment performance on Class 6 (freight) track is shown in italics for cant deficiencies not exceeding 6 inches, to emphasize that the values apply to freight equipment only.
(c) Required simulations.
(1) To develop a comprehensive assessment of vehicle performance, simulations shall be performed for a variety of scenarios using MCAT. These simulations shall be performed on tangent or curved track, or both, depending on the level of cant deficiency and speed (track class) as summarized in table 3 of this appendix.
Table 3 of Appendix D to Part 213 Summary of Required Vehicle Performance Assessment Using Simulations
| New vehicle types | Previously qualified vehicle types | |
|---|---|---|
| Curved track: cant deficiency ≤6 inches | Curving performance simulation: not required for track Classes 1 through 5; optional for track Class 6; required for track Classes 7 through 9 | Curving performance simulation: not required for track Classes 1 through 6; optional for track Classes 7 through 9 for cant deficiency >5 inches. |
| Curved track: cant deficiency >6 inches | Curving performance simulation required for all track classes | Curving performance simulation optional for all track classes. |
| Tangent track | Tangent performance simulation: not required for track Classes 1 through 5; optional for track Class 6; required for track Classes 7 through 9 | Tangent performance simulation not required for any track class. |
(i) All simulations shall be performed using the design wheel profile and a nominal track gage of 56.5 inches, using tables 4, 5, 6, or 7 of this appendix, as appropriate. In addition, all simulations involving the assessment of curving performance shall be repeated using a nominal track gage of 57.0 inches, using tables 5, 6, or 7 of this appendix, as appropriate.
(ii) If the wheel profile is different than American Public Transportation Administration (APTA) wheel profiles 320 or 340, then for tangent track segments all simulations shall be repeated using either APTA wheel profile 320 or 340, depending on the established conicity that is common for the operation, as specified in APTA SS-M-015-06, Standard for Wheel Flange Angle of Passenger Equipment (2007). This APTA standard is incorporated by reference into this appendix with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this appendix, FRA must publish notice of change in the
(iii) All simulations shall be performed using a wheel/rail coefficient of friction of 0.5.
(2) Vehicle performance on tangent track Classes 6 through 9. For maximum vehicle speeds corresponding to track Class 6 and higher, the MCAT segments described in paragraphs (b)(1)(i) through (vii) of this appendix shall be used to assess vehicle performance on tangent track. For track Class 9, simulations must also include the combined perturbation segment described in paragraph (b)(1)(ix) of this appendix. A parametric matrix of MCAT simulations shall be performed using the following range of conditions:
(i) Vehicle speed. Simulations shall demonstrate that at up to 5 m.p.h. above the proposed maximum operating speed, the vehicle type shall not exceed the wheel/rail force and acceleration criteria defined in the Vehicle/Track Interaction Safety Limits table in § 213.333. Simulations shall also demonstrate acceptable vehicle dynamic response by incrementally increasing speed from 95 m.p.h. (115 m.p.h. if a previously qualified vehicle type on an untested route) to 5 m.p.h. above the proposed maximum operating speed (in 5 m.p.h. increments).
(ii) Perturbation wavelength. For each speed, a set of three separate MCAT simulations shall be performed. In each MCAT simulation for the perturbation segments described in paragraphs (b)(1)(ii) through (vii) and (b)(1)(ix) of this appendix, every perturbation shall have the same wavelength. The following three wavelengths, λ, shall be used: 31, 62, and 124 feet. The hunting perturbation segment described in paragraph (b)(1)(i) of this appendix has a fixed wavelength, λ, of 10 feet.
(iii) Amplitude parameters. Table 4 of this appendix provides the amplitude values for the MCAT segments described in paragraphs (b)(1)(i) through (vii) and (b)(1)(ix) of this appendix for each speed of the required parametric MCAT simulations. The last set of simulations shall be performed at 5 m.p.h. above the proposed maximum operating speed using the amplitude values in table 4 that correspond to the proposed maximum operating speed. For qualification of vehicle types at speeds greater than track Class 6 speeds, the following additional simulations shall be performed:
(A) For vehicle types being qualified for track Class 7 speeds, one additional set of simulations shall be performed at 115 m.p.h. using the track Class 6 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 6 track).
(B) For vehicle types being qualified for track Class 8 speeds, two additional sets of simulations shall be performed. The first set at 115 m.p.h. using the track Class 6 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 6 track), and a second set at 130 m.p.h. using the track Class 7 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 7 track).
(C) For vehicle types being qualified for track Class 9 speeds, three additional sets of simulations shall be performed. The first set at 115 m.p.h. using the track Class 6 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 6 track), a second set at 130 m.p.h. using the track Class 7 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 7 track), and a third set at 165 m.p.h. using the track Class 8 amplitude values in table 4 (i.e., a 5 m.p.h. overspeed on Class 8 track).
(3) Vehicle performance on curved track Classes 6 through 9. For maximum vehicle speeds corresponding to track Class 6 and higher, the MCAT segments described in paragraphs (b)(1)(ii) through (viii) of this appendix shall be used to assess vehicle performance on curved track. For curves less than 1 degree, simulations must also include the hunting perturbation segment described in paragraph (b)(1)(i) of this appendix. For track Class 9 and for cant deficiencies greater than 5 inches, simulations must also include the combined perturbation segment described in paragraph (b)(1)(ix) of this appendix. A parametric matrix of MCAT simulations shall be performed using the following range of conditions:
(i) Vehicle speed. Simulations shall demonstrate that at up to 5 m.p.h. above the proposed maximum operating speed, the vehicle type shall not exceed the wheel/rail force and acceleration criteria defined in the Vehicle/Track Interaction Safety Limits table in § 213.333. Simulations shall also demonstrate acceptable vehicle dynamic response by incrementally increasing speed from 95 m.p.h. (115 m.p.h. if a previously qualified vehicle type on an untested route) to 5 m.p.h. above the proposed maximum operating speed (in 5 m.p.h. increments).
(ii) Perturbation wavelength. For each speed, a set of three separate MCAT simulations shall be performed. In each MCAT simulation for the perturbation segments described in paragraphs (b)(1)(ii) through (vii) and paragraph (b)(1)(ix) of this appendix, every perturbation shall have the same wavelength. The following three wavelengths, λ, shall be used: 31, 62, and 124 feet. The hunting perturbation segment described in paragraph (b)(1)(i) of this appendix has a fixed wavelength, λ, of 10 feet, and the short warp perturbation segment described in paragraph (b)(1)(viii) of this appendix has a fixed wavelength, λ, of 20 feet.
(iii) Track curvature. For each speed, a range of curvatures shall be used to produce cant deficiency conditions ranging from greater than 3 inches up to the maximum intended for qualification (in 1 inch increments). The value of curvature, D, shall be determined using the equation defined in paragraph (b)(3) of this appendix. Each curve shall include representations of the MCAT segments described in paragraphs (b)(1)(i) through (ix) of this appendix, as appropriate, and have a fixed superelevation of 6 inches.
(iv) Amplitude parameters. Table 5 of this appendix provides the amplitude values for each speed of the required parametric MCAT simulations for cant deficiencies greater than 3 inches and not more than 5 inches. Table 6 of this appendix provides the amplitude values for each speed of the required parametric MCAT simulations for cant deficiencies greater than 5 inches. The last set of simulations at the maximum cant deficiency shall be performed at 5 m.p.h. above the proposed maximum operating speed using the amplitude values in table 5 or 6 of this appendix, as appropriate, that correspond to the proposed maximum operating speed and cant deficiency. For these simulations, the value of curvature, D, shall correspond to the proposed maximum operating speed and cant deficiency. For qualification of vehicle types at speeds greater than track Class 6 speeds, the following additional simulations shall be performed:
(A) For vehicle types being qualified for track Class 7 speeds, one additional set of simulations shall be performed at 115 m.p.h. using the track Class 6 amplitude values in table 5 or 6 of this appendix, as appropriate (i.e., a 5 m.p.h. overspeed on Class 6 track) and a value of curvature, D, that corresponds to 110 m.p.h. and the proposed maximum cant deficiency.
(B) For vehicle types being qualified for track Class 8 speeds, two additional set of simulations shall be performed. The first set of simulations shall be performed at 115 m.p.h. using the track Class 6 amplitude values in table 5 or 6 of this appendix, as appropriate (i.e., a 5 m.p.h. overspeed on Class 6 track) and a value of curvature, D, that corresponds to 110 m.p.h. and the proposed maximum cant deficiency. The second set of simulations shall be performed at 130 m.p.h. using the track Class 7 amplitude values in table 5 or 6, as appropriate (i.e., a 5 m.p.h. overspeed on Class 7 track) and a value of curvature, D, that corresponds to 125 m.p.h. and the proposed maximum cant deficiency.
(C) For vehicle types being qualified for track Class 9 speeds, three additional sets of simulations shall be performed. The first set of simulations shall be performed at 115 m.p.h. using the track Class 6 amplitude values in table 5 or 6 of this appendix, as appropriate (i.e., a 5 m.p.h. overspeed on Class 6 track) and a value of curvature, D, that corresponds to 110 m.p.h. and the proposed maximum cant deficiency. The second set of simulations shall be performed at 130 m.p.h. using the track Class 7 amplitude values in table 5 or 6, as appropriate (i.e., a 5 m.p.h. overspeed on Class 7 track) and a value of curvature, D, that corresponds to 125 m.p.h. and the proposed maximum cant deficiency. The third set of simulations shall be performed at 165 m.p.h. using the track Class 8 amplitude values in table 5 or 6, as appropriate (i.e., a 5 m.p.h. overspeed on Class 8 track) and a value of curvature, D, that corresponds to 160 m.p.h. and the proposed maximum cant deficiency.
(4) Vehicle performance on curved track Classes 1 through 5 at high cant deficiency. For maximum vehicle speeds corresponding to track Classes 1 through 5, the MCAT segments described in paragraphs (b)(1)(ii) through (ix) of this appendix shall be used to assess vehicle performance on curved track if the proposed maximum cant deficiency is greater than 6 inches. A parametric matrix of MCAT simulations shall be performed using the following range of conditions:
(i) Vehicle speed. Simulations shall demonstrate that at up to 5 m.p.h. above the proposed maximum operating speed, the vehicle shall not exceed the wheel/rail force and acceleration criteria defined in the Vehicle/Track Interaction Safety Limits table in § 213.333. Simulations shall also demonstrate acceptable vehicle dynamic response at 5 m.p.h. above the proposed maximum operating speed.
(ii) Perturbation wavelength. For each speed, a set of two separate MCAT simulations shall be performed. In each MCAT simulation for the perturbation segments described in paragraphs (b)(1)(ii) through (vii) and paragraph (b)(1)(ix) of this appendix, every perturbation shall have the same wavelength. The following two wavelengths, λ, shall be used: 31 and 62 feet. The short warp perturbation segment described in paragraph (b)(1)(viii) of this appendix has a fixed wavelength, λ, of 20 feet.
(iii) Track curvature. For a speed corresponding to 5 m.p.h. above the proposed maximum operating speed, a range of curvatures shall be used to produce cant deficiency conditions ranging from 6 inches up to the maximum intended for qualification (in 1 inch increments). The value of curvature, D, shall be determined using the equation in paragraph (b)(3) of this appendix. Each curve shall contain the MCAT segments described in paragraphs (b)(1)(ii) through (ix) of this appendix and have a fixed superelevation of 6 inches.
(iv) Amplitude parameters. Table 7 of this appendix provides the amplitude values for the MCAT segments described in paragraphs (b)(1)(ii) through (ix) of this appendix for each speed of the required parametric MCAT simulations.
PART 214 – RAILROAD WORKPLACE SAFETY
Subpart A – General
§ 214.1 Purpose and scope.
(a) The purpose of this part is to prevent accidents and casualties to employees involved in certain railroad inspection, maintenance and construction activities.
(b) This part prescribes minimum Federal safety standards for the railroad workplace safety subjects addressed herein. This part does not restrict a railroad or railroad contractor from adopting and enforcing additional or more stringent requirements not inconsistent with this part.
§ 214.3 Application.
This part applies to railroads that operate rolling equipment on track that is part of the general railroad system of transportation.
§ 214.5 Responsibility for compliance.
Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that penalties may be assessed against individuals only for willful violations, and where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 214.7 Definitions.
Unless otherwise provided, as used in this part –
Adjacent tracks mean two or more tracks with track centers spaced less than 25 feet apart.
Anchorage means a secure point of attachment for lifelines, lanyards or deceleration devices that is independent of the means of supporting or suspending the employee.
Body belt means a strap that can be secured around the waist or body and attached to a lanyard, lifeline, or deceleration device.
Body harness means a device with straps that is secured about the person in a manner so as to distribute the fall arrest forces over (at least) the thighs, shoulders, pelvis, waist, and chest and that can be attached to a lanyard, lifeline, or deceleration device.
Class I, Class II, and Class III have the meaning assigned by, Title 49 Code of Federal Regulations part 1201, General Instructions 1-1.
Competent person means one who is capable of identifying existing and predictable hazards in the workplace and who is authorized to take prompt corrective measures to eliminate them.
Control operator means the railroad employee in charge of a remotely controlled switch or derail, an interlocking, or a controlled point, or a segment of controlled track.
Controlled point means a location where signals and/or other functions of a traffic control system are controlled from the control machine.
Controlled track means track upon which the railroad’s operating rules require that all movements of trains must be authorized by a train dispatcher or a control operator.
Deceleration device means any mechanism, including, but not limited to, rope grabs, ripstitch lanyards, specially woven lanyards, tearing or deforming lanyards, and automatic self-retracting lifelines/lanyards that serve to dissipate a substantial amount of energy during a fall arrest, or otherwise limit the energy on a person during fall arrest.
Definite train location means a system for establishing on-track safety by providing roadway workers with information about the earliest possible time that approaching trains may pass specific locations as prescribed in § 214.331 of this part.
Designated official means any person(s) designated by the employer to receive notification of non-complying conditions on on-track roadway maintenance machines and hi-rail vehicles.
Effective securing device means a vandal and tamper resistant lock, keyed for application and removal only by the roadway worker(s) for whom the protection is provided. In the absence of a lock, it is acceptable to use a spike driven firmly into a switch tie or a switch point clamp to prevent the use of a manually operated switch. It is also acceptable to use portable derails secured with specifically designed metal wedges. Securing devices without a specially keyed lock shall be designed in such a manner that they require railroad track tools for installation and removal and the operating rules of the railroad must prohibit removal by employees other than the class, craft, or group of employees for whom the protection is being provided. Regardless of the type of securing device, the throwing handle or hasp of the switch or derail shall be uniquely tagged. If there is no throwing handle, the securing device shall be tagged.
Employee means an individual who is engaged or compensated by a railroad or by a contractor to a railroad to perform any of the duties defined in this part.
Employer means a railroad, or a contractor to a railroad, that directly engages or compensates individuals to perform any of the duties defined in this part.
Equivalent means alternative designs, materials, or methods that the railroad or railroad contractor can demonstrate will provide equal or greater safety for employees than the means specified in this part.
Exclusive track occupancy means a method of establishing working limits on controlled track in which movement authority of trains and other equipment is withheld by the train dispatcher or control operator, or restricted by flagmen, as prescribed in § 214.321 of this part.
Flagman when used in relation to roadway worker safety means an employee designated by the railroad to direct or restrict the movement of trains past a point on a track to provide on-track safety for roadway workers, while engaged solely in performing that function.
Foul time is a method of establishing working limits on controlled track in which a roadway worker is notified by the train dispatcher or control operator that no trains will operate within a specific segment of controlled track until the roadway worker reports clear of the track, as prescribed in § 214.323 of this part.
Fouling a track means the placement of an individual or an item of equipment in such proximity to a track that the individual or equipment could be struck by a moving train or on-track equipment, or in any case is within four feet of the field side of the near running rail.
Free fall means the act of falling before the personal fall arrest system begins to apply force to arrest the fall.
Free fall distance means the vertical displacement of the fall arrest attachment point on a person’s body harness between onset of the fall and the point at which the system begins to apply force to arrest the fall. This distance excludes deceleration distance and lifeline and lanyard elongation, but includes any deceleration device slide distance or self-retracting lifeline/lanyard extension before they operate and fall arrest forces occur.
Hi-rail vehicle means a roadway maintenance machine that is manufactured to meet Federal Motor Vehicle Safety Standards and is equipped with retractable flanged wheels so that the vehicle may travel over the highway or on railroad tracks.
Hi-rail vehicle, new means a hi-rail vehicle that is ordered after December 26, 2003 or completed after September 27, 2004.
Inaccessible track means a method of establishing working limits on non-controlled track by physically preventing entry and movement of trains and equipment.
Individual train detection means a procedure by which a lone worker acquires on-track safety by seeing approaching trains and leaving the track before they arrive and which may be used only under circumstances strictly defined in this part.
Informational line-up of trains means information provided in a prescribed format to a roadway worker by the train dispatcher regarding movements of trains authorized or expected on a specific segment of track during a specific period of time.
Interlocking, manual means an arrangement of signals and signal appliances operated from an interlocking machine and so interconnected by means of mechanical and/or electric locking that their movements must succeed each other in proper sequence, train movements over all routes being governed by signal indication.
Lanyard means a flexible line of rope, wire rope, or strap that is used to secure a body harness to a deceleration device, lifeline, or anchorage.
Lifeline means a component of a fall arrest system consisting of a flexible line that connects to an anchorage at one end to hang vertically (vertical lifeline) or to an anchorage at both ends to stretch horizontally (horizontal lifeline), and that serves as a means for connecting other components of a personal fall arrest system to the anchorage.
Lone worker means an individual roadway worker who is not being afforded on-track safety by another roadway worker, who is not a member of a roadway work group, and who is not engaged in a common task with another roadway worker.
Maximum authorized speed means the highest speed permitted for the movement of trains permanently established by timetable/special instructions, general order, or track bulletin.
Non-controlled track means track upon which trains are permitted by railroad rule or special instruction to move without receiving authorization from a train dispatcher or control operator.
On-track roadway maintenance machine means a self-propelled, rail-mounted, non-highway, maintenance machine whose light weight is in excess of 7,500 pounds, and whose purpose is not for the inspection of railroad track.
On-track roadway maintenance machine, existing means any on-track roadway maintenance machine that does not meet the definition of a “new on-track roadway maintenance machine.”
On-track roadway maintenance machine, new means an on-track roadway maintenance machine that is ordered after December 26, 2003, and completed after September 27, 2004.
On-track safety means a state of freedom from the danger of being struck by a moving railroad train or other railroad equipment, provided by operating and safety rules that govern track occupancy by personnel, trains and on-track equipment.
On-track safety manual means the entire set of on-track safety rules and instructions maintained together in one manual designed to prevent roadway workers from being struck by trains or other on-track equipment. These instructions include operating rules and other procedures concerning on-track safety protection and on-track safety measures.
Personal fall arrest system means a system used to arrest the fall of a person from a working level. It consists of an anchorage, connectors, body harness, lanyard, deceleration device, lifeline, or combination of these.
Qualified means a status attained by an employee who has successfully completed any required training for, has demonstrated proficiency in, and has been authorized by the employer to perform the duties of a particular position or function.
Railroad means all forms of non-highway ground transportation that run on rails or electro-magnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, and (2) high-speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.
Railroad bridge means a structure supporting one or more railroad tracks above land or water with a span length of 12 feet or more measured along the track centerline. This term applies to the entire structure between the faces of the backwalls of abutments or equivalent components, regardless of the number of spans, and includes all such structures, whether of timber, stone, concrete, metal, or any combination thereof.
Railroad bridge worker or bridge worker means any employee of, or employee of a contractor of, a railroad owning or responsible for the construction, inspection, testing, or maintenance of a bridge whose assigned duties, if performed on the bridge, include inspection, testing, maintenance, repair, construction, or reconstruction of the track, bridge structural members, operating mechanisms and water traffic control systems, or signal, communication, or train control systems integral to that bridge.
Restricted speed means a speed that will permit a train or other equipment to stop within one-half the range of vision of the person operating the train or other equipment, but not exceeding 20 miles per hour, unless further restricted by the operating rules of the railroad.
Roadway maintenance machine means a device powered by any means of energy other than hand power which is being used on or near railroad track for maintenance, repair, construction or inspection of track, bridges, roadway, signal, communications, or electric traction systems. Roadway maintenance machines may have road or rail wheels or may be stationary.
Roadway maintenance machines equipped with a crane means any roadway maintenance machine equipped with a crane or boom that can hoist, lower, and horizontally move a suspended load.
Roadway work group means two or more roadway workers organized to work together on a common task.
Roadway worker means any employee of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts as defined in this section.
Roadway worker in charge means a roadway worker who is qualified under § 214.353 to establish on-track safety for roadway work groups, and lone workers qualified under § 214.347 to establish on-track safety for themselves.
Self-retracting lifeline/lanyard means a deceleration device that contains a drum-wound line that may be slowly extracted from, or retracted onto, the drum under slight tension during normal employee movement, and which, after onset of a fall, automatically locks the drum and arrests the fall.
Snap-hook means a connector comprised of a hook-shaped member with a normally closed keeper, that may be opened to permit the hook to receive an object and, when released, automatically closes to retain the object.
Train approach warning means a method of establishing on-track safety by warning roadway workers of the approach of trains in ample time for them to move to or remain in a place of safety in accordance with the requirements of this part.
Train coordination means a method of establishing working limits on track upon which a train holds exclusive authority to move whereby the crew of that train yields that authority to a roadway worker.
Train dispatcher means the railroad employee assigned to control and issue orders governing the movement of trains on a specific segment of railroad track in accordance with the operating rules of the railroad that apply to that segment of track.
Watchman/lookout means an employee who has been trained and qualified to provide warning to roadway workers of approaching trains or on-track equipment. Watchmen/lookouts shall be properly equipped to provide visual and auditory warning such as whistle, air horn, white disk, red flag, lantern, fuse. A watchman/lookout’s sole duty is to look out for approaching trains/on-track equipment and provide at least fifteen seconds advanced warning to employees before arrival of trains/on-track equipment.
Working limits means a segment of track with definite boundaries established in accordance with this part upon which trains and engines may move only as authorized by the roadway worker having control over that defined segment of track. Working limits may be established through “exclusive track occupancy,” “inaccessible track,” “foul time” or “train coordination” as defined herein.
Subpart B – Bridge Worker Safety Standards
§ 214.101 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and casualties arising from the performance of work on railroad bridges.
(b) This subpart prescribes minimum railroad safety rules for railroad employees performing work on bridges. Each railroad and railroad contractor may prescribe additional or more stringent operating rules, safety rules, and other special instructions not inconsistent with this subpart.
(c) These provisions apply to all railroad employees, railroads, and railroad contractors performing work on railroad bridges.
(d) Any working conditions involving the protection of railroad employees working on railroad bridges not within the subject matter addressed by this chapter, including respiratory protection, hazard communication, hearing protection, welding and lead exposure standards, shall be governed by the regulations of the U.S. Department of Labor, Occupational Safety and Health Administration.
§ 214.103 Fall protection, generally.
(a) Except as provided in paragraphs (b) through (d) of this section, when bridge workers work twelve feet or more above the ground or water surface, they shall be provided and shall use a personal fall arrest system or safety net system. All fall protection systems required by this section shall conform to the standards set forth in § 214.105 of this subpart.
(b)(1) This section shall not apply if the installation of the fall arrest system poses a greater risk than the work to be performed. In any action brought by FRA to enforce the fall protection requirements, the railroad or railroad contractor shall have the burden of proving that the installation of such device poses greater exposure to risk than performance of the work itself.
(2) This section shall not apply to bridge workers engaged in inspection of railroad bridges conducted in full compliance with the following conditions:
(i) The railroad or railroad contractor has a written program in place that requires training in, adherence to, and use of safe procedures associated with climbing techniques and procedures to be used;
(ii) The bridge worker to whom this exception applies has been trained and qualified according to that program to perform bridge inspections, has been previously and voluntarily designated to perform inspections under the provision of that program, and has accepted the designation;
(iii) The bridge worker to whom this exception applies is familiar with the appropriate climbing techniques associated with all bridge structures the bridge worker is responsible for inspecting;
(iv) The bridge worker to whom this exception applies is engaged solely in moving on or about the bridge or observing, measuring and recording the dimensions and condition of the bridge and its components; and
(v) The bridge worker to whom this section applies is provided all equipment necessary to meet the needs of safety, including any specialized alternative systems required.
(c) This section shall not apply where bridge workers are working on a railroad bridge equipped with walkways and railings of sufficient height, width, and strength to prevent a fall, so long as bridge workers do not work beyond the railings, over the side of the bridge, on ladders or other elevation devices, or where gaps or holes exist through which a body could fall. Where used in place of fall protection as provided for in § 214.105, this paragraph (c) is satisfied by:
(1) Walkways and railings meeting standards set forth in the American Railway Engineering Association’s Manual for Railway Engineering; and
(2) Roadways attached to railroad bridges, provided that bridge workers on the roadway deck work or move at a distance six feet or more from the edge of the roadway deck, or from an opening through which a person could fall.
(d) This section shall not apply where bridge workers are performing repairs or inspections of a minor nature that are completed by working exclusively between the outside rails, including but not limited to, routine welding, spiking, anchoring, spot surfacing, and joint bolt replacement.
§ 214.105 Fall protection systems standards and practices.
(a) General requirements. All fall protection systems required by this subpart shall conform to the following:
(1) Fall protection systems shall be used only for personal fall protection.
(2) Any fall protection system subjected to impact loading shall be immediately and permanently removed from service unless fully inspected and determined by a competent person to be undamaged and suitable for reuse.
(3) All fall protection system components shall be protected from abrasions, corrosion, or any other form of deterioration.
(4) All fall protection system components shall be inspected prior to each use for wear, damage, corrosion, mildew, and other deterioration. Defective components shall be permanently removed from service.
(5) Prior to use and after any component or system is changed, bridge workers shall be trained in the application limits of the equipment, proper hook-up, anchoring and tie-off techniques, methods of use, and proper methods of equipment inspection and storage.
(6) The railroad or railroad contractor shall provide for prompt rescue of bridge workers in the event of a fall.
(7) Connectors shall have a corrosion-resistant finish, and all surfaces and edges shall be smooth to prevent damage to interfacing parts of the system.
(8) Connectors shall be drop forged, pressed or formed steel, or made of equivalent-strength materials.
(9) Anchorages, including single- and double-head anchors, shall be capable of supporting at least 5,000 pounds per bridge worker attached, or shall be designed, installed, and used under supervision of a qualified person as part of a complete personal fall protection system that maintains a safety factor of at least two.
(b) Personal fall arrest systems. All components of a personal fall arrest system shall conform to the following standards:
(1) Lanyards and vertical lifelines that tie off one bridge worker shall have a minimum breaking strength of 5,000 pounds.
(2) Self-retracting lifelines and lanyards that automatically limit free fall distance to two feet or less shall have components capable of sustaining a minimum static tensile load of 3,000 pounds applied to the device with the lifeline or lanyard in the fully extended position.
(3) Self-retracting lifelines and lanyards that do not limit free fall distance to two feet or less, ripstitch, and tearing and deformed lanyards shall be capable of withstanding 5,000 pounds applied to the device with the lifeline or lanyard in the fully extended position.
(4) Horizontal lifelines shall be designed, installed, and used under the supervision of a competent person, as part of a complete personal fall arrest system that maintains a safety factor of at least two.
(5) Lifelines shall not be made of natural fiber rope.
(6) Body belts shall not be used as components of personal fall arrest systems.
(7) The personal fall arrest system shall limit the maximum arresting force on a bridge worker to 1,800 pounds when used with a body harness.
(8) The personal fall arrest system shall bring a bridge worker to a complete stop and limit maximum deceleration distance a bridge worker travels to 3.5 feet.
(9) The personal fall arrest system shall have sufficient strength to withstand twice the potential impact energy of a bridge worker free falling a distance of six feet, or the free fall distance permitted by the system, whichever is less.
(10) The personal fall arrest system shall be arranged so that a bridge worker cannot free fall more than six feet and cannot contact the ground or any lower horizontal surface of the bridge.
(11) Personal fall arrest systems shall be worn with the attachment point of the body harness located in the center of the wearer’s back near shoulder level, or above the wearer’s head.
(12) When vertical lifelines are used, each bridge worker shall be provided with a separate lifeline.
(13) Devices used to connect to a horizontal lifeline that may become a vertical lifeline shall be capable of locking in either direction.
(14) Dee-rings and snap-hooks shall be capable of sustaining a minimum tensile load of 3,600 pounds without cracking, breaking, or taking permanent deformation.
(15) Dee-rings and snap-hooks shall be capable of sustaining a minimum tensile load of 5,000 pounds.
(16) Snap-hooks shall not be connected to each other.
(17) Snap-hooks shall be dimensionally compatible with the member to which they are connected to prevent unintentional disengagement, or shall be a locking snap-hook designed to prevent unintentional disengagement.
(18) Unless of a locking type, snap-hooks shall not be engaged:
(i) Directly, next to a webbing, rope, or wire rope;
(ii) To each other;
(iii) To a dee-ring to which another snap-hook or other connector is attached;
(iv) To a horizontal lifeline; or
(v) To any object that is incompatibly shaped or dimensioned in relation to the snap-hook so that unintentional disengagement could occur.
(c) Safety net systems. Use of safety net systems shall conform to the following standards and practices:
(1) Safety nets shall be installed as close as practicable under the walking/working surface on which bridge workers are working, but shall not be installed more than 30 feet below such surface.
(2) If the distance from the working surface to the net exceeds 30 feet, bridge workers shall be protected by personal fall arrest systems.
(3) The safety net shall be installed such that any fall from the working surface to the net is unobstructed.
(4) Except as provided in this section, safety nets and net installations shall be drop-tested at the jobsite after initial installation and before being used as a fall protection system, whenever relocated, after major repair, and at six-month intervals if left in one place. The drop-test shall consist of a 400-pound bag of sand 30 inches, plus or minus two inches, in diameter dropped into the net from the highest (but not less than 3
(i) When the railroad or railroad contractor demonstrates that a drop-test is not feasible and, as a result, the test is not performed, the railroad or railroad contractor, or designated competent person, shall certify that the net and its installation are in compliance with the provisions of this section by preparing a certification record prior to use of the net.
(ii) The certification shall include an identification of the net, the date it was determined that the net was in compliance with this section, and the signature of the person making this determination. Such person’s signature shall certify that the net and its installation are in compliance with this section. The most recent certification for each net installation shall be available at the jobsite where the subject net is located.
(5) Safety nets and their installations shall be capable of absorbing an impact force equal to that produced by the drop test specified in this section.
(6) The safety net shall be installed such that there is no contact with surfaces or structures below the net when subjected to an impact force equal to the drop test specified in this section.
(7) Safety nets shall extend outward from the outermost projection of the work surface as follows:
(i) When the vertical distance from the working level to the horizontal plane of the net is 5 feet or less, the minimum required horizontal distance of the outer edge of the net beyond the edge of the working surface is 8 feet.
(ii) When the vertical distance from the working level to the horizontal plane of the net is 5 feet, but less than 10 feet, the minimum required horizontal distance of the outer edge of the net beyond the edge of the working surface is 10 feet.
(iii) When the vertical distance from the working level to the horizontal plane of the net is more than 10 feet, the minimum required horizontal distance of the outer edge of the net beyond the edge of the working surface is 13 feet.
(8) Defective nets shall not be used. Safety nets shall be inspected at least once a week for mildew, wear, damage, and other deterioration. Defective components shall be removed permanently from service.
(9) Safety nets shall be inspected after any occurrence that could affect the integrity of the safety net system.
(10) Tools, scraps, or other materials that have fallen into the safety net shall be removed as soon as possible, and at least before the next work shift.
(11) Each safety net shall have a border rope for webbing with a minimum breaking strength of 5,000 pounds.
(12) The maximum size of each safety net mesh opening shall not exceed 36 square inches and shall not be longer than 6 inches on any side measured center-to-center of mesh ropes or webbing. All mesh crossing shall be secured to prevent enlargement of the mesh opening.
(13) Connections between safety net panels shall be as strong as integral net components and shall be spaced not more than 6 inches apart.
§ 214.107 Working over or adjacent to water.
(a) Bridge workers working over or adjacent to water with a depth of four feet or more, or where the danger of drowning exists, shall be provided and shall use life vests or buoyant work vests in compliance with U.S. Coast Guard requirements in 46 CFR 160.047, 160.052, and 160.053. Life preservers in compliance with U.S. Coast Guard requirements in 46 CFR 160.055 shall also be within ready access. This section shall not apply to bridge workers using personal fall arrest systems or safety nets that comply with this subpart or to bridge workers who are working under the provisions of § 214.103(b)(2), (c) or (d) of this subpart.
(b) Prior to each use, all flotation devices shall be inspected for defects that reduce their strength or buoyancy by designated individuals trained by the railroad or railroad contractor. Defective units shall not be used.
(c) Where life vests are required by paragraph (a) of this section, ring buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet.
(d) Where life vests are required, at least one lifesaving skiff, inflatable boat, or equivalent device shall be immediately available. If it is determined by a competent person that environmental conditions, including weather, water speed, and terrain, merit additional protection, the skiff or boat shall be manned.
§ 214.109 Scaffolding.
(a) Scaffolding used in connection with railroad bridge maintenance, inspection, testing, and construction shall be constructed and maintained in a safe condition and meet the following minimum requirements:
(1) Each scaffold and scaffold component, except suspension ropes and guardrail systems, but including footings and anchorage, shall be capable of supporting, without failure, its own weight and at least four times the maximum intended load applied or transmitted to that scaffold or scaffold component.
(2) Guardrail systems shall be capable of withstanding, without failure, a force of at least 200 pounds applied within two inches of the top edge, in any outward or downward direction, at any point along the top edge.
(3) Top edge height of toprails, or equivalent guardrail system member, shall be 42 inches, plus or minus three inches. Supports shall be at intervals not to exceed eight feet. Toeboards shall be a minimum of four inches in height.
(4) Midrails, screens, mesh, intermediate vertical members, solid panels, and equivalent structural members shall be capable of withstanding, without failure, a force of at least 150 pounds applied in any downward or outward direction at any point along the midrail or other member.
(5) Midrails shall be installed at a height midway between the top edge of the guardrail system and the walking/working level.
(b) Scaffolds shall not be altered or moved while they are occupied. This paragraph does not apply to vertical movements of mobile scaffolds that are designed to move vertically while occupied.
(c) An access ladder or equivalent safe access shall be provided.
(d) All exposed surfaces shall be prepared and cleared to prevent injury due to laceration, puncture, tripping, or falling hazard.
(e) All scaffold design, construction, and repair shall be completed by competent individuals trained and knowledgeable about design criteria, intended use, structural limitations, and procedures for proper repair.
(f) Manually propelled mobile ladder stands and scaffolds shall conform to the following:
(1) All manually propelled mobile ladder stands and scaffolds shall be capable of carrying the design load.
(2) All ladder stands, scaffolds, and scaffold components shall be capable of supporting, without failure, displacement, or settlement, its own weight and at least four times the maximum intended load applied or transmitted to that ladder stand, scaffold, or scaffold component.
(3) All exposed surfaces shall be free from sharp edges or burrs.
(4) The maximum work level height shall not exceed four times the minimum or least base dimensions of any mobile ladder stand or scaffold. Where the basic mobile unit does not meet this requirement, suitable outrigger frames shall be employed to achieve this least base dimension, or equivalent provisions shall be made to guy or brace the unit against tipping.
(5) The minimum platform width for any work level shall not be less than 20 inches for mobile scaffolds (towers). Ladder stands shall have a minimum step width of 16 inches. The steps of ladder stands shall be fabricated from slip resistant treads.
(6) Guardrails and midrails shall conform to the requirements listed in paragraph (a) of this section.
(7) A climbing ladder or stairway shall be provided for proper access and egress, and shall be affixed or built into the scaffold and so located that in its use it will not have a tendency to tip the scaffold.
(8) Wheels or casters shall be capable of supporting, without failure, at least four times the maximum intended load applied or transmitted to that component. All scaffold casters shall be provided with a positive wheel and/or swivel lock to prevent movement. Ladder stands shall have at least two of the four casters and shall be of the swivel type.
§ 214.111 Personal protective equipment, generally.
With the exception of foot protection, the railroad or railroad contractor shall provide and the bridge worker shall use appropriate personal protective equipment described in this subpart in all operations where there is exposure to hazardous conditions, or where this subpart indicates the need for using such equipment to reduce the hazards to railroad bridge workers. The railroad or railroad contractor shall require the use of foot protection when the potential for foot injury exists.
§ 214.113 Head protection.
(a) Railroad bridge workers working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be provided and shall wear protective helmets.
(b) Helmets required by this section shall conform to the requirements of 29 CFR 1910.135(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration.
§ 214.115 Foot protection.
(a) The railroad or railroad contractor shall require railroad bridge workers to wear foot protection equipment when potential foot injury may result from impact, falling or flying objects, electrical shock or burns, or other hazardous condition.
(b) Helmets required by this section shall conform to the requirements of 29 CFR 1910.135(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration.
§ 214.117 Eye and face protection.
(a) Railroad bridge workers shall be provided and shall wear eye and face protection equipment when potential eye or face injury may result from physical, chemical, or radiant agents.
(b) Foot protection equipment required by this section shall conform to the requirements of 29 CFR 1910.136(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration.
(c) Face and eye protection equipment required by this section shall be kept clean and in good repair. Use of equipment with structural or optical defects is prohibited.
(d) Railroad bridge workers whose vision requires the use of corrective lenses, when required by this section to wear eye protection, shall be protected by goggles or spectacles of one of the following types:
(i) Spectacles whose protective lenses provide optical correction the, frame of which includes shielding against objects reaching the wearer’s eyes around the lenses;
(ii) Goggles that can be worn over corrective lenses without disturbing the adjustment of the lenses; or
(iii) Goggles that incorporate corrective lenses mounted behind the protective lenses.
Subpart C – Roadway Worker Protection
§ 214.301 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and casualties caused by moving railroad cars, locomotives or roadway maintenance machines striking roadway workers or roadway maintenance machines.
(b) This subpart prescribes minimum safety standards for roadway workers. Each railroad and railroad contractor may prescribe additional or more stringent operating rules, safety rules, and other special instructions that are consistent with this subpart.
(c) This subpart prescribes safety standards related to the movement of roadway maintenance machines where such movements affect the safety of roadway workers. Except as provided for in § 214.320, this subpart does not otherwise affect movements of roadway maintenance machines that are conducted under the authority of a train dispatcher, a control operator, or the operating rules of the railroad.
§ 214.302 [Reserved]
§ 214.303 Railroad on-track safety programs, generally.
(a) Each railroad to which this part applies shall adopt and implement a program that will afford on-track safety to all roadway workers whose duties are performed on that railroad. Each such program shall provide for the levels of protection specified in this subpart.
(b) Each on-track safety program adopted to comply with this part shall include procedures to be used by each railroad for monitoring effectiveness of and compliance with the program.
§ 214.305 [Reserved]
§ 214.307 On-track safety programs.
(a) Each railroad subject to this part shall maintain and have in effect an on-track safety program which complies with the requirements of this subpart. New railroads must have an on-track safety program in effect by the date on which operations commence. The on-track safety program shall be retained at a railroad’s system headquarters and division headquarters, and shall be made available to representatives of the FRA for inspection and copying during normal business hours. Each railroad to which this part applies is authorized to retain its program by electronic recordkeeping in accordance with §§ 217.9(g) and 217.11(c) of this chapter.
(b) Each railroad shall notify, in writing, the Associate Administrator for Safety and Chief Safety Officer, Federal Railroad Administration, RRS-15, 1200 New Jersey Avenue SE., Washington, DC 20590, not less than one month before its on-track safety program becomes effective. The notification shall include the effective date of the program and the name, title, address and telephone number of the primary person to be contacted with regard to review of the program. This notification procedure shall also apply to subsequent changes to a railroad’s on-track safety program.
(c) Upon review of a railroad’s on-track safety program, the FRA Associate Administrator for Railroad Safety and Chief Safety Officer may, for cause stated, may disapprove the program. Notification of such disapproval shall be made in writing and specify the basis for the disapproval decision. If the Associate Administrator for Railroad Safety and Chief Safety Officer disapproves the program:
(1) The railroad has 35 days from the date of the written notification of such disapproval to:
(i) Amend its program and submit it to the Associate Administrator for Railroad Safety and Chief Safety Officer for approval; or
(ii) Provide a written response in support of its program to the Associate Administrator for Railroad Safety and Chief Safety Officer.
(2) FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer will subsequently issue a written decision either approving or disapproving the railroad’s program.
(3) Failure to submit to FRA an amended program or provide a written response in accordance with this paragraph will be considered a failure to implement an on-track safety program under this subpart.
§ 214.309 On-track safety manual.
(a) The applicable on-track safety manual (as defined by § 214.7) shall be readily available to all roadway workers. Each roadway worker in charge responsible for the on-track safety of others, and each lone worker, shall be provided with and shall maintain a copy of the on-track safety manual.
(b) When it is impracticable for the on-track safety manual to be readily available to a lone worker, the employer shall establish provisions for such worker to have alternative access to the information in the manual.
(c) Changes to the on-track safety manual may be temporarily published in bulletins or notices. Such publications shall be retained along with the on-track safety manual until fully incorporated into the manual.
§ 214.311 Responsibility of employers.
(a) Each employer is responsible for the understanding and compliance by its employees with its rules and the requirements of this part.
(b) Each employer shall guarantee each employee the absolute right to challenge in good faith whether the on-track safety procedures to be applied at the job location comply with the rules of the operating railroad, and to remain clear of the track until the challenge is resolved.
(c) Each employer shall have in place a written procedure to achieve prompt and equitable resolution of challenges made in accordance with §§ 214.311(b) and 214.313(d).
§ 214.313 Responsibility of individual roadway workers.
(a) Each roadway worker is responsible for following the on-track safety rules of the railroad upon which the roadway worker is located.
(b) A roadway worker shall not foul a track except when necessary for the performance of duty.
(c) Each roadway worker is responsible to ascertain that on-track safety is being provided before fouling a track.
(d) Each roadway worker may refuse any directive to violate an on-track safety rule, and shall inform the employer in accordance with § 214.311 whenever the roadway worker makes a good faith determination that on-track safety provisions to be applied at the job location do not comply with the rules of the operating railroad.
§ 214.315 Supervision and communication.
(a) When an employer assigns a duty to a roadway worker that calls for that employee to foul a track, the employer shall provide the employee with an on-track safety job briefing that, at a minimum, includes the following:
(1) Information on the means by which on-track safety is to be provided for each track identified to be fouled;
(2) Instruction on each on-track safety procedure to be followed;
(3) Information about any adjacent tracks, on-track safety for such tracks, if required by this subpart or deemed necessary by the roadway worker in charge, and identification of any roadway maintenance machines that will foul such tracks;
(4) A discussion of the nature of the work to be performed and the characteristics of the work location to ensure compliance with this subpart; and
(5) Information on the accessibility of the roadway worker in charge and alternative procedures in the event the roadway worker in charge is no longer accessible to the members of the roadway work group.
(b) A job briefing for on-track safety shall be deemed complete only after the roadway worker(s) has acknowledged understanding of the on-track safety procedures and instructions presented.
(c) Every roadway work group whose duties require fouling a track shall have one roadway worker in charge designated by the employer to provide on-track safety for all members of the group. The designated person shall be qualified under the rules of the railroad that conducts train operations on those tracks to provide the protection necessary for on-track safety of each individual in the group. The responsible person may be designated generally, or specifically for a particular work situation.
(d) Before any member of a roadway work group fouls a track, the roadway worker in charge designated under paragraph (c) of this section shall inform each roadway worker of the on-track safety procedures to be used and followed during the performance of the work at that time and location. Each roadway worker shall again be so informed at any time the on-track safety procedures change during the work period. Such information shall be given to all roadway workers affected before the change is effective, except in cases of emergency. Any roadway workers who, because of an emergency, cannot be notified in advance shall be immediately warned to leave the fouling space and shall not return to the fouling space until on-track safety is re-established.
(e) Each lone worker shall communicate at the beginning of each duty period with a supervisor or another designated employee to receive an on-track safety job briefing and to advise of his or her planned itinerary and the procedures that he or she intends to use for on-track safety. When communication channels are disabled, the job briefing shall be conducted as soon as possible after the beginning of the work period when communications are restored.
§ 214.317 On-track safety procedures, generally.
(a) Each employer subject to the provisions of this part shall provide on-track safety for roadway workers by adopting a program that contains specific rules for protecting roadway workers that comply with the provisions of §§ 214.319 through 214.337.
(b) Roadway workers may walk across any track provided that they can safely be across and clear of the track before a train or other on-track equipment would arrive at the crossing point under the following circumstances:
(1) Employers shall adopt, and roadway workers shall comply with, applicable railroad safety rules governing how to determine that it is safe to cross the track before starting across;
(2) Roadway workers shall move directly and promptly across the track; and
(3) On-track safety protection is in place for all roadway workers who are actually engaged in work, including inspection, construction, maintenance or repair, and extending to carrying tools or material that restricts motion, impairs sight or hearing, or prevents an employee from detecting and moving rapidly away from an approaching train or other on-track equipment.
(c) On non-controlled track, on-track roadway maintenance machines engaged in weed spraying or snow removal may proceed under the provisions of § 214.301(c), under the following conditions:
(1) Each railroad shall establish and comply with an operating procedure for on-track snow removal and weed spray equipment to ensure that:
(i) All on-track movements in the affected area are informed of such operations;
(ii) All on-track movements shall operate at restricted speed as defined in § 214.7, except on other than yard tracks and yard switching leads, where all on-track movements shall operate prepared to stop within one-half the range of vision but not exceeding 25 mph;
(iii) A means for communication between the on-track equipment and other on-track movements is provided; and
(iv) Remotely controlled hump yard facility operations are not in effect, and kicking of cars is prohibited unless agreed to by the roadway worker in charge.
(2) Roadway workers engaged in such snow removal or weed spraying operations subject to this section shall retain an absolute right to use the provisions of § 214.327 (inaccessible track).
(3) Roadway workers assigned to work with this equipment may line switches (or derails operated via a switch stand) for the machine’s movement but shall not engage in any roadway work activity unless protected by another form of on-track safety.
(4) Each roadway maintenance machine engaged in snow removal or weed spraying under this provision shall be equipped with and utilize:
(i) An operative 360-degree intermittent warning light or beacon;
(ii) Work lights, if the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels, unless equivalent lighting is otherwise provided;
(iii) An illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions;
(iv) A brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and
(v) A rearward viewing device, such as a rearview mirror.
(d) Tunnel niches or clearing bays in existence prior to April 1, 2017 that are designed to permit roadway workers to occupy a place of safety when trains or other on-track equipment pass the niche or clearing bay, but are less than four feet from the field side of the nearest rail, may continue to be used as a place of safety provided:
(1) Such niches or clearing bays are visually inspected by the roadway worker in charge or lone worker prior to making the determination that the niche or clearing bay is suitable for use as a place of safety;
(2) There is adequate sight distance to permit a roadway worker or lone worker to occupy the place of safety in the niche or clearing bay at least 15 seconds prior to the arrival of a train or other on-track equipment at the work location in accordance with §§ 214.329 and 214.337; and
(3) The roadway worker in charge or lone worker shall have the absolute right to designate a place of safety as a location other than that of a tunnel niche or clearing bay described by this paragraph (d), or to establish working limits.
§ 214.318 Locomotive servicing and car shop repair track areas.
(a) In lieu of the requirements of this subpart, workers (as defined by § 218.5 of this chapter) within the limits of locomotive servicing and car shop repair track areas (as both are defined by § 218.5 of this chapter) may utilize procedures established by a railroad in accordance with part 218, subpart B, of this chapter (Blue Signal Protection) to perform duties incidental to inspecting, testing, servicing, or repairing rolling equipment when those incidental duties involve fouling a track that is protected by Blue Signal Protection. A railroad utilizing Blue Signal Protection in lieu of the requirements of this subpart must have rules in effect governing the applicability of those protections to the incidental duties being performed.
(b) Paragraph (a) of this section applies to employees of a contractor to a railroad if such incidental duties are performed under the supervision of a railroad employee qualified (as defined by § 217.4 of this chapter) on the railroad’s rules and procedures implementing the Blue Signal Protection requirements.
(c) Any work performed within the limits of a locomotive servicing or car shop repair track area with the potential of fouling a track which requires a person qualified under § 213.7 of this chapter to be present to inspect or supervise such work must be performed in accordance with the requirements of this subpart.
§ 214.319 Working limits, generally.
Working limits established on controlled track shall conform to the provisions of § 214.321 Exclusive track occupancy, § 214.323 Foul time, or § 214.325 Train coordination. Working limits established on non-controlled track shall conform to the provision of § 214.327 Inaccessible track.
(a) Working limits established under any procedure shall, in addition, conform to the following provisions:
(1) Only a roadway worker in charge who is qualified in accordance with § 214.353 shall establish or have control over working limits for the purpose of establishing on-track safety.
(2) Only one roadway worker in charge who is qualified in accordance with § 214.353 shall have control over working limits on any one segment of track.
(3) All affected roadway workers shall be notified before working limits are released for the operation of trains. Working limits shall not be released until all affected roadway workers have either left the track or have been afforded on-track safety through train approach warning in accordance with § 214.329.
(b) Each Class I or Class II railroad or each railroad providing regularly scheduled intercity or commuter rail passenger transportation that utilizes controlled track working limits as a form of on-track safety (under §§ 214.321 through 214.323) in signalized territory shall:
(1) By July 1, 2017, evaluate its on-track safety program and identify an appropriate method(s) of providing redundant signal protections for roadway work groups who depend on a train dispatcher or control operator to provide signal protection in establishing controlled track working limits. For purposes of this section, redundant signal protections means risk mitigation measures or safety redundancies adopted to ensure the proper establishment and maintenance of signal protections for controlled track working limits until such working limits are released by the roadway worker in charge. Appropriate redundant protections could include the use of various risk mitigation measures (or a combination of risk mitigation measures) such as technology, training, supervision, or operating-based procedures; or could include use of redundant signal protection, such as shunting, designed to prevent signal system-related incursions into established controlled track working limits; and
(2) By January 1, 2018, specifically identify, implement, and comply with the method(s) of providing redundant protections in its on-track safety program.
(c) Upon a railroad’s request, FRA will consider an exemption from the requirements of paragraph (b) of this section for each segment of track(s) for which operations are governed by a positive train control system under part 236, subpart I, of this chapter. A request for approval to exempt a segment of track must be submitted in writing to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer. The FRA Associate Administrator for Railroad Safety and Chief Safety Officer will review a railroad’s submission and will notify a railroad of its approval or disapproval in writing within 90 days of FRA’s receipt of a railroad’s written request, and shall specify the basis for any disapproval decision.
§ 214.320 Roadway maintenance machine movements over signalized non-controlled track.
Working limits must be established for roadway maintenance machine movements on non-controlled track equipped with automatic block signal systems over which trains are permitted to exceed restricted speed (for purposes of this section, on-track movements prepared to stop within on-half the range of vision but not exceeding 25 mph). This section applies unless the railroad’s operating rules protect the movements of roadway maintenance machines in a manner equivalent to that provided for by limiting all train and locomotive movements to restricted speed, and such equivalent level of protection is first approved in writing by FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer.
§ 214.321 Exclusive track occupancy.
Working limits established on controlled track through the use of exclusive track occupancy procedures shall comply with the following requirements:
(a) The track within working limits shall be placed under the control of one roadway worker in charge by either:
(1) Authority issued to the roadway worker in charge by the train dispatcher or control operator who controls train movements on that track,
(2) Flagmen stationed at each entrance to the track within working limits and instructed by the roadway worker in charge to permit the movement of trains and equipment into the working limits only as permitted by the roadway worker in charge, or
(3) The roadway worker in charge causing fixed signals at each entrance to the working limits to display an aspect indicating “Stop.”
(b) An authority for exclusive track occupancy given to the roadway worker in charge of the working limits shall be transmitted on a written or printed document directly, by relay through a designated employee, in a data transmission, or by oral communication, to the roadway worker in charge by the train dispatcher or control operator in charge of the track.
(1) Where authority for exclusive track occupancy is transmitted orally, the authority shall be written as received by the roadway worker in charge and repeated to the issuing employee for verification.
(2) The roadway worker in charge of the working limits shall maintain possession of the written or printed authority for exclusive track occupancy while the authority for the working limits is in effect. A data transmission of an authority displayed on an electronic screen may be used as a substitute for a written or printed document required under this paragraph. Electronic displays of authority shall comply with the requirements of § 214.322.
(3) The train dispatcher or control operator in charge of the track shall make a written or electronic record of all authorities issued to establish exclusive track occupancy.
(4) An authority shall specify a unique roadway work group number, an employee name, or a unique identifier. A railroad shall adopt procedures that require precise communication between trains and other on-track equipment and the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319. The procedures may permit communications to be made directly between a train or other on-track equipment and a roadway worker in charge or lone worker, or through a train dispatcher or control operator.
(c) The extent of working limits established through exclusive track occupancy shall be defined by one of the following physical features clearly identifiable to a locomotive engineer or other person operating a train or railroad equipment:
(1) A flagman with instructions and capability to hold all trains and equipment clear of the working limits;
(2) A fixed signal that displays an aspect indicating “Stop”;
(3) A station shown in the time-table, and identified by name with a sign, beyond which train movement is prohibited by train movement authority or the provisions of a direct train control system.
(4) A clearly identifiable milepost sign beyond which train movement is prohibited by train movement authority or the provisions of a direct train control system; or
(5) A clearly identifiable physical location prescribed by the operating rules of the railroad that trains may not pass without proper authority.
(d) Movements of trains and roadway maintenance machines within working limits established through exclusive track occupancy shall be made only under the direction of the roadway worker in charge of the working limits. Such movements shall be at restricted speed unless a higher authorized speed has been specifically authorized by the roadway worker in charge of the working limits.
(e) Working limits established by exclusive track occupancy authority may occur behind designated trains moving through the same limits in accordance with the following provisions:
(1) The authority establishing working limits will only be considered to be in effect after it is confirmed by the roadway worker in charge or lone worker that the affected train(s) have passed the point to be occupied or fouled by:
(i) Visually identifying the affected trains(s); or
(ii) Direct radio contact with a crew member of the affected train(s); or
(iii) Receiving information about the affected train from the train dispatcher or control operator.
(2) When utilizing the provisions of paragraph (e)(1)(i) of this section, a railroad’s operating rules shall include procedures prohibiting the affected train(s) from making a reverse movement into or within the limits being fouled or occupied.
(3) After the roadway worker in charge or lone worker has confirmed that the affected trains(s) have passed the point to be occupied or fouled, the roadway worker in charge shall record on the authority the time of passage and engine number(s) of the affected trains(s). If the confirmation is by direct communication with the train(s), or through confirmation by the train dispatcher or control operator, the roadway worker in charge shall record the time of such confirmation and the engine number(s) of the affected trains on the authority.
(4) A separate roadway work group afforded on-track safety by the roadway worker in charge of authority limits, and that is located away from the roadway worker in charge of authority limits, shall:
(i) Occupy or foul the track only after receiving permission from the roadway worker in charge to occupy the working limits after the roadway worker charge has fulfilled the provisions of paragraph (e)(1) of this section; and
(ii) Be accompanied by an employee qualified to the level of a roadway worker in charge who shall also have a copy of the authority and who shall independently execute the required communication requirements of paragraphs (e)(1) and (3) of this section.
(5) Any subsequent train or on-track equipment movements within working limits after the passage of the affected train(s) shall be governed by paragraph (d) of this section.
§ 214.322 Exclusive track occupancy, electronic display.
(a) While it is in effect, all the contents of an authority electronically displayed shall be readily viewable by the roadway worker in charge that is using the authority to provide on-track safety for a roadway work group.
(b) If the electronic display device malfunctions, fails, or cannot display an authority while it is in effect, the roadway worker in charge shall either obtain a written or printed copy of the authority in accordance with § 214.321 (except that on-track roadway maintenance machine and hi-rail movements must stop) or establish another form of on-track safety without delay. In the event that a written or printed copy of the authority cannot be obtained or another form of on-track safety cannot be established after failure of an electronic display device, the roadway worker in charge shall instruct all roadway workers to stop work and occupy a place of safety and conduct an on-track safety job briefing to determine the safe course of action with the roadway work group.
(c) All authorized users of an electronic display system shall be uniquely identified to support individual accountability. A user may be a person, a process, or some other system that accesses or attempts to access an electronic display system to perform tasks or process an authority.
(d) All authorized users of an electronic display system must be authenticated prior to being granted access to such system. The system shall ensure the confidentiality and integrity of all internally stored authentication data and protect it from access by unauthorized users. The authentication scheme shall utilize algorithms approved by the National Institute of Standards and Technology (NIST), or any similarly recognized and FRA approved standards body.
(e) The integrity of all data must be ensured during transmission/reception, processing, and storage. All new electronic display systems implemented on or after July 1, 2017 shall utilize a Message Authentication Code (MAC) to ensure that all data is error free. The MAC shall utilize algorithms approved by NIST, or any similarly recognized and FRA approved standards body. Systems implemented prior to July 1, 2017 may utilize a Cyclical Redundancy Code (CRC) to ensure that all data is error free provided:
(1) The collision rate for the CRC check utilized shall be less than or equal to 1 in 2
(2) MAC and CRC checks shall only be used to verify the accuracy of an electronic authority data message and shall not be used in an error correction reconstruction of the data. An authority must fail if the MAC or CRC checks do not match.
(f) Authorities transmitted to each electronic display device shall be retained in the device’s non-volatile memory for not less than 72 hours.
(g) If any electronic display device used to obtain an authority is involved in an accident/incident that is required to be reported to FRA under part 225 of this chapter, the railroad or employer that was using the device at the time of the accident shall, to the extent possible, and to the extent consistent with the safety of life and property, preserve the data recorded by each such device for analysis by FRA. This preservation requirement permits the railroad or employer to extract and analyze such data, provided the original downloaded data file, or an unanalyzed exact copy of it, shall be retained in secure custody and shall not be utilized for analysis or any other purpose except by direction of FRA or the National Transportation Safety Board. This preservation requirement shall expire one (1) year after the date of the accident unless FRA or the National Transportation Safety Board notifies the railroad in writing that the data are desired for analysis.
(h) New electronic display systems implemented on or after July 1, 2017 shall provide Level 3 assurance as defined by NIST Special Publication 800-63-2, Electronic Authentication Guideline, “Computer Security,” August 2013. Systems implemented prior to July 1, 2017 shall provide Level 2 assurance. Systems implemented prior to July 1, 2017 that do not provide Level 2 or higher assurance must be retired, or updated to provide Level 2 assurance, no later than July 1, 2018. The incorporation by reference of this NIST Special Publication was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the incorporated document from the National Institute of Standards and Technology, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899-8930, http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf. You may inspect a copy of the document at the Federal Railroad Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington, DC, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
§ 214.323 Foul time.
Working limits established on controlled track through the use of foul time procedures shall comply with the following requirements:
(a) Foul time may be given orally or in writing by the train dispatcher or control operator only after that employee has withheld the authority of all trains or other on-track equipment to move into or within the working limits during the foul time period.
(b) Each roadway worker in charge to whom foul time is transmitted orally shall repeat the track number or identifier, track limits and time limits of the foul time to the issuing employee for verification before the foul time becomes effective.
(c) The train dispatcher or control operator shall not permit the movement of trains or other on-track equipment into working limits protected by foul time until the roadway worker in charge who obtained the foul time has reported clear of the track.
(d) The roadway worker in charge shall not permit the movement of trains or other on-track equipment into or within working limits protected by foul time.
§ 214.325 Train coordination.
Working limits established on controlled track by a roadway worker in charge through the use of train coordination shall comply with the following requirements:
(a) Working limits established by train coordination shall be within the segments of track or tracks upon which only one train holds exclusive authority to move.
(b) The roadway worker who establishes working limits by train coordination shall communicate with a member of the crew of the train holding the exclusive authority to move, and shall determine that:
(1) The train is visible to the roadway worker who is establishing the working limits,
(2) The train is stopped,
(3) Further movements of the train will be made only as permitted by the roadway worker in charge of the working limits while the working limits remain in effect, and
(4) The crew of the train will not give up its exclusive authority to move until the working limits have been released to the train crew by the roadway worker in charge of the working limits.
§ 214.327 Inaccessible track.
(a) Working limits on non-controlled track shall be established by rendering the track within working limits physically inaccessible to trains at each possible point of entry by one of the following features:
(1) A flagman with instructions and capability to hold all trains and equipment clear of the working limits;
(2) A switch or derail aligned to prevent access to the working limits and secured with an effective securing device by the roadway worker in charge of the working limits;
(3) A discontinuity in the rail that precludes passage of trains or engines into the working limits;
(4) Working limits on controlled track that connects directly with the inaccessible track, established by the roadway worker in charge of the working limits on the inaccessible track; or
(5) A remotely controlled switch aligned to prevent access to the working limits and secured by the control operator of such remotely controlled switch by application of a locking or blocking device to the control of that switch, when:
(i) The control operator has secured the remotely controlled switch by applying a locking or blocking device to the control of the switch, and
(ii) The control operator has notified the roadway worker who has established the working limits that the requested protection has been provided, and
(iii) The control operator is not permitted to remove the locking or blocking device from the control of the switch until receiving permission to do so from the roadway worker who established the working limits.
(6) A locomotive with or without cars placed to prevent access to the working limits at one or more points of entry to the working limits, provided the following conditions are met:
(i) The roadway worker in charge who is responsible for establishing working limits communicates with a member of the crew assigned to the locomotive and determines that:
(A) The locomotive is visible to the roadway worker in charge that is establishing the working limits; and
(B) The locomotive is stopped.
(ii) Further movements of the locomotive shall be made only as permitted by the roadway worker in charge controlling the working limits;
(iii) The crew of the locomotive shall not leave the locomotive unattended or go off duty unless communication occurs with the roadway worker in charge and an alternate means of on-track safety protection has been established by the roadway worker in charge; and
(iv) Cars coupled to the locomotive on the same end and on the same track as the roadway workers shall be connected to the train line air brake system and such system shall be charged with compressed air to initiate an emergency brake application in case of unintended uncoupling. Cars coupled to the locomotive on the same track on the opposite end of the roadway workers shall have sufficient braking capability to control their movement.
(7) A railroad’s procedure governing block register territory that prevents trains and other on-track equipment from occupying the track when the territory is under the control of a lone worker or roadway worker in charge. The roadway worker in charge or lone worker shall have the absolute right to render block register territory inaccessible under the other provisions of paragraph (a) of this section.
(8) Railroad operating rules that prohibit train or engine or other on-track equipment movements on a main track within yard limits or restricted limits until the train or engine or on-track equipment receives notification of any working limits in effect and prohibit the train or engine or on-track equipment from entering working limits until permission is received by the roadway worker in charge. Such working limits shall be delineated with stop signs (flags), and where speeds are in excess of restricted speed and physical characteristics permit, also with advance signs (flags).
(b) Trains and roadway maintenance machines within working limits established by means of inaccessible track shall move only under the direction of the roadway worker in charge of the working limits, and shall move at restricted speed.
(c) No operable locomotives or other items of on-track equipment, except those present or moving under the direction of the roadway worker in charge of the working limits, shall be located within working limits established by means of inaccessible track.
§ 214.329 Train approach warning provided by watchmen/lookouts.
Roadway workers in a roadway work group who foul any track outside of working limits shall be given warning of approaching trains by one or more watchmen/lookouts in accordance with the following provisions:
(a) Train approach warning shall be given in sufficient time to enable each roadway worker to move to and occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum authorized speed on that track can pass the location of the roadway worker. The place of safety to be occupied upon the approach of a train may not be on a track, unless working limits are established on that track.
(b) Watchmen/lookouts assigned to provide train approach warning shall devote full attention to detecting the approach of trains and communicating a warning thereof, and shall not be assigned any other duties while functioning as watchmen/lookouts.
(c) The means used by a watchman/lookout to communicate a train approach warning shall be distinctive and shall clearly signify to all recipients of the warning that a train or other on-track equipment is approaching.
(d) Every roadway worker who depends upon train approach warning for on-track safety shall maintain a position that will enable him or her to receive a train approach warning communicated by a watchman/lookout at any time while on-track safety is provided by train approach warning.
(e) Watchmen/lookouts shall communicate train approach warnings by a means that does not require a warned employee to be looking in any particular direction at the time of the warning, and that can be detected by the warned employee regardless of noise or distraction of work.
(f) Every roadway worker who is assigned the duties of a watchman/lookout shall first be trained, qualified and designated in writing by the employer to do so in accordance with the provisions of § 214.349.
(g) Every watchman/lookout shall be provided by the employer with the equipment necessary for compliance with the on-track safety duties which the watchman/lookout will perform.
§ 214.331 Definite train location.
A roadway worker may establish on-track safety by using definite train location only where permitted by and in accordance with the following provisions:
(a) A Class I railroad or a commuter railroad may only use definite train location to establish on-track safety at points where such procedures were in use on January 15, 1997.
(b) Each Class I or commuter railroad shall include in its on-track safety program for approval by FRA in accordance with § 214.307 of this part a schedule for phase-out of the use of definite train location to establish on-track safety.
(c) A railroad other than a Class I or commuter railroad may use definite train location to establish on-track safety on subdivisions only where:
(1) Such procedures were in use on January 15, 1997, or
(2) The number of trains operated on the subdivision does not exceed:
(i) Three during any nine-hour period in which roadway workers are on duty, and
(ii) Four during any twelve-hour period in which roadway workers are on duty.
(d) Definite train location shall only be used to establish on-track safety according to the following provisions:
(1) Definite train location information shall be issued only by the one train dispatcher who is designated to authorize train movements over the track for which the information is provided.
(2) A definite train location list shall indicate all trains to be operated on the track for which the list is provided, during the time for which the list is effective.
(3) Trains not shown on the definite train location list shall not be operated on the track for which the list is provided, during the time for which the list is effective, until each roadway worker to whom the list has been issued has been notified of the train movement, has acknowledged the notification to the train dispatcher, and has canceled the list. A list thus canceled shall then be invalid for on-track safety.
(4) Definite train location shall not be used to establish on-track safety within the limits of a manual interlocking, or on track over which train movements are governed by a Traffic Control System or by a Manual Block System.
(5) Roadway workers using definite train location for on-track safety shall not foul a track within ten minutes before the earliest time that a train is due to depart the last station at which time is shown in approach to the roadway worker’s location nor until that train has passed the location of the roadway worker.
(6) A railroad shall not permit a train to depart a location designated in a definite train location list before the time shown therein.
(7) Each roadway worker who uses definite train location to establish on-track safety must be qualified on the relevant physical characteristics of the territory for which the train location information is provided.
(e) Each on-track safety program that provides for the use of definite train location shall discontinue such use by June 12, 2017.
§ 214.333 Informational line-ups of trains.
(a) A railroad is permitted to include informational line-ups of trains in its on-track safety program for use only on subdivisions of that railroad upon which such procedure was in effect on March 14, 1996.
(b) Each procedure for the use of informational line-ups of trains found in an on-track safety program shall include all provisions necessary to protect roadway workers using the procedure against being struck by trains or other on-track equipment.
(c) Each on-track safety program that provides for the use of informational line-ups shall discontinue such use by June 12, 2017.
§ 214.335 On-track safety procedures for roadway work groups, general.
(a) No employer subject to the provisions of this part shall require or permit a roadway worker who is a member of a roadway work group to foul a track unless on-track safety is provided by either working limits, train approach warning, or definite train location in accordance with the applicable provisions of § 214.319, § 214.321, § 214.323, § 214.325, § 214.327, § 214.329, § 214.331, or § 214.336.
(b) No roadway worker who is a member of a roadway work group shall foul a track without having been informed by the roadway worker in charge of the roadway work group that on-track safety is provided.
§ 214.336 On-track safety procedures for certain roadway work groups and adjacent tracks.
(a) Procedures; general. (1) General rule. Except as provided in paragraph (e) of this section, on-track safety is required for each adjacent controlled track when a roadway work group with at least one of the roadway workers on the ground is engaged in a common task with on-track, self-propelled equipment or coupled equipment on an occupied track. The required on-track safety shall be established through § 214.319 (Working limits, generally) or § 214.329 (Train approach warning provided by watchmen/lookouts) and as more specifically described in this section.
(2) Special circumstance arising in territories with at least three tracks, if an occupied track is between two adjacent controlled tracks. If an occupied track has two adjacent controlled tracks, and one of these adjacent controlled tracks has one or more train or other on-track equipment movements authorized or permitted at a speed of 25 mph or less (or 40 mph or less for one or more passenger train or other passenger on-track equipment movements), and the other adjacent controlled track has one or more concurrent train or other on-track equipment movements authorized or permitted at a speed over 25 mph (or over 40 mph for one or more passenger train or other passenger on-track equipment movements), the more restrictive procedures in paragraph (b) of this section apply.
(3) Definitions. As used in this section –
Adjacent controlled track means a controlled track whose track center is spaced 19 feet or less from the track center of the occupied track.
Adjacent track means a controlled or non-controlled track whose track center is spaced less than 25 feet from the track center of the occupied track.
Inter-track barrier means a continuous barrier of a permanent or semi-permanent nature that spans the entire work area, that is at least four feet in height, and that is of sufficient strength to prevent a roadway worker from fouling the adjacent track.
Minor correction means one or more repairs of a minor nature, including, but not limited to, welding, spiking, anchoring, hand tamping, and joint bolt replacement, that are accomplished with hand tools or handheld, hand-supported, or hand-guided power tools. The term does not include machine spiking, machine tamping, or any similarly distracting repair.
Occupied track means a track on which on-track, self-propelled equipment or coupled equipment is authorized or permitted to be located while engaged in a common task with a roadway work group with at least one of the roadway workers on the ground.
(b) Procedures for adjacent-controlled-track movements over 25 mph (or over 40 mph if passenger movements). If a train or other on-track equipment is authorized to move on an adjacent controlled track at a speed greater than 25 mph, or at a speed greater than 40 mph for a passenger train or other passenger on-track equipment movement, each roadway worker in the roadway work group that is affected by such movement must comply with the following procedures:
(1) Ceasing work and occupying a predetermined place of safety. Except for the work activities as described in paragraph (e) of this section, each affected roadway worker shall, as described in Table 1 of this section, cease all on-ground work and equipment movement that is being performed on or between the rails of the occupied track or on one or both sides of the occupied track, and occupy a predetermined place of safety upon receiving either a watchman/lookout warning or, alternatively, a notification that the roadway worker in charge intends to permit one or more train or other on-track equipment movements through the working limits on the adjacent controlled track.
(2) Resuming work. (i) An affected roadway worker may resume on-ground work and equipment movement (on or between the rails of the occupied track or on one or both sides of the occupied track as described in Table 1 of this section) only after the trailing-end of all trains or other on-track equipment moving on the adjacent controlled track (for which a warning or notification has been received in accordance with paragraph (b)(1) of this section) has passed and remains ahead of that roadway worker.
(ii) If the train or other on-track equipment stops before its trailing-end has passed all of the affected roadway workers in the roadway work group, the work to be performed (on or between the rails of the occupied track or on one or both sides of the occupied track as described in Table 1 of this section) ahead of the trailing-end of the train or other on-track equipment on the adjacent controlled track may resume only –
(A) If on-track safety through train approach warning (§ 214.329) has been established on the adjacent controlled track; or
(B) After the roadway worker in charge has communicated with a member of the train crew or the on-track equipment operator and established that further movements of such train or other on-track equipment shall be made only as permitted by the roadway worker in charge.
(c) Procedures for adjacent-controlled-track movements 25 mph or less (or 40 mph or less if passenger movements). If a train or other on-track equipment is authorized or permitted to move on an adjacent controlled track at a speed of 25 mph or less, or at a speed of 40 mph or less for a passenger train or other passenger on-track equipment movement, each roadway worker in the roadway work group that is affected by such movement must comply with the procedures listed in paragraph (b) of this section, except that equipment movement on the rails of the occupied track and on-ground work performed exclusively between the rails (i.e., not breaking the plane of the rails) of the occupied track may continue, provided that no on-ground work is performed within the areas 25 feet in front of and 25 feet behind any on-track, self-propelled equipment or coupled equipment permitted to move on the occupied track.
(d) Discretion of roadway worker in charge. Nothing in this subpart prohibits the roadway worker in charge from establishing on-track safety on one or more adjacent tracks as he or she deems necessary consistent with both the purpose and requirements of this subpart.
(e) Exceptions to certain requirements for adjacent-controlled-track on-track safety. No on-track safety (other than that required by paragraph (f) of this section or provided under paragraph (d) of this section) is required by paragraphs (a) through (c) of this section for an adjacent controlled track during the times that the roadway work group is exclusively performing one or more of the following work activities:
(1) On-ground work performed on a side of the occupied track meeting specified condition(s). A roadway work group with all of its on-ground roadway workers (other than those performing work in accordance with another exception in paragraph (e) of this section) performing work while exclusively positioned on a side of the occupied track as follows and as further specified in Table 1 of this section:
(i) The side with no adjacent track;
(ii) The side with one or more adjacent tracks, the closest of which has working limits on it and no movements permitted within such working limits by the roadway worker in charge; or
(iii) The side with one or more adjacent tracks, provided that that it has an inter-track barrier between the occupied track and the closest adjacent track on that side.
(2) Maintenance or repairs performed either alongside, or within the perimeter of, a roadway maintenance machine or coupled equipment on the occupied track. (i) One or more roadway workers performing maintenance or repairs alongside a roadway maintenance machine or coupled equipment, provided that such machine or equipment would effectively prevent the worker from fouling the adjacent controlled track on the other side of such equipment, and that such maintenance or repairs are performed while positioned on a side of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this section.
(ii) One or more roadway workers on or under a roadway maintenance machine or coupled equipment performing maintenance or repairs within the perimeter of the machine or equipment, provided that no part of their person breaks the plane of the rail of the occupied track except when toward one of the sides of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this section. A boom or other equipment extending beyond the body of a roadway maintenance machine or coupled equipment toward an adjacent controlled track is not considered to be within the perimeter of the machine or coupled equipment.
(3) Work activities involving certain equipment and purposes. One or more on-ground roadway workers engaged in a common task on an occupied track with on-track, self-propelled equipment or coupled equipment consisting exclusively of one or more of the types of equipment described in paragraphs (e)(3)(i) through (iii) of this section. If such a roadway work group (“excepted group”) is authorized or permitted to operate on the same occupied track and within the working limits of a separate roadway work group performing work that is subject to the requirements of this section (“non-excepted group”) or vice versa (i.e., a non-excepted group is authorized or permitted to operate on the same occupied track and within the working limits of an excepted group), the groups must conduct an on-track safety job briefing to determine if adjacent-controlled-track on-track safety is necessary for the excepted group. Such determination shall be made by the roadway worker in charge of the working limits; however, if the groups are in such proximity where the ability of the roadway workers in the excepted group to hear or see approaching trains and other on-track equipment is impaired by background noise, lights, sight obstructions or any other physical conditions caused by the equipment, then this exception does not apply, and adjacent-controlled-track on-track safety must be provided to both groups. This exception otherwise applies to work activities involving one or more of the following types of equipment:
(i) A hi-rail vehicle or other rail-bound vehicle (other than a catenary maintenance tower vehicle) being used for inspection or minor correction purposes, provided that such vehicle is not coupled to one or more railroad cars. In accordance with § 214.315(a), where multiple hi-rail or rail-bound vehicles being used for inspection or minor correction are engaged in a common task, the on-track safety job briefing shall include discussion of the nature of the work to be performed to determine if adjacent-controlled-track on-track safety is necessary.
(ii) An automated inspection car being used for inspection or minor correction purposes.
(iii) A catenary maintenance tower car or vehicle, provided that all of the on-ground workers engaged in the common task (other than those performing work in accordance with another exception in paragraph (e) of this section) are positioned within the gage of the occupied track for the sole purpose of applying or removing grounds.
(f) Procedures for components of roadway maintenance machines fouling an adjacent controlled track. Except as provided for in § 214.341(c), a component of a roadway maintenance machine shall not foul an adjacent controlled track unless working limits have been established on the adjacent-controlled-track and there are no movements permitted within the working limits by the roadway worker in charge that would affect any of the roadway workers engaged in a common task with such machine.
Table 1 – Summary of On-Track Safety Procedures for Certain Roadway Work Groups and Adjacent Tracks
| Example number/diagram number (see figure 1) | “Side A” of the occupied track – the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (“ `No. 1′ Track” or “No. 1”) | On or between the rails of the occupied track (“ `No. 2′ track” or “number 2”), where on-track Safety Is Established through Working Limits | “Side B” of the occupied track – either (1) the side with no adjacent track or (2) the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (“ `number 3′ track” or “number 3”) | ||
|---|---|---|---|---|---|
| Method of On-Track Safety on Side A | Requirement | Requirements | Requirements | Method of on-track safety on side B | |
| 1 | Working limits or train approach warning | Upon receiving a notification or warning for movement(s) (“movement notification or warning”) for No. 1, cease work and occupy a predetermined place of safety (“PPOS”) 1 | Upon movement notification or warning for No. 1, cease work and occupy a PPOS, except work may continue during movement(s) on No. 1 auth’d. at 25 mph or less (or 40 mph or less for passenger train movements) if maintain 25′ spacing 2 | Work 3 is not required to cease during movement(s) on No. 1 | Not applicable (N/A), because there is no adjacent track. |
| 2 | Working limits | Upon movement notification for No. 1, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 3 | Upon movement notification for No. 1 or No. 3, cease work and occupy a PPOS, except work may continue during movement(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2 | Upon movement notification for No. 3, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 1 | Working limits. |
| 3 | Working limits | Upon movement notification for No. 1, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 3 | Upon movement notification for No. 1 or warning for No. 3, cease work and occupy a PPOS, except work may continue during movement(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2 | Upon movement warning for No. 3 or notification for No. 1, cease work and occupy a PPOS | Train approach warning. |
| 4 | Train approach warning | Upon movement warning for No. 1 or No. 3, cease work and occupy a PPOS | Upon movement warning for No. 1 or No. 3, cease work and occupy a PPOS, except work may continue during movement(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2 | Upon movement warning for No. 3 or No. 1, cease work and occupy safety PPOS | Train approach warning. |
| 5 | None, but with inter-track barrier | Work is prohibited on No. 1 and up to barrier (“Side A1”). Work is not required to cease btwn. barrier and near running rail of occupied track (“Side A2”) during movement(s) on No. 1 | Work is not required to cease during movement(s) on No. 1 | Work is not required to cease during movement(s) on No. 1 | N/A, because there is no adjacent track. |
| 6 | None, but with inter-track barrier | Work is prohibited on Side A1. Work 3 is not required to cease on Side A2 during movement(s) on No. 1 or No. 3 | Work is not required to cease during movement(s) on No. 1. Upon movement notification or warning for No. 3, cease work and occupy a PPOS, except work may continue during movement(s) on No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger trains) if maintain 25′ spacing 2 | Upon movement notification or warning for No. 3, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 1 | Working limits or train approach warning. |
1 As used in the above table, a “predetermined place of safety” (or “PPOS”) means a specific location that an affected roadway worker must occupy upon receiving a watchman/lookout’s warning of approaching movement(s) (“warning”) or a roadway worker in charge’s (“RWIC’s”) notification of pending movement(s) on an adjacent track (“notification”), as designated during the on-track safety job briefing required by § 214.315. The PPOS may not be on a track, unless the track has working limits on it and no movements permitted within such working limits by the RWIC. Thus, under these circumstances, the space between the rails of the occupied track (No. 2 in this table) may be designated as a place to remain in position or to otherwise occupy upon receiving a warning or notification. The RWIC must determine any change to a PPOS, and communicate such change to all affected roadway workers through an updated on-track safety job briefing.
2 On-ground work is prohibited in the areas 25′ in front of and 25′ behind equipment on the occupied track (No. 2), and must not break the plane of a rail on No. 2 towards a side of No. 2 unless work is permitted on that side. Note, however, that per § 214.336(a)(2), work would no longer be permitted to continue on or between the rails of the occupied track during movement(s) on an adjacent controlled track at 25 mph or less (or at 40 mph or less for passenger trains or other passenger on-track equipment movements) if there is a simultaneous movement on the other adjacent controlled track at more than 25 mph (or at more than 40 mph per hour for passenger train movements or other passenger on-track equipment movements).
3 Work that does not break the plane of the near running rail of the occupied track (No. 2) is not required to cease during such movements; work that breaks the plane of the near running rail of the occupied track may also continue: 1) during the times that work is permitted on or between the rails of the occupied track in accordance with § 214.336(c) (Procedures for adjacent-controlled-track movements 25 mph or less, or 40 mph or less for passenger train movements or other passenger on-track equipment movements); or 2) if such work is performed alongside or within the perimeter of a roadway maintenance machine or coupled equipment in accordance with § 214.336(e)(2).
§ 214.337 On-track safety procedures for lone workers.
(a) A lone worker who fouls a track while performing routine inspection or minor correction may use individual train detection to establish on-track safety only where permitted by this section and the on-track safety program of the railroad.
(b) A lone worker retains an absolute right to use on-track safety procedures other than individual train detection if he or she deems it necessary, and to occupy a place of safety until such other form of on-track safety can be established.
(c) Individual train detection may be used to establish on-track safety only:
(1) By a lone worker who has been trained, qualified, and designated to do so by the employer in accordance with § 214.347 of this subpart;
(2) While performing routine inspection and minor correction work;
(3) On track outside the limits of a manual interlocking, a controlled point (except those consisting of signals only), or a remotely controlled hump yard facility;
(4) Where the lone worker is able to visually detect the approach of a train moving at the maximum speed authorized on that track, and move to a previously determined place of safety, not less than 15 seconds before the train would arrive at the location of the lone worker;
(5) Where no power-operated tools or roadway maintenance machines are in use within the hearing of the lone worker; and
(6) Where the ability of the lone worker to hear and see approaching trains and other on-track equipment is not impaired by background noise, lights, precipitation, fog, passing trains, or any other physical conditions.
(d) The place of safety to be occupied by a lone worker upon the approach of a train may not be on a track, unless working limits are established on that track.
(e) A lone worker using individual train detection for on-track safety while fouling a track may not occupy a position or engage in any activity that would interfere with that worker’s ability to maintain a vigilant lookout for, and detect the approach of, a train moving in either direction as prescribed in this section.
(f) A lone worker who uses individual train detection to establish on-track safety shall first complete a written Statement of On-track Safety. The Statement shall designate the limits of the track for which it is prepared and the date and time for which it is valid. The statement shall show the maximum authorized speed of trains within the limits for which it is prepared, and the sight distance that provides the required warning of approaching trains. The lone worker using individual train detection to establish on-track safety shall produce the Statement of On-track Safety when requested by a representative of the Federal Railroad Administrator.
(g) Individual train detection shall not be used to provide on-track safety for a lone worker using a roadway maintenance machine, equipment, or material that cannot be readily removed by hand.
§ 214.339 Audible warning from trains.
(a) Each railroad shall have in effect and comply with written procedures that prescribe effective requirements for audible warning by horn and/or bell for trains and locomotives approaching any roadway workers or roadway maintenance machines that are either on the track on which the movement is occurring, or about the track if the roadway workers or roadway maintenance machines are at risk of fouling the track. At a minimum, such written procedures shall address:
(1) Initial horn warning;
(2) Subsequent warning(s); and
(3) Alternative warnings in areas where sounding the horn adversely affects roadway workers (e.g., in tunnels and terminals).
(b) Such audible warning shall not substitute for on-track safety procedures prescribed in this part.
§ 214.341 Roadway maintenance machines.
(a) Each employer shall include in its on-track safety program specific provisions for the safety of roadway workers who operate or work near roadway maintenance machines. Those provisions shall address:
(1) Training and qualification of operators of roadway maintenance machines.
(2) Establishment and issuance of safety procedures both for general application and for specific types of machines.
(3) Communication between machine operators and roadway workers assigned to work near or on roadway maintenance machines.
(4) Spacing between machines to prevent collisions.
(5) Space between machines and roadway workers to prevent personal injury.
(6) Maximum working and travel speeds for machines dependent upon weather, visibility, and stopping capabilities.
(b) Instructions for the safe operation of each roadway machine shall be provided and maintained with each machine large enough to carry the instruction document.
(1) No roadway worker shall operate a roadway maintenance machine without having been trained in accordance with § 214.355.
(2) No roadway worker shall operate a roadway maintenance machine without having knowledge of the safety instructions applicable to that machine. For purposes of this paragraph, the safety instructions applicable to that machine means:
(i) The manufacturer’s instruction manual for that machine; or
(ii) The safety instructions developed to replace the manufacturer’s safety instructions when the machine has been adapted for a specific railroad use. Such instructions shall address all aspects of the safe operation of the crane and shall be as comprehensive as the manufacturer’s safety instructions they replace.
(3) No employer shall assign roadway workers to work near roadway machines unless the roadway worker has been informed of the safety procedures applicable to persons working near the roadway machines and has acknowledged full understanding.
(c) Components of roadway maintenance machines shall be kept clear of trains passing on adjacent tracks. Where operating conditions permit roadway maintenance machines to be less than four feet from the rail of an adjacent track, the on-track safety program of the railroad shall include the procedural instructions necessary to provide adequate clearance between the machine and passing trains.
§ 214.343 Training and qualification, general.
(a) No employer shall assign an employee to perform the duties of a roadway worker, and no employee shall accept such assignment, unless that employee has received training in the on-track safety procedures associated with the assignment to be performed, and that employee has demonstrated the ability to fulfill the responsibilities for on-track safety that are required of an individual roadway worker performing that assignment.
(b) Each employer shall provide to all roadway workers in its employ initial or recurrent training once every calendar year on the on-track safety rules and procedures that they are required to follow.
(c) Except as provided for in § 214.353, railroad employees other than roadway workers, who are associated with on-track safety procedures, and whose primary duties are concerned with the movement and protection of trains, shall be trained to perform their functions related to on-track safety through the training and qualification procedures prescribed by the operating railroad for the primary position of the employee, including maintenance of records and frequency of training.
(d) Each employer of roadway workers shall maintain written or electronic records of each roadway worker qualification in effect. Each record shall include the name of the employee, the type of qualification made, and the most recent date of qualification. These records shall be kept available for inspection and photocopying by the Federal Railroad Administrator during regular business hours.
§ 214.345 Training for all roadway workers.
Consistent with § 214.343(b), the training of all roadway workers shall include, as a minimum, the following:
(a) Recognition of railroad tracks and understanding of the space around them within which on-track safety is required.
(b) The functions and responsibilities of various persons involved with on-track safety procedures.
(c) Proper compliance with on-track safety instructions given by persons performing or responsible for on-track safety functions.
(d) Signals given by watchmen/lookouts, and the proper procedures upon receiving a train approach warning from a lookout.
(e) The hazards associated with working on or near railroad tracks, including review of on-track safety rules and procedures.
(f) Instruction on railroad safety rules adopted to comply with § 214.317(b).
§ 214.347 Training and qualification for lone workers.
Each lone worker shall be trained and qualified by the employer to establish on-track safety in accordance with the requirements of this section, and must be authorized to do so by the railroad that conducts train operations on those tracks.
(a) The training and qualification for lone workers shall include, as a minimum, consideration of the following factors:
(1) Detection of approaching trains and prompt movement to a place of safety upon their approach.
(2) Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.
(3) Rules and procedures prescribed by the railroad for individual train detection, establishment of working limits, and definite train location.
(4) On-track safety procedures to be used in the territory on which the employee is to be qualified and permitted to work alone.
(5) Alternative means to access the information in a railroad’s on-track safety manual when a lone worker’s duties make it impracticable for the on-track safety manual to be readily available.
(b) Initial and periodic (as specified by § 243.201 of this chapter) qualification of a lone worker shall be evidenced by demonstrated proficiency.
§ 214.349 Training and qualification of watchmen/lookouts.
(a) The training and qualification for roadway workers assigned the duties of watchmen/lookouts shall include, as a minimum, consideration of the following factors:
(1) Detection and recognition of approaching trains.
(2) Effective warning of roadway workers of the approach of trains.
(3) Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.
(4) Rules and procedures of the railroad to be used for train approach warning.
(b) Initial and periodic (as specified by § 243.201 of this chapter) qualification of a watchman/lookout shall be evidenced by demonstrated proficiency.
§ 214.351 Training and qualification of flagmen.
(a) The training and qualification for roadway workers assigned the duties of flagmen shall include, as a minimum, the content and application of the operating rules of the railroad pertaining to giving proper stop signals to trains and holding trains clear of working limits.
(b) Initial and periodic (as specified by § 243.201 of this chapter) qualification of a flagman shall be evidenced by demonstrated proficiency.
§ 214.353 Training and qualification of each roadway worker in charge.
(a) The training and qualification of each roadway worker in charge, or any other employee acting as a roadway worker in charge (e.g., a conductor or a brakeman), who provides for the on-track safety of roadway workers through establishment of working limits or the assignment and supervision of watchmen/lookouts or flagmen shall include, at a minimum:
(1) All the on-track safety training and qualification required of the roadway workers to be supervised and protected, including the railroad’s procedures governing good faith challenges in §§ 214.311(b) and (c) and 214.313(d).
(2) The content and application of the operating rules of the railroad pertaining to the establishment of working limits.
(3) The content and application of the rules of the railroad pertaining to the establishment or train approach warning.
(4) The relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.
(5) The procedures required to ensure that the roadway worker in charge of the on-track safety of group(s) of roadway workers remains immediately accessible and available to all roadway workers being protected under the working limits or other provisions of on-track safety established by the roadway worker in charge.
(b) Initial and periodic (as specified by § 243.201 of this chapter) qualification of a roadway worker in charge shall be evidenced by demonstrated proficiency.
§ 214.355 Training and qualification of each roadway worker in on-track safety for operators of roadway maintenance machines.
(a) The training and qualification of roadway workers who operate roadway maintenance machines shall include, as a minimum:
(1) Procedures to prevent a person from being struck by the machine when the machine is in motion or operation.
(2) Procedures to prevent any part of the machine from being struck by a train or other equipment on another track.
(3) Procedures to provide for stopping the machine short of other machines or obstructions on the track.
(4) Methods to determine safe operating procedures for each machine that the operator is expected to operate.
(b) Initial and periodic (as specified by § 243.201 of this chapter) qualification of a roadway worker to operate roadway maintenance machines shall be evidenced by demonstrated proficiency.
§ 214.357 Training and qualification for operators of roadway maintenance machines equipped with a crane.
(a) In addition to the general training and qualification requirements for operators of roadway maintenance machines set forth in §§ 214.341 and 214.355 of this subpart, each employer shall adopt and comply with a training and qualification program for operators of roadway maintenance machines equipped with a crane to ensure the safe operation of such machines.
(b) Each employer’s training and qualification program for operators of roadway maintenance machines equipped with a crane shall require initial and periodic qualification of each operator of a roadway maintenance machine equipped with a crane and shall include:
(1) Procedures for determining that the operator has the skills to safely operate each machine the person is authorized to operate; and
(2) Procedures for determining that the operator has the knowledge to safely operate each machine the person is authorized to operate. Such procedures shall determine that either:
(i) The operator has knowledge of the safety instructions (i.e., the manufacturer’s instruction manual) applicable to that machine; or
(ii) The operator has knowledge of the safety instructions developed to replace the manufacturer’s safety instructions when the machine has been adapted for a specific railroad use. Such instructions shall address all aspects of the safe operation of the crane and shall be as comprehensive as the manufacturer’s safety instructions they replace.
(c) Each employer shall maintain records that form the basis of the training and qualification determinations of each operator of roadway maintenance machines equipped with a crane that it employs.
(d) Availability of records: Each employer required to maintain records under this part shall make all records available for inspection and copying/photocopying to representatives of FRA, upon request during normal business hours.
(e) Training conducted by an employer in accordance with operator qualification and certification required by the Department of Labor (29 CFR 1926.1427) may be used to satisfy the training and qualification requirements of this section.
Subpart D – On-Track Roadway Maintenance Machines and Hi-Rail Vehicles
§ 214.501 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and casualties caused by the lawful operation of on-track roadway maintenance machines and hi-rail vehicles.
(b) This subpart prescribes minimum safety standards for on-track roadway maintenance machines and hi-rail vehicles. An employer may prescribe additional or more stringent standards that are consistent with this subpart.
(c) Any working condition that involves the protection of employees engaged in roadway maintenance duties covered by this subpart but is not within the subject matter addressed by this subpart, including employee exposure to noise, shall be governed by the regulations of the U.S. Department of Labor, Occupational Safety and Health Administration.
§ 214.503 Good-faith challenges; procedures for notification and resolution.
(a) An employee operating an on-track roadway maintenance machine or hi-rail vehicle shall inform the employer whenever the employee makes a good-faith determination that the machine or vehicle does not comply with FRA regulations or has a condition that inhibits its safe operation.
(b) Any employee charged with operating an on-track roadway maintenance machine or hi-rail vehicle covered by this subpart may refuse to operate the machine or vehicle if the employee makes a good-faith determination that it does not comply with the requirements of this subpart or has a condition that inhibits its safe operation. The employer shall not require the employee to operate the machine or vehicle until the challenge resulting from the good-faith determination is resolved.
(c) Each employer shall have in place and follow written procedures to assure prompt and equitable resolution of challenges resulting from good-faith determinations made in accordance with this section. The procedures shall include specific steps to be taken by the employer to investigate each good-faith challenge, as well as procedures to follow once the employer finds a challenged machine or vehicle does not comply with this subpart or is otherwise unsafe to operate. The procedures shall also include the title and location of the employer’s designated official.
§ 214.505 Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs.
(a) The following new on-track roadway maintenance machines shall be equipped with enclosed cabs with operative heating systems, operative air conditioning systems, and operative positive pressurized ventilation systems:
(1) Ballast regulators;
(2) Tampers;
(3) Mechanical brooms;
(4) Rotary scarifiers;
(5) Undercutters; and
(6) Functional equivalents of any of the machines identified in paragraphs (a)(1) through (a)(5) of this section.
(b) New on-track roadway maintenance machines, and existing on-track roadway maintenance machines specifically designated by the employer, of the types identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, shall be capable of protecting employees in the cabs of the machines from exposure to air contaminants, in accordance with 29 CFR 1910.1000.
(c) An employer shall maintain a list of new and designated existing on-track roadway maintenance machines of the types identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto. The list shall be kept current and made available to the Federal Railroad Administration and other Federal and State agencies upon request.
(d) An existing roadway maintenance machine of the type identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, becomes “designated” when the employer adds the machine to the list required in paragraph (c) of this section. The designation is irrevocable, and the designated existing roadway maintenance machine remains subject to paragraph (b) of this section until it is retired or sold.
(e) If the ventilation system on a new on-track roadway maintenance machine or a designated existing on-track roadway maintenance machine of the type identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, becomes incapable of protecting an employee in the cab of the machine from exposure to air contaminants in accordance with 29 CFR 1910.1000, personal respiratory protective equipment shall be provided for each such employee until the machine is repaired in accordance with § 214.531.
(f) Personal respiratory protective equipment provided under paragraph (e) of this section shall comply with 29 CFR 1910.134.
(g) New on-track roadway maintenance machines with enclosed cabs, other than the types identified in paragraphs (a)(1) through (a)(5) of this section or functionally equivalent thereto, shall be equipped with operative heating and ventilation systems.
(h) When new on-track roadway maintenance machines require operation from non-enclosed stations outside of the main cab, the non-enclosed stations shall be equipped, where feasible from an engineering standpoint, with a permanent or temporary roof, canopy, or umbrella designed to provide cover from normal rainfall and midday sun.
§ 214.507 Required safety equipment for new on-track roadway maintenance machines.
(a) Each new on-track roadway maintenance machine shall be equipped with:
(1) A seat for each operator, except as provided in paragraph (b) of this section;
(2) A safe and secure position with handholds, handrails, or a secure seat for each roadway worker transported on the machine. Each position shall be protected from moving parts of the machine;
(3) A positive method of securement for turntables, on machines equipped with a turntable, through engagement of pins and hooks that block the descent of turntable devices below the rail head when not in use;
(4) A windshield with safety glass, or other material with similar properties, if the machine is designed with a windshield. Each new on-track roadway maintenance machine designed with a windshield shall also have power windshield wipers or suitable alternatives that provide the machine operator an equivalent level of vision if windshield wipers are incompatible with the windshield material;
(5) A machine braking system capable of effectively controlling the movement of the machine under normal operating conditions;
(6) A first-aid kit that is readily accessible and complies with 29 CFR 1926.50(d)(2); and
(7) An operative and properly charged fire extinguisher of 5 BC rating or higher which is securely mounted and readily accessible to the operator from the operator’s work station.
(b) Each new on-track roadway maintenance machine designed to be operated and transported by the operator in a standing position shall be equipped with handholds and handrails to provide the operator with a safe and secure position.
(c) Each new on-track roadway maintenance machine that weighs more than 32,500 pounds light weight and is operated in excess of 20 mph shall be equipped with a speed indicator that is accurate within ±5 mph of the actual speed at speeds of 10 mph and above.
(d) Each new on-track roadway maintenance machine shall have its as-built light weight displayed in a conspicuous location on the machine.
§ 214.509 Required visual illumination and reflective devices for new on-track roadway maintenance machines.
Each new on-track roadway maintenance machine shall be equipped with the following visual illumination and reflective devices:
(a) An illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions;
(b) Work lights, if the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels, unless equivalent lighting is otherwise provided;
(c) An operative 360-degree intermittent warning light or beacon mounted on the roof of the machine. New roadway maintenance machines that are not equipped with fixed roofs and have a light weight less than 17,500 pounds are exempt from this requirement;
(d) A brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and
(e) Rearward viewing devices, such as rearview mirrors.
§ 214.511 Required audible warning devices for new on-track roadway maintenance machines.
Each new on-track roadway maintenance machine shall be equipped with:
(a) A horn or other audible warning device that produces a sound loud enough to be heard by roadway workers and other machine operators within the immediate work area. The triggering mechanism for the device shall be clearly identifiable and within easy reach of the machine operator; and
(b) An automatic change-of-direction alarm which provides an audible signal that is at least three seconds long and is distinguishable from the surrounding noise. Change of direction alarms may be interrupted by the machine operator when operating the machine in the work mode if the function of the machine would result in a constant, or almost constant, sounding of the device. In any action brought by FRA to enforce the change-of-direction alarm requirement, the employer shall have the burden of proving that use of the change-of-direction alarm in a particular work function would cause a constant, or almost constant, sounding of the device.
§ 214.513 Retrofitting of existing on-track roadway maintenance machines; general.
(a) Each existing on-track roadway maintenance machine shall have a safe and secure position with handholds, handrails, or a secure seat or bench position for each roadway worker transported on the machine. Each position shall be protected from moving parts of the machine.
(b) By March 28, 2005, each existing on-track roadway maintenance machine shall be equipped with a permanent or portable horn or other audible warning device that produces a sound loud enough to be heard by roadway workers and other machine operators within the immediate work area. The triggering mechanism for the device shall be clearly identifiable and within easy reach of the machine operator.
(c) By March 28, 2005, each existing on-track roadway maintenance machine shall be equipped with a permanent illumination device or a portable light that is securely placed and not hand-held. The illumination device or portable light shall be capable of illuminating obstructions on the track ahead for a distance of 300 feet under normal weather and atmospheric conditions when the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels.
§ 214.515 Overhead covers for existing on-track roadway maintenance machines.
(a) For those existing on-track roadway maintenance machines either currently or previously equipped with overhead covers for the operator’s position, defective covers shall be repaired, and missing covers shall be reinstalled, by March 28, 2005 and thereafter maintained in accordance with the provisions of § 214.531.
(b) For those existing on-track roadway maintenance machines that are not already equipped with overhead covers for the operator’s position, the employer shall evaluate the feasibility of providing an overhead cover on such a machine if requested in writing by the operator assigned to operate the machine or by the operator’s designated representative. The employer shall provide the operator a written response to each request within 60 days. When the employer finds the addition of an overhead cover is not feasible, the response shall include an explanation of the reasoning used by the employer to reach that conclusion.
(c) For purposes of this section, overhead covers shall provide the operator’s position with cover from normal rainfall and midday sun.
§ 214.517 Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991.
In addition to meeting the requirements of § 214.513, after March 28, 2005 each existing on-track roadway maintenance machine manufactured on or after January 1, 1991, shall have the following:
(a) A change-of-direction alarm or rearview mirror or other rearward viewing device, if either device is feasible, given the machine’s design, and if either device adds operational safety value, given the machine’s function. In any action brought by FRA to enforce this requirement, the employer shall have the burden of proving that neither device is feasible or adds operational safety value, or both, given the machine’s design or work function.
(b) An operative heater, when the machine is operated at an ambient temperature less than 50 degrees Fahrenheit and is equipped with, or has been equipped with, a heater installed by the manufacturer or the railroad.
(c) The light weight of the machine stenciled or otherwise clearly displayed on the machine, if the light weight is known.
(d) Reflective material, or a reflective device, or operable brake lights.
(e) Safety glass when its glass is normally replaced, except that replacement glass that is specifically intended for on-track roadway maintenance machines and is in the employer’s inventory as of September 26, 2003 may be utilized until exhausted.
(f) A turntable restraint device, on machines equipped with a turntable, to prevent undesired lowering, or a warning light indicating that the turntable is not in the normal travel position.
§ 214.518 Safe and secure positions for riders.
On or after March 1, 2004, a roadway worker, other than the machine operator, is prohibited from riding on any on-track roadway maintenance machine unless a safe and secure position for each roadway worker on the machine is clearly identified by stenciling, marking, or other written notice.
§ 214.519 Floors, decks, stairs, and ladders of on-track roadway maintenance machines.
Floors, decks, stairs, and ladders of on-track roadway maintenance machines shall be of appropriate design and maintained to provide secure access and footing, and shall be free of oil, grease, or any obstruction which creates a slipping, falling, or fire hazard.
§ 214.521 Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles.
Each on-track roadway maintenance machine and hi-rail vehicle shall have on board a flagging kit that complies with the operating rules of the railroad if:
(a) The equipment is operated over trackage subject to a railroad operating rule requiring flagging; and
(b)(1) The equipment is not part of a roadway work group; or
(2) The equipment is the lead or trailing piece of equipment in a roadway work group operating under the same occupancy authority.
§ 214.523 Hi-rail vehicles.
(a) The hi-rail gear of all hi-rail vehicles shall be inspected for safety at least annually and with no more than 14 months between inspections. Tram, wheel wear, and gage shall be measured and, if necessary, adjusted to allow the vehicle to be safely operated.
(b) Each employer shall keep records pertaining to compliance with paragraph (a) of this section. Records may be kept on forms provided by the employer or by electronic means. The employer shall retain the record of each inspection until the next required inspection is performed. The records shall be made available for inspection and copying during normal business hours by representatives of FRA and States participating under part 212 of this chapter. The records may be kept on the hi-rail vehicle or at a location designated by the employer.
(c) A new hi-rail vehicle shall be equipped with:
(1) An automatic change-of-direction alarm or backup alarm that provides an audible signal at least three seconds long and distinguishable from the surrounding noise; and
(2) An operable 360-degree intermittent warning light or beacon mounted on the outside of the vehicle.
(d)(1) The operator of a hi-rail vehicle shall check the vehicle for compliance with this subpart, prior to using the vehicle at the start of the operator’s work shift.
(2) A non-complying condition that cannot be repaired immediately shall be tagged and dated in a manner prescribed by the employer and reported to the designated official.
(3) Non-complying automatic change-of-direction alarms, backup alarms, and 360-degree intermittent warning lights or beacons shall be repaired or replaced as soon as practicable within seven calendar days.
§ 214.525 Towing with on-track roadway maintenance machines or hi-rail vehicles.
(a) When used to tow pushcars or other maintenance-of-way equipment, each on-track roadway maintenance machine or hi-rail vehicle shall be equipped with a towing bar or other coupling device that provides a safe and secure attachment.
(b) An on-track roadway maintenance machine or hi-rail vehicle shall not be used to tow pushcars or other maintenance-of-way equipment if the towing would cause the machine or hi-rail vehicle to exceed the capabilities of its braking system. In determining the limit of the braking system, the employer must consider the track grade (slope), as well as the number and weight of pushcars or other equipment to be towed.
§ 214.527 On-track roadway maintenance machines; inspection for compliance and schedule for repairs.
(a) The operator of an on-track roadway maintenance machine shall check the machine components for compliance with this subpart, prior to using the machine at the start of the operator’s work shift.
(b) Any non-complying condition that cannot be repaired immediately shall be tagged and dated in a manner prescribed by the employer and reported to the designated official.
(c) The operation of an on-track roadway maintenance machine with a non-complying condition shall be governed by the following requirements:
(1) An on-track roadway maintenance machine with headlights or work lights that are not in compliance may be operated for a period not exceeding 7 calendar days and only during the period between one-half hour before sunrise and one-half hour after sunset;
(2) A portable horn may be substituted for a non-complying or missing horn for a period not exceeding seven calendar days;
(3) A fire extinguisher readily available for use may temporarily replace a missing, defective or discharged fire extinguisher on a new on-track roadway maintenance machine for a period not exceeding 7 calendar days, pending the permanent replacement or repair of the missing, defective or used fire extinguisher;
(4) Non-complying automatic change-of-direction alarms, backup alarms, and 360-degree intermittent warning lights or beacons shall be repaired or replaced as soon as practicable within 7 calendar days; and
(5) A structurally defective or missing operator’s seat shall be replaced or repaired within 24 hours or by the start of the machine’s next tour of duty, whichever is later. The machine may be operated for the remainder of the operator’s tour of duty if the defective or missing operator’s seat does not prevent its safe operation.
§ 214.529 In-service failure of primary braking system.
(a) In the event of a total in-service failure of its primary braking system, an on-track roadway maintenance machine may be operated for the remainder of its tour of duty with the use of a secondary braking system or by coupling to another machine, if such operations may be done safely.
(b) If the total in-service failure of an on-track roadway maintenance machine’s primary braking system occurs where other equipment is not available for coupling, the machine may, if it is safe to do so, travel to a clearance or repair point where it shall be placed out of service until repaired.
§ 214.531 Schedule of repairs; general.
Except as provided in §§ 214.527(c)(5), 214.529, and 214.533, an on-track roadway maintenance machine or hi-rail vehicle that does not meet all the requirements of this subpart shall be brought into compliance as soon as practicable within seven calendar days. If repairs are not made within seven calendar days, the on-track roadway maintenance machine or hi-rail vehicle shall be placed out of on-track service.
§ 214.533 Schedule of repairs subject to availability of parts.
(a) The employer shall order a part necessary to repair a non-complying condition on an on-track roadway maintenance machine or a hi-rail vehicle by the end of the next business day following the report of the defect.
(b) When the employer cannot repair a non-complying condition as required by § 214.531 because of the temporary unavailability of a necessary part, the employer shall repair the on-track roadway maintenance machine or hi-rail vehicle within seven calendar days after receiving the necessary part. The employer may continue to use the on-track roadway maintenance machine or hi-rail vehicle with a non-complying condition until receiving the necessary part(s) for repair, subject to the requirements of § 214.503. However, if a non-complying condition is not repaired within 30 days following the report of the defect, the employer shall remove the on-track roadway maintenance machine or hi-rail vehicle from on-track service until it is brought into compliance with this subpart.
(c) If the employer fails to order a part necessary to repair the reported non-complying condition, or if it fails to install an available part within the required seven calendar days, the on-track roadway maintenance machine or hi-rail vehicle shall be removed from on-track service until brought into compliance with this subpart.
(d) Each employer shall maintain records pertaining to compliance with this section. Records may be kept on forms provided by the employer or by electronic means. The employer shall retain each record for at least one year, and the records shall be made available for inspection and copying during normal business hours by representatives of FRA and States participating under part 212 of this chapter. The records may be kept on the on-track roadway maintenance machine or hi-rail vehicle or at a location designated by the employer.
PART 215 – RAILROAD FREIGHT CAR SAFETY STANDARDS
Subpart A – General
§ 215.1 Scope of part.
This part prescribes minimum Federal safety standards for railroad freight cars.
§ 215.3 Application.
(a) Except as provided in paragraphs (b) and (c) of this section, this part applies to each railroad freight car in service on:
(1) Standard gage track of a railroad; or
(2) Any other standard gage track while the car is being operated by, or is otherwise under the control of, a railroad.
(b) Sections 215.15 and 215.303 of this part do not apply to any car:
(1) Owned by a Canadian or Mexican Railroad; and
(2) Having a Canadian or Mexican reporting mark and car number.
(c) This part does not apply to a railroad freight car that is:
(1) Operated solely on track inside an industrial or other non-railroad installation; or
(2) Used exclusively in dedicated service as defined in § 215.5(d) of this part; or
(3) Maintenance-of-way equipment (including self-propelled maintenance-of-way equipment) if that equipment is not used in revenue service and is stenciled in accordance with § 215.305 of this part.
(4) Operated in a passenger train and that is inspected, tested, maintained, and operated pursuant to the requirements contained in part 238 of this chapter.
§ 215.5 Definitions.
As used in this part:
(a) Break means a fracture resulting in complete separation into parts;
(b) Cracked means fractured without complete separation into parts, except that castings with shrinkage cracks or hot tears that do not significantly diminish the strength of the member are not considered to be “cracked”;
(c) Railroad freight car means a car designed to carry freight, or railroad personnel, by rail and includes a:
(1) Box car;
(2) Refrigerator car;
(3) Ventilator car;
(4) Stock car;
(5) Gondola car;
(6) Hopper car;
(7) Flat car;
(8) Special car;
(9) Caboose car;
(10) Tank car; and
(11) Yard car.
(d) Dedicated service means the exclusive assignment of cars to the transportation of freight between specified points under the following conditions:
(1) The cars are operated –
(i) Primarily on track that is inside an industrial or other non-railroad installation; and
(ii) Only occasionally over track of a railroad;
(2) The cars are not operated –
(i) At speeds of more than 15 miles per hour; and
(ii) Over track of a railroad –
(A) For more than 30 miles in one direction; or
(B) On a round trip of more than 60 miles;
(3) The cars are not freely interchanged among railroads;
(4) The words “Dedicated Service” are stenciled, or otherwise displayed, in clearly legible letters on each side of the car body;
(5) The cars have been examined and found safe to operate in dedicated service; and
(6) The railroad must –
(i) Notify the FRA in writing that the cars are to be operated in dedicated service;
(ii) Identify in that notice –
(A) The railroads affected;
(B) The number and type of cars involved;
(C) The commodities being carried; and
(D) The territorial and speed limits within which the cars will be operated; and
(iii) File the notice required by this paragraph not less than 30 days before the cars operate in dedicated service;
(e) In service when used in connection with a railroad freight car, means each railroad freight car subject to this part unless the car:
(1) Has a “bad order” or “home shop for repairs” tag or card containing the prescribed information attached to each side of the car and is being handled in accordance with § 215.9 of this part;
(2) Is in a repair shop or on a repair track;
(3) Is on a storage track and is empty; or
(4) Has been delivered in interchange but has not been accepted by the receiving carrier.
(f) Railroad means all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, and (2) high speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.
(g) State inspector means an inspector who is participating in investigative and surveillance activities under section 206 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 435).
§ 215.7 Prohibited acts.
Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. Each day a violation continues shall constitute a separate offense. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 215.9 Movement of defective cars for repair.
(a) A railroad freight car which has any component described as defective in this part may be moved to another location for repair only after the railroad has complied with the following:
(1) A person designated under § 215.11 shall determine:
(i) That it is safe to move the car; and
(ii) The maximum speed and other restrictions necessary for safely conducting the movement;
(2)(i) The person in charge of the train in which the car is to be moved shall be notified in writing and inform all other crew members of the presence of the defective car and the maximum speed and other restrictions determined under paragraph (a)(1)(ii) of this section.
(ii) A copy of the tag or card described in paragraph (a)(3) of this section may be used to provide the notification required by paragraph (a)(2)(i) of this section.
(3) A tag or card bearing the words “bad order” or “home shop for repairs” and containing the following information, shall be securely attached to each side of the car –
(i) The reporting mark and car number;
(ii) The name of the inspecting railroad;
(iii) The inspection location and date;
(iv) The nature of each defect;
(v) Movement restrictions;
(vi) The destination for shopping or repair; and
(vii) The signature of a person designated under § 215.11.
(b)(1) The tag or card required by paragraph (a)(3) of this section may only be removed from the car by a person designated under § 215.11 of this part.
(2) A record or copy of each tag or card attached to or removed from a car shall be retained for 90 days and, upon request, shall be made available within 15 calendar days for inspection by FRA or State inspectors.
(3) Each tag or card removed from a car shall contain a notification stating the date, location, reason for its removal, and the signature of the person who removed it from the car. These recordkeeping requirements have been approved by the Office of Management and Budget in accordance with the Federal Reports Act of 1942.
(c) Movement of a freight car under paragraph (a) of this section may be made only for the purpose of effecting repairs. If the car is empty, it may not be placed for loading. If the car is loaded, it may not be placed for unloading unless unloading is consistent with determinations made and restrictions imposed under paragraph (a)(1) of this section and –
(1) The car is consigned for a destination on the line of haul between the point where the car was found defective and the point where repairs are made; or
(2) Unloading is necessary for the safe repair of the car.
(d) Nothing in this section authorizes the movement of a freight car subject to a Special Notice for Repairs unless the movement is made in accordance with the restrictions contained in the Special Notice.
§ 215.11 Designated inspectors.
(a) Each railroad that operates railroad freight cars to which this part applies shall designate persons qualified to inspect railroad freight cars for compliance with this part and to make the determinations required by § 215.9 of this part.
(b) Each person designated under this section shall have demonstrated to the railroad a knowledge and ability to inspect railroad freight cars for compliance with the requirements of this part and to make the determinations required by § 215.9 of this part.
(c) With respect to designations under this section, each railroad shall maintain written records of:
(1) Each designation in effect; and
(2) The basis for each designation.
§ 215.13 Pre-departure inspection.
(a) At each location where a freight car is placed in a train, the freight car shall be inspected before the train departs. This inspection may be made before or after the car is placed in the train.
(b) At a location where an inspector designated under § 215.11 is on duty for the purpose of inspecting freight cars, the inspection required by paragraph (a) of this section shall be made by that inspector to determine whether the car is in compliance with this part.
(c) At a location where a person designated under § 215.11 is not on duty for the purpose of inspecting freight cars, the inspection required by paragraph (a) shall, as a minimum, be made for those conditions set forth in appendix D to this part.
(d) Performance of the inspection prescribed by this section does not relieve a railroad of its liability under § 215.7 for failure to comply with any other provision of this part.
§ 215.15 Periodic inspection.
(a) After June 30, 1980, a railroad may not place or continue in service a freight car that has not received an initial periodic inspection in accordance with 49 CFR 215.25, as in effect on October 6, 1976 (41 FR 44044), unless –
(1) The car is a high utilization car built or reconditioned after December 31, 1977; or
(2) The car is a non-high utilization car built or reconditioned after December 31, 1971.
(b) A freight car that has received an initial periodic inspection under paragraph (a) of this section shall be stenciled to so indicate in accordance with 49 CFR 215.11 and appendix C of this part, as in effect on October 6, 1976 (41 FR 44044). This stenciling need not be retained on the car after June 30, 1981.
(c) As used in this section, “high utilization car” means a car –
(1) Specifically equipped to carry trucks, automobiles, containers, trailers, or removable trailer bodies for the transportation of freight; or
(2) Assigned to a train that operates in a continuous round trip cycle between the same two points.
Subpart B – Freight Car Components
§ 215.101 Scope.
This subpart contains safety requirements prohibiting a railroad from placing or continuing in service a freight car that has certain defective components.
Suspension System
§ 215.103 Defective wheel.
A railroad may not place or continue in service a car, if –
(a) A wheel flange on the car is worn to a thickness of
(b) The height of a wheel flange on the car, from the tread to the top of the flange, is 1
(c) The thickness of a rim of a wheel on the car is
(d) A wheel rim, flange, plate, or hub area on the car has a crack or break;
(e) A wheel on the car has a chip or gouge in the flange that is 1
(f) A wheel on the car has –
(1) A slid flat or shelled spot that is more than 2
(2) Two adjoining flat or shelled spots each of which is more than two inches in length;
(g) A wheel on the car shows evidence of being loose such as oil seepage on the back hub or back plate;
(h) A wheel on the car shows signs of having been overheated as evidenced by a reddish brown discoloration, to a substantially equal extent on both the front and the back face of the rim, that extends on either face more than four inches into the plate area measured from the inner edge of the front or back face of the rim; or,
(i) A wheel on the car has been welded unless the car is being moved for repair in accordance with § 215.9 of this part.
§ 215.105 Defective axle.
A railroad may not place or continue in service a car, if –
(a) An axle on the car has a crack or is broken;
(b) An axle on the car has a gouge in the surface that is –
(1) Between the wheel seats; and
(2) More than one-eighth inch in depth;
(c) An axle on the car, used in conjunction with a plain bearing, has an end collar that is broken or cracked;
(d) A journal on the car shows evidence of overheating, as evidenced by a pronounced blue black discoloration; or
(e) The surface of the plain bearing journal on the axle, or the fillet on the axle, has –
(1) A ridge;
(2) A depression;
(3) A circumferential score;
(4) Corrugation;
(5) A scratch;
(6) A continuous streak;
(7) Pitting;
(8) Rust; or
(9) Etching.
§ 215.107 Defective plain bearing box: General.
A railroad may not place or continue in service a car, if the car has –
(a) A plain bearing box that does not contain visible free oil;
(b) A plain bearing box lid that is missing, broken, or open except to receive servicing; or
(c) A plain bearing box containing foreign matter, such as dirt, sand, or coal dust, that can reasonably be expected to –
(1) Damage the bearing; or
(2) Have a detrimental effect on the lubrication of the journal and the bearings.
§ 215.109 Defective plain bearing box: Journal lubrication system.
A railroad may not place or continue in service a car, if the car has a plain bearing box with a lubricating pad that –
(a) Has a tear extending half the length or width of the pad, or more;
(b) Shows evidence of having been scorched, burned, or glazed;
(c) Contains decaying or deteriorated fabric that impairs proper lubrication of the pad;
(d) Has –
(1) An exposed center core (except by design); or
(2) Metal parts contacting the journal; or
(e) Is –
(1) Missing; or
(2) Not in contact with the journal.
§ 215.111 Defective plain bearing.
A railroad may not place or continue in service a car, if the car has a plain bearing –
(a) That is missing, cracked, or broken;
(b) On which the bearing liner –
(1) Is loose; or
(2) Has a broken out piece; or
(c) That shows signs of having been overheated, as evidenced by –
(1) Melted babbitt;
(2) Smoke from hot oil; or
(3) Journal surface damage.
§ 215.113 Defective plain bearing wedge.
A railroad may not place or continue in service a car, if a plain bearing wedge on that car is –
(a) Missing;
(b) Cracked;
(c) Broken; or
(d) Not located in its design position.
§ 215.115 Defective roller bearing.
(a) A railroad may not place or continue in service a car, if the car has –
(1) A roller bearing that shows signs of having been overheated as evidenced by –
(i) Discoloration; or
(ii) Other telltale signs of overheating such as damage to the seal or distortion of any bearing component;
(2) A roller bearing with a –
(i) Loose or missing cap screw; or
(ii) Broken, missing, or improperly applied cap screw lock; or
(3) A roller bearing with a seal that is loose or damaged, or permits leakage of lubricant in clearly formed droplets.
(b)(1) A railroad may not continue in service a car that has a roller bearing whose truck was involved in a derailment unless the bearing has been inspected and tested by:
(i) Visual examination to determine whether it shows any sign of damage; and
(ii) Spinning freely its wheel set or manually rotating the bearing to determine whether the bearing makes any unusual noise.
(2) The roller bearing shall be disassembled from the axle and inspected internally if –
(i) It shows any external sign of damage;
(ii) It makes any unusual noise when its wheel set is spun freely or the bearing is manually rotated;
(iii) Its truck was involved in a derailment at a speed of more than 10 miles per hour; or
(iv) Its truck was dragged on the ground for more than 200 feet.
(3) Each defective roller bearing shall be repaired or replaced before the car is placed back in service.
§ 215.117 Defective roller bearing adapter.
A railroad may not place or continue in service a car, if the car has a roller bearing adapter that is –
(a) Cracked or broken;
(b) Not in its design position; or
(c) Worn on the crown of the adapter to the extent that the frame bears on the relief portion of the adapter, as shown in the figure below (see figure 1).
§ 215.119 Defective freight car truck.
A railroad may not place or continue in service a car, if the car has –
(a) A side frame or bolster that –
(1) Is broken; or
(2) Has a crack of
(b) A truck equipped with a snubbing device that is ineffective, as evidenced by –
(1) A snubbing friction element that is worn beyond a wear indicator;
(2) A snubber wear plate that is loose, missing (except by design), or worn through;
(3) A broken or missing snubber activating spring; or
(4) Snubber unit that is broken, or in the case of hydraulic units, is broken or leaking clearly formed droplets of oil or other fluid.
(c) A side bearing in any of the following conditions:
(1) Part of the side bearing assembly is missing or broken;
(2) The bearings at one end of the car, on both sides, are in contact with the body bolster (except by design);
(3) The bearings at one end of the car have a total clearance from the body bolster of more than
(4) At diagonally opposite sides of the car, the bearings have a total clearance from the body bolsters of more than
(d) Truck springs –
(1) That do not maintain travel or load;
(2) That are compressed solid; or
(3) More than one outer spring of which is broken, or missing, in any spring cluster;
(e) Interference between the truck bolster and the center plate that prevents proper truck rotations; or
(f) Brake beam shelf support worn so excessively that it does not support the brake beam.
Car Bodies
§ 215.121 Defective car body.
A railroad may not place or continue in service a car, if:
(a) Any portion of the car body, truck, or their appurtenances (except wheels) has less than a 2
(b) The car center sill is:
(1) Broken;
(2) Cracked more than 6 inches; or
(3) Permanently bent or buckled more than 2
(c) The car has a coupler carrier that is:
(1) Broken;
(2) Missing;
(3) Non-resilient and the coupler has a type F head.
(d) After December 1, 1983, the car is a box car and its side doors are not equipped with operative hangers, or the equivalent, to prevent the doors from becoming disengaged.
(e) The car has a center plate:
(1) That is not properly secured;
(2) Any portion of which is missing; or
(3) That is broken; or
(4) That has two or more cracks through its cross section (thickness) at the edge of the plate that extend to the portion of the plate that is obstructed from view while the truck is in place; or
(f) The car has a broken sidesill, crossbearer, or body bolster.
Draft System
§ 215.123 Defective couplers.
A railroad may not place or continue in service a car, if –
(a) The car is equipped with a coupler shank that is bent out of alignment to the extent that the coupler will not couple automatically with the adjacent car;
(b) The car has a coupler that has a crack in the highly stressed junction area of the shank and head as shown in the figure below (see figure 2).
(c) The car has a coupler knuckle that is broken or cracked on the inside pulling face of the knuckle.
(d) The car has a knuckle pin or knuckle thrower that is:
(1) Missing; or
(2) Inoperative; or
(e) The car has a coupler retainer pin lock that is –
(1) Missing; or
(2) Broken; or
(f) The car has a coupler with any of the following conditions:
(1) The locklift is inoperative;
(2) The coupler assembly does not have anticreep protection to prevent unintentional unlocking of the coupler lock; or
(3) The coupler lock is –
(i) Missing;
(ii) Inoperative;
(iii) Bent;
(iv) Cracked; or
(v) Broken.
§ 215.125 Defective uncoupling device.
A railroad may not place or continue in service a car, if the car has an uncoupling device without sufficient vertical and lateral clearance to prevent –
(a) Fouling on curves; or
(b) Unintentional uncouplings.
§ 215.127 Defective draft arrangement.
A railroad may not place or continue in service a car, if –
(a) The car has a draft gear that is inoperative;
(b) The car has a broken yoke;
(c) An end of car cushioning unit is –
(1) Leaking clearly formed droplets; or
(2) Inoperative;
(d) A vertical coupler pin retainer plate –
(1) Is missing (except by design); or
(2) Has a missing fastener;
(e) The car has a draft key, or draft key retainer, that is –
(1) Inoperative; or
(2) Missing; or
(f) The car has a missing or broken follower plate.
§ 215.129 Defective cushioning device.
A railroad may not place or continue in service a car if it has a cushioning device that is –
(a) Broken;
(b) Inoperative; or
(c) Missing a part –
Subpart C – Restricted Equipment
§ 215.201 Scope.
This subpart contains requirements restricting the use of certain railroad freight cars.
§ 215.203 Restricted cars.
(a) This section restricts the operation of any railroad freight car that is –
(1) More than 50 years old, measured from the date of original construction;
(2) Equipped with any design or type component listed in appendix A to this part; or
(3) Equipped with a Duryea underframe constructed before April 1, 1950, except for a caboose which is operated as the last car in a train.
(b) A railroad may not place or continue in service a railroad freight car described in paragraph (a) of this section, except under conditions approved by the Federal Railroad Administrator.
(c) A railroad may petition the Administrator to continue in service a car described in paragraph (a) of this section. Each petition shall be
(1) Be submitted not less than 90 days before the car is to be operated;
(2) Be submitted; and
(3) State or describe the following:
(i) The name and principal business address of the petitioning railroad.
(ii) The name and address of the entity that controls the operation and maintenance of the car involved.
(iii) The number, type, capacity, reporting marks, and car numbers of the cars, their condition, status, and age measured from the date of original construction.
(iv) The design, type component, or other item that causes the car to be restricted.
(v) The maximum load the cars would carry.
(vi) The maximum speed at which the cars would be operated.
(vii) That each car has been examined and found to be safe to operate under the conditions set forth in the petition.
(viii) The territorial limits within which the cars are to be operated and the name of each railroad that will receive the cars in interchange.
Subpart D – Stenciling
§ 215.301 General.
The railroad or private car owner reporting mark, the car number, and built date shall be stenciled, or otherwise displayed, in clearly legible letters and numbers not less than seven inches high, except those of the built date which shall not be less than one inch high:
(a) On each side of each railroad freight car body; and
(b) In the case of a tank car, in any location that is visible to a person walking at track level beside the car.
§ 215.303 Stenciling of restricted cars.
(a) Each restricted railroad freight car that is described in § 215.205(a) of this part shall be stenciled, or marked –
(1) In clearly legible letters; and
(2) In accordance with paragraphs (b) and (c) of this section.
(b) The letter “R” shall be –
(1) Placed immediately below or to the right of the car number;
(2) The same color as the reporting mark; and
(3) The same size as the reporting mark.
(c) The following terms, to the extent needed to completely indicate the basis for the restricted operation of the car, shall be placed on the car following the symbol “R” in letters not less than one inch high:
(1) Age.
(2) Coupler.
(3) Draft.
(4) Bearings.
(5) Truck.
(6) Underframe.
(7) Wheels.
(8) Yoke.
§ 215.305 Stenciling of maintenance-of-way equipment.
(a) Maintenance-of-way equipment (including self-propelled maintenance-of-way equipment) described in § 215.3(c)(3) shall be stenciled, or marked –
(1) In clearly legible letters; and
(2) In accordance with paragraph (b) of this section.
(b) The letters “MW” must be –
(1) At least 2 inches high; and
(2) Placed on each side of the car.
Appendix A to Part 215 – Railroad Freight Car Components
List of components whose use is restricted by § 215.203 of this part.
The “K” type.
1. Former AAR alternate standard tubular type.
2. Axle with letters “RJ” stamped on the end of the journal.
1. AAR type “D”, top or bottom operated.
2. AAR type “E” with 5″ by 7″ shank.
1. Miner FR-16 and FR-19-F draft gears.
2. Farlow draft attachment.
Cartridge type.
1. Nippon Sieko Kabushiki Kaish (NSK) size 6
2. Hyatt cylindrical bearing, all sizes (marked “AAR 2”).
3. SKF “Piggybacker” spherical roller, size 6″ by 11″ (marked “AAR 7”).
1. Arch bar type.
2. Truck with cast steel pedestal side frame, short wheel base, and no bolster.
1. A bolster with one of the following pattern numbers listed according to manufacturer:
| A.S.F. | Dresser (Symington) | Birdsboro | Lenoir car works |
|---|---|---|---|
| 21183-B | BO 5234 | 1458 | CS-184. |
| 1468 | |||
| 21183-N | BO 5263 | 1471 | CS-611. |
| BO 7076 | |||
| 21648-C | BO 7076-A | ||
| 22056-E | BO 7115 |
2. Bolster cast before 1927.
3. Bolster without an identification mark or pattern number.
A side frame with one of the following pattern numbers listed according to manufacturer:
| A.S.F. | National castings | Buckeye | Dominion |
|---|---|---|---|
| 7273 | 33793-1B | 3-1776 | TF-5100 |
| 7323 | F-420 | ||
| 21362 (cast prior to June 1941) |
| Pittsburgh steel foundry | Scullin steel | Bettendorf | Canadian steel foundry |
|---|---|---|---|
| 31673 | 42-CS-180 | UT 456 | 26565 |
| 4-1862 | |||
| 3-1674 | 4665 | ||
| 4-2045 | 4770 | ||
| 12897 | 4942 | ||
| 12921 | 5220 | ||
| 21263 | 5364 | ||
| 5364-C | |||
| 5364-E | |||
| 5811-A | |||
| 5869-B | |||
| 6577-A |
2. Side frame cast before 1927.
3. Side frame without an identification mark or pattern number.
4. Side frame with an “I”, “T”, or “L” section compression or tension member.
1. Cast iron wheel.
2. Cast steel wheel marked “AAR X-2.”
3. Southern cast steel wheel manufactured before May 7, 1958.
4. Griffin, three-riser cast steel wheel, ball rim design, 70-ton capacity.
5. Griffin, three-riser cast steel wheel, two-wear, 70- and 50-ton capacity, 33 inch, (marked X-5 or CS-2).
6. Wrought steel wheel manufactured before 1927, as indicated by marking on wheel.
7. Cast steel wheel marked AAR X-4.
8. Davis cast steel wheel.
9. One-wear, 70-ton Southern (ABEX) U1 cast steel wheels dated May 7, 1958 through December 31, 1969.
A. Wheels dated May 7, 1958, to January 1, 1964, are marked with the symbol “70T” cast on the back of the wheel plate; they are not marked “U-1.”
B. Wheels dated January 1, 1964 through December 31, 1969, are marked with the symbols “CJ-33” and “U-1” or “70T” and “U-1” cast on the back of the wheel plate.
1. Riveted type.
2. Keyless type.
3. Vertical key type.
Appendix B to Part 215 [Reserved]
Appendix C to Part 215 – FRA Freight Car Standards Defect Code
The following defect code has been established for use by FRA and State inspectors to report defects observed during inspection of freight cars. The purpose of the code is to establish a uniform language among FRA, States, and the railroad industry that will facilitate communication, recordkeeping, and statistical analyses. The code may not be substituted for the description of defects on bad order tags affixed to cars being moved for repair under § 215.9. However, it may be used to supplement that description.
Appendix D to Part 215 – Pre-departure Inspection Procedure
At each location where a freight car is placed in a train and a person designated under § 215.11 is not on duty for the purpose of inspecting freight cars, the freight car shall, as a minimum, be inspected for the imminently hazardous conditions listed below that are likely to cause an accident or casualty before the train arrives at its destination. These conditions are readily discoverable by a train crew member in the course of a customary inspection.
1. Car body:
(a) Leaning or listing to side.
(b) Sagging downward.
(c) Positioned improperly on truck.
(d) Object dragging below.
(e) Object extending from side.
(f) Door insecurely attached.
(g) Broken or missing safety appliance.
(h) Lading leaking from a placarded hazardous material car.
2. Insecure coupling.
3. Overheated wheel or journal.
4. Broken or extensively cracked wheel.
5. Brake that fails to release.
6. Any other apparent safety hazard likely to cause an accident or casualty before the train arrives at its destination.
PART 216 – SPECIAL NOTICE AND EMERGENCY ORDER PROCEDURES: RAILROAD TRACK, LOCOMOTIVE AND EQUIPMENT
Subpart A – General
§ 216.1 Application.
(a) This part applies, according to its terms, to each railroad that uses or operates –
(1) A railroad freight car subject to part 215 of this chapter;
(2) A locomotive subject to 49 U.S.C. chapter 207 (49 U.S.C. 20701-03); or
(3) Railroad passenger equipment subject to part 238 of this chapter.
(b) This part applies, according to its terms, to each railroad owning track subject to part 213 of this chapter.
§ 216.3 Definitions.
As used in this part –
(a) FRA means the Federal Railroad Administration.
(b) State means a State participating in investigative and surveillance activities under 49 U.S.C. 20105.
(c) Inspector includes FRA Regional Supervisors of Inspectors.
§ 216.5 Delegation and general provisions.
(a) The Administrator has delegated to the appropriate FRA and State personnel the authority to implement this part.
(b) Communications to the Administrator relating to the operation of this part should be submitted to the Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, Washington, DC 20590.
(c) The notices prescribed in §§ 216.11, 216.13, 216.14, 216.15, and 216.21 of this part are issued on standard FRA forms indicating the particular subject matter. An inspector issues a notice by delivering it to an appropriate officer or agent immediately responsible for the affected locomotive, car, or track.
§ 216.7 Penalties.
Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. Each day a violation continues shall constitute a separate offense. See 49 CFR part 209, appendix A.
Subpart B – Special Notice for Repairs
§ 216.11 Special notice for repairs – railroad freight car.
(a) When an FRA Motive Power and Equipment Inspector or a State Equipment Inspector determines that a railroad freight car is not in conformity with the requirements of the FRA Freight Car Safety Standards set forth in part 215 of this chapter and that it is unsafe for further service, he notifies the railroad in writing that the car is not in serviceable condition. The Special Notice sets out and describes the defects that cause the car to be in unserviceable condition. After receipt of the Special Notice, the railroad shall remove the car from service until it is restored to serviceable condition. The car may not be deemed to be in serviceable condition until it complies with all applicable requirements of part 215 of this chapter.
(b) The railroad shall notify the FRA Regional Administrator in writing when the equipment is returned to service, specifying the repairs completed.
(c) A railroad freight car subject to the notice prescribed in paragraph (a) of this section may be moved from the place where it was found to be unsafe for further service to the nearest available point where the car can be repaired, if such movement is necessary to make such repairs. However, the movement is subject to the further restrictions of § 215.9 of this chapter.
§ 216.13 Special notice for repairs – locomotive.
(a) When an FRA Motive Power and Equipment Inspector or State Equipment Inspector determines a locomotive is not safe to operate in the service to which it is put, whether by reason of nonconformity with the FRA Railroad Locomotive Safety Standards set forth in part 229 of this chapter or the FRA Railroad Locomotive Inspection Regulations set forth in part 230 of this chapter or by reason of any other condition rendering the locomotive unsafe, he or she will notify the railroad in writing that the locomotive is not in serviceable condition. After receipt of the Special Notice, the railroad shall remove the locomotive from service until it is restored to serviceable condition. The locomotive may not be deemed to be in serviceable condition until it complies with all applicable requirements of parts 229 and 230 of this chapter and until all additional deficiencies identified in the Special Notice have been corrected.
(b) The carrier shall notify the FRA Regional Administrator in writing when the locomotive is returned to service, specifying the repairs completed. The carrier officer or employee directly responsible for the repairs shall subscribe this writing under oath.
§ 216.14 Special notice for repairs – passenger equipment.
(a) When an FRA Motive Power and Equipment Inspector or a State Equipment Inspector determines that railroad passenger equipment is not in conformity with one or more of the requirements of the FRA Passenger Equipment Safety Standards set forth in part 238 of this chapter and that it is unsafe for further service, he or she will issue a written Special Notice to the railroad that the equipment is not in serviceable condition. The Special Notice describes the defect or defects that cause the equipment to be in unserviceable condition. After receipt of the Special Notice, the railroad shall remove the equipment from service until it is restored to serviceable condition. The equipment may not be deemed in serviceable condition until it complies with all applicable requirements of part 238 of this chapter.
(b) The railroad shall notify in writing the FRA Regional Administrator for the FRA region in which the Special Notice was issued when the equipment is returned to service, specifying the repairs completed.
(c) Railroad passenger equipment subject to a Special Notice may be moved from the place where it was found to be unsafe for further service to the nearest available point where the equipment can be repaired, if such movement is necessary to make the repairs. However, the movement is subject to the further restrictions of §§ 238.15 and 238.17 of this chapter.
§ 216.15 Special notice for repairs – track class.
(a) When an FRA Track Inspector or State Track Inspector determines that track does not comply with the requirements for the class at which the track is being operated, as defined in the Track Safety Standards (49 CFR part 213), he notifies the railroad in writing that the track is being lowered in class and that operations over that track must comply with the speed limitations prescribed in part 213 of this chapter. The notice describes the conditions requiring the track to be lowered in class, specifies the exact location of the affected track segment, and states the highest class and corresponding maximum speeds at which trains may be operated over that track. After receipt of such notice, the speeds at which trains operate over that track shall not exceed the stated maximum permissible speeds, until such time as the track conforms to applicable standards for a higher class.
(b) The railroad shall notify the FRA Regional Administrator in writing when the track is restored to a condition permitting operations at speeds authorized for a higher class, specifying the repairs completed.
§ 216.17 Appeals.
(a) Upon receipt of a Special Notice prescribed in §§ 216.11, 216.13, 216.14, or 216.15, a railroad may appeal the decision of the Inspector to the FRA Regional Administrator for the region in which the notice was given. The appeal shall be made by letter or telegram. The FRA Regional Administrator assigns an inspector, other than the inspector from whose decision the appeal is being taken, to reinspect the railroad freight car, locomotive, railroad passenger equipment, or track. The reinspection will be made immediately. If upon reinspection, the railroad freight car, locomotive, or passenger equipment is found to be in serviceable condition, or the track is found to comply with the requirements for the class at which it was previously operated by the railroad, the FRA Regional Administrator or his or her agent will immediately notify the railroad, whereupon the restrictions of the Special Notice cease to be effective. If on reinspection the decision of the original inspector is sustained, the FRA Regional Administrator notifies the railroad that the appeal has been denied.
(b) A railroad whose appeal to the FRA Regional Administrator has been denied may, within thirty (30) days from the denial, appeal to the Administrator. After affording an opportunity for informal oral hearing, the Administrator may affirm, set aside, or modify, in whole or in part, the action of the FRA Regional Administrator.
(c) The requirements of a Special Notice issued under this subpart shall remain in effect and be observed by a railroad pending appeal to the FRA Regional Administrator or to the Administrator.
Subpart C – Emergency Order – Track
§ 216.21 Notice of track conditions.
(a) When an FRA Track Inspector or State Track Inspector finds track conditions which may require the issuance of an Emergency order removing the track from service under section 203, Public Law No. 91-458, 84 Stat. 972 (45 U.S.C. 432), the Inspector may issue a notice to the railroad owning the track. The notice sets out and describes the conditions found by the Inspector and specifies the location of defects on the affected track segment. The Inspector provides a copy to the FRA Regional Track Engineer and the FRA Regional Administrator.
(b) In the event the railroad immediately commences repairs on the affected track and so advises the FRA Regional Track Engineer, the Regional Track Engineer assigns an Inspector to reinspect the track immediately on the completion of repairs. If upon reinspection the Inspector determines that necessary repairs have been completed, he withdraws the Notice of Track Conditions.
§ 216.23 Consideration of recommendation.
Upon receipt of a Notice of Track Conditions issued under § 216.21, the FRA Regional Administrator prepares a recommendation to the Administrator concerning the issuance of an Emergency order removing the affected track from service. In preparing this recommendation, the FRA Regional Administrator considers all written or other material bearing on the condition of the track received from the railroad within three (3) calendar days of the issuance of the Notice of Track Conditions and also considers the report of the FRA Regional Track Engineer.
§ 216.25 Issuance and review of emergency order.
(a) Upon recommendation of the FRA Regional Administrator, the Administrator may issue an Emergency order removing from service track identified in the notice issued under § 216.21.
(b) As specified in section 203, Public Law No. 91-458, 84 Stat. 972 (45 U.S.C. 432), opportunity for review of the Emergency order is provided in accordance with section 554 of title 5 of the U.S.C. Petitions for such review must be submitted in writing to the Office of Chief Counsel, Federal Railroad Administration, Washington, DC 20590. Upon receipt of a petition, FRA will immediately contact the petitioner and make the necessary arrangements for a conference to be held at the earliest date acceptable to the petitioner. At this conference, the petitioner will be afforded an opportunity to submit facts, arguments and proposals for modification or withdrawal of the Emergency order. If the controversy is not resolved at this conference and a hearing is desired, the petitioner must submit a written request for a hearing within fifteen (15) days after the conference. The hearing will commence within fourteen (14) calendar days of receipt of the request and will be conducted in accordance with sections 556 and 575, title 5, U.S.C.
(c) Unless stayed or modified by the Administrator, the requirements of each Emergency order issued under this subpart shall remain in effect and be observed pending decision on a petition for review.
The FRA may issue Emergency orders concerning track without regard to the procedures prescribed in this subpart whenever the Administrator determines that immediate action is required to assure the public safety.
PART 217 – RAILROAD OPERATING RULES
Subpart A – General
§ 217.1 Purpose.
Through the requirements of this part, the Federal Railroad Administration learns the condition of operating rules and practices with respect to trains and other rolling equipment in the railroad industry, and each railroad is required to instruct its employees in operating practices.
§ 217.2 Preemptive effect.
Normal State negligence standards apply where there is no Federal action covering the subject matter. Under 49 U.S.C. 20106 (section 20106), issuance of the regulations in this part preempts any State law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local railroad safety or railroad security hazard; that is not incompatible with a law, regulation, or order of the United States Government; and that does not unreasonably burden interstate commerce. Section 20106 permits State tort actions arising from events or activities occurring on or after January 18, 2002, for the following: violation of the Federal standard of care established by regulation or order issued by the Secretary of Transportation (with respect to railroad safety, such as these regulations) or the Secretary of Homeland Security (with respect to railroad security); a party’s violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; and a party’s violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. Nothing in section 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action.
§ 217.3 Application.
(a) Except as provided in paragraph (b) of this section, this part applies to railroads that operate trains or other rolling equipment on standard gage track which is part of the general railroad system of transportation.
(b) This part does not apply to –
(1) A railroad that operates only on track inside an installation which is not part of the general railroad system of transportation; or
(2) Rapid transit operations in an urban area that are not connected with the general railroad system of transportation.
§ 217.4 Definitions.
As used in this part –
Associate Administrator for Safety means the Associate Administrator for Safety of the Federal Railroad Administration or that person’s delegate as designated in writing.
Class I, Class II, and Class III have the meaning assigned by regulations of the Interstate Commerce Commission (49 CFR part 1201; General Instructions 1-1), as those regulations may be revised and applied by order of the Commission (including modifications in class thresholds based revenue deflator adjustments).
Division headquarters means the location designated by the railroad where a high-level operating manager (e.g., a superintendent, division manager, or equivalent), who has jurisdiction over a portion of the railroad, has an office.
FRA means the Federal Railroad Administration.
Qualified means that a person has successfully completed all instruction, training, and examination programs required by the railroad and this part and that the person, therefore, has actual knowledge or may reasonably be expected to have knowledge of the subject on which the person is expected to be competent.
System headquarters means the location designated by the railroad as the general office for the railroad system.
§ 217.5 Penalty.
Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. Each day a violation continues shall constitute a separate offense. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 217.7 Operating rules; filing and recordkeeping.
(a) On or before December 21, 1994, each Class I railroad, Class II railroad, the National Railroad Passenger Corporation, and each railroad providing commuter service in a metropolitan or suburban area that is in operation on November 21, 1994, shall file with the Federal Railroad Administrator, Washington, DC 20590, one copy of its code of operating rules, timetables, and timetable special instructions which were in effect on November 21, 1994. Each Class I railroad, each Class II railroad, and each railroad providing commuter service in a metropolitan or suburban area that commences operations after November 21, 1994, shall file with the Administrator one copy of its code of operating rules, timetables, and timetable special instructions before it commences operations.
(b) After November 21, 1994, each Class I railroad, each Class II railroad, the National Railroad Passenger Corporation, and each railroad providing commuter service in a metropolitan or suburban area shall file each new amendment to its code of operating rules, each new timetable, and each new timetable special instruction with the Federal Railroad Administrator within 30 days after it is issued.
(c) On or after November 21, 1994, each Class III railroad and any other railroad subject to this part but not subject to paragraphs (a) and (b) of this section shall keep one copy of its current code of operating rules, timetables, and timetable special instructions and one copy of each subsequent amendment to its code of operating rules, each new timetable, and each new timetable special instruction, at its system headquarters, and shall make such records available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours.
§ 217.9 Program of operational tests and inspections; recordkeeping.
(a) Requirement to conduct operational tests and inspections. Each railroad to which this part applies shall periodically conduct operational tests and inspections to determine the extent of compliance with its code of operating rules, timetables, and timetable special instructions, specifically including tests and inspections sufficient to verify compliance with the requirements of subpart F of part 218 of this chapter, in accordance with a written program as required by paragraph (c) of this section.
(b) Railroad and railroad testing officer responsibilities. The requirements of this paragraph (b) are applicable beginning January 1, 2009.
(1) Each railroad officer who conducts operational tests and inspections (railroad testing officer) shall:
(i) Be qualified on the railroad’s operating rules in accordance with § 217.11 of this part;
(ii) Be qualified on the operational testing and inspection program requirements and procedures relevant to the testing and inspections the officer will conduct;
(iii) Receive appropriate field training, as necessary to achieve proficiency, on each operational test or inspection that the officer is authorized to conduct; and
(iv) Conduct operational tests and inspections in accordance with the railroad’s program of operational tests and inspections.
(2) Written records documenting qualification of each railroad testing officer shall be retained at the railroad’s system headquarters and at the division headquarters for each division where the officer is assigned and shall be made available to representatives of the FRA for inspection and copying during normal business hours.
(c) Written program of operational tests and inspections. Every railroad shall have a written program of operational tests and inspections in effect. New railroads shall have such a program within 30 days of commencing rail operations. The program shall –
(1) Provide for operational testing and inspection under the various operating conditions on the railroad. As of January 1, 2009, the program shall address with particular emphasis those operating rules that cause or are likely to cause the most accidents or incidents, such as those accidents or incidents identified in the quarterly reviews, six month reviews, and the annual summaries as required under paragraphs (e) and (f) of this section, as applicable;
(2) Require a minimum number of tests and inspections per year covering the requirements of part 218, subpart F of this chapter;
(3) Describe each type of operational test and inspection required, including the means and procedures used to carry it out;
(4) State the purpose of each type of operational test and inspection;
(5) State, according to operating divisions where applicable, the frequency with which each type of operational test and inspection is to be conducted;
(6) As of January 1, 2009, identify the officer(s) by name, job title, and, division or system, who shall be responsible for ensuring that the program of operational tests and inspections is properly implemented. The responsibilities of such officer(s) shall include, but not be limited to, ensuring that the railroad’s testing officers are directing their efforts in an appropriate manner to reduce accidents/incidents and that all required reviews and summaries are completed. A railroad with divisions shall identify at least one officer at the system headquarters who is responsible for overseeing the entire program and the implementation by each division.
(7) Include a schedule for making the program fully operative within 210 days after it begins.
(d) Records. (1) Each railroad to which this part applies shall keep a record of the date, time, place, and result of each operational test and inspection that was performed in accordance with its program. Each record shall specify the officer administering the test and inspection and each employee tested. These records shall be retained at the system headquarters and at each division headquarters where the tests and inspections are conducted for one calendar year after the end of the calendar year to which they relate. These records shall be made available to representatives of the FRA for inspection and copying during normal business hours.
(2) Each railroad shall retain one copy of its current program for periodic performance of the operational tests and inspections required by paragraph (a) of this section and one copy of each subsequent amendment to such program. These records shall be retained at the system headquarters and at each division headquarters where the tests and inspections are conducted for three calendar years after the end of the calendar year to which they relate. These records shall be made available to representatives of the FRA for inspection and copying during normal business hours.
(e) Reviews of tests and inspections and adjustments to the program of operational tests. This paragraph (e) shall apply to each Class I railroad and the National Railroad Passenger Corporation beginning April 1, 2009 and to all other railroads subject to this paragraph beginning July 1, 2009.
(1) Reviews by railroads other than passenger railroads. Each railroad to which this part applies shall conduct periodic reviews and analyses as provided in this paragraph and shall retain, at each division headquarters, where applicable, and at its system headquarters, one copy of the following written reviews, provided however that this requirement does not apply to either a railroad with less than 400,000 total employee work hours annually or a passenger railroad subject to paragraph (e)(2) of this section.
(i) Quarterly review. The designated officer of each division headquarters, or system headquarters, if no division headquarters exists, shall conduct a written quarterly review of the accident/incident data, the results of prior operational tests and inspections, and other pertinent safety data for that division or system to identify the relevant operating rules related to those accidents/incidents that occurred during the quarter. The review shall also include the name of each railroad testing officer, the number of tests and inspections conducted by each officer, and whether the officer conducted the minimum number of each type of test or inspection required by the railroad’s program. Based upon the results of that review, the designated officer shall make any necessary adjustments to the tests and inspections required of railroad officers for the subsequent period(s). Quarterly reviews and adjustments shall be completed no later than 30 days after the quarter has ended.
(ii) Six month review. The designated officer of each system headquarters office responsible for development and administration of the program of operational tests and inspections shall conduct a review of the program of operational tests and inspections on a six month basis to ensure that it is being utilized as intended, that the quarterly reviews provided for in this paragraph have been properly completed, that appropriate adjustments have been made to the distribution of tests and inspections required, and that the railroad testing officers are appropriately directing their efforts. Six month reviews shall be completed no later than 60 days after the review period has ended.
(2) Reviews by passenger railroads. Not less than once every six months, the designated officer(s) of the National Railroad Passenger Corporation and of each railroad providing commuter service in a metropolitan or suburban area shall conduct periodic reviews and analyses as provided in this paragraph and shall retain, at each division headquarters, where applicable, and at its system headquarters, one copy of the reviews. Each such review shall be completed within 30 days of the close of the period. The designated officer(s) shall conduct a written review of:
(i) The operational testing and inspection data for each division, if any, or the system to determine compliance by the railroad testing officers with its program of operational tests and inspections required by paragraph (c) of this section. At a minimum, this review shall include the name of each railroad testing officer, the number of tests and inspections conducted by each officer, and whether the officer conducted the minimum number of each type of test or inspection required by the railroad’s program;
(ii) Accident/incident data, the results of prior operational tests and inspections, and other pertinent safety data for each division, if any, or the system to identify the relevant operating rules related to those accidents/incidents that occurred during the period. Based upon the results of that review, the designated officer(s) shall make any necessary adjustments to the tests and inspections required of railroad officers for the subsequent period(s); and
(iii) Implementation of the program of operational tests and inspections from a system perspective, to ensure that it is being utilized as intended, that the other reviews provided for in this paragraph have been properly completed, that appropriate adjustments have been made to the distribution of tests and inspections required, and that the railroad testing officers are appropriately directing their efforts.
(3) Records retention. The records of periodic reviews required in paragraphs (e)(1) and (e)(2) of this section shall be retained for a period of one year after the end of the calendar year to which they relate and shall be made available to representatives of FRA for inspection and copying during normal business hours.
(f) Annual summary of operational tests and inspections. Before March 1 of each calendar year, each railroad to which this part applies, except for a railroad with less than 400,000 total employee work hours annually, shall retain, at each of its division headquarters and at the system headquarters of the railroad, one copy of a written summary of the following with respect to its previous calendar year activities: The number, type, and result of each operational test and inspection, stated according to operating divisions where applicable, that was conducted as required by paragraphs (a) and (c) of this section. These records shall be retained for three calendar years after the end of the calendar year to which they relate and shall be made available to representatives of the FRA for inspection and copying during normal business hours.
(g) Electronic recordkeeping. Each railroad to which this part applies is authorized to retain by electronic recordkeeping the information prescribed in this section, provided that all of the following conditions are met:
(1) The railroad adequately limits and controls accessibility to such information retained in its electronic database system and identifies those individuals who have such access;
(2) The railroad has a terminal at the system headquarters and at each division headquarters;
(3) Each such terminal has a computer (i.e., monitor, central processing unit, and keyboard) and either a facsimile machine or a printer connected to the computer to retrieve and produce information in a usable format for immediate review by FRA representatives;
(4) The railroad has a designated representative who is authorized to authenticate retrieved information from the electronic system as true and accurate copies of the electronically kept records; and
(5) The railroad provides representatives of the FRA with immediate access to these records for inspection and copying during normal business hours and provides printouts of such records upon request.
(h) Upon review of the program of operational tests and inspections required by this section, the Associate Administrator for Safety may, for cause stated, disapprove the program. Notification of such disapproval shall be made in writing and specify the basis for the disapproval decision. If the Associate Administrator for Safety disapproves the program,
(1) The railroad has 35 days from the date of the written notification of such disapproval to:
(i) Amend its program and submit it to the Associate Administrator for Safety for approval; or
(ii) Provide a written response in support of the program to the Associate Administrator for Safety, who informs the railroad of FRA’s final decision in writing; and
(2) A failure to submit the program with the necessary revisions to the Associate Administrator for Safety in accordance with this paragraph will be considered a failure to implement a program under this part.
§ 217.11 Program of instruction on operating rules; recordkeeping; electronic recordkeeping.
(a) To ensure that each railroad employee whose activities are governed by the railroad’s operating rules understands those rules, each railroad to which this part applies shall periodically instruct each such employee on the meaning and application of the railroad’s operating rules in accordance with a written program retained at its system headquarters and at the division headquarters for each division where the employee is instructed.
(b) On or after November 21, 1994, or 30 days before commencing operations, whichever is later, each railroad to which this part applies shall retain one copy of its current program for the periodic instruction of its employees as required by paragraph (a) of this section and one copy of each subsequent amendment to that program. The system headquarters of the railroad shall retain one copy of all these records; the division headquarters for each division where the employees are instructed shall retain one copy of all portions of these records that the division applies and enforces. These records shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. This program shall –
(1) Describe the means and procedures used for instruction of the various classes of affected employees;
(2) State the frequency of instruction and the basis for determining that frequency;
(3) Include a schedule for completing the initial instruction of employees who are already employed when the program begins;
(4) Begin within 30 days after November 21, 1994, or the date of commencing operations, whichever is later; and
(5) Provide for initial instruction of each employee hired after the program begins.
(c) Each railroad to which this part applies is authorized to retain by electronic recordkeeping its program for periodic instruction of its employees on operating rules provided that the requirements stated in § 217.9(g)(1) through (5) of this part are satisfied.
§ 217.13 Information collection.
(a) The information collection requirements in this part have been reviewed by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511, and have been assigned OMB control number 2130-0035.
(b) The information collection requirements are found in the following sections:
(1) Section 217.7.
(2) Section 217.9.
(3) Section 217.11.
PART 218 – RAILROAD OPERATING PRACTICES
Subpart A – General
§ 218.1 Purpose.
This part prescribes minimum requirements for railroad operating rules and practices. Each railroad may prescribe additional or more stringent requirements in its operating rules, timetables, timetable special instructions, and other special instructions.
§ 218.3 Application.
(a) Except as provided in paragraph (b) of this section, this part applies to railroads that operate rolling equipment on standard gage track which is part of the general railroad system of transportation.
(b) This part does not apply to –
(1) A railroad that operates only on track inside an installation which is not part of the general railroad system of transportation, or
(2) Rapid transit operations in an urban area that are not connected with the general railroad system of transportation.
§ 218.4 Preemptive effect.
Normal State negligence standards apply where there is no Federal action covering the subject matter. Under 49 U.S.C. 20106 (section 20106), issuance of the regulations in this part preempts any State law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local railroad safety or railroad security hazard; that is not incompatible with a law, regulation, or order of the United States Government; and that does not unreasonably burden interstate commerce. Section 20106 permits State tort actions arising from events or activities occurring on or after January 18, 2002, for the following: Violation of the Federal standard of care established by regulation or order issued the Secretary of Transportation (with respect to railroad safety, such as these regulations) or the Secretary of Homeland Security (with respect to railroad security); a party’s violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; and a party’s violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. Nothing in section 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action.
§ 218.5 Definitions.
Absolute block means a block in which no train is permitted to enter while it is occupied by another train.
Blue signal means a clearly distinguishable blue flag or blue light by day and a blue light at night. When attached to the operating controls of a locomotive, it need not be lighted if the inside of the cab area of the locomotive is sufficiently lighted so as to make the blue signal clearly distinguishable.
Camp car means any on-track vehicle, including outfit, camp, or bunk cars or modular homes mounted on flat cars used to house rail employees. It does not include wreck trains.
Car shop repair track area means one or more tracks within an area in which the testing, servicing, repair, inspection, or rebuilding of railroad rolling equipment is under the exclusive control of mechanical department personnel.
Controlling locomotive means a locomotive arranged as having the only controls over all electrical, mechanical and pneumatic functions for one or more locomotives, including controls transmitted by radio signals if so equipped. It does not include two or more locomotives coupled in multiple which can be moved from more than one set of locomotive controls.
Designated crew member means an individual designated under the railroad’s operating rules as the point of contact between a train or yard crew and a utility employee working with that crew.
Effective locking device when used in relation to a manually operated switch or a derail means one which is:
(1) Vandal resistant;
(2) Tamper resistant; and
(3) Capable of being locked and unlocked only by the class, craft or group of employees for whom the protection is being provided.
Flagman’s signals means a red flag by day and a white light at night, and fusees as prescribed in the railroad’s operating rules.
Group of workers means two or more workers of the same or different crafts assigned to work together as a unit under a common authority and who are in communication with each other while the work is being done.
Interlocking limits means the tracks between the opposing home signals of an interlocking.
Locomotive means, except for purposes of subpart F of this part, a self-propelled unit of equipment designed for moving other railroad rolling equipment in revenue service including a self-propelled unit designed to carry freight or passenger traffic, or both, and may consist of one or more units operated from a single control.
Locomotive servicing track area means one or more tracks, within an area in which the testing, servicing, repair, inspection, or rebuilding of locomotives is under the exclusive control of mechanical department personnel.
Main track means a track, other than an auxiliary track, extending through yards or between stations, upon which trains are operated by timetable or train order or both, or the use of which is governed by a signal system.
Rolling equipment includes locomotives, railroad cars, and one or more locomotives coupled to one or more cars.
Switch providing access means a switch which if traversed by rolling equipment could permit that rolling equipment to couple to the equipment being protected.
Train or yard crew means one or more railroad employees assigned a controlling locomotive, under the charge and control of one crew member; called to perform service covered by Section 2 of the Hours of Service Act; involved with the train or yard movement of railroad rolling equipment they are to work with as an operating crew; reporting and working together as a unit that remains in close contact if more than one employee; and subject to the railroad operating rules and program of operational tests and inspections required in §§ 217.9 and 217.11 of this chapter.
Utility employee means a railroad employee assigned to and functioning as a temporary member of a train or yard crew whose primary function is to assist the train or yard crew in the assembly, disassembly or classification of rail cars, or operation of trains (subject to the conditions set forth in § 218.22 of this chapter).
Worker means any railroad employee assigned to inspect, test, repair, or service railroad rolling equipment, or their components, including brake systems. Members of train and yard crews are excluded except when assigned such work on railroad rolling equipment that is not part of the train or yard movement they have been called to operate (or been assigned to as “utility employees”). Utility employees assigned to and functioning as temporary members of a specific train or yard crew (subject to the conditions set forth in § 218.22 of this chapter), are excluded only when so assigned and functioning.
Servicing does not include supplying cabooses, locomotives, or passenger cars with items such as ice, drinking water, tools, sanitary supplies, stationery, or flagging equipment.
Testing does not include (i) visual observations made by an employee positioned on or alongside a caboose, locomotive, or passenger car; or (ii) marker inspections made in accordance with the provisions of § 221.16(b) of this chapter.
§ 218.7 Waivers.
(a) A railroad may petition the Federal Railroad Administration for a waiver of compliance with any requirement prescribed in this part.
(b) Each petition for a waiver under this section must be filed in the manner and contain the information required by part 211 of this chapter.
(c) If the Administrator finds that waiver of compliance is in the public interest and is consistent with railroad safety, he may grant the waiver subject to any conditions he deems necessary. Notice of each waiver granted, including a statement of the reasons, therefore, is published in the
§ 218.9 Civil penalty.
Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed. Each day a violation continues shall constitute a separate offense. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 218.11 Filing, testing, and instruction.
The operating rules prescribed in this part, and any additional or more stringent requirements issued by a railroad in relation to the operating rules prescribed in this part, shall be subject to the provisions of part 217 of this chapter, Railroad Operating Rules: Filing, Testing, and Instruction.
Subpart B – Blue Signal Protection of Workers
§ 218.21 Scope.
This subpart prescribes minimum requirements for the protection of railroad employees engaged in the inspection, testing, repair, and servicing of rolling equipment whose activities require them to work on, under, or between such equipment and subjects them to the danger of personal injury posed by any movement of such equipment.
§ 218.22 Utility employee.
(a) A utility employee shall be subject to the Hours of Service Act, and the requirements for training and testing, control of alcohol and drug use, and hours of service record keeping provided for in parts 217, 219, and 228 of this chapter.
(b) A utility employee shall perform service as a member of only one train or yard crew at any given time. Service with more than one crew may be sequential, but not concurrent.
(c) A utility employee may be assigned to and serve as a member of a train or yard crew without the protection otherwise required by subpart B of part 218 of this chapter only under the following conditions:
(1) The train or yard crew is assigned a controlling locomotive that is under the actual control of the assigned locomotive engineer of that crew;
(2) The locomotive engineer is in the cab of the controlling locomotive, or, while the locomotive is stationary be replaced in the cab by another member of the same crew;
(3) The utility employee established communication with the crew by contacting the designated crew member on arriving at the train (as defined for the purpose of this section as one or more locomotives coupled, with or without cars) and before commencing any duties with the crew.
(4) Before each utility employee commences duties, the designated crew member shall provide notice to each crew member of the presence and identity of the utility employee. Once all crew members have acknowledged this notice, the designated crew member shall advise the utility employee that he or she is authorized to work as part of the crew. Thereafter, communication shall be maintained in such a manner that each member of the train or yard crew understands the duties to be performed and whether those duties will cause any crew member to go on, under, or between the rolling equipment; and
(5) The utility employee is performing one or more of the following functions: Set or release handbrakes; couple or uncouple air hoses and other electrical or mechanical connections; prepare rail cars for coupling; set wheel blocks or wheel chains; conduct air brake test to include cutting air brake components in or out and position retaining valves; inspect, test, install, remove or replace a rear end marking device or end of train device; or change batteries on the rear end marking device or the end of train device if the change may be accomplished without the use of tools. Under all other circumstances, a utility employee working on, under, or between railroad rolling equipment must be provided with blue signal protection in accordance with §§ 218.23 through 218.30 of this part.
(d) When the utility employee has ceased all work in connection with that train and is no longer on, under, or between the equipment, the utility employee shall notify the designated crew member. The designated crew member shall then provide notice to each crew member that the utility employee is being released from the crew. Once each crew member has acknowledged the notice, the designated crew member shall then notify the utility employee that he is released from the train or yard crew.
(e) Communications required by § 218.22(c)(4) and (d) shall be conducted between the utility employee and the designated crew member. This communications shall be conducted either through direct verbal contact, by radio in compliance with part 220 of this chapter, or by oral telecommunication of equivalent integrity.
(f) No more than three utility employees may be attached to one train or yard crew at any given time.
(g) Any railroad employee who is not assigned to a train or yard crew, or authorized to work with a crew under the conditions set forth by paragraph (b) of this section, is a worker required to be provided blue signal protection in accordance with §§ 218.23 through 218.30 of this part.
(h) Nothing in this section shall affect the alternative form of protection specified in § 221.16 of this chapter with respect to inspection of rear end marking devices.
§ 218.23 Blue signal display.
(a) Blue signals displayed in accordance with § 218.25, 218.27, or 218.29 signify that workers are on, under, or between rolling equipment. When so displayed –
(1) The equipment may not be coupled to;
(2) The equipment may not be moved, except as provided for in § 218.29;
(3) Other rolling equipment may not be placed on the same track so as to reduce or block the view of a blue signal, except as provided for in § 218.29 (a), (b) and (c); and
(4) Rolling equipment may not pass a displayed blue signal.
(b) Blue signals must be displayed in accordance with § 218.25, 218.27, or 218.29 by each craft or group of workers prior to their going on, under, or between rolling equipment and may only be removed by the same craft or group that displayed them.
§ 218.24 One-person crew.
(a) An engineer working alone as a one-person crew shall not perform duties on, under, or between rolling equipment, without blue signal protection that complies with § 218.27 or § 218.29, unless the duties to be performed are listed in § 218.22(c)(5) and the following protections are provided:
(1) Each locomotive in the locomotive engineer’s charge is either:
(i) Coupled to the train or other railroad rolling equipment to be assisted; or
(ii) Stopped a sufficient distance from the train or rolling equipment to ensure a separation of at least 50 feet; and
(2) Before a controlling locomotive is left unattended, the one-member crew shall secure the locomotive as follows:
(i) The throttle is in the IDLE position;
(ii) The generator field switch is in the OFF position;
(iii) The reverser handle is removed (if so equipped);
(iv) The isolation switch is in the ISOLATE position;
(v) The locomotive independent (engine) brake valve is fully applied;
(vi) The hand brake on the controlling locomotive is fully applied (if so equipped); and
(vii) A bright orange engineer’s tag (a tag that is a minimum of three by eight inches with the words ASSIGNED LOCOMOTIVE – DO NOT OPERATE) is displayed on the control stand of the controlling locomotive.
(b) When assisting another train or yard crew with the equipment the other crew was assigned to operate, a single engineer must communicate directly, either by radio in compliance with part 220 of this chapter or by oral telecommunication of equivalent integrity, with the crew of the train to be assisted. The crews of both trains must notify each other in advance of all moves to be made by their respective equipment. Prior to attachment or detachment of the assisting locomotive(s), the crew of the train to be assisted must inform the single engineer that the train is secured against movement. The crew of the train to be assisted must not move the train or permit the train to move until authorized by the single engineer.
§ 218.25 Workers on a main track.
When workers are on, under, or between rolling equipment on a main track:
(a) A blue signal must be displayed at each end of the rolling equipment; and
(b) If the rolling equipment to be protected includes one or more locomotives, a blue signal must be attached to the controlling locomotive at a location where it is readily visible to the engineman or operator at the controls of that locomotive.
(c) When emergency repair work is to be done on, under, or between a locomotive or one or more cars coupled to a locomotive, and blue signals are not available, the engineman or operator must be notified and effective measures must be taken to protect the workers making the repairs.
§ 218.27 Workers on track other than main track.
When workers are on, under, or between rolling equipment on track other than main track –
(a) A blue signal must be displayed at or near each manually operated switch providing access to that track;
(b) Each manually operated switch providing access to the track on which the equipment is located must be lined against movement to that track and locked with an effective locking device; and
(c) The person in charge of the workers must have notified the operator of any remotely controlled switch that work is to be performed and have been informed by the operator that each remotely controlled switch providing access to the track on which the equipment is located has been lined against movement to that track and locked as prescribed in § 218.30.
(d) If rolling equipment requiring blue signal protection as provided for in this section is on a track equipped with one or more crossovers, both switches of each crossover must be lined against movement through the crossover toward that rolling equipment, and the switch of each crossover that provides access to the rolling equipment must be protected in accordance with the provisions of paragraphs (a) and (b), or (c) of this section.
(e) If the rolling equipment to be protected includes one or more locomotives, a blue signal must be attached to the controlling locomotive at a location where it is readily visible to the engineman or operator at the controls of that locomotive.
§ 218.29 Alternate methods of protection.
Instead of providing blue signal protection for workers in accordance with § 218.27, the following methods for blue signal protection may be used:
(a) When workers are on, under, or between rolling equipment in a locomotive servicing track area:
(1) A blue signal must be displayed at or near each switch providing entrance to or departure from the area;
(2) Each switch providing entrance to or departure from the area must be lined against movement to the area and locked with an effective locking device; and
(3) A blue signal must be attached to each controlling locomotive at a location where it is readily visible to the engineman or operator at the controls of that locomotive;
(4) If the speed within this area is resticted to not more than 5 miles per hour a derail, capable of restricting access to that portion of a track within the area on which the rolling equipment is located, will fulfill the requirements of a manually operated switch in compliance with paragraph (a)(2) of this section when positioned at least 50 feet from the end of the equipment to be protected by the blue signal, when locked in a derailing position with an effective locking device, and when a blue signal is displayed at the derail;
(5) A locomotive may be moved onto a locomotive servicing area track after the blue signal has been removed from the entrance switch to the area. However, the locomotive must be stopped short of coupling to another locomotive;
(6) A locomotive may be moved off of a locomotive servicing area track after the blue signal has been removed from the controlling locomotive to be moved and from the area departure switch;
(7) If operated by an authorized employee under the direction of the person in charge of the workers, a locomotive protected by blue signals may be repositioned within this area after the blue signal has been removed from the locomotive to be repositioned and the workers on the affected track have been notified of the movement; and
(8) Blue signal protection removed for the movement of locomotives as provided in paragraphs (a) (5) and (6) of this section must be restored immediately after the locomotive has cleared the switch.
(b) When workers are on, under, or between rolling equipment in a car shop repair track area:
(1) A blue signal must be displayed at or near each switch providing entrance to or departure from the area; and
(2) Each switch providing entrance to or departure from the area must be lined against movement to the area and locked with an effective locking device;
(3) If the speed within this area is restricted to not more than 5 miles per hour, a derail capable of restricting access to that portion of a track within the area on which the rolling equipment is located will fulfill the requirements of a manually operated switch in compliance with paragraph (a)(2) of this section when positioned at least 50 feet from the end of the equipment to be protected by the blue signal, when locked in a derailing position with an effective locking device and when a blue signal is displayed at the derail;
(4) If operated by an authorized employee under the direction of the person in charge of the workemen, a car mover may be used to reposition rolling equipment within this area after workers on the affected track have been notified of the movement.
(c) Except as provided in paragraphs (a) and (b) of this section, when workers are on, under, or between rolling equipment on any track, other than a main track:
(1) A derail capable of restricting access to that portion of the track on which such equipment is located, will fulfill the requirements of a manually operated switch when positioned no less than 150 feet from the end so such equipment; and
(2) Each derail must be locked in a derailing position with an effective locking device and a blue signal must be displayed at each derail.
(d) When emergency repair work is to be done on, under, or between a locomotive or one or more cars coupled to a locomotive, and blue signals are not available, the engineman or operator at the controls of that locomotive must be notified and effective measures must be taken to protect the workers making the repairs.
§ 218.30 Remotely controlled switches.
(a) After the operator of the remotely controlled switches has received the notification required by § 218.27(c), he must line each remotely controlled switch against movement to that track and apply an effective locking device to the lever, button, or other device controlling the switch before he may inform the employee in charge of the workers that protection has been provided.
(b) The operator may not remove the locking device unless he has been informed by the person in charge of the workers that it is safe to do so.
(c) The operator must maintain for 15 days a written record of each notification which contains the following information:
(1) The name and craft of the employee in charge who provided the notification;
(2) The number or other designation of the track involved;
(3) The date and time the operator notified the employee in charge that protection had been provided in accordance with paragraph (a) of this section; and
(4) The date and time the operator was informed that the work had been completed, and the name and craft of the employee in charge who provided this information.
Subpart C – Protection of Trains and Locomotives
§ 218.31 Scope.
This subpart prescribes minimum operating rule requirements for the protection of railroad employees engaged in the operation of trains, locomotives and other rolling equipment.
§ 218.35 Yard limits.
(a) After August 1, 1977, yard limits must be designated by –
(1) Yard limit signs, and
(2) Timetable, train orders, or special instructions.
(b) After August 1, 1977, each railroad must have in effect an operating rule which complies with the requirements set forth below:
(1) The main tracks within yard limits may be used, clearing the time an approaching designated class train is due to leave the nearest station where time is shown. In case of failure to clear the time of designated class trains, protection must be provided as § 218.37. In yard limits where main tracks are governed by block signal system rules, protection as prescribed by § 218.37 is not required.
(2) Trains and engines, except designated class trains, within yard limits must move prepared to stop within onehalf the range of vision but not exceeding 20 m.p.h. unless the main track is known to be clear by block signal indications.
(3) Within yard limits, movements against the current of traffic on the main tracks must not be made unless authorized and protected by train order, yardmaster, or other designated official and only under the operating restrictions prescribed in § 218.35(b)(2).
(c) Each railroad shall designate in the operating rule prescribed under paragraph (b) of this section the class or classes of trains which shall have superiority on the main track within yard limits.
§ 218.37 Flag protection.
(a) After August 1, 1977, each railroad must have in effect an operating rule which complies with the requirements set forth below:
(1) Except as provided in paragraph (a)(2) of this section, flag protection shall be provided –
(i) When a train is moving on the main track at less than one-half the maximum authorized speed (including slow order limits) in that territory, flag protection against following trains on the same track must be provided by a crew member by dropping off single lighted fusees at intervals that do not exceed the burning time of the fusee.
(ii) When a train is moving on the main track at more than one-half the maximum authorized speed (including slow order limits) in that territory under circumstances in which it may be overtaken, crew members responsible for providing protection will take into consideration the grade, curvature of track, weather conditions, sight distance and relative speed of his train to following trains and will be governed accordingly in the use of fusees.
(iii) When a train stops on main track, flag protection against following trains on the same track must be provided as follows: A crew member with flagman’s signals must immediately go back at least the distance prescribed by timetable or other instructions for the territory and display one lighted fusee. The crew member may then return one-half of the distance to the crew member’s train where the crew member must remain until the crew member has stopped the approaching train or is recalled. When recalled, the crew member must leave one lighted fusee and while returning to the crew member’s train, the crew member must also place single lighted fusees at intervals that do not exceed the burning time of the fusee. When the train departs, a crew member must leave one lighted fusee and until the train resumes speed not less than one-half the maximum authorized speed (including slow order limits) in that territory, the crew member must drop off single lighted fusees at intervals that do not exceed the burning time of the fusee.
(iv) When required by the railroad’s operating rules, a forward crew member with flagman’s signals must protect the front of the crew member’s train against opposing movements by immediately going forward at least the distance prescribed by timetable or other instructions for the territory, displaying one lighted fusee, and remaining at that location until recalled.
(v) Whenever a crew member is providing flag protection, he must not permit other duties to interfere with the protection of his train.
(2) Flag protection against following trains on the same track is not required if –
(i) The rear of the train is protected by at least two block signals;
(ii) The rear of the train is protected by an absolute block;
(iii) The rear of the train is within interlocking limits; or
(iv) A train order specifies that flag protection is not required.
(v) A railroad operates only one train at any given time.
(b) Each railroad shall designate by timetable or other instruction for each territory the specific distance which a crew member providing flag protection must go out in order to provide adequate protection for his train.
(c) Whenever the use of fusees is prohibited by a Federal, State or local fire regulation, each railroad operating within that jurisdiction shall provide alternate operating procedures to assure full protection of trains in lieu of flag protection required by this section.
§ 218.39 Hump operations.
After June 30, 1984, each railroad that operates a remote control hump yard facility must have in effect an operating rule that adopts the following provisions in substance:
(a) When a train or engine service employee is required to couple an air hose or to adjust a coupling device and that activity will require that the employee place himself between pieces of rolling equipment located on a bowl track, the operator of any remotely controlled switch that provides access from the apex of the hump to the track on which the rolling equipment is located shall be notified;
(b) Upon such notification, the operator of such remotely controlled switch shall line it against movement to the affected bowl track and shall apply a locking or blocking device to the control for that switch; and
(c) The operator shall then notify the employee that the requested protection has been provided and shall remove the locking or blocking device only after being notified by the employee that protection is no longer required on that track.
§ 218.41 Noncompliance with hump operations rule.
A person (including a railroad and any manager, supervisor, official, or other employee or agent of a railroad) who fails to comply with a railroad’s operating rule issued pursuant to § 218.39 is subject to a penalty. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
Subpart D – Prohibition Against Tampering With Safety Devices
§ 218.51 Purpose.
(a) The purpose of this subpart is to prevent accidents and casualties that can result from the operation of trains when safety devices intended to improve the safety of their movement have been disabled.
(b) This subpart does not prohibit intervention with safety devices that is permitted:
(1) Under the provisions of § 236.566 or § 236.567 of this chapter;
(2) Under the provisions of § 218.61 of this part; or
(3) Under the provisions of § 229.9 of this chapter, provided that when a locomotive is being operated under the provision of § 229.9(b) a designated officer has been notified of the defective alerter or deadman pedal at the first available point of communication.
§ 218.53 Scope and definitions.
(a) This subpart establishes standards of conduct for railroads and individuals who operate or permit to be operated locomotives equipped with one or more of the safety devices identified in paragraph (c) of this section.
(b) Disable means to unlawfully render a device incapable of proper and effective action or to materially impair the functioning of that device.
(c) Safety device means any locomotive-mounted equipment that is used either to assure that the locomotive operator is alert, not physically incapacitated, aware of and complying with the indications of a signal system or other operational control system or to record data concerning the operation of that locomotive or the train it is powering. See appendix B to this part for a statement of agency policy on this subject.
§ 218.55 Tampering prohibited.
Any individual who willfully disables a safety device is subject to a civil penalty and to disqualification from performing safety-sensitive functions on a railroad if found unfit for such duties under the procedures provided for in 49 CFR part 209. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 218.57 Responsibilities of individuals.
Any individual who knowingly operates a train, or permits it to be operated, when the controlling locomotive of that train is equipped with a disabled safety device, is subject to a civil penalty and to disqualification from performing safety-sensitive functions on a railroad if found to be unfit for such duties. See appendix B to this part for a statement of agency enforcement policy concerning violations of this section. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 218.59 Responsibilities of railroads.
Any railroad that operates a train when the controlling locomotive of a train is equipped with a disabled safety device is subject to a civil penalty. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 218.61 Authority to deactivate safety devices.
(a) For the purpose of this chapter, it is lawful to temporarily render a safety device incapable of proper or effective action or to materially impair its function if this action is taken as provided for in paragraph (b) or (c) of this section.
(b) If a locomotive is equipped with a device to assure that the operator is alert or not physically incapacitated, that device may be deactivated when:
(1) The locomotive is not the controlling locomotive;
(2) The locomotive is performing switching operations and not hauling cars in a manner that constitutes a train movement under part 232 of this chapter:
(3) The locomotive is dead-in-tow; or
(4) The locomotive is a mid-train slave unit being controlled by radio from a remote location.
(c) If a locomotive is equipped with a device to record data concerning the operation of that locomotive and/or of the train it is powering, that device may be deactivated only in accordance with the provisions of § 229.135.
Subpart E – Protection of Occupied Camp Cars
§ 218.71 Purpose and scope.
This subpart prescribes minimum requirements governing protection of camp cars that house railroad employees. The rule does not apply to such cars while they are in a train.
§ 218.73 Warning signal display.
(a) Warning signals, i.e., a white disk with the words “Occupied Camp Car” in black lettering during daylight hours and an illuminated white signal at night, displayed in accordance with § 218.75, § 218.77, or § 218.79 signify that employees are in, around, or in the vicinity of camp cars. Once the signals have been displayed –
(1) The camp cars may not be moved for coupling to other rolling equipment or moved to another location;
(2) Rolling equipment may not be placed on the same track so as to reduce or block the view of a warning signal; and
(3) Rolling equipment may not pass a warning signal.
(b) Warning signals indicating the presence of occupied camp cars, displayed in accordance with §§ 218.75 and 218.79, shall be displayed by a designated occupant of the camp cars or that person’s immediate supervisor. The signal(s) shall be displayed as soon as such cars are placed on the track, and such signals may only be removed by those same individuals prior to the time the cars are moved to another location.
§ 218.75 Methods of protection for camp cars.
When camp cars requiring protection are on either main track or track other than main track:
(a) A warning signal shall be displayed at or near each switch providing access to that track;
(b) The person in charge of the camp car occupants shall immediately notify the person responsible for directing train movements on that portion of the railroad where the camp cars are being parked;
(c) Once notified of the presence of camp cars and their location on main track or other than main track, the person responsible for directing train movements on that portion of the railroad where the camp cars are being parked shall take appropriate action to alert affected personnel to the presence of the cars;
(d) Each manually operating switch providing access to track on which the camp cars are located shall be lined against movement to that track and secured with an effective locking device and spiked; and
(e) Each remotely controlled switch providing access to the track on which the camp cars are located shall be protected in accordance with § 218.77.
§ 218.77 Remotely controlled switches.
(a) After the operator of the remotely controlled switch is notified that a camp car is to be placed on a particular track, he shall line such switch against movement to that track and apply an effective locking device applied to the lever, button, or other device controlling the switch before informing the person in charge of the camp car occupants that protection has been provided.
(b) The operator may not remove the locking device until informed by the person in charge of the camp car occupants that protection is no longer required.
(c) The operator shall maintain for 15 days a written record of each notification that contains the following information:
(1) The name and craft of the employee in charge who provided the notification;
(2) The number or other designation of the track involved;
(3) The date and time the operator notified the employee in charge that protection had been provided in accordance with paragraph (a) of this section; and
(4) The date and time the operator was informed that the work had been completed, and the name and craft of the employee in charge who provided this information.
(d) When occupied camp cars are parked on main track, a derail, capable of restricting access to that portion of the track on which such equipment is located, shall be positioned no less than 150 feet from the end of such equipment and locked in a derailing position with an effective locking device, and a warning signal must be displayed at the derail.
§ 218.79 Alternative methods of protection.
Instead of providing protection for occupied camp cars in accordance with § 218.75 or § 218.77, the following methods of protection may be used:
(a) When occupied camp cars are on track other than main track:
(1) A warning signal must be displayed at or near each switch providing access to or from the track;
(2) Each switch providing entrance to or departure from the area must be lined against movement to the track and locked with an effective locking device; and
(3) If the speed within this area is restricted to not more than five miles per hour, a derail, capable of restricting access to that portion of track on which the camp cars are located, will fulfill the requirements of a manually operated switch in compliance with paragraph (a)(2) of this section when positioned at least 50 feet from the end of the camp cars to be protected by the warning signal, when locked in a derailing position with an effective locking device, and when a warning signal is displayed at the derail.
(b) Except as provided in paragraph (a) of this section, when occupied camp cars are on track other than main track:
(1) A derail, capable of restricting access to that portion of the track on which such equipment is located, will fulfill the requirements of a manually operated switch when positioned no less than 150 feet from the end of such equipment; and
(2) Each derail must be locked in a derailing position with an effective locking device and a warning signal must be displayed at each derail.
§ 218.80 Movement of occupied camp cars.
Occupied cars may not be humped or flat switched unless coupled to a locomotive.
Subpart F – Handling Equipment, Switches, and Fixed Derails
§ 218.91 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and casualties that can result from the mishandling of equipment, switches, and fixed derails.
(b) This subpart prescribes minimum operating rule requirements for the handling of equipment, switches, and fixed derails. Each railroad may prescribe additional or more stringent requirements in its operating rules, timetables, timetable special instructions, and other instructions.
§ 218.93 Definitions.
As used in this subpart –
Associate Administrator for Safety means the Associate Administrator for Safety of the Federal Railroad Administration or that person’s delegate as designated in writing.
Clearance point means the location near a turnout beyond which it is unsafe for passage on an adjacent track(s). Where a person is permitted by a railroad’s operating rules to ride the side of a car, a clearance point shall accommodate a person riding the side of a car.
Correspondence of crossover switches means both crossover switches are lined for the crossover or both are lined for the straight tracks.
Crossover means, for purposes of this subpart only, a track connection between two adjacent, but not necessarily parallel, tracks, consisting of two switches, which is intended to be used primarily for the purpose of crossing over from one track to another.
Departure track means a track located in a classification yard where rolling equipment is placed and made ready for an outgoing train movement.
Employee means an individual who is engaged or compensated by a railroad or by a contractor to a railroad to perform any of the duties defined in this subpart.
Foul or fouling a track means rolling equipment or on-track maintenance-of-way equipment is located such that the end of the equipment is between the clearance point and the switch points leading to the track on which the equipment is standing.
FRA means the Federal Railroad Administration.
Hand-operated switch means any type of switch when operated by manual manipulation. For purposes of this subpart, a hand-operated switch does not include switches operated by push button or radio control when such switch is protected by distant switch indicators, switch point indicators, or other visual or audio verification that the switch points are lined for the intended route and fit properly.
Highway-rail grade crossing means, for purposes of this subpart only, an at-grade crossing where a public highway, road, street, or private roadway, including associated sidewalks and pathways, crosses one or more railroad tracks at grade, and is identified by a U.S. DOT National Highway-Rail Grade Crossing Inventory Number, or is marked by crossbucks, stop signs, or other appropriate signage indicating the presence of an at-grade crossing.
Industry track means a switching track, or series of tracks, serving the needs of a commercial industry other than a railroad.
Lite locomotive consist means two or more locomotive units coupled without cars attached, regardless of whether the locomotive units are connected so that they may be operated from a single control stand.
Locomotive means, for purposes of this subpart only, a piece of on-track equipment (other than specialized roadway maintenance equipment or a dual purpose vehicle operating in accordance with § 240.104(a)(2) of this chapter):
(1) With one or more propelling motors designed for moving other equipment;
(2) With one or more propelling motors designed to carry freight or passenger traffic or both; or
(3) Without propelling motors but with one or more control stands.
Pedestrian crossing means a separate designated sidewalk or pathway where pedestrians, but not vehicles, cross railroad tracks. Sidewalk crossings contiguous with, or separate but adjacent to, highway-rail grade crossings, are presumed to be part of the highway-rail grade crossings and are not considered pedestrian crossings.
Qualified means that a person has successfully completed all instruction, training, and examination programs required by the railroad and this subpart and that the person, therefore, has actual knowledge or may reasonably be expected to have knowledge of the subject on which the person is expected to be competent.
Remote control operator means a locomotive engineer, as defined in § 240.7 of this chapter, certified by a railroad to operate remote control locomotives pursuant to § 240.107 of this chapter.
Remote control zone means one or more tracks within defined limits designated in the timetable special instructions, or other railroad publication, within which remote control locomotives, under certain circumstances specified in this part, may be operated without an employee assigned to protect the pull-out end of the remote control movement, i.e., the end on which the locomotive is located.
Roadway maintenance activity means any work limited to the duties prescribed for a roadway worker by definition in this section, including movement of on-track maintenance-of-way equipment other than locomotives.
Roadway worker means any employee of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts as defined in § 214.7 of this chapter.
Roadway worker in charge means a roadway worker who is qualified in accordance with § 214.353 of this chapter for the purpose of establishing on-track safety for roadway work groups.
Siding means an auxiliary track, adjacent and connected to a main track, used for meeting or passing trains.
Signaled siding means a siding within traffic control system (TCS) territory or within interlocking limits where a signal indication authorizes the siding’s use.
Switchtender means a qualified employee assigned to handle switches at a specific location.
Track is clear means:
(1) The portion of the track to be used for the intended movement is unoccupied by rolling equipment, on-track maintenance-of-way equipment, and conflicting on-track movements;
(2) Intervening public highway-rail grade crossings, private highway-rail grade crossings outside the physical confines of a railroad yard, pedestrian crossings outside of the physical confines of a railroad yard, and yard access crossings are protected as follows:
(i) Crossing gates are in the fully lowered position, and are not known to be malfunctioning; or
(ii) A designated and qualified employee is stationed at the crossing and has the ability to communicate with trains; or
(iii) At crossings equipped only with flashing lights or passive warning devices, when it is clearly seen that no traffic is approaching or stopped at the crossing and the leading end of the movement over the crossing does not exceed 15 miles per hour;
(3) Intervening switches and fixed derails are properly lined for the intended movement; and
(4) The portion of the track to be used for the intended movement has sufficient room to contain the rolling equipment being shoved or pushed.
Yard access crossing means a private highway-rail grade crossing that is located within the physical confines of a railroad yard and is either:
(1) Open to unrestricted public access; or
(2) Open to persons other than railroad employees going about their normal duties, e.g., business guests or family members.
§ 218.95 Instruction, training, and examination.
(a) Program. Beginning January 1, 2009, each railroad shall maintain a written program of instruction, training, and examination of employees for compliance with operating rules implementing the requirements of this subpart to the extent these requirements are pertinent to the employee’s duties. If all requirements of this subpart are satisfied, a railroad may consolidate any portion of the instruction, training or examination required by this subpart with the program of instruction required under § 217.11 of this chapter. An employee who successfully completes all instruction, training, and examination required by this written program shall be considered qualified.
(1) The written program of instruction, training, and examination shall address the requirements of this subpart, as well as consequences of noncompliance.
(2) The written program of instruction, training, and examination shall include procedures addressing how the railroad qualifies employees in any technology necessary to accomplish work subject to the requirements of this subpart. Such procedures shall include, but are not limited to, those which explain:
(i) The purpose for using the technology;
(ii) How an employee will be expected to use the technology;
(iii) How to detect malfunctioning equipment or deviations from proper procedures;
(iv) How to respond when equipment malfunctions or deviations from proper procedures are detected; and
(v) How to prevent unintentional interference with the proper functioning of the technology.
(3) Implementation schedule for employees, generally. Each employee performing duties subject to the requirements in this subpart shall be initially qualified prior to July 1, 2009.
(4) Beginning July 1, 2009, no employee shall perform work requiring compliance with the operating rules implementing the requirements of this subpart unless qualified on these rules within the previous three years.
(5) The records of successful completion of instruction, examination and training required by this section shall document qualification of employees under this subpart.
(b) Written records documenting successful completion of instruction, training, and examination of each employee required by this subpart shall be retained at its system headquarters and at the division headquarters for each division where the employee is assigned for three calendar years after the end of the calendar year to which they relate and made available to representatives of the FRA for inspection and copying during normal business hours. Each railroad to which this part applies is authorized to retain a program, or any records maintained to prove compliance with such a program, by electronic recordkeeping in accordance with §§ 217.9(g) and 217.11(c) of this chapter.
(c) Upon review of the program of instruction, training, and examination required by this section, the Associate Administrator for Safety may, for cause stated, disapprove the program. Notification of such disapproval shall be made in writing and specify the basis for the disapproval decision. If the Associate Administrator for Safety disapproves the program,
(1) The railroad has 35 days from the date of the written notification of such disapproval to:
(i) Amend its program and submit it to the Associate Administrator for Safety for approval; or
(ii) Provide a written response in support of the program to the Associate Administrator for Safety, who informs the railroad of FRA’s final decision in writing; and
(2) A failure to submit the program with the necessary revisions to the Associate Administrator for Safety in accordance with this paragraph will be considered a failure to implement a program under this part.
§ 218.97 Good faith challenge procedures.
(a) Employee responsibility. An employee shall inform the railroad or employer whenever the employee makes a good faith determination that the employee has been directed to either take actions that would violate FRA regulations regarding the handling of equipment, switches, and fixed derails as required by this subpart, or to take actions that would violate the railroad’s operating rules implementing the requirements of this subpart.
(b) General procedures. Each railroad or employer is responsible for the training of and compliance by its employees with the requirements of this subpart.
(1) Each railroad or employer shall adopt and implement written procedures which guarantee each employee the right to challenge in good faith whether the procedures that will be used to accomplish a specific task comply with the requirements of this subpart or any operating rule relied upon to fulfill the requirements of this subpart. Each railroad or employer’s written procedures shall provide for prompt and equitable resolution of challenges made in accordance with this subpart.
(2) The written procedures required by this section shall indicate that the good faith challenge described in paragraph (b)(1) of this section is not intended to abridge any rights or remedies available to the employee under a collective bargaining agreement, or any Federal law including, but not limited to, 29 U.S.C. 651 et seq., 6 U.S.C. 1142, or 49 U.S.C. 20109.
(3) Each affected employee shall be instructed on the written procedures required by this paragraph as part of the training prescribed by § 217.11 of this chapter.
(4) A copy of the current written procedures shall be provided to each affected employee and made available for inspection and copying by representatives of the FRA during normal business hours.
(c) The written procedures shall –
(1) Grant each employee the right to challenge any directive which, based on the employee’s good faith determination, would cause the employee to violate any requirement of this subpart or any operating rule relied upon to fulfill the requirements of this subpart;
(2) Provide that the railroad or employer shall not require the challenging employee to comply with the directive until the challenge resulting from the good faith determination is resolved;
(3) Provide that the railroad or employer may require the challenging employee to perform tasks unrelated to the challenge until the challenge is resolved;
(4) Provide that the railroad or employer may direct an employee, other than the challenging employee, to perform the challenged task prior to the challenge being resolved as long as this other employee is informed of the challenge and does not also make a good faith determination that the challenged task would violate FRA regulations regarding the handling of equipment, switches, and fixed derails as required in this subpart, or a railroad’s operating rules implementing the requirements of this subpart;
(5) Provide that a challenge may be resolved by:
(i) A railroad or employer officer’s acceptance of the employee’s request;
(ii) An employee’s acceptance of the directive;
(iii) An employee’s agreement to a compromise solution acceptable to the person issuing the directive; or
(iv) As further determined under paragraph (d) of this section.
(d) In the event that the challenge cannot be resolved because the person issuing the directive determines that the employee’s challenge has not been made in good faith or there is no reasonable alternative to the direct order, the written procedures shall:
(1) Provide for immediate review by at least one officer of the railroad or employer, except for each railroad with less than 400,000 total employee work hours annually. This immediate review shall:
(i) Not be conducted by the person issuing the challenged directive, or that person’s subordinate; and
(ii) Provide that a challenge may be resolved by using the same options available for resolving the challenge as the initial officer as well as the option described in paragraph (d)(2) of this section, except that the reviewing officer’s decision shall not be subject to further immediate review, unless provided for in the railroad’s or employer’s written procedures;
(2) Provide that if the officer making the railroad’s or employer’s final decision concludes that the challenged directive would not cause the employee to violate any requirement of this subpart or the railroad’s or employer’s operating rule relied upon to fulfill the requirements of this subpart and directs the employee to perform the challenged directive, the officer shall further explain to the employee that Federal law may protect the employee from retaliation if the employee refuses to do the work and if the employee’s refusal is a lawful, good faith act;
(3) Provide that the employee be afforded an opportunity to document electronically or in writing any protest to the railroad or employer’s final decision before the tour of duty is complete. The employee shall be afforded the opportunity to retain a copy of the protest;
(4) Provide that the employee, upon written request, has a right to further review by a designated railroad or employer officer, within 30 days after the expiration of the month during which the challenge occurred, for the purpose of verifying the proper application of the regulation, law, procedure or rule in question. The verification decision shall be made in writing to the employee.
(e) Recordkeeping and record retention. (1) A copy of the written procedures required by this section shall be retained at the employer or railroad’s system headquarters and at each division headquarters, and made available to representatives of the FRA for inspection and copying during normal business hours.
(2) A copy of any written good faith challenge verification decision, made in accordance with paragraph (d)(4) of this section, shall be retained at the employer or railroad’s system headquarters and at the division headquarters to which the employee was working when the challenge was initiated, and made available to representatives of the FRA for inspection and copying during normal business hours for at least one calendar year after expiration of the year during which the decision was issued.
(3) Each employer or railroad to which this subpart applies is authorized to retain by electronic recordkeeping the information prescribed in this subpart in accordance with the electronic recordkeeping standards set forth in § 217.9(g)(1) through (5) of this chapter.
§ 218.99 Shoving or pushing movements.
(a)(1) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(2) The following requirements for shoving or pushing movements do not apply to rolling equipment intentionally shoved or pushed to permit the rolling equipment to roll without power attached, i.e., free rolling equipment, during switching activities known as kicking, humping, or dropping cars.
(b) General movement requirements – (1) Job briefing. Rolling equipment shall not be shoved or pushed until the locomotive engineer participating in the move has been briefed by the employee who will direct the move. The job briefing shall include the means of communication to be used between the locomotive engineer and the employee directing the move and how point protection will be provided.
(2) No unrelated tasks. During the shoving or pushing movement, the employee directing the movement shall not engage in any task unrelated to the oversight of the shoving or pushing movement.
(3) Point protection. When rolling equipment or a lite locomotive consist is shoved or pushed, point protection shall be provided by a crewmember or other qualified employee by:
(i) Visually determining that the track is clear. The determination that the track is clear may be made with the aid of monitored cameras or other technological means, provided that it and the procedures for use provide an equivalent level of protection to that of a direct visual determination by a crewmember or other qualified employee properly positioned to make the observation as prescribed in this section and appendix D to this part; and
(ii) Giving signals or instructions necessary to control the movement.
(c) Additional requirements for remote control movements. All remote control movements are considered shoving or pushing movements, except when the remote control operator controlling the movement is riding the leading end of the leading locomotive in a position to visually determine conditions in the direction of movement. In addition to the other requirements of this section,
(1) When initiating a remote control shoving or pushing movement:
(i) The remote control operator shall visually determine the direction the equipment moves; or
(ii) A member of the crew shall visually determine the direction the equipment moves and confirm the direction with the remote control operator. If no confirmation is received, the movement shall be immediately stopped; and
(2) If technology is relied upon, whether primarily or as a safeguard, to provide pull-out protection by preventing the movement from exceeding the limits of a remote control zone, the technology shall be demonstrated
(i) To be failsafe; or
(ii) To provide suitable redundancy to prevent unsafe failure.
(d) Remote control zone, exception to track is clear requirements. After an initial track is clear determination has been made in an activated remote control zone, it is not necessary to make a new determination prior to each subsequent shoving or pushing movement provided that:
(1) The controlling locomotive of the remote control movement is on the leading end in the direction of movement, i.e., the movement occurs on the pull-out end;
(2) The remote control zone is not jointly occupied; and
(3) The initial determination was made by a crewmember of either:
(i) The remote control crew;
(ii) A relieved remote control crew who has transferred the remote control zone directly to the relieving crew; or
(iii) The last jointly occupying crew who directly communicates, i.e., not through a third party, to a remote control crewmember that the remote control zone is no longer jointly occupied and meets the requirements for track is clear.
(e) Operational exceptions. A railroad does not need to comply with paragraphs (b) through (d) of this section in the following circumstances:
(1) Push-pull operations when operated from the leading end in the direction of movement, i.e., push mode;
(2) Shoving or pushing operations with manned helper locomotives or distributed power locomotives assisting a train when the train is being operated from the leading end in the direction of movement;
(3) During the performance of roadway maintenance activity under the direct control of a roadway worker performing work in accordance with railroad operating rules specific to roadway workers; or
(4) When the leading end of a shoving movement is on a main track or signaled siding, under the following conditions:
(i) The train dispatcher gives authority or permission to make the movement and verifies that:
(A) Another movement or work authority is not in effect within the same or overlapping limits unless conflicting movements are protected; and
(B) A main track is not removed from service by a work authority within the same or overlapping limits;
(ii) Movement is limited to the train’s authority;
(iii) Movement shall not be made into or within yard limits, restricted limits, drawbridges, or work authority limits;
(iv) Movement shall not enter or foul a highway-rail grade crossing or pedestrian crossing except when:
(A) Crossing gates are in the fully lowered position; or
(B) A designated and qualified employee is stationed at the crossing and has the ability to communicate with trains; or
(C) At crossings equipped only with flashing lights or passive warning devices, when it is clearly seen that no traffic is approaching or stopped at the crossing and the leading end of the movement over the crossing does not exceed 15 miles per hour; and
(v) Movement shall not be made into or within interlocking limits or controlled point limits unless the following conditions are met:
(A) The signal governing movement is more favorable than restricting aspect;
(B) Each signal governing movement into and through interlocking limits or controlled point limits shall be continuously observed by a member of that crew who is in a position to determine that the train’s movement has occupied the circuit controlling that signal as evidenced by that signal assuming its most restrictive aspect; and
(C) The movement does not exceed the train’s length.
(5) Shoving or pushing movements made in the direction of the circuited end of a designated departure track equipped with a shove light system, if all of the following conditions are met:
(i) The shove light system is demonstrated to be failsafe;
(ii) The shove light system is arranged to display a less favorable aspect when the circuited section of the track is occupied;
(iii) Written procedures are adopted and complied with that provide for a reliable means of determining track occupancy prior to commencing a shoving or pushing movement;
(iv) The track is designated in writing;
(v) The track is under the exclusive and continuous control of a yardmaster or other qualified employee;
(vi) The train crewmember or other qualified employee directing the shoving or pushing movement complies with the general movement requirements contained in paragraphs (b)(1) and (b)(2) of this section;
(vii) All remote control shoving or pushing movements comply with the requirements contained in paragraph (c)(1) of this section; and
(viii) The shove light system is continuously illuminated when the circuited section of the track is unoccupied.
§ 218.101 Leaving rolling and on-track maintenance-of-way equipment in the clear.
(a) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(b) Rolling and on-track maintenance-of-way equipment shall not be left where it will foul a connecting track unless:
(1) The equipment is standing on a main track and a siding track switch that the equipment is fouling is lined for the main track on which the equipment is standing; or
(2) The equipment is standing on a siding and a main track switch that the equipment is fouling is lined for the siding on which the equipment is standing; or
(3) The equipment is standing on a yard switching lead track, and the yard track switch that the equipment is fouling is lined for the yard switching lead track on which the equipment is standing; or
(4) The equipment is on an industry track beyond the clearance point of the switch leading to the industry.
(c) Each railroad shall implement procedures that enable employees to identify clearance points and a means to identify locations where clearance points will not permit a person to safely ride on the side of a car.
§ 218.103 Hand-operated switches, including crossover switches.
(a)(1) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(2) Each railroad shall specify minimum requirements necessary for an adequate job briefing.
(b) General. Employees operating or verifying the position of a hand-operated switch shall:
(1) Conduct job briefings, before work is begun, each time a work plan is changed, and at completion of the work;
(2) Be qualified on the railroad’s operating rules relating to the operation of the switch;
(3) Be individually responsible for the position of the switch in use;
(4) Visually determine that switches are properly lined for the intended route and that no equipment is fouling the switches;
(5) Visually determine that the points fit properly and the target, if so equipped, corresponds with the switch’s position;
(6) After operating a switch and before making movements in either direction over the switch, ensure that the switch is secured from unintentional movement of the switch points;
(7) Ensure that a switch is not operated while rolling and on-track maintenance-of-way equipment is fouling the switch, or standing or moving over the switch; and
(8) After operating a switch, ensure that when not in use, each switch is locked, hooked, or latched, if so equipped.
(c) Rolling and on-track maintenance-of-way equipment shall not foul a track until all hand-operated switches connected with the movement are properly lined, or in the case of hand-operated switches designed and permitted to be trailed through, until the intended route is seen to be clear or the train has been granted movement authority. When a conflicting movement is approaching a hand-operated switch, the track shall not be fouled or the switch operated.
(d) When rolling and on-track maintenance-of-way equipment has entered a track, the hand-operated switch to that track shall not be lined away from the track until the equipment has passed the clearance point of the track.
§ 218.105 Additional operational requirements for hand-operated main track switches.
(a) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(b) Designating switch position. The normal position of a hand-operated main track switch shall be designated by the railroad in writing and the switch shall be lined and locked in that position when not in use except when:
(1) The train dispatcher directs otherwise with respect to the position of a hand-operated main track switch and the necessary protection is provided; or
(2) The hand-operated switch is left in the charge of a crewmember of another train, a switchtender, or a roadway worker in charge.
(c) Additional job briefing requirements for hand-operated main track switches. (1) Before a train or a train crew leaves the location where any hand-operated main track switch was operated, all crewmembers shall have verbal communication to confirm the position of the switch.
(2) In the case of exclusive track occupancy authority established under § 214.321, foul time under § 214.323, or train coordination under § 214.325, when a roadway worker qualified to operate hand-operated main track switches is granted permission by the roadway worker in charge to occupy or otherwise use the limits of the exclusive track occupancy, such employee receiving permission to occupy the working limits shall report the position of any such switches operated upon expiration of the authority limits to the roadway worker in charge or to a designated intermediary employee who shall convey the switch position to the roadway worker in charge.
(d) Releasing authority limits. In non-signaled territory, before an employee releases the limits of a main track authority and a hand-operated switch is used to clear the main track, and, prior to departing the switch’s location, the following conditions are required:
(1) The employee releasing the limits, after conducting a job briefing in accordance with this subpart, shall report to the train dispatcher that the hand-operated main track switch has been restored to its normal position and locked, unless the train dispatcher directs that the hand-operated main track switch be left lined and locked in the reverse position and the necessary protection is provided;
(2) If the report of the switch position is correct, the train dispatcher shall repeat the reported switch position information to the employee releasing the limits and ask whether that is correct; and
(3) The employee releasing the limits shall then confirm to the train dispatcher that this information is correct.
§ 218.107 Additional operational requirements for hand-operated crossover switches.
(a) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(b) Hand-operated crossover switches, generally. Both hand-operated switches of a crossover shall be properly lined before rolling and on-track maintenance-of-way equipment begins a crossover movement. A crossover movement shall be completed before either hand-operated crossover switch is restored to normal position.
(c) Correspondence of hand-operated crossover switches. Hand-operated crossover switches shall be left in corresponding position except when:
(1) Used to provide blue signal protection under § 218.27 of this part; or
(2) Used for inaccessible track protection under § 214.327 of this chapter; or
(3) Performing maintenance, testing or inspection of crossover switches in traffic control system (TCS) territory; or
(4) One crew is using both tracks connected by the crossover during continuous switching operations.
§ 218.109 Hand-operated fixed derails.
(a)(1) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(2) Each railroad shall specify minimum requirements necessary for an adequate job briefing.
(b) General. (1) The normal position of fixed derails is in the derailing position except as provided in part 218, subpart B of this chapter, or the railroad’s operating rules or special instructions.
(2) Fixed derails shall be kept in the derailing position whether or not any rolling and on-track maintenance-of-way equipment is on the tracks they protect, except as provided in paragraph (b)(1) of this section or when changed to permit movement.
(3) Movement must not be made over a fixed derail in the derailing position.
(c) Employees operating or verifying the position of a fixed derail shall:
(1) Conduct job briefings, before work is begun, each time a work plan is changed, and at completion of the work;
(2) Be qualified on the railroad’s operating rules relating to the operation of the derail;
(3) Be individually responsible for the position of the derail in use;
(4) Determine that the target, if so equipped, corresponds with the derail’s position;
(5) Determine that the derail is secured by:
(i) Placing the throw lever in the latch stand, if so equipped;
(ii) Placing the lock or hook in the hasp, if so equipped; and
(iii) Testing such latches, locks or hooks; and
(6) Ensure that when not in use, derails are locked, hooked, or latched in the normal position if so equipped.
Appendix A to Part 218 [Reserved]
Appendix B to Part 218 – Statement of Agency Enforcement Policy on Blue Signal Protection for Utility Employees
The following examples of the application of the train or yard crew exclusion from required blue signal protection for utility employees are provided to clarify FRA’s enforcement policy. In the first four examples, the utility employee is properly attached to and functioning as member of a train or yard crew and is excluded from blue signal protection, provided all the conditions specified in § 218.22 are met:
In the last four examples, any railroad employee, including regularly assigned crew members, would need blue signal protection to perform the described function.
Appendix C to Part 218 – Statement of Agency Enforcement Policy on Tampering
The Rail Safety Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988) (“RSIA”) raised the maximum civil penalties available under the railroad safety laws and made individuals liable for willful violations of those laws. Section 21 of the RSIA requires that FRA adopt regulations addressing three related but distinct aspects of problems that can occur when safety devices are tampered with or disabled. It requires that FRA make it unlawful for (i) any individual to willfully tamper with or disable a device; (ii) any individual to knowingly operate or permit to be operated a train with a tampered or disabled device; and (iii) any railroad to operate such a train.
Because the introduction of civil penalties against individuals brings FRA’s enforcement of the rail safety laws into a new era and because the changes being introduced by this regulation are so significant, FRA believes that it is advisable to set forth the manner in which it will exercise its enforcement authority under this regulation.
FRA has employed a functional description of what constitutes a safety device under this rule. FRA’s wording effectively identifies existing equipment and is sufficiently expansive to cover equipment that may appear in the future, particularly devices associated with advanced train control systems currently undergoing research testing.
FRA has been advised by portions of the regulated community that its functional definition has some potential for confusing people who read the rule without the benefit of the preamble discussions concerning the meaning of this definition. Since this rule is specifically intended to preclude misconduct by individuals, FRA wants this rule to be easily comprehended by all who read it. To achieve that clarity, FRA has decide to specify which types of equipment it considers to be within the scope of this rule and provide some examples of equipment that is not covered. In addition, FRA is ready and willing to respond in writing to any inquiry about any other devices that a party believes are treated ambiguously under this rule. This regulation applies to a variety of devices including equipment known as “event recorders,” “alerters,” “deadman controls,” “automatic cab signals,” “cab signal whistles,” “automatic train stop equipment,” and “automatic train control equipment.” FRA does not consider the following equipment to be covered by this rule: Radios; monitors for end-of-train devices; bells or whistles that are not connected to alerters, deadman pedals, or signal system devices; fans for controlling interior temperature of locomotive cabs; and locomotive performance monitoring devices, unless they record data such as train speed and air brake operations. Although FRA considers such devices beyond the scope of the regulation, this does not imply that FRA condones the disabling of such devices. FRA will not hesitate to include such devices at a later date should instances of tampering with these devices be discovered. FRA does not currently perceive a need to directly proscribe tampering with such devices because there is no history of these devices being subjected to tampering.
Section 218.57 addresses instances in which one individual has tampered with a safety device and a second individual (a “subsequent operator”) knowingly operates a train or permits it to be operated, notwithstanding the presence of the disabled or tampered-with unit. The most common occurrence addressed by this provision is the situation in which a train crew encounters a locomotive with a safety device that has been tampered with prior to the crew’s assuming responsibility for the locomotive. FRA has structured this provision and its attendant enforcement policy to reflect the fact that instances in which one individual encounters a locomotive that someone else has tampered with are relatively infrequent occurrences.
FRA’s regulatory prohibition for subsequent operator conduct reflects the legal standard for individual culpability set forth in the RSIA. Under the relevant statutory standard (“knowingly operates or permits to be operated a train on which such devices have been tampered with or disabled by another person”) – now incorporated into § 218.57 – individuals could be held to a simple negligence standard of conduct, i.e., a standard of reasonable care under the circumstances. FRA’s conclusion about the proper interpretation of the word “knowingly” stems from both normal canons of statutory construction and analysis of decisional law concerning the use of similar statutory constructs in the civil penalty context. It is also consistent with other Departmental interpretations of the word as used in similar contexts. (See 49 CFR 107.299, defining “knowingly” under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq.)
Under that statutory language, the responsible members of the crew could be culpable if either (1) due to their failure to exercise reasonable care, they failed to determine that the safety device was not functioning, or (2) having ascertained that the device was not functioning, still elected to operate the train. Similarly, railroad supervisors who permit or direct that a train with a disabled device be operated after having learned that the safety device is not functioning or after having failed to use reasonable care in the performance of their duties could also be subject to sanction.
However, as a matter of enforcement policy, application of a negligence standard in this particular context presently appears unwarranted. We have seen no evidence of an employee’s negligent failure to detect another employee’s tampering having caused a safety problem. FRA can effectively attack the known dimensions of the tampering problem by employing an enforcement policy that limits its enforcement actions to situations where individuals clearly had actual knowledge of the disabled device and intentionally operated the train notwithstanding that knowledge.
Therefore, FRA will not take enforcement action against an individual under § 218.57 absent a showing of such actual knowledge of the facts. Actual, subjective knowledge need not be demonstrated. It will suffice to show objectively that the alleged violator must have known the facts based on reasonable inferences drawn from the circumstances. For example, it is reasonable to infer that a person knows about something plainly in sight on the locomotive he is operating. Also, unlike the case where willfulness must be shown (see FRA’s statement of policy at 49 CFR part 209, appendix A), knowledge of or reckless disregard for the law need not be shown to make out a violation of § 218.57. The knowledge relevant here is knowledge of the facts constituting the violation, not knowledge of the law.
Should FRA receive evidence indicating that a stricter enforcement policy is necessary to address the tampering problem, it will revise its enforcement policy to permit enforcement actions based only on a showing of the subsequent operator’s negligent failure to detect the tampering, as the relevant provision of the RSIA permits it to do now. Any such change in enforcement policy will become effective only after publication of a revised version of this appendix.
Appendix D to Part 218 – Requirements and Considerations for Implementing Technology Aided Point Protection
This appendix provides further explanation and requirements for exercising the option to provide point protection with the aid of technology as permitted in § 218.99(b)(3)(i). The regulation permits the visual determination necessary to provide point protection, i.e., a determination that the track is clear, for a shoving or pushing movement to “be made with the aid of monitored cameras or other technological means, provided that it and the procedures for use provide an equivalent level of protection to that of a direct visual determination by a crewmember or other qualified employee properly positioned to make the observation as prescribed in this section and appendix D to this part.” This appendix addresses the general requirements and considerations for all technology aided point protection as well as specific additional requirements for those operations involving remote control operations at public highway-rail grade crossings, private highway-rail grade crossings outside the physical confines of a railroad yard, pedestrian crossings outside the physical confines of a railroad yard, and yard Access Crossings.
A. Although railroading is now one of the nation’s older forms of mechanized transportation, equipment, components and operations all have evolved through new and improved technologies. Installing cameras in yards so that a location could be remotely monitored from somewhere else has become a railroading reality as cameras have become smaller, less expensive, and have increased resolution. It is possible to set up these cameras and monitors so that they provide at least an equivalent level of safety to that of an employee protecting the point. Part 218, subpart F permits such an operation to substitute for an employee’s direct visual determination where the technology provides an equivalent level of protection to that of a direct visual determination. See § 218.99(b)(3)(i). Of course, to provide an equivalent level of protection, an employee needs to be properly qualified (see § 218.95(a)(2)) and the technology must work as intended. Most malfunctions of the technology should be detectable, and result in abandoning the use of the technology for determining point protection until the malfunction can be corrected.
B. The substitution of such technology for a direct visual determination is dependent on many factors. Each situation will have its own particular factual circumstances that shall require consideration in determining whether an equivalent level of safety can be achieved. For instance, with regard to the basic camera setup, a railroad shall consider whether an operator must see in color (largely a necessity if viewing signals), the width of the angle of view, the size and location of the monitor, whether the technology is for day-time use only, and whether its use should be limited to fair weather conditions. However, under all circumstances, the monitor shall display sufficient information to enable the viewer to make a determination that the track ahead of the shoving or pushing move is clear pursuant to the definition of “track is clear” in § 218.93.
C. Each railroad that chooses to implement such camera/monitor setups shall implement attendant procedures and qualify each employee who will be utilizing the technology. Railroads shall ensure that any monitored camera has sufficient resolution and real time coverage to provide protection equal to a direct visual determination. See § 218.99(b)(3)(i). Concerning attendant procedures, one such procedure may be for an employee viewing a monitor to communicate updates to the locomotive engineer or controlling crewmember at appropriate intervals. FRA equates the employee monitoring the camera to the employee controlling the movement who must not engage in any task unrelated to the oversight of the movement; thus, each railroad utilizing such cameras shall implement attendant procedures limiting any of the monitoring employee’s ancillary duties that might distract from the employee’s ability to visually determine that the track is clear and provide continuous communication to the employee controlling the movement.
D. There is also the consideration of whether the person viewing the monitor is the locomotive engineer, remote control operator, other crewmember or other qualified person, such as a yardmaster. If the monitor is not being viewed by the operator who is controlling the movement, then, there shall be a clear understanding and channel of communication between the operator and the employee who is viewing the monitor – as the latter would be protecting the movement. Providing an equivalent level of protection to that of a direct visual determination requires a thorough job briefing in which there is an understanding of who is observing the movement, what is the observer’s range of vision, at what locomotive speed can the observation be made and how information will be conveyed to the operator/engineer, if that person is not the one viewing the monitor.
E. There may be occasions when a railroad finds it advantageous to use a non-crewmember, e.g., a yardmaster, to provide point protection, line switches, or check the status of a derail for a remote control crew; however, several potential problems may result when non-crewmembers are used to carry out some crewmember functions. Of foremost concern is the great potential for an error in communication or a misunderstanding between the non-crewmember and the crewmembers regarding the activity or status of equipment. A yardmaster who is occupied with his or her other responsibilities might not give the task the attention it deserves, or could be distracted and give an incorrect answer to a question by a crewmember (e.g., “is the move lined?”). The result could be that the task does not get completed or there is an error in task execution. Further, the crewmembers might not have any alternative way of determining that there is a problem with the point protection provided by the non-crewmember until it is too late. Consequently, to the extent they will be called upon to perform these duties, each railroad shall include yardmasters and other non-crewmembers in any operating rule promulgated in accordance with § 218.99(b)(2).
A. In addition to the general requirements and considerations for all technology aided point protection in lieu of direct visual determinations, additional requirements are necessary to address concerns specific to the use of camera/monitor setups for remote control locomotive operations to protect the point at highway-rail grade crossings, pedestrian crossings, and yard access crossings. Railroad operating rules currently permit a movement to travel over a crossing without the physical presence of a crewmember if a crossing is equipped with gates, if it can be determined that the gates are in the fully lowered position, and if the crossing is clear of vehicles and pedestrians. Remote control movements at highway-rail grade crossings, pedestrian crossings, and yard access crossings that utilize camera/monitor setups pose a greater direct risk to members of the general public than yard movements utilizing camera/monitor setups to check whether a track is clear. In addition, such setups can rapidly develop problems with motor vehicles and pedestrians unaccustomed to railroad operating rules and procedures. For these reasons, additional safeguards are necessary.
B. In consideration of the dangers posed by the use of camera/monitor setups for remote control locomotive operations at highway-rail grade crossings, pedestrian crossings, and yard access crossings, the following procedures shall be complied with in order to establish an equivalent means of safety in accordance with § 218.99(b)(3)(i):
1. Before camera-assisted remote control locomotive operations are permitted at highway-rail grade crossings, pedestrian crossings, and yard access crossings, a Crossing Diagnostic Team shall evaluate the crossing. The diagnostic team shall have representatives from the railroad, FRA, the State department of transportation (or another State agency having jurisdiction over the highway-rail grade crossing, pedestrian crossing, or yard access crossing), and local government authorities. The diagnostic team shall evaluate the suitability of each crossing for remote camera operations. Among the factors it shall consider are the following: the average annual daily traffic counts; the number of highway lanes; highway speed limits; the presence of adjacent signalized highway intersections; the number of railroad tracks; the angle of the roadway intersection; the volume of school bus, transit bus, emergency vehicle, commercial motor vehicle, and hazardous materials traffic over the crossing; the minimum remote control locomotive operator sight distances of roadway approaches to the crossing; and other relevant factors that could affect the safety of the crossing. The diagnostic team shall also consider the appropriate number of cameras and appropriate camera angles needed to provide for the remote operation of remote control locomotives over the crossing. The diagnostic team shall agree to a written diagnostic evaluation summary of the factors considered and shall provide the railroad with agreed upon parameters by which the camera-assisted remote control operation may continue in operation if the factors required for suitability change; thus, any change in the factors considered by the diagnostic team outside of the acceptable parameters shall require the railroad to receive a revised evaluation approval from a diagnostic team before continuing any such operation. In addition, any of the Federal, State, or local governmental authorities may trigger review of a prior evaluation approval at any time there is a question of the suitability of the operation. It is possible that, of the requirements listed below, requirements numbered 2, 4, 5, and 6 would be unnecessary at highway-rail grade crossings or yard access crossings equipped with approved supplemental safety devices (see 49 CFR part 222, app. A) that prevent motorists from driving around lowered gates; under such circumstances, the diagnostic team shall make such determinations. If a Crossing Diagnostic Team, as described in this paragraph, evaluated a crossing for the factors described herein, prior to April 14, 2008, another diagnostic team evaluation is not required to comply with this rule; however, the requirements listed below shall still apply to any such remotely controlled movements over that crossing.
2. Camera-assisted remote control locomotive operations shall only be permitted at crossings equipped with flashing lights, gates, and constant warning time train detection systems where appropriate, based on train speeds.
3. A crewmember or other qualified employee shall not view the monitor in place of the remote control operator, as is permitted for other shoving or pushing movements. See § 218.99(b)(3). For purposes of remote control locomotive operations with camera/monitor setups to protect the point at highway-rail grade crossings, pedestrian crossings, and yard access crossings, the remote control operator controlling the movement shall view the monitor during such operations.
4. The cameras shall be arranged to give the remote control locomotive operator controlling the movement a view of the rail approaches to the crossing from each direction so that the operator can accurately judge the end of the movement’s proximity to the crossing.
5. The cameras shall be arranged to give the remote control locomotive operator a clear view to determine the speed and driver behavior (e.g., driving erratically) of any approaching motor vehicles.
6. Either the camera resolution shall be sufficient to determine whether the flashing lights and gates are working as intended or the crossing shall be equipped with a remote health monitoring system that is capable of notifying the remote control locomotive operator immediately if the flashing lights and gates are not working as intended.
7. The railroad shall notify the Associate Administrator for Safety in writing when this type of protection has been installed and activated at a crossing.
The technology used to aid point protection will undoubtedly develop and improve over time. FRA encourages the use and development of this technology as is evidenced by the option in this rule to utilize such technology. Meanwhile, as a regulating body, FRA cannot determine whether a new technology to aid point protection provides an equivalent level of protection to that of a direct visual determination unless we are made aware of the new technology. Consequently, aside from the camera/monitor setups described in this appendix, each railroad that intends to implement a technology used to aid point protection shall notify the Associate Administrator for Safety in writing of the technology to be used prior to implementation.
PART 219 – CONTROL OF ALCOHOL AND DRUG USE
Subpart A – General
§ 219.1 Purpose and scope.
(a) The purpose of this part is to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.
(b) This part prescribes minimum Federal safety standards for control of alcohol and drug use. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part.
§ 219.3 Application.
(a) General. This part applies to all railroads and contractors, except as provided in paragraphs (b), (c), and (d) of this section, and except for:
(1) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (i.e., plant railroads, as defined in § 219.5);
(2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation, as defined in § 219.5; or
(3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(b) Annual report requirements. (1) Subpart I of this part does not apply to any domestic or foreign railroad that has fewer than 400,000 total annual employee work hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States.
(2) Subpart I of this part does not apply to any contractor that performs regulated service exclusively for railroads with fewer than 400,000 total annual employee work hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States.
(3) When a contractor performs regulated service for at least one railroad with fewer than 400,000 total annual employee hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States, subpart I of this part applies as follows:
(i) A railroad with more than 400,000 total annual employee work hours must comply with subpart I regarding any contractor employees it integrates into its own alcohol and drug testing program under this part; and
(ii) If a contractor establishes its own independent alcohol and drug testing program that meets the requirements of this part and is acceptable to the railroad, the contractor must comply with subpart I if it has 200 or more regulated employees.
(c) Small railroad exception. (1) Subparts E and G of this part do not apply to small railroads, and a small railroad may not perform the Federal alcohol and drug testing authorized by these subparts. For purposes of this part, a small railroad means a railroad that:
(i) Has a total of 15 or fewer employees who are covered by the hours of service laws at 49 U.S.C. 21103, 21104, or 21105, or who would be subject to the hours of service laws at 49 U.S.C. 21103, 21104, or 21105 if their services were performed in the United States; and
(ii) Does not have joint operations, as defined in § 219.5, with another railroad that operates in the United States, except as necessary for purposes of interchange.
(2) An employee performing only MOW activities, as defined in § 219.5, does not count towards a railroad’s total number of covered employees for the purpose of determining whether it qualifies for the small railroad exception.
(3) A contractor performing MOW activities exclusively for small railroads also qualifies for the small railroad exception (i.e., is excepted from the requirements of subparts E and G of this part). A contractor is not excepted if it performs MOW activities for at least one or more railroads that does not qualify for the small railroad exception under this section.
(4) If a contractor is subject to all of part 219 of this chapter because it performs regulated service for multiple railroads, not all of which qualify for the small railroad exception, the responsibility for ensuring that the contractor complies with subparts E and G of this part is shared between the contractor and any railroad using the contractor that does not qualify for the small railroad exception.
(d) Foreign railroad. (1) This part does not apply to the operations of a foreign railroad that take place outside the United States. A foreign railroad is required to conduct post-accident toxicological testing or reasonable suspicion testing only for operations that occur within the United States.
(2) Subparts F, G, and K of this part do not apply to an employee of a foreign railroad whose primary reporting point is outside the United States if that employee is:
(i) Performing train or dispatching service on that portion of a rail line in the United States extending up to 10 route miles from the point that the line crosses into the United States from Canada or Mexico; or
(ii) Performing signal service in the United States.
§ 219.4 Recognition of a foreign railroad’s workplace testing program.
(a) General. A foreign railroad may petition the FRA Associate Administrator for Safety for recognition of a workplace testing program promulgated under the laws of its home country as a compatible alternative to the return-to-service requirements in subpart B of this part and the requirements of subparts E, F, and G of this part with respect to its employees whose primary reporting point is outside the United States but who enter the United States to perform train or dispatching service and with respect to its final applicants for, or its employees seeking to transfer for the first time to, duties involving such service.
(1) To be so considered, the petition must document that the foreign railroad’s workplace testing program contains equivalents to subparts B, F, G, and K of this part:
(2) In approving a program under this section, the FRA Associate Administrator for Safety may impose conditions deemed necessary.
(b) Alternative programs. (1) Upon FRA’s recognition of a foreign railroad’s workplace alcohol and drug use program as compatible with the return-to-service requirements in subpart B of this part and the requirements of subparts F, G, and K of this part, the foreign railroad must comply with either the specified provisions of § 219.4 or with the standards of its recognized program, and any imposed conditions, with respect to its employees whose primary reporting point is outside the United States and who perform train or dispatching service in the United States. The foreign railroad must also, with respect to its final applicants for, or its employees seeking to transfer for the first time to, duties involving such train or dispatching service in the United States, comply with either subpart F of this part or the standards of its recognized program.
(2) The foreign railroad must comply with subparts A (general), B (prohibitions, other than the return-to-service provisions in paragraph (d) of this section), C (post-accident toxicological testing), D (reasonable suspicion testing), I (annual report requirements), and J (recordkeeping requirements) of this part. Drug or alcohol testing required by these subparts (except for post-accident toxicological testing required by subpart C) must be conducted in compliance with all applicable provisions of the DOT Procedures for Workplace Drug and Alcohol Testing Programs (part 40 of this title).
(c) Petitions for recognition of a foreign railroad’s workplace testing programs. Each petition for recognition of a foreign workplace testing program shall contain:
(1) The name, title, address, and telephone number of the primary person to be contacted with regard to review of the petition;
(2) The requirements of the foreign railroad workplace testing program to be considered for recognition;
(3) Appropriate data or records, or both, for FRA to consider in determining whether the foreign railroad workplace testing program is equivalent to the minimum standards contained in this part and provides at least an equivalent level of safety.
(d)
(e) Comment. Not later than 30 days from the date of publication of the notice in the
(1) A comment shall set forth specifically the basis upon which it is made, and contain a concise statement of the interest of the commenter in the proceeding.
(2) Any comment on a petition should reference the FRA docket and notice numbers. A commenter may submit a comment and related material by only one of the following methods:
(i) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on the Federal Docket Management System electronic docket site.
(ii) Fax. 1-202-493-2251.
(iii) Mail. U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(iv) Hand delivery. Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
(3) The commenter shall certify that a copy of the comment was served on the petitioner. Note that all petitions received will be posted without change to http://www.regulations.gov including any personal information provided.
(f) Disposition of petitions. (1) If FRA finds that the petition complies with the requirements of this section and that the foreign railroad’s workplace testing program is compatible with the minimum standards of this part, the petition will be granted, normally within 90 days of its receipt. If the petition is neither granted nor denied within 90 days, the petition remains pending for decision. FRA may attach special conditions to the approval of any petition. Following the approval of a petition, FRA may reopen consideration of the petition for cause.
(2) If FRA finds that the petition does not comply with the requirements of this section or that the foreign railroad’s workplace testing program is not compatible with the minimum standards of this part, the petition will be denied, normally within 90 days of its receipt.
(3) When FRA grants or denies a petition, or reopens consideration of the petition, written notice is sent to the petitioner and other interested parties.
(g) Program recognition. If its program has been recognized, the foreign railroad shall maintain a letter on file indicating that it has elected to extend specified elements of the recognized program to its operations in the United States. Once granted, program recognition remains valid so long as the program retains these elements and the foreign railroad complies with the program requirements.
§ 219.5 Definitions.
As used in this part only –
Accident or incident reportable under part 225 does not include a case that is classified as “covered data” under § 225.5 of this chapter (i.e., employee injury/illness cases reportable exclusively because a physician or other licensed health care professional either made a one-time topical application of a prescription-strength medication to the employee’s injury or made a written recommendation that the employee: Take one or more days away from work when the employee instead reports to work (or would have reported had he or she been scheduled) and takes no days away from work in connection with the injury or illness; work restricted duty for one or more days when the employee instead works unrestricted (or would have worked unrestricted had he or she been scheduled) and takes no other days of restricted work activity in connection with the injury or illness; or take over-the-counter medication at a dosage equal to or greater than the minimum prescription strength, whether or not the employee actually takes the medication).
Administrator means the Administrator of the Federal Railroad Administration or the Administrator’s delegate.
Associate Administrator means the Associate Administrator for Railroad Safety, Federal Railroad Administration, or the Associate Administrator’s delegate.
Category of regulated employee means a broad class of either covered service or maintenance-of-way employees (as defined in this section). For the purpose of determining random testing rates under § 219.625, if an individual performs both covered service and maintenance-of-way activities, he or she belongs in the category of regulated employee that corresponds with the type of regulated service comprising more than 50 percent of his or her regulated service.
Class I, Class II, and Class III have the meaning assigned by regulations of the Surface Transportation Board (49 CFR part 1201; General Instructions 1-1).
Contractor means a contractor or subcontractor performing functions for a railroad.
Controlled substance has the meaning assigned by 21 U.S.C. 802, and includes all substances listed on Schedules I through V as they may be revised from time to time (21 CFR parts 1301-1316).
Covered employee means an employee (as defined in this section to include an employee, volunteer, or probationary employee performing activities for a railroad or a contractor to a railroad) who is performing covered service under the hours of service laws at 49 U.S.C. 21101, 21104, or 21105 or who is subject to performing such covered service, regardless of whether the person has performed or is currently performing covered service. (An employee is not a “covered employee” under this definition exclusively because he or she is an employee for purposes of 49 U.S.C. 21106.) For the purposes of pre-employment testing only, the term “covered employee” includes a person applying to perform covered service in the United States.
Covered service means service in the United States as a train employee, a dispatching service employee, or a signal employee, as those terms are defined at 49 U.S.C. 21101, but does not include any period the employee is relieved of all responsibilities and is free to come and go without restriction.
Cross-border operation means a rail operation that crosses into the United States from Canada or Mexico.
Domestic railroad means a railroad that is incorporated in the United States.
DOT Agency means an agency (or “operating administration”) of the United States Department of Transportation administering regulations requiring alcohol or controlled substance testing (14 CFR parts 61, 63, 65, 121 and 135; 49 CFR parts 199, 219, 382 and 655) in accordance with part 40 of this title.
DOT, The Department, or DOT agency means all DOT agencies, including, but not limited to, the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), the United States Coast Guard (USCG) (for purposes of part 40 coverage only), and the Office of the Secretary (OST). These terms include any designee of a DOT agency.
DOT-regulated employee means any person who is designated in a DOT agency regulation as subject to drug testing and/or alcohol testing. The term includes individuals currently performing DOT safety-sensitive functions designated in DOT agency regulations and applicants for employment subject to pre-employment testing. For purposes of drug testing conducted under the provisions of 49 CFR part 40, the term employee has the same meaning as the term “donor” as found on the Custody and Control Form and related guidance materials produced by the Department of Health and Human Services.
DOT safety-sensitive duties or DOT-safety sensitive functions means functions or duties designated by a DOT agency, the performance of which makes an individual subject to the drug testing and/or alcohol testing requirements of that DOT agency. For purposes of this part, regulated service has been designated by FRA as a DOT safety-sensitive duty or function.
Drug means any substance (other than alcohol) that has known mind- or function-altering effects on a human subject, specifically including any psychoactive substance and including, but not limited to, controlled substances.
Drug and Alcohol Counselor or DAC means a person who meets the credentialing and qualification requirements described in § 242.7 of this chapter.
Employee means any individual (including a volunteer or a probationary employee) performing activities for a railroad or a contractor to a railroad.
Evacuation means the mandatory or voluntary relocation of at least one person who is not a railroad employee for the purpose of avoiding exposure to a hazardous material release. It does not include the closure of public transportation roadways for the purpose of containing a hazardous material release, unless the closure is accompanied by an evacuation order.
Flagman or Flagger means any person designated by the railroad to direct or restrict the movement of trains past a point on a track to provide on-track safety for maintenance-of-way employees, while engaged solely in performing that function.
Foreign railroad means a railroad that is incorporated outside the United States.
Fouling a track means the placement of an individual or an item of equipment in such proximity to a track that the individual or equipment could be struck by a moving train or on-track equipment, or in any case is within four feet of the field side of the near running rail.
FRA means the Federal Railroad Administration, United States Department of Transportation.
FRA representative means the Associate Administrator for Railroad Safety of FRA and staff, the Associate Administrator’s delegate (including a qualified State inspector acting under part 212 of this chapter), the Chief Counsel of FRA, the Chief Counsel’s delegate, or FRA’s Drug and Alcohol Program oversight contractor.
Hazardous material means a commodity designated as a hazardous material by part 172 of this title.
Highway-rail grade crossing means:
(1) A location where a public highway, road, or street, or a private roadway, including associated sidewalks, crosses one or more railroad tracks at grade; or
(2) A location where a pathway explicitly authorized by a public authority or a railroad carrier that is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others that crosses one or more railroad tracks at grade. The term “sidewalk” means that portion of a street between the curb line, or the lateral line of a roadway, and the adjacent property line or, on easements of private property, that portion of a street that is paved or improved and intended for use by pedestrians.
Highway-rail grade crossing accident/incident means any impact between railroad on-track equipment and a highway user at a highway-rail grade crossing. The term “highway user” includes pedestrians, as well as automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, and all other modes of surface transportation motorized and un-motorized.
Impact accident, (1) Impact accident means a train accident, as defined in this section, consisting either of –
(i) A head-on or rear-end collision between on-track equipment;
(ii) A side collision, derailment collision, raking collision, switching collision, or “other impact accident,” as defined by this section;
(iii) Impact with a deliberately-placed obstruction, such as a bumping post (but not a derail); or
(iv) Impact between on-track equipment and any railroad equipment fouling the track, such as an impact between a train and the boom of an off-rail vehicle.
(2) The definition of “impact accident” does not include an impact with naturally-occurring obstructions such as fallen trees, rock or snow slides, livestock, etc.
Independent with respect to a medical facility, means not under the ownership or control of the railroad and not operated or staffed by a salaried officer or employee of the railroad. The fact that the railroad pays for services rendered by a medical facility or laboratory, selects that entity for performing tests under this part, or has a standing contractual relationship with that entity to perform tests under this part or perform other medical examinations or tests of railroad employees does not, by itself, remove the facility from this definition.
Joint operations means rail operations conducted by more than one railroad on the same track (except for minimal joint operations necessary for the purpose of interchange), regardless of whether such operations are the result of contractual arrangements between the railroads, order of a governmental agency or a court of law, or any other legally binding directive. For purposes of this part only, minimal joint operations are considered necessary for the purpose of interchange when:
(1) The maximum authorized speed for operations on the shared track does not exceed 20 mph;
(2) Operations are conducted under operating rules that require every locomotive and train to proceed at a speed that permits stopping within one half the range of vision of the locomotive engineer;
(3) The maximum distance for operations on the shared track does not exceed 3 miles; and
(4) Any operations extending into another railroad’s yard are for the sole purpose of setting out or picking up cars on a designated interchange track.
Maintenance-of-way employee or MOW employee means a roadway worker as defined in § 214.7 of this chapter.
Medical facility means a hospital, clinic, physician’s office, or laboratory where post-accident toxicological testing specimens can be collected according to recognized professional standards, and where an individual’s post-accident medical needs can be attended to.
Medical practitioner means a physician or dentist licensed or otherwise authorized to practice by the state.
Non-controlled substance means any substance (including prescription medications, over-the-counter products, dietary supplements, and herbal preparations) which is not currently regulated under 21 U.S.C. 801-971 or 21 CFR part 1308.
Non-peer means a supervisor (other than a co-worker), labor organization representative, or family member of a regulated employee.
NTSB means the National Transportation Safety Board.
On-track or fouling equipment means any railroad equipment that is positioned on the rails or that is fouling the track, and includes, but is not limited to, the following: A train, locomotive, cut of cars, single car, motorcar, yard switching train, work train, inspection train, track motorcar, highway-rail vehicle, push car, crane, or other roadway maintenance machine, such as a ballast tamping machine, if the machine is positioned on or over the rails or is fouling the track.
Other impact accident means an accident or incident, not classified as a head-on, rear-end, side, derailment, raking, or switching collision, that involves contact between on-track or fouling equipment. This includes impacts in which single cars or cuts of cars are damaged during operations involving switching, train makeup, setting out, etc.
Passenger train means a train transporting persons (other than employees, contractors, or persons riding equipment to observe or monitor railroad operations) in intercity passenger service, commuter or other short-haul service, or for excursion or recreational purposes.
Person means an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad, such as a service agent performing functions under part 40 of this title; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor.
Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation.
Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug tests results (i.e., positives, negatives, and refusals) under this part.
Possess means to have on one’s person or in one’s personal effects or under one’s control. However, the concept of possession as used in this part does not include control by virtue of presence in the employee’s personal residence or other similar location off of railroad property.
Railroad means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, and any person providing such transportation, including –
(1) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
Railroad property damage or damage to railroad property means damage to railroad property (specifically, on-track equipment, signals, track, track structure, or roadbed) and must be calculated according to the provisions for calculating costs and reportable damage in the FRA Guide for Preparing Accident/Incident Reports (see § 225.21 of this chapter for instructions on how to obtain a copy). Generally, railroad property damage includes labor costs and all other costs to repair or replace in-kind damaged on-track equipment, signals, track, track structures (including bridges and tunnels), or roadbed. (Labor costs that must be accounted for include hourly wages, transportation costs, and hotel expenses.) It does not include the cost of clearing a wreck; however, additional damage to the above-listed items caused while clearing the wreck must be included in the damage estimate. It also includes the cost of rental and/or operation of machinery such as cranes and bulldozers, including the services of contractors, to replace or repair the track right-of-way and associated structures. Railroad property damage does not include damage to lading. Trailers/containers on flatcars are considered to be lading and damage to these is not to be included in on-track equipment damage. Damage to a flat car carrying a trailer/container, however, is included in railroad property damage. Railroads should refer directly to the FRA Guide for Preparing Accident/Incident Reports for additional guidance on what constitutes railroad property damage.
Raking collision means a collision between parts or lading of a consist on an adjacent track, or with a structure such as a bridge.
Regulated employee means a covered employee or maintenance-of-way employee who performs regulated service for a railroad subject to the requirements of this part.
Regulated service means covered service or maintenance-of-way activities, the performance of which makes an employee subject to the requirements of this part.
Reportable injury means an injury reportable under part 225 of this chapter except for an injury that is classified as “covered data” under § 225.5 of this chapter (i.e., employee injury/illness cases reportable exclusively because a physician or other licensed health care professional either made a one-time topical application of a prescription-strength medication to the employee’s injury or made a written recommendation that the employee: Take one or more days away from work when the employee instead reports to work (or would have reported had he or she been scheduled) and takes no days away from work in connection with the injury or illness; work restricted duty for one or more days when the employee instead works unrestricted (or would have worked unrestricted had he or she been scheduled) and takes no other days of restricted work activity in connection with the injury or illness; or take over-the-counter medication at a dosage equal to or greater than the minimum prescription strength, whether or not the employee actually takes the medication.
Reporting threshold means the amount specified in § 225.19(e) of this chapter, as adjusted from time to time in accordance with appendix B to part 225 of this chapter.
Responsible railroad supervisor means any responsible line supervisor (e.g., a trainmaster or road foreman of engines) or superior official in authority over the regulated employees to be tested.
Side collision means a collision at a turnout where one consist strikes the side of another consist.
State means a State of the United States of America or the District of Columbia.
Supervisory employee means an officer, special agent, or other employee of the railroad who is not a co-worker and who is responsible for supervising or monitoring the conduct or performance of one or more employees.
Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track).
Train accident means a rail equipment accident described in § 225.19(c) of this chapter involving damage in excess of the current reporting threshold (see § 225.19(e) of this chapter), including an accident involving a switching movement. Rail equipment accidents include, but are not limited to, collisions, derailments, and other events involving the operations of on-track or fouling equipment (whether standing or moving).
Train incident means an event involving the operation of railroad on-track or fouling equipment that results in a casualty but in which railroad property damage does not exceed the reporting threshold.
United States means all of the States.
Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under this part plus the number of refusals of random alcohol tests required by this part, divided by the total number of random alcohol screening tests (including refusals) conducted under this part.
Watchman/lookout means an employee who has been annually trained and qualified to provide warning of approaching trains or on-track equipment. Watchmen/lookouts must be properly equipped to provide visual and auditory warning by such means as a whistle, air horn, white disk, red flag, lantern, or fusee. A watchman/lookout’s sole duty is to look out for approaching trains/on-track equipment and provide at least fifteen seconds advanced warning to employees before the arrival of trains/on-track equipment.
§ 219.7 Waivers.
(a) A person subject to a requirement of this part may petition the FRA for a waiver of compliance with such requirement.
(b) Each petition for waiver under this section must be filed in a manner and contain the information required by part 211 of this chapter. A petition for waiver of the part 40 prohibition against stand down of an employee before the Medical Review Officer has completed the verification must also comply with § 40.21 of this title.
(c) If the FRA Administrator finds that waiver of compliance is in the public interest and is consistent with railroad safety, the Administrator may grant the waiver subject to any necessary conditions.
(d) Special dispensation for employees performing train or dispatching service on existing cross-border operations. If a foreign railroad requests a waiver not later than August 10, 2004, for an existing cross-border operation, subparts E, F, and G of this part shall not apply to train or dispatching service on that operation in the United States performed by an employee of a foreign railroad whose primary reporting point is outside the United States, until the railroad’s waiver request is acted upon by FRA.
(e) Waiver requests for employees performing train or dispatching service on new or expanded cross-border operations. A foreign railroad seeking a waiver from subparts E, F, and G of this part for its employees performing train or dispatching service on a new cross-border operation that proceeds more than 10 route miles into the United States, or a formerly excepted cross-border operation that expands beyond the 10 mile limited haul exception in paragraph (d) of this section, must file a petition not later than 90 days before commencing the subject operation. FRA will attempt to decide on such petitions within 90 days. If no action is taken on the petition within 90 days, the petition remains pending for decision and the cross-border crew assignments on the operation covered by the petition will be subject to subparts E, F, and G until FRA grants the petition should the petitioner commence the proposed operation.
§ 219.9 Responsibility for compliance.
(a) General. Although the requirements of this part are stated in terms of the duty of a railroad, when any person, as defined by § 219.5, performs any function required by this part, that person (whether or not a railroad) shall perform that function in accordance with this part.
(b) Joint operations. (1) In the case of joint operations, primary responsibility for compliance with subparts C, D, and E of this part rests with the host railroad, and all affected employees must be responsive to direction from the host railroad that is consistent with this part. However, nothing in this paragraph restricts railroads engaged in joint operations from appropriately assigning responsibility for compliance with this part amongst themselves through a joint operating agreement or other binding contract. FRA reserves the right to bring an enforcement action for noncompliance with this part against the host railroad, the employing railroad, or both.
(2) When an employee of a railroad engaged in joint operations is required to participate in breath or body fluid testing under subpart C, D, or E of this part and is subsequently subject to adverse action alleged to have arisen out of the required test (or alleged refusal thereof), necessary witnesses and documents available to the other railroad engaged in the joint operations must be made available to the employee and his or her employing railroad on a reasonable basis.
(c) Contractor responsibility for compliance. As provided by paragraph (a) of this section, any independent contractor or other entity that performs regulated service for a railroad, or any other services under this part or part 40 of this title, has the same responsibilities as a railroad under this part with respect to its employees who perform regulated service or other service required by this part or part 40 of this title for the railroad. The entity’s responsibility for compliance with this part may be fulfilled either directly by that entity or by the railroad treating the entity’s regulated employees as if they were the railroad’s own employees for purposes of this part. The responsibility for compliance must be clearly spelled out in the contract between the railroad and the other entity or in another document. In the absence of a clear delineation of responsibility, FRA may hold the railroad and the other entity jointly and severally liable for compliance.
§ 219.10 Penalties.
Any person, as defined by § 219.5, who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $919 and not more than $30,058 per violation, except that: Penalties may be assessed against individuals only for willful violations; where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury, or has caused death or injury, a penalty not to exceed $120,231 per violation may be assessed; and the standard of liability for a railroad will vary depending upon the requirement involved. See, e.g., § 219.105, which is construed to qualify the responsibility of a railroad for the unauthorized conduct of an employee that violates § 219.101 or § 219.102 (while imposing a duty of due diligence to prevent such conduct). Each day a violation continues constitutes a separate offense. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy.
§ 219.11 General conditions for chemical tests.
(a)(1) Any regulated employee who is subject to performing regulated service for a railroad is deemed to have consented to testing as required in subparts B, C, D, E, F, G, and K of this part.
(2) A regulated employee required to participate in alcohol and/or drug testing under this part must be on duty and subject to performing regulated service when the specimen collection is initiated and the alcohol testing/urine specimen collection is conducted (with the exception of pre-employment testing under subpart F of this part).
(b)(1) Each regulated employee must participate in such testing, as required under the conditions set forth in this part and implemented by a representative of the railroad or employing contractor.
(2) In any case where an employee is suffering a substantiated medical emergency and is subject to alcohol or drug testing under this part, necessary medical treatment must be accorded priority over provision of the breath or body fluid specimen(s). A medical emergency is an acute medical condition requiring immediate medical care. A railroad may require an employee to substantiate a medical emergency by providing verifiable documentation from a credible outside professional (e.g., doctor, dentist, hospital, or law enforcement officer) substantiating the medical emergency within a reasonable period of time.
(3) Failure to remain available following an accident or casualty as required by company rules (i.e., being absent without leave) is considered a refusal to participate in testing, without regard to any subsequent provision of specimens.
(c) A regulated employee who is required to be tested under subparts C, D, or E of this part and who is taken to a medical facility for observation or treatment after an accident or incident is deemed to have consented to the release to FRA of the following:
(1) The remaining portion of any body fluid specimen taken by the medical facility within 12 hours of the accident or incident that is not required for medical purposes, together with any normal medical facility record(s) pertaining to the taking of such specimen;
(2) The results of any laboratory tests for alcohol or any drug conducted by or for the medical facility on such specimen;
(3) The identity, dosage, and time of administration of any drugs administered by the medical facility before the time specimens were taken by the medical facility or before the time specimens were taken in compliance with this part; and
(4) The results of any breath tests for alcohol conducted by or for the medical facility.
(d) Any person required to participate in body fluid testing under subpart C of this part (post-accident toxicological testing) shall, if requested by a representative of the railroad or the medical facility, evidence consent to the taking of specimens, their release for toxicological analysis under pertinent provisions of this part, and release of the test results to the railroad’s Medical Review Officer by promptly executing a consent form, if required by the medical facility. A regulated employee is not required to execute any document or clause waiving rights that the employee would otherwise have against the railroad, and any such waiver is void. The employee may not be required to waive liability with respect to negligence on the part of any person participating in the collection, handling or analysis of the specimen or to indemnify any person for the negligence of others. Any consent provided consistent with this section may be construed to extend only to those actions specified in this section.
(e)(1) A regulated employee who is notified of selection for testing under this part must cease to perform his or her assigned duties and proceed to the testing site either immediately or as soon as possible without adversely affecting safety.
(2) A railroad must ensure that the absence of a regulated employee from his or her assigned duties to report for testing does not adversely affect safety.
(3) Nothing in this part may be construed to authorize the use of physical coercion or any other deprivation of liberty to compel breath or body fluid testing.
(f) Any employee performing duties for a railroad who is involved in a qualifying accident or incident described in subpart C of this part, and who dies within 12 hours of that accident or incident as the result thereof, is deemed to have consented to the removal of body fluid and/or tissue specimens necessary for toxicological analysis from the remains of such person, and this consent is implied by the performance of duties for the railroad (i.e., a consent form is not required). This consent provision applies to all employees performing duties for a railroad, and not just regulated employees.
(g) Each supervisor responsible for regulated employees (except a working supervisor who is a co-worker as defined in § 219.5) must be trained in the signs and symptoms of alcohol and drug influence, intoxication, and misuse consistent with a program of instruction to be made available for inspection upon demand by FRA. Such a program shall, at a minimum, provide information concerning the acute behavioral and apparent physiological effects of alcohol, the major drug groups on the controlled substances list, and other impairing drugs. The program must also provide training on the qualifying criteria for post-accident toxicological testing contained in subpart C of this part, and the role of the supervisor in post-accident collections described in subpart C and appendix C of this part.
(h) Nothing in this subpart restricts any discretion available to the railroad to request or require that a regulated employee cooperate in additional breath or body fluid testing. However, no such testing may be performed on urine or blood specimens provided under this part. For purposes of this paragraph (h), all urine from a void constitutes a single specimen.
(i) A railroad required or authorized to conduct testing under this part may conduct all such testing in the United States. A foreign railroad required to conduct testing under this part may conduct such tests in its home country, provided that it otherwise complies with the requirements of this part.
§ 219.12 Hours-of-service laws implications.
(a) A railroad is not excused from performing alcohol or drug testing under subpart C (post-accident toxicological testing) and subpart D (reasonable suspicion testing) of this part because the performance of such testing would violate the hours-of-service laws at 49 U.S.C. ch. 211. If a railroad establishes that a violation of the hours-of-service laws is caused solely because it was required to conduct post-accident toxicological testing or reasonable suspicion testing, FRA will not take enforcement action for the violation if the railroad used reasonable due diligence in completing the collection and otherwise completed it within the time limitations of § 219.203(d) (for post-accident toxicological testing) or § 219.305 (for reasonable suspicion testing), although the railroad must still report any excess service to FRA.
(b) A railroad may perform alcohol or drug testing authorized under subpart E (reasonable cause testing) of this part even if the performance of such testing would violate the hours-of-service laws at 49 U.S.C. ch. 211. If a railroad establishes that a violation of the hours-of-service laws is caused solely by its decision to conduct authorized reasonable cause testing, FRA will not take enforcement action for the violation if the railroad used reasonable due diligence in completing the collection and otherwise completed it within the time limitations of § 219.407, although the railroad must still report any excess service to FRA.
(c) A railroad must schedule random alcohol and drug tests under subpart G of this part so that sufficient time is provided to complete the test within a covered employee’s hours-of-service limitations under 49 U.S.C. ch. 211. However, if a direct observation collection is required during a random test per the requirements of part 40 of this title, then the random test must be completed regardless of the hours-of-service law limitations, although the railroad must still report any excess service to FRA. A railroad may not place a regulated employee on-duty for the sole purpose of conducting a random alcohol or drug test under subpart G of this part.
(d) A railroad must schedule follow-up tests under § 219.104 so that sufficient time is provided to complete a test within a covered employee’s hours-of-service limitations under 49 U.S.C. ch. 211. If a railroad is having a difficult time scheduling the required number of follow-up tests because a covered employee’s work schedule is unpredictable, there is no prohibition against the railroad placing an employee (who is subject to being called to perform regulated service) on duty for the purpose of conducting the follow-up tests; except that an employee may be placed on duty for a follow-up alcohol test only if he or she is required to completely abstain from alcohol by a return-to-duty agreement, as provided by § 40.303(b) of this title. A railroad must maintain documentation establishing the need to place the employee on duty for the purpose of conducting the follow-up test and provide this documentation for review upon request of an FRA representative.
§§ 219.13-219.15 [Reserved]
§ 219.17 Construction.
Nothing in this part –
(a) Restricts the power of FRA to conduct investigations under sections 20107, 20108, 20111, and 20112 of title 49, United States Code;
(b) Creates a private right of action on the part of any person for enforcement of the provisions of this part or for damages resulting from noncompliance with this part; or
(c) Impacts provisions of State criminal law that impose sanctions for reckless conduct that leads to actual loss of life, injury or damage to property, whether such provisions apply specifically to railroad employees or generally to the public at large.
§ 219.19 [Reserved]
§ 219.21 Information collection.
(a) The information collection requirements of this part have been reviewed by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and have been assigned OMB control number 2130-0526.
(b) The information collection requirements are found in the following sections: 219.7, 219.23, 219.104, 219.201, 219.203, 219.205, 219.207, 219.209, 219.211, 219.213, 219.303, 219.401, 219.403, 219.405, 219.407, 219.501, 219.502, 219.503, 219.601, 219.605, 219.701, 219.801, 219.803, 219.901, and 219.903.
§ 219.23 Railroad policies.
(a) Whenever a breath or body fluid test is required of an employee under this part, the railroad (either through a railroad employee or a designated agent, such as a contracted collector) must provide clear and unequivocal written notice to the employee that the test is being required under FRA regulations and is being conducted under Federal authority. The railroad must also provide the employee clear and unequivocal written notice of the type of test that is required (e.g., reasonable suspicion, reasonable cause, random selection, follow-up, etc.). These notice requirements are satisfied if:
(1) For all FRA testing except mandatory post-accident toxicological testing under subpart C of this part, a railroad uses the mandated DOT alcohol or drug testing form, circles or checks off the box corresponding to the type of test, and shows this form to the employee before testing begins; or
(2) For mandatory post-accident toxicological testing under subpart C of this part, a railroad uses the approved FRA form and shows this form to the employee before testing begins.
(b) Use of the mandated DOT alcohol or drug testing forms for non-Federal tests or mandatory post-accident toxicological testing under subpart C of this part is prohibited (except for post-accident breath alcohol testing permitted under § 219.203(c)). Use of the approved FRA post-accident toxicological testing form for any testing other than that mandated under subpart C is prohibited.
(c) Each railroad must develop and publish educational materials, specifically designed for regulated employees that clearly explain the requirements of this part, as well as the railroad’s policies and procedures with respect to meeting those requirements. The railroad must ensure that a copy of these materials is distributed to each regulated employee hired for or transferred to a position that requires alcohol and drug testing under this part. (This requirement does not apply to an applicant for a regulated service position who either refuses to provide a specimen for pre-employment testing or who has a pre-employment test with a result indicating a violation of the alcohol or drug prohibitions of this part.) A railroad may satisfy this requirement by either –
(1)(i) Continually posting the materials in a location that is easily visible to all regulated employees going on duty at their designated reporting place and, if applicable, providing a copy of the materials to any employee labor organization representing a class or craft of regulated employees of the railroad; or
(ii) Providing a copy of the materials in some other manner that will ensure regulated employees can find and access these materials explaining the critical aspects of the program (e.g., by posting the materials on a company Web site that is accessible to all regulated employees); or
(2) For a minimum of three years after June 12, 2017, also ensuring that a hard copy of these materials is provided to each maintenance-of-way employee.
(d) Required content. The materials to be made available to regulated employees under paragraph (c) of this section must, at a minimum, include clear and detailed discussion of the following:
(1) The position title, name, and means of contacting the person(s) the railroad designates to answer employee questions about the materials;
(2) The specific classes or crafts of employees who are subject to the provisions of this part, such as engineers, conductors, MOW employees, signal maintainers, or train dispatchers;
(3) Sufficient information about the regulated service functions those employees perform to make clear that the period of the work day the regulated employee is required to be in compliance with the alcohol prohibitions of this part is that period when the employee is on duty and is required to perform or is available to perform regulated service;
(4) Specific information concerning regulated employee conduct that is prohibited under subpart B of this part (e.g., the minimum requirements of §§ 219.101, 219.102, and 219.103);
(5) The requirement that a railroad utilizing the reasonable cause testing authority provided by subpart E of this part must give prior notice to regulated employees of the circumstances under which they will be subject to reasonable cause testing;
(6) The circumstances under which a regulated employee will be tested under this part;
(7) The procedures used to test for the presence of alcohol and controlled substances, protect the regulated employee and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct employee;
(8) The requirement that a regulated employee submit to alcohol and drug tests administered in accordance with this part;
(9) An explanation of what constitutes a refusal to submit to an alcohol or drug test and the attendant consequences;
(10) The consequences for a regulated employee found to have violated subpart B of this part, including the requirement that the employee be removed immediately from regulated service, and the responsive action requirements of § 219.104;
(11) The consequences for a regulated employee who has a Federal alcohol test indicating an alcohol concentration of 0.02 or greater but less than 0.04; and
(12) Information concerning the effects of alcohol and drug misuse on an individual’s health, work, and personal life; signs and symptoms of an alcohol or drug problem (the employee’s or a co-worker’s); and available methods of evaluating and resolving problems associated with the misuse of alcohol and drugs, and the names, addresses, and telephone numbers of DACs and counseling and treatment programs.
(e) Optional provisions. The materials supplied to employees may also include information on additional railroad policies with respect to the use or possession of alcohol and drugs, including any consequences for an employee found to have a specific alcohol concentration that are based on the railroad’s company authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on the railroad’s independent company authority.
§ 219.25 Previous employer drug and alcohol checks.
(a) As required by § 219.701(a) and (b), a railroad must conduct drug or alcohol testing under this part in compliance with part 40 of this title (except for post-accident toxicological testing under subpart C of this part). A railroad must therefore comply with § 40.25 of this title by checking the alcohol and drug testing record of any direct regulated employee (a regulated employee who is not employed by a contractor to the railroad) it intends to use for regulated service before the employee performs such service for the first time. A railroad is not required to check the alcohol and drug testing record of contractor employees performing regulated service on its behalf (the alcohol and drug testing record of those contractor employees must be checked by their direct employers).
(b) When determining whether a person may become or remain certified as a locomotive engineer or a conductor, a railroad must comply with the requirements in § 240.119(e) (for engineers) or § 242.115(e) (for conductors) of this chapter regarding the consideration of Federal alcohol and drug violations that occurred within a period of 60 consecutive months before the review of the person’s records.
Subpart B – Prohibitions
§ 219.101 Alcohol and drug use prohibited.
(a) Prohibitions. Except as provided in § 219.103 –
(1) No regulated employee may use or possess alcohol or any controlled substance when the employee is on duty and subject to performing regulated service for a railroad.
(2) No regulated employee may report for regulated service, or go or remain on duty in regulated service, while –
(i) Under the influence of or impaired by alcohol;
(ii) Having 0.04 or more alcohol concentration in the breath or blood; or
(iii) Under the influence of or impaired by any controlled substance.
(3) No regulated employee may use alcohol for whichever is the lesser of the following periods:
(i) Within four hours of reporting for regulated service; or
(ii) After receiving notice to report for regulated service.
(4)(i) No regulated employee tested under the provisions of this part whose Federal test result indicates an alcohol concentration of 0.02 or greater but less than 0.04 may perform or continue to perform regulated service for a railroad, nor may a railroad permit the regulated employee to perform or continue to perform regulated service, until the start of the regulated employee’s next regularly scheduled duty period, but not less than eight hours following administration of the test.
(ii) Nothing in this section prohibits a railroad from taking further action under its own independent company authority when a regulated employee tested under the provisions of this part has a Federal test result indicating an alcohol concentration of 0.02 or greater, but less than 0.04. However, while a Federal test result of 0.02 or greater but less than 0.04 is a positive test and may be a violation of a railroad’s operating rules, it is not a violation of this section and cannot be used to decertify an engineer under part 240 of this chapter or a conductor under part 242 of this chapter.
(5) If an employee tested under the provisions of this part has a test result indicating an alcohol concentration below 0.02, the test is negative and is not evidence of alcohol misuse. A railroad may not use a Federal test result below 0.02 either as evidence in a company proceeding or as a basis for subsequent testing under company authority. A railroad may take further action to compel cooperation in other breath or body fluid testing only if it has an independent basis for doing so. An independent basis for subsequent company authority testing will exist only when, after having a negative Federal reasonable suspicion alcohol test result, the employee exhibits additional or continuing signs and symptoms of alcohol use. If a company authority test then indicates a violation of the railroad’s operating rules, this result is independent of the Federal test result and must stand on its own merits.
(b) Controlled substance. “Controlled substance” is defined by § 219.5. Controlled substances are grouped as follows: marijuana, narcotics (such as heroin and codeine), stimulants (such as cocaine and amphetamines), depressants (such as barbiturates and minor tranquilizers), and hallucinogens (such as the drugs known as PCP and LSD). Controlled substances include illicit drugs (Schedule I), drugs that are required to be distributed only by a medical practitioner’s prescription or other authorization (Schedules II through IV, and some drugs on Schedule V), and certain preparations for which distribution is through documented over the counter sales (Schedule V only).
(c) Railroad rules. Nothing in this section restricts a railroad from imposing an absolute prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ, whether in furtherance of the purpose of this part or for other purposes.
(d) Construction. This section may not be construed to prohibit the presence of an unopened container of an alcoholic beverage in a private motor vehicle that is not subject to use in the business of the railroad; nor may it be construed to restrict a railroad from prohibiting such presence under its own rules.
§ 219.102 Prohibition on abuse of controlled substances.
No regulated employee may use a controlled substance at any time, whether on duty or off duty, except as permitted by § 219.103.
§ 219.103 Prescribed and over-the-counter drugs.
(a) This subpart does not prohibit the use of a controlled substance (on Schedules II through V of the controlled substance list) prescribed or authorized by a medical practitioner, or possession incident to such use, if –
(1) The treating medical practitioner or a physician designated by the railroad has made a good faith judgment, with notice of the employee’s assigned duties and on the basis of the available medical history, that use of the substance by the employee at the prescribed or authorized dosage level is consistent with the safe performance of the employee’s duties;
(2) The substance is used at the dosage prescribed or authorized; and
(3) In the event the employee is being treated by more than one medical practitioner, at least one treating medical practitioner has been informed of all medications authorized or prescribed and has determined that use of the medications is consistent with the safe performance of the employee’s duties (and the employee has observed any restrictions imposed with respect to use of the medications in combination).
(b) This subpart does not restrict any discretion available to the railroad to require that employees notify the railroad of therapeutic drug use or obtain prior approval for such use.
§ 219.104 Responsive action.
(a) Removal from regulated service. (1) If a railroad determines that a regulated employee has violated § 219.101 or § 219.102, or the alcohol or controlled substances misuse rule of another DOT agency, the railroad must immediately remove the employee from regulated service and the procedures described in paragraphs (b) through (d) of this section apply.
(2) If a regulated employee refuses to provide a breath or body fluid specimen or specimens when required to by the railroad under a provision of this part, a railroad must immediately remove the regulated employee from regulated service, and the procedures described in paragraphs (b) through (d) of this section apply. This provision also applies to Federal reasonable cause testing under subpart E of this part (if the railroad has elected to conduct this testing under Federal authority).
(b) Notice. Before or upon removing a regulated employee from regulated service under this section, a railroad must provide written notice to the employee of the reason for this action. A railroad may provide a regulated employee with an initial verbal notice so long as it provides a follow-up written notice to the employee as soon as possible. In addition to the reason for the employee’s withdrawal from regulated service, the written notice must also inform the regulated employee that he may not perform any DOT safety-sensitive duties until he completes the return-to-duty process of part 40.
(c) Hearing procedures. (1) Except as provided in paragraph (e)(5) of this section, if a regulated employee denies that a test result or other information is valid evidence of a § 219.101 or § 219.102 violation, the regulated employee may demand and must be provided an opportunity for a prompt post-suspension hearing before a presiding officer other than the charging official. This hearing may be consolidated with any disciplinary hearing arising from the same accident or incident (or conduct directly related thereto), but the presiding officer must make separate findings as to compliance with §§ 219.101 and 219.102.
(2) The hearing must be convened within the period specified in the applicable collective bargaining agreement. In the absence of an agreement provision, the regulated employee may demand that the hearing be convened within 10 calendar days of the employee’s suspension or, in the case of a regulated employee who is unavailable due to injury, illness, or other sufficient cause, within 10 days of the date the regulated employee becomes available for the hearing.
(3) A post-suspension proceeding conforming to the requirements of an applicable collective bargaining agreement, together with the provisions for adjustment of disputes under sec. 3 of the Railway Labor Act (49 U.S.C. 153), satisfies the procedural requirements of this paragraph (c).
(4) With respect to a removal or other adverse action taken as a consequence of a positive test result or refusal in a test authorized or required by this part, nothing in this part may be deemed to abridge any procedural rights or remedies consistent with this part that are available to a regulated employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law.
(5) Nothing in this part restricts the discretion of a railroad to treat a regulated employee’s denial of prohibited alcohol or drug use as a waiver of any privilege the regulated employee would otherwise enjoy to have such prohibited alcohol or drug use treated as a non-disciplinary matter or to have discipline held in abeyance.
(d) A railroad must comply with the requirements for Substance Abuse Professional evaluations, the return-to-duty process, and follow-up testing contained in part 40 of this title.
(1) Post-accident toxicology testing exception. If a regulated employee has a post-accident toxicology test result under subpart C of this part that is positive for a drug not listed in § 40.5’s definition of “Drugs,” a railroad may conduct the employee’s return-to-duty and follow-up tests under part 40, or may conduct the employee’s return-to-duty and follow-up tests under its own authority to comply with the requirements of paragraph (d) of this section, so long as its testing procedures are otherwise identical to those of part 40, and include the specific drug for which the violation occurred, on an expanded drug testing panel.
(e) Applicability. (1) This section does not apply to actions based on breath or body fluid tests for alcohol or drugs that are conducted exclusively under authority other than that provided in this part (e.g., testing under a company medical policy, testing for cause wholly independent of the subpart E Federal authority of this part, or testing under a labor agreement).
(2) This section does not apply to Federal alcohol tests indicating an alcohol concentration of less than 0.04.
(3) This section does not apply to a locomotive engineer or conductor who has an off-duty conviction for, or a completed state action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for operating while under the influence of or impaired by alcohol or a controlled substance. (However, this information remains relevant for the purpose of locomotive engineer or conductor certification, according to the requirements of parts 240 or 242 of this chapter.)
(4) This section does not apply to an applicant who declines to be subject to pre-employment testing and withdraws an application for employment before the test begins. The determination of when a drug or alcohol test begins is made according to the provisions found in subparts E and L of part 40 of this title.
(5) Paragraph (c) of this section does not apply to an applicant who tests positive or refuses a DOT pre-employment test.
(6) As provided by § 40.25(j) of this title, paragraph (d) of this section applies to any DOT-regulated employer seeking to hire for DOT safety-sensitive functions an applicant who tested positive or who refused a DOT pre-employment test.
§ 219.105 Railroad’s duty to prevent violations.
(a) A railroad may not, with actual knowledge, permit a regulated employee to go or remain on duty in regulated service in violation of the prohibitions of § 219.101 or § 219.102. As used in this section, the actual knowledge imputed to the railroad is limited to that of a railroad management employee (such as a supervisor deemed an “officer,” whether or not such person is a corporate officer) or a supervisory employee in the offending regulated employee’s chain of command. A railroad management or supervisory employee has actual knowledge of a violation when he or she:
(1) Personally observes a regulated employee use or possess alcohol or use drugs in violation of this subpart. It is not sufficient for actual knowledge if the supervisory or management employee merely observes the signs and symptoms of alcohol or drug use that require a reasonable suspicion test under § 219.301;
(2) Receives information regarding a violation of this subpart from a previous employer of a regulated employee, in response to a background information request required by § 40.25 of this title; or
(3) Receives a regulated employee’s admission of prohibited alcohol possession or prohibited alcohol or drug use.
(b) A railroad must exercise due diligence to assure compliance with §§ 219.101 and 219.102 by each regulated employee.
(c) A railroad’s alcohol and/or drug use education, prevention, identification, intervention, and rehabilitation programs and policies must be designed and implemented in such a way that they do not circumvent or otherwise undermine the requirements, standards, and policies of this part. Upon FRA’s request, a railroad must make available for FRA review all documents, data, or other records related to such programs and policies.
(d) Each year, a railroad’s supervisors must conduct and record a number of “Rule G” employee observations at a minimum equal to twice the railroad’s total number of regulated employees. Each “Rule G” observation must be made sufficiently close to an individual regulated employee to determine whether the employee is displaying signs and symptoms indicative of a violation of the prohibitions of this part.
§ 219.107 Consequences of refusal.
(a) A regulated employee who refuses to provide a breath or body fluid specimen or specimens when required to by the railroad under a provision of this part must be withdrawn from regulated service for a period of nine (9) months. Per the requirements of part 40 of this title, a regulated employee who provides an adulterated or substituted specimen is deemed to have refused to provide the required specimen and must be withdrawn from regulated service in accordance with this section.
(b) Notice. Before or upon withdrawing a regulated employee from regulated service under this section, a railroad must provide written notice to the employee of the reason for this action, and the procedures described in § 219.104(c) apply. A railroad may provide a regulated employee with an initial verbal notice so long as it provides a follow-up written notice as soon as possible.
(c) The withdrawal required by this section applies only to an employee’s performance of regulated service for any railroad with notice of such withdrawal. During the period of withdrawal, a railroad with notice of such withdrawal must not authorize or permit the employee to perform any regulated service for the railroad.
(d) The requirement of withdrawal for nine (9) months does not limit any discretion on the part of the railroad to impose additional sanctions for the same or related conduct.
(e) Upon the expiration of the nine month period described in this section, a railroad may permit an employee to return to regulated service only under the conditions specified in § 219.104(d), and the regulated employee must be subject to return-to-duty and follow-up tests, as provided by that section.
Subpart C – Post-Accident Toxicological Testing
§ 219.201 Events for which testing is required.
(a) List of events. Except as provided in paragraph (b) of this section, FRA post-accident toxicological tests must be conducted after any event that involves one or more of the circumstances described in paragraphs (a)(1) through (5) of this section:
(1) Major train accident. Any train accident (i.e., a rail equipment accident involving damage in excess of the current reporting threshold) that involves one or more of the following:
(i) A fatality to any person;
(ii) A release of hazardous material lading from railroad equipment accompanied by –
(A) An evacuation; or
(B) A reportable injury resulting from the hazardous material release (e.g., from fire, explosion, inhalation, or skin contact with the material); or
(iii) Damage to railroad property of $1,500,000 or more.
(2) Impact accident. Any impact accident (i.e., a rail equipment accident defined as an “impact accident” in § 219.5) that involves damage in excess of the current reporting threshold, resulting in –
(i) A reportable injury; or
(ii) Damage to railroad property of $150,000 or more.
(3) Fatal train incident. Any train incident that involves a fatality to an on-duty employee (as defined in § 219.5) who dies within 12 hours of the incident as a result of the operation of on-track equipment, regardless of whether that employee was performing regulated service.
(4) Passenger train accident. Any train accident (i.e., a rail equipment accident involving damage in excess of the current reporting threshold) involving a passenger train and a reportable injury to any person.
(5) Human-factor highway-rail grade crossing accident/incident. A highway-rail grade crossing accident/incident when it involves:
(i) A regulated employee who interfered with the normal functioning of a grade crossing signal system, in testing or otherwise, without first taking measures to provide for the safety of highway traffic that depends on the normal functioning of such system, as prohibited by § 234.209 of this chapter;
(ii) A train crewmember who was, or who should have been, flagging highway traffic to stop due to an activation failure of the grade crossing system, as provided by § 234.105(c)(3) of this chapter;
(iii) A regulated employee who was performing, or should have been performing, the duties of an appropriately equipped flagger (as defined in § 234.5 of this chapter) due to an activation failure, partial activation, or false activation of the grade crossing signal system, as provided by § 234.105(c)(1) and (2), § 234.106, or § 234.107(c)(1)(i) of this chapter;
(iv) A fatality to any regulated employee performing duties for the railroad, regardless of fault; or
(v) A regulated employee who violated an FRA regulation or railroad operating rule and whose actions may have played a role in the cause or severity of the accident/incident.
(b) Exceptions. Except for a human-factor highway-rail grade crossing accident/incident described in paragraph (a)(5) of this section, no test may be required in the case of a collision between railroad rolling stock and a motor vehicle or other highway conveyance at a highway/rail grade crossing. No test may be required for an accident/incident the cause and severity of which are wholly attributable to a natural cause (e.g., flood, tornado, or other natural disaster) or to vandalism or trespasser(s), as determined on the basis of objective and documented facts by the railroad representative responding to the scene.
(c) Good faith determinations. (1)(i) The railroad representative responding to the scene of the accident/incident must determine whether the accident/incident falls within the requirements of paragraph (a) of this section or is within the exception described in paragraph (b) of this section. It is the duty of the railroad representative to make reasonable inquiry into the facts as necessary to make such determinations. In making such inquiry, the railroad representative must consider the need to obtain specimens as soon as practical in order to determine the presence or absence of impairing substances reasonably contemporaneous with the accident/incident. The railroad representative satisfies the requirement of this section if, after making reasonable inquiry, the representative exercises good faith judgement in making the required determinations.
(ii) The railroad representative making the determinations required by this section may not be a person directly involved in the accident/incident. This section does not prohibit consultation between the responding railroad representative and higher level railroad officials; however, the responding railroad representative must make the factual determinations required by this section.
(iii) Upon specific request made to the railroad by the Associate Administrator for Safety, FRA (or the Associate Administrator’s delegate), the railroad must provide a report describing any decision by a person other than the responding railroad representative with respect to whether an accident/incident qualifies for testing. This report must be affirmed by the decision maker and must be provided to FRA within 72 hours of the request. The report must include the facts reported by the responding railroad representative, the basis upon which the testing decision was made, and the person making the decision.
(iv) Any estimates of railroad property damage made by persons not at the scene must be based on descriptions of specific physical damage provided by the on-scene railroad representative.
(v) In the case of an accident involving passenger equipment, a host railroad may rely upon the damage estimates provided by the passenger railroad (whether present on scene or not) in making the decision whether testing is required, subject to the same requirement that visible physical damage be specifically described.
(2) A railroad must not require an employee to provide blood or urine specimens under the authority or procedures of this subject unless the railroad has made the determinations required by this section, based upon reasonable inquiry and good faith judgment. A railroad does not act in excess of its authority under this subpart if its representative has made such reasonable inquiry and exercised such good faith judgment, but it is later determined, after investigation, that one or more of the conditions thought to have required testing were not, in fact, present. However, this section does not excuse the railroad for any error arising from a mistake of law (e.g., application of testing criteria other than those contained in this part).
(3) A railroad is not in violation of this subpart if its representative has made such reasonable inquiry and exercised such good faith judgment but nevertheless errs in determining that post-accident testing is not required.
(4) An accident/incident with respect to which the railroad has made reasonable inquiry and exercised good faith judgment in determining the facts necessary to apply the criteria contained in paragraph (a) of this section is deemed a qualifying event for purposes of specimen analysis, reporting, and other purposes.
(5) In the event specimens are collected following an event determined by FRA not to be a qualifying event within the meaning of this section, FRA directs its designated laboratory to destroy any specimen material submitted and to refrain from disclosing to any person the results of any analysis conducted.
§ 219.203 Responsibilities of railroads and employees.
(a) Employees tested. A regulated employee subject to post-accident toxicological testing under this subpart must cooperate in the provision of specimens as described in this part and appendix C to this part.
(1) General. Except as otherwise provided for by this section, following each qualifying event described in § 219.201, a regulated employee directly involved in a qualifying event under this subpart must provide blood and urine specimens for toxicological testing by FRA. This includes any regulated employee who may not have been present or on-duty at the time or location of the event, but whose actions may have played a role in its cause or severity, including, but not limited to, an operator, dispatcher, or signal maintainer.
(2) Fatalities. Testing of the remains of an on-duty employee (as defined in § 219.5) who is fatally injured in a qualifying event described in § 219.201 is required, regardless of fault, if the employee dies within 12 hours of the qualifying event as a result of such qualifying event.
(3) Major train accidents. For an accident or incident meeting the criteria of a major train accident in § 219.201(a)(1) –
(i) All assigned crew members of all trains or other on-track equipment involved in the qualifying event must be subjected to post-accident toxicological testing, regardless of fault.
(ii) Other surviving regulated employees who are not assigned crew members of an involved train or other on-track equipment (e.g., a dispatcher or a signal maintainer) must be tested if a railroad representative can immediately determine, on the basis of specific information, that the employee may have had a role in the cause or severity of the accident/incident. In making this determination, the railroad representative must consider any such information that is immediately available at the time the qualifying event determination is made under § 219.201.
(4) Fatal train incidents. For a fatal train incident under § 219.201(a)(3), the remains of any on-duty employee (as defined in § 219.5) performing duties for a railroad who is fatally injured in the event are always subject to post-accident toxicological testing, regardless of fault.
(5) Human-factor highway-rail grade crossing accident/incidents. (i) For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(i), only a regulated employee who interfered with the normal functioning of a grade crossing signal system and whose actions may have contributed to the cause or severity of the event is subject to testing.
(ii) For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(ii), only a regulated employee who was a train crew member responsible for flagging highway traffic to stop due to an activation failure of a grade crossing system (or who was on-site and directly responsible for ensuring that flagging was being performed), but who failed to do so, and whose actions may have contributed to the cause or severity of the event, is subject to testing.
(iii) For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(iii), only a regulated employee who was responsible for performing the duties of an appropriately equipped flagger (as defined in § 234.5 of this chapter), but who failed to do so, and whose actions may have contributed to the cause or severity of the event is subject to testing.
(iv) For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(iv), only the remains of any fatally-injured employee(s) (as defined in § 219.5) performing regulated service for the railroad are subject to testing.
(v) For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(v), only a regulated employee who violated an FRA regulation or railroad operating rule and whose actions may have contributed to the cause or severity of the event is subject to testing.
(6) Exception. For a qualifying impact accident, passenger train accident, fatal train incident, or human-factor highway-rail grade crossing accident/incident under § 219.201(a)(2) through (5), a surviving crewmember or other regulated employee must be excluded from testing if the railroad representative can immediately determine, on the basis of specific information, that the employee had no role in the cause or severity of the accident/incident. In making this determination, the railroad representative must consider any information that is immediately available at the time the qualifying event determination is made under § 219.201.
(i) This exception is not available for assigned crew members of all involved trains if the qualifying event also meets the criteria for a major train accident under § 219.201(a)(1) (e.g., this exception is not available for an Impact Accident that also qualifies as a major train accident because it results in damage to railroad property of $1,500,000 or more).
(ii) This exception is not available for any on-duty employee who is fatally-injured in a qualifying event.
(b) Railroad responsibility. (1) A railroad must take all practicable steps to ensure that all surviving regulated employees of the railroad who are subject to FRA post-accident toxicological testing under this subpart provide blood and urine specimens for the toxicological testing required by FRA. This includes any regulated employee who may not have been present or on-duty at the time or location of the event, but whose actions may have played a role in its cause or severity, including, but not limited to, an operator, dispatcher, or signal maintainer.
(2) A railroad must take all practicable steps to ensure that tissue and fluid specimens taken from fatally injured employees are subject to FRA post-accident toxicological testing under this subpart.
(3) FRA post-accident toxicological testing under this subpart takes priority over toxicological testing conducted by state or local law enforcement officials.
(c) Alcohol testing. Except as provided for in paragraph (e)(4) of this section, if the conditions for mandatory post-accident toxicological testing exist, a railroad may also require an employee to provide breath for testing in accordance with the procedures set forth in part 40 of this title and in this part, if such testing does not interfere with timely collection of required urine and blood specimens.
(d) Timely specimen collection. (1) A railroad must make every reasonable effort to assure that specimens are provided as soon as possible after the accident or incident, preferably within four hours. Specimens that are not collected within four hours after a qualifying accident or incident must be collected as soon thereafter as practicable. If a specimen is not collected within four hours of a qualifying event, the railroad must immediately notify the FRA Drug and Alcohol Program Manager at 202-493-6313 and provide detailed information regarding the failure (either verbally or via a voicemail). The railroad must also submit a concise, written narrative report of the reasons for such a delay to the FRA Drug and Alcohol Program Manager, 1200 New Jersey Ave. SE., Washington, DC 20590. The report must be submitted within 30 days after the expiration of the month during which the accident or incident occurred. This report may also be submitted via email to an email address provided by the FRA Drug and Alcohol Program Manager.
(2) The requirements of paragraph (d) of this section must not be construed to inhibit an employee who is required to be post-accident toxicological tested from performing, in the immediate aftermath of an accident or incident, any duties that may be necessary for the preservation of life or property. Where practical, however, a railroad must utilize other employees to perform such duties.
(3) If a passenger train is in proper condition to continue to the next station or its destination after an accident or incident, the railroad must consider the safety and convenience of passengers in determining whether the crew should be made immediately available for post-accident toxicological testing. A relief crew must be called to relieve the train crew as soon as possible.
(4) A regulated employee who may be subject to post-accident toxicological testing under this subpart must be retained in duty status for the period necessary to make the determinations required by § 219.201 and this section and (as appropriate) to complete specimen collection.
(e) Recall of employees for testing. (1) Except as otherwise provided for in paragraph (e)(2) of this section, a regulated employee may not be recalled for testing under this subpart if that employee has been released from duty under the normal procedures of the railroad. An employee who has been transported to receive medical care is not released from duty for purposes of this section. Furthermore, nothing in this section prohibits the subsequent testing of an employee who has failed to remain available for testing as required (e.g., an employee who is absent without leave). However, subsequent testing does not excuse a refusal by the employee to provide the specimens in a timely manner.
(2) A railroad must immediately recall and place on duty a regulated employee for post-accident drug testing, if –
(i) The employee could not be retained in duty status because the employee went off duty under normal railroad procedures before being contacted by a railroad supervisor and instructed to remain on duty pending completion of the required determinations (e.g., in the case of a dispatcher or signal maintainer remote from the scene of an accident who was unaware of the occurrence at the time he or she went off duty); and
(ii) The railroad’s preliminary investigation (contemporaneous with the determination required by § 219.201) indicates a clear probability that the employee played a role in the cause or severity of the accident/incident.
(3) If the criteria in paragraph (e)(2) of this section are met, a regulated employee must be recalled for post-accident drug testing regardless of whether the qualifying event happened or did not happen during the employee’s tour of duty. However, an employee may not be recalled for testing if more than 24 hours have passed since the qualifying event. An employee who has been recalled must be placed on duty for the purpose of accomplishing the required post-accident drug testing.
(4) Urine and blood specimens must be collected from an employee who is recalled for testing in accordance with this section. If the employee left railroad property before being recalled, however, the specimens must be tested for drugs only. A railroad is prohibited from requiring a recalled employee to provide breath specimens for alcohol testing, unless the regulated employee has remained on railroad property since the time of the qualifying event and the railroad has a company policy completely prohibiting the use of alcohol on railroad property.
(5) A railroad must document its attempts to contact an employee subject to the recall provisions of this section. If a railroad is unable, as a result of the non-cooperation of an employee or for any other reason, to obtain specimen(s) from an employee subject to mandatory recall within the 24-hour period after a qualifying event and to submit specimen(s) to FRA as required by this subpart, the railroad must contact FRA and prepare a concise narrative report according to the requirements of paragraph (d)(1) of this section. The report must also document the railroad’s good faith attempts to contact and recall the employee.
(f) Place of specimen collection. (1) With the exception of Federal breath testing for alcohol (when conducted as authorized under this subpart), an employee must be transported to an independent medical facility for specimen collection. In all cases, blood may be drawn only by a qualified medical professional or by a qualified technician subject to the supervision of a qualified medical professional (e.g., a phlebotomist). A collector contracted by a railroad or medical facility may collect and/or assist in the collection of specimens at the medical facility if the medical facility does not object and the collector is qualified to do so.
(2) If an employee has been injured, a railroad must ask the treating medical facility to obtain the specimens. Urine may be collected from an injured employee (conscious or unconscious) who has already been catheterized for medical purposes, but an employee may not be catheterized solely for the purpose of providing a specimen under this subpart. Under § 219.11(a), an employee is deemed to have consented to FRA post-accident toxicological testing by the act of being subject to performing regulated service for a railroad.
(g) Obtaining cooperation of facility. (1) In seeking the cooperation of a medical facility in obtaining a specimen under this subpart, a railroad must, as necessary, make specific reference to the requirements of this subpart and the instructions in FRA’s post-accident toxicological shipping kit.
(2) If an injured employee is unconscious or otherwise unable to evidence consent to the procedure and the treating medical facility declines to obtain blood and/or urine specimens after having been informed of the requirements of this subpart, the railroad must immediately notify the duty officer at the National Response Center (NRC) at (800) 424-8802, stating the employee’s name, the name and location of the medical facility, the name of the appropriate decisional authority at the medical facility, and the telephone number at which that person can be reached. FRA will then take appropriate measures to assist in obtaining the required specimens.
(h) Discretion of physician. Nothing in this subpart may be construed to limit the discretion of a medical professional to determine whether drawing a blood specimen is consistent with the health of an injured employee or an employee afflicted by any other condition that may preclude drawing the specified quantity of blood.
§ 219.205 Specimen collection and handling.
(a) General. Urine and blood specimens must be obtained, marked, preserved, handled, and made available to FRA consistent with the requirements of this subpart, the instructions provided inside the FRA post-accident toxicological shipping kit, and the technical specifications set forth in appendix C to this part.
(b) Information requirements. Basic information concerning the accident/incident and any treatment administered after the accident/incident is necessary to process specimens, analyze the significance of laboratory findings, and notify railroads and employees of test results. Accordingly, the railroad representative must complete the information required by Form FRA 6180.73 (revised) for shipping with the specimens. Each employee subject to testing must cooperate in completion of the required information on Form FRA F 6180.74 (revised) for inclusion in the shipping kit and processing of the specimens. The railroad representative must ask an appropriate representative of the medical facility to complete the remaining portion of the information on each Form 6180.74. A Form 6180.73 must be forwarded in the shipping kit with each group of specimens. A Form 6180.74 must be forwarded in the shipping kit for each employee who provides specimens. A Form 6180.73 and either a Form 6180.74 or a Form 6180.75 (for fatalities) are included in the shipping kit. (See paragraph (c) of this section.)
(c) Shipping kits. (1) FRA and the laboratory designated in appendix B to this part make available for purchase a limited number of standard shipping kits for the purpose of routine handling of post-accident toxicological specimens under this subpart. Specimens must be placed in the shipping kit and prepared for shipment according to the instructions provided in the kit and appendix C to this part.
(2) Standard shipping kits may be ordered directly from the laboratory designated in appendix B to this part by first requesting an order form from FRA’s Drug and Alcohol Program Manager at 202-493-6313. In addition to the standard kit for surviving employees, FRA also has distributed a post-mortem shipping kit to Class I, II, and commuter railroads. The post-mortem kit may not be ordered by other railroads. If a smaller railroad has a qualifying event involving a fatality to an on-duty employee, the railroad should advise the NRC at 1-800-424-8802 of the need for a post-mortem kit, and FRA will send one overnight to the medical examiner’s office or assist the railroad in obtaining one from a nearby railroad.
(d) Shipment. Specimens must be shipped as soon as possible by pre-paid air express (or other means adequate to ensure delivery within 24 hours from time of shipment) to the laboratory designated in appendix B to this part. However, if delivery cannot be ensured within 24 hours due to a suspension in air express delivery services, the specimens must be held in a secure refrigerator until delivery can be accomplished. In no circumstances may specimens be held for more than 72 hours. Where express courier pickup is available, the railroad must ask the medical facility to transfer the sealed toxicology kit directly to the express courier for transportation. If courier pickup is not available at the medical facility where the specimens are collected or if for any other reason a prompt transfer by the medical facility cannot be assured, the railroad must promptly transport the sealed shipping kit holding the specimens to the most expeditious point of shipment via air express. The railroad must maintain and document a secure chain of custody of the kit(s) from its release by the medical facility to its delivery for transportation, as described in appendix C to this part.
(e) Specimen security. After a specimen kit or transportation box has been sealed, no entity other than the laboratory designated in appendix B to this part may open it. If the railroad or medical facility discovers an error with either the specimens or the chain of custody form after the kit or transportation box has been sealed, the railroad or medical facility must make a contemporaneous written record of that error and send it to the laboratory, preferably with the transportation box.
§ 219.206 FRA access to breath test results.
Documentation of breath test results must be made available to FRA consistent with the requirements of this subpart, and the technical specifications set forth in appendix C to this part.
§ 219.207 Fatality.
(a) In the case of an employee fatality in an accident or incident described in § 219.201, body fluid and tissue specimens must be obtained from the remains of the employee for toxicological testing. To ensure that specimens are collected in a timely fashion, the railroad must immediately notify the appropriate local authority (such as a coroner or medical examiner) of the fatality and the requirements of this subpart, making available the post-mortem shipping kit and requesting the local authority to assist in obtaining the necessary body fluid or tissue specimens. The railroad must also seek the assistance of the custodian of the remains, if the custodian is someone other than the local authority.
(b) If the local authority or custodian of the remains declines to cooperate in obtaining the necessary specimens, the railroad must immediately notify the duty officer at the National Response Center (NRC) at (800) 424-8802 by providing the following information:
(1) Date and location of the accident or incident;
(2) Railroad;
(3) Name of the deceased;
(4) Name and telephone number of custodian of the remains; and
(5) Name and telephone number of local authority contacted.
(c) A coroner, medical examiner, pathologist, Aviation Medical Examiner, or other qualified professional is authorized to remove the required body fluid and tissue specimens from the remains on request of the railroad or FRA pursuant to this part; and, in so acting, such person is the delegate of the FRA Administrator under sections 20107 and 20108 of title 49, United States Code (but not the agent of the Secretary for purposes of the Federal Tort Claims Act (chapter 171 of title 28, United States Code). Such qualified professional may rely upon the representations of the railroad or FRA representative with respect to the occurrence of the event requiring that toxicological tests be conducted and the coverage of the deceased employee under this part.
(d) Appendix C to this part and the instructions included inside the shipping kits specify body fluid and tissue specimens required for toxicological analysis in the case of a fatality.
§ 219.209 Reports of tests and refusals.
(a)(1) A railroad that has experienced one or more events for which specimens were obtained must provide prompt telephonic notification summarizing such events. Notification must immediately be provided to the duty officer at the National Response Center (NRC) at (800) 424-8802 and to the Office of Safety, FRA, at (202) 493-6313.
(2) Each telephonic report must contain:
(i) Name of railroad;
(ii) Name, title and telephone number of person making the report;
(iii) Time, date and location of the accident/incident;
(iv) Brief summary of the circumstances of the accident/incident, including basis for testing (e.g., impact accident with a reportable injury); and
(v) Number of employees tested.
(b) If a railroad is unable, as a result of non-cooperation of an employee or for any other reason, to obtain a specimen and provide it to FRA as required by this subpart, the railroad must immediately notify the FRA Drug and Alcohol Program Manager at 202-493-6313 and provide detailed information regarding the failure (either verbally or via a voicemail). The railroad must also provide a concise narrative written report of the reason for such failure and, if appropriate, any action taken in response to the cause of such failure. This report must be appended to the report of the accident/incident required to be submitted under part 225 of this chapter and must also be mailed to the FRA Drug and Alcohol Program Manager at 1200 New Jersey Avenue SE., Washington, DC 20590.
§ 219.211 Analysis and follow-up.
(a) The laboratory designated in appendix B to this part undertakes prompt analysis of provided under this subpart, consistent with the need to develop all relevant information and produce a complete report. Specimens are analyzed for alcohol, controlled substances, and non-controlled substances specified by FRA under protocols specified by FRA. These substances may be tested for in any form, whether naturally or synthetically derived. Specimens may be analyzed for other impairing substances specified by FRA as necessary to the particular accident investigation.
(b) Results of post-accident toxicological testing for controlled substances conducted under this subpart are reported to the railroad’s Medical Review Officer and the employee. The MRO and the railroad must treat the test results and any information concerning medical use or administration of drugs provided under this subpart in the same confidential manner as if subject to subpart H of this part, except where publicly disclosed by FRA or the National Transportation Safety Board. An employer is prohibited from temporarily removing an employee from the performance of regulated service based only on a report from the laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test result.
(c) With respect to a surviving employee, a test reported as positive for alcohol or a controlled substance by the designated laboratory must be reviewed by the railroad’s Medical Review Officer with respect to any claim of use or administration of medications (consistent with § 219.103) that could account for the laboratory findings. The Medical Review Officer must promptly report the results of each review to the Associate Administrator for Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590. Such report must be in writing and must reference the employing railroad, accident/incident date, and location, and the envelope must be marked “ADMINISTRATIVELY CONFIDENTIAL: ATTENTION ALCOHOL/DRUG PROGRAM MANAGER.” The report must state whether the MRO reported the test result to the employing railroad as positive or negative and the basis of any determination that analytes detected by the laboratory derived from authorized use (including a statement of the compound prescribed, dosage/frequency, and any restrictions imposed by the authorized medical practitioner). Unless specifically requested by FRA in writing, the Medical Review Officer may not disclose to FRA the underlying physical condition for which any medication was authorized or administered. The FRA is not bound by the railroad Medical Review Officer’s determination, but that determination will be considered by FRA in relation to the accident/incident investigation and with respect to any enforcement action under consideration.
(d) To the extent permitted by law, FRA treats test results indicating medical use of controlled substances consistent with § 219.103 (and other information concerning medically authorized drug use or administration provided incident to such testing) as administratively confidential and withholds public disclosure, except where it is necessary to consider this information in an accident investigation in relation to determination of probable cause. (However, as further provided in this section, FRA may provide results of testing under this subpart and supporting documentation to the National Transportation Safety Board.)
(e) An employee may respond in writing to the results of the test prior to the preparation of any final investigation report concerning the accident or incident. An employee wishing to respond may do so by email or letter addressed to the Drug and Alcohol Program Manager, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590 within 45 days of receipt of the test results. Any such submission must refer to the accident date, railroad and location, must state the position occupied by the employee on the date of the accident/incident, and must identify any information contained therein that the employee requests be withheld from public disclosure on grounds of personal privacy (but the decision whether to honor such request will be made by the FRA on the basis of controlling law).
(f)(1) The toxicology report may contain a statement of pharmacological significance to assist FRA and other parties in understanding the data reported. No such statement may be construed as a finding of probable cause in the accident or incident.
(2) With the exception of post-accident test results for non-controlled substances, the toxicology report is a part of the report of the accident/incident and therefore subject to the limitation of 49 U.S.C. 20903 (prohibiting use of the report for any purpose in a civil action for damages resulting from a matter mentioned in the report).
(g)(1) It is in the public interest to ensure that any railroad disciplinary actions that may result from accidents and incidents for which testing is required under this subpart are disposed of on the basis of the most complete and reliable information available so that responsive action will be appropriate. Therefore, during the interval between an accident or incident and the date that the railroad receives notification of the results of the toxicological analysis, any provision of collective bargaining agreements establishing maximum periods for charging employees with rule violations, or for holding an investigation, may not be deemed to run as to any offense involving the accident or incident (i.e., such periods must be tolled).
(2) This provision may not be construed to excuse the railroad from any obligation to timely charge an employee (or provide other actual notice) where the railroad obtains sufficient information relating to alcohol or drug use, impairment or possession or other rule violations prior to the receipt to toxicological analysis.
(3) This provision does not authorize holding any employee out of service pending receipt of PAT testing results. It also does not restrict a railroad from taking such action based on the employee’s underlying conduct, so long as it is consistent with the railroad’s disciplinary policy and is taken under the railroad’s own authority.
(h) Except as provided in § 219.201 (with respect to non-qualifying events), each specimen (including each split specimen) provided under this subpart is retained for not less than three months following the date of the accident or incident (two years from the date of the accident or incident in the case of a specimen testing positive for alcohol or a controlled substance). Post-mortem specimens may be made available to the National Transportation Safety Board (on request).
(i) An employee (donor) may, within 60 days of the date of the toxicology report, request that his or her split specimen be tested by the designated laboratory or by another laboratory certified by Health and Human Services under that Department’s Guidelines for Federal Workplace Drug Testing Programs that has available an appropriate, validated assay for the fluid and compound declared positive. Since some analytes may deteriorate during storage, detected levels of the compound shall, as technically appropriate, be reported and considered corroborative of the original test result. Any request for a retest shall be in writing, specify the railroad, accident date and location, be signed by the employee/donor, be addressed to the Associate Administrator for Safety, Federal Railroad Administration, Washington, DC 20590, and be designated “ADMINISTRATIVELY CONFIDENTIAL: ATTENTION ALCOHOL/DRUG PROGRAM MANAGER.” The expense of any employee-requested split specimen test at a laboratory other than the laboratory designated under this subpart shall be borne by the employee.
§ 219.213 Unlawful refusals; consequences.
(a) Disqualification. An employee who refuses to cooperate in providing breath, blood or urine specimens following an accident or incident specified in this subpart must be withdrawn from regulated service, and must be deemed disqualified for regulated service, for a period of nine (9) months in accordance with the conditions specified in § 219.107.
(b) Procedures. Prior to or upon withdrawing the employee from regulated service, under this section, the railroad must provide written notice of the reason for this action and an opportunity for hearing before a presiding officer other than the charging official. The employee is entitled to the procedural protection set out in § 219.104(d).
(c) Subject of hearing. The hearing required by this section must determine whether the employee refused to submit to testing, having been requested to submit, under authority of this subpart, by a representative of the railroad. In determining whether a disqualification is required, the hearing official shall, as appropriate, also consider the following:
(1) Whether the railroad made a good faith determination, based on reasonable inquiry, that the accident or incident was within the mandatory testing requirements of this subpart; and
(2) In a case where a blood test was refused on the ground it would be inconsistent with the employee’s health, whether such refusal was made in good faith and based on medical advice.
Subpart D – Reasonable Suspicion Testing
§ 219.301 Mandatory reasonable suspicion testing.
(a) Each railroad must require a regulated employee to submit to a breath alcohol test when the railroad has reasonable suspicion to believe that the regulated employee has violated any prohibition of subpart B of this part concerning use of alcohol. The railroad’s determination that reasonable suspicion exists to require the regulated employee to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee. A Federal reasonable suspicion alcohol test is not required to confirm the on-duty possession of alcohol.
(b) Each railroad must require a regulated employee to submit to a drug test when the railroad has reasonable suspicion to believe that the regulated employee has violated the prohibitions of subpart B of this part concerning use of controlled substances. The railroad’s determination that reasonable suspicion exists to require the regulated employee to undergo a drug test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee. Such observations may include indications of the chronic and withdrawal effects of drugs.
(c) Reasonable suspicion observations made under this section must comply with the requirements of § 219.303.
(d) As provided by § 219.11(b)(2), in any case where an employee is suffering a substantiated medical emergency and is subject to alcohol or drug testing under this subpart, necessary medical treatment must be accorded priority over provision of the breath or body fluid specimens. However, when the employee’s condition is stabilized, reasonable suspicion testing must be completed if within the eight-hour limit provided for in § 219.305.
§ 219.303 Reasonable suspicion observations.
(a) With respect to an alcohol test, the required observations must be made by a responsible railroad supervisor (defined by § 219.5) trained in accordance with § 219.11(g). The supervisor who makes the determination that reasonable suspicion exists may not conduct the reasonable suspicion testing on that regulated employee.
(b) With respect to a drug test, the required observations must be made by two responsible railroad supervisors (defined by § 219.5), at least one of whom must be both on site and trained in accordance with § 219.11(g). If one of the supervisors is off site, the on-site supervisor must communicate with the off-site supervisor, as necessary, to provide him or her the information needed to make the required observation. This communication may be performed via telephone, but not via radio or any other form of electronic communication.
(c) This subpart does not authorize holding any employee out of service pending receipt of toxicological analysis for reasonable suspicion testing, nor does it restrict a railroad from taking such action based on the employee’s underlying conduct, provided it is consistent with the railroad’s policy and taken under the railroad’s own authority.
(d) The railroad must maintain written documentation that specifically describes the observed signs and symptoms upon which the determination that reasonable suspicion exists is based. This documentation must be completed promptly by the trained supervisor.
§ 219.305 Prompt specimen collection; time limitations.
(a) Consistent with the need to protect life and property, testing under this subpart must be conducted promptly following the observations upon which the testing decision is based.
(b) If a test required by this subpart is not administered within two hours following a determination made under this section, the railroad must prepare and maintain on file a record stating the reasons the test was not administered within that time period. If an alcohol or drug test required by this subpart is not administered within eight hours of a determination made under this subpart, the railroad must cease attempts to administer the test and must record the reasons for not administering the test. The eight-hour requirement is satisfied if the individual has been delivered to the collection site (where the collector is present) and the request has been made to commence collection of the specimens within that period. The records required by this section must be submitted to FRA upon request of the FRA Drug and Alcohol Program Manager.
(c) A regulated employee may not be tested under this subpart if that individual has been released from duty under the normal procedures of a railroad. An individual who has been transported to receive medical care is not released from duty for purposes of this section. Nothing in this section prohibits the subsequent testing of an employee who has failed to remain available for testing as required (i.e., who is absent without leave).
Subpart E – Reasonable Cause Testing
§ 219.401 Authorization for reasonable cause testing.
(a) Each railroad may, at its own discretion, elect to conduct Federal reasonable cause testing authorized by this subpart. If a railroad chooses to do so, the railroad must use only Federal authority for all reasonable cause testing that meets the criteria of § 219.403. In addition, the railroad must notify its regulated employees of its decision to use Federal reasonable cause testing authority in the employee educational policy required by § 219.23(e)(5). The railroad must also provide written notification of its decision to FRA’s Drug and Alcohol Program Manager, 1200 New Jersey Ave. SE., Washington, DC 20590.
(b) If a railroad elects to conduct reasonable cause testing under the authority of this subpart, the railroad may, under the conditions specified in this subpart, require any regulated employee, as a condition of employment in regulated service, to cooperate with breath or body fluid testing, or both, to determine compliance with §§ 219.101 and 219.102 or a railroad rule implementing the requirements of §§ 219.101 and 219.102. This authority is limited to testing after observations or events that occur during duty hours (including any period of overtime or emergency service). The provisions of this subpart apply only when, and to the extent that, the test in question is conducted in reliance upon the authority conferred by this section. A railroad may not require an employee to be tested under the authority of this subpart unless reasonable cause, as defined in this section, exists with respect to that employee.
§ 219.403 Requirements for reasonable cause testing.
Each railroad’s decision process regarding whether reasonable cause testing is authorized must be completed before the reasonable cause testing is performed and documented according to the requirements of § 219.405. The following circumstances constitute reasonable cause for the administration of alcohol and/or drug tests under the authority of this subpart.
(a) Train accident or train incident. A regulated employee has been involved in a train accident or train incident (as defined in § 219.5) reportable under part 225 of this chapter, and a responsible railroad supervisor (as defined in § 219.5) has a reasonable belief, based on specific, articulable facts, that the individual employee’s acts or omissions contributed to the occurrence or severity of the accident; or
(b) Rule violation. A regulated employee has been directly involved in one or more of the following railroad or FRA rule violations or other errors:
(1) Noncompliance with a train order, track warrant, track bulletin, track permit, stop and flag order, timetable, signal indication, special instruction or other directive with respect to movement of railroad on-track equipment that involves –
(i) Occupancy of a block or other segment of track to which entry was not authorized;
(ii) Failure to clear a track to permit opposing or following movements to pass;
(iii) Moving across a railroad crossing at grade without authorization; or
(iv) Passing an absolute restrictive signal or passing a restrictive signal without stopping (if required);
(2) Failure to protect on-track equipment, including leaving on-track equipment fouling an adjacent track;
(3) Operation of a train or other speedometer-equipped on-track equipment at a speed that exceeds the maximum authorized speed by at least 10 miles per hour or by 50% of such maximum authorized speed, whichever is less;
(4) Alignment of a switch in violation of a railroad rule, failure to align a switch as required for movement, operation of a switch under on-track equipment, or unauthorized running through a switch;
(5) Failure to restore and secure a main track switch as required;
(6) Failure to apply brakes or stop short of a derail as required;
(7) Failure to secure a hand brake or failure to secure sufficient hand brakes, as required;
(8) Entering a crossover before both switches are lined for movement or restoring either switch to normal position before the crossover movement is completed;
(9) Failure to provide point protection by visually determining that the track is clear and giving the signals or instructions necessary to control the movement of on-track equipment when engaged in a shoving or pushing movement;
(10) In the case of a person performing a dispatching function or block operator function, issuance of a mandatory directive or establishment of a route that fails to provide proper protection for on-track equipment;
(11) Interference with the normal functioning of any grade crossing signal system or any signal or train control device without first taking measures to provide for the safety of highway traffic or train operations which depend on the normal functioning of such a device. Such interference includes, but is not limited to, failure to provide alternative methods of maintaining safety for highway traffic or train operations while testing or performing work on the devices or on track and other railroad systems or structures which may affect the integrity of the system;
(12) Failure to perform stop-and-flag duties necessary as a result of a malfunction of a grade crossing signal system;
(13) Failure of a machine operator that results in a collision between a roadway maintenance machine and on-track equipment or a regulated employee;
(14) Failure of a roadway worker-in-charge to notify all affected employees when releasing working limits;
(15) Failure of a flagman or watchman/lookout to notify employees of an approaching train or other on-track equipment;
(16) Failure to ascertain that provision was made for on-track safety before fouling a track;
(17) Improper use of individual train detection in a manual interlocking or control point; or
(18) Failure to apply three point protection (fully apply the locomotive and train brakes, center the reverser, and place the generator field switch in the off position) that results in a reportable injury to a regulated employee.
§ 219.405 Documentation requirements.
(a) Each railroad must maintain written documentation that specifically describes the basis for each reasonable cause test it performs under Federal authority. This documentation must be completed promptly by the responsible railroad supervisor; although it does not need to be completed before the reasonable cause testing is conducted.
(b) For a rule violation, the documentation must include the type of rule violation and the involvement of each tested regulated employee. For a train accident or train incident reportable under part 225 of this chapter, a railroad must describe either the amount of railroad property damage or the reportable casualty and the basis for the supervisor’s belief that the employee’s acts or omissions contributed to the occurrence or severity of the train accident or train incident.
§ 219.407 Prompt specimen collection; time limitations.
(a) Consistent with the need to protect life and property, testing under this subpart must be conducted promptly following the observations upon which the testing decision is based.
(b) If a test conducted pursuant to the authority of this subpart is not administered within two hours following the observations upon which the testing decision is based, the railroad must prepare and maintain on file a record stating the reasons the test was not conducted within that time period. If an alcohol or drug test authorized by this subpart is not administered within eight hours of the event under this subpart, the railroad must cease attempts to administer the test and must record the reasons for not administering the test. The eight-hour time period begins at the time a responsible railroad supervisor receives notice of the train accident, train incident, or rule violation. The eight-hour requirement is satisfied if the employee has been delivered to the collection site (where the collector is present) and the request has been made to commence collection of specimen(s) within that period. The records required by this section must be submitted to FRA upon request of the FRA Drug and Alcohol Program Manager.
(c) A regulated employee may not be tested under this subpart if that individual has been released from duty under the normal procedures of the railroad. An individual who has been transported to receive medical care is not released from duty for purposes of this section. Nothing in this section prohibits the subsequent testing of a regulated employee who has failed to remain available for testing as required (i.e., who is absent without leave).
(a) The alcohol and/or drug testing authority conferred by this subpart does not apply with respect to any event that meets the criteria for post-accident toxicological testing required under subpart C of this part.
(b) This subpart does not authorize holding an employee out of service pending receipt of toxicological analysis for reasonable cause testing because meeting the testing criteria is only a basis to inquire whether alcohol or drugs may have played a role in the accident or rule violation. However, this subpart does not restrict a railroad from holding an employee out of service based on the employee’s underlying conduct, so long as it is consistent with the railroad’s policy and the action is taken under the railroad’s own authority.
(c) When determining whether reasonable cause testing is justified, a railroad must consider the involvement of each crewmember in the qualifying event, not the involvement of the crew as a whole.
Subpart F – Pre-Employment Tests
§ 219.501 Pre-employment drug testing.
(a) Before an individual performs regulated service the first time for a railroad, the railroad must ensure that the individual undergoes testing for drugs in accordance with the regulations of a DOT agency. No railroad may allow a direct employee (a railroad employee who is not employed by a contractor to the railroad) to perform regulated service, unless that railroad has conducted a DOT pre-employment test for drugs on that individual with a result that did not indicate the misuse of controlled substance. This requirement applies both to a final applicant for direct employment and to a direct employee seeking to transfer for the first time from non-regulated service to duties involving regulated service. A regulated employee must have a negative DOT pre-employment drug test for each railroad for which he or she performs regulated service as the result of a direct employment relationship.
(b) Each railroad must ensure that each employee of a contractor who performs regulated service on the railroad’s behalf has a negative DOT pre-employment drug test on file with his or her employer. The railroad must also maintain documentation indicating that it had verified that the contractor employee had a negative DOT pre-employment drug test on file with his or her direct employer. A contractor employee who performs regulated service for more than one railroad does not need to have a DOT pre-employment drug test for each railroad for which he or she provides service.
(c) If a railroad has already conducted a DOT pre-employment test resulting in a negative for a regulated service applicant under the rules and regulations of another DOT agency (such as the Federal Motor Carrier Safety Administration), FRA will accept the result of that negative DOT pre-employment test for purposes of the requirements of this subpart.
(d) As used in subpart H of this part with respect to a test required under this subpart, the term regulated employee includes an applicant for pre-employment testing only. If an applicant declines to be tested and withdraws an application for employment before the pre-employment testing process commences, no record may be maintained of the declination.
(e) The pre-employment drug testing requirements of this section do not apply to covered employees of railroads qualifying for the small railroad exception (see § 219.3(c)) or maintenance-of-way employees who were performing duties for a railroad before June 12, 2017. However, a grandfathered employee must have a negative pre-employment drug test before performing regulated service for a new employing railroad after June 12, 2017.
§ 219.502 Pre-employment alcohol testing.
(a) A railroad may, but is not required to, conduct pre-employment alcohol testing under this part. If a railroad chooses to conduct pre-employment alcohol testing, the railroad must comply with the following requirements:
(1) The railroad must conduct a pre-employment alcohol test before the first performance of regulated service by an employee, regardless of whether he or she is a new employee or a first-time transfer to a position involving the performance of regulated service.
(2) The railroad must treat all employees performing regulated service the same for the purpose of pre-employment alcohol testing (i.e., a railroad must not test some regulated employees and not others.)
(3) It must conduct the pre-employment tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
(4) It must conduct all pre-employment alcohol tests using the alcohol testing procedures of part 40 of this title.
(5) If a regulated employee’s Federal pre-employment test indicates an alcohol concentration of 0.04 or greater, a railroad may not allow him or her to begin performing regulated service until he or she has completed the Federal return-to-duty process under § 219.104(d).
(b) As used in subpart H of this part with respect to a test authorized under this subpart, the term regulated employee includes an applicant for pre-employment testing only. If an applicant declines to be tested before the testing process commences, no record may be maintained of the declination. The determination of when an alcohol test commences must be made according to the provisions of § 40.243(a) of this title.
§ 219.503 Notification; records.
Each railroad must provide for medical review of drug test results according to the requirements of part 40 of this title, as provided in subpart H of this part. The railroad must also notify the applicant in writing of the results of any Federal drug and/or alcohol test that is a positive, adulteration, substitution, or refusal in the same manner as provided for employees in part 40 of this title and subpart H of this part. Records must be maintained confidentially and be retained in the same manner as required under subpart J of this part for employee test records, except that such records need not reflect the identity of an applicant who withdrew an application to perform regulated service before the commencement of the testing process.
§ 219.505 Non-negative tests and refusals.
An applicant who has tested positive or refused to submit to pre-employment testing under this section may not perform regulated service for any railroad until he or she has completed the Federal return-to-duty process under § 219.104(d). An applicant may also not perform DOT safety-sensitive functions for any other employer regulated by a DOT agency until he or she has completed the Federal return-to-duty process under § 219.104(d). This section does not create any right on the part of the applicant to have a subsequent application considered; nor does it restrict the discretion of the railroad to entertain a subsequent application for employment from the same person.
Subpart G – Random Alcohol and Drug Testing Programs
§ 219.601 Purpose and scope of random testing programs.
(a) Purpose. The purpose of random alcohol and drug testing is to promote safety by deterring regulated employees from misusing drugs and abusing alcohol.
(b) Regulated employees. Each railroad must ensure that a regulated employee is subject to being selected for random testing as required by this subpart whenever the employee performs regulated service on the railroad’s behalf.
(c) Contractor employees and volunteers. A regulated employee who is a volunteer or an employee of a contractor to a railroad may be incorporated into the random testing program of more than one railroad if:
(1) The contractor employee or volunteer is not already part of a random testing program that meets the requirements of this subpart and has been accepted by the railroad for which he or she performs regulated service (as described in § 219.609); or
(2) The railroad for which the contractor employee or volunteer performs regulated service is unable to verify that the individual is part of a random testing program acceptable to the railroad that meets the requirements of this subpart.
(d) Multiple DOT agencies. (1) If a regulated employee performs functions subject to the random testing requirements of more than one DOT agency, a railroad must ensure that the employee is subject to selection for random drug and alcohol testing at or above the current minimum annual testing rate set by the DOT agency that regulates more than 50 percent of the employee’s DOT-regulated functions.
(2) A railroad may not include a regulated employee in more than one DOT random testing pool for regulated service performed on its behalf, even if the regulated employee is subject to the random testing requirements of more than one DOT agency.
§ 219.603 General requirements for random testing programs.
(a) General. To the extent possible, each railroad must ensure that its FRA random testing program is designed and implemented so that each employee performing regulated service on its behalf should reasonably anticipate that he or she may be called for a random test without advance warning at any time while on duty and subject to performing regulated service.
(b) Prohibited selection bias. A random testing program may not have a selection bias or an appearance of selection bias, or appear to provide an opportunity for a regulated employee to avoid complying with this section.
(c) Plans. As required by §§ 219.603 through 219.609, each railroad must submit for FRA approval a random testing plan meeting the requirements of this subpart. The plan must address all regulated employees, as defined in § 219.5.
(d) Pools. Each railroad must construct and maintain random testing pools in accordance with § 219.611.
(e) Selections. Each railroad must conduct random testing selections in accordance with § 219.613.
(f) Collections. Each railroad must perform random testing collections in accordance with § 219.615.
(g) Cooperation. Each railroad and its regulated employees must cooperate with and participate in random testing in accordance with § 219.617.
(h) Responsive action. Each railroad must handle positive random tests and verified refusals to test in accordance with § 219.619.
(i) Service agents. Each railroad may use a service agent to perform its random testing responsibilities in accordance with § 219.621.
(j) Records. Each railroad must maintain records required by this subpart in accordance with § 219.623.
§ 219.605 Submission and approval of random testing plans.
(a) Plan submission. (1) Each railroad must submit for review and approval a random testing plan meeting the requirements of §§ 219.607 and 219.609 to the FRA Drug and Alcohol Program Manager, 1200 New Jersey Ave. SE., Washington, DC 20590. A railroad commencing start-up operations must submit its plan no later than 30 days before its date of commencing operations. A railroad that must comply with this subpart because it no longer qualifies for the small railroad exception under § 219.3 (due to a change in operations or its number of covered employees) must submit its plan no later than 30 days after it becomes subject to the requirements of this subpart. A railroad may not implement a Federal random testing plan or any substantive amendment to that plan before FRA approval.
(2) A railroad may submit separate random testing plans for each category of regulated employees (as defined in § 219.5), combine all categories into a single plan, or amend its current FRA-approved plan to add additional categories of regulated employees, as defined by this part.
(b) Plan approval notification. FRA will notify a railroad in writing whether its plan is approved. If the plan is not approved because it does not meet the requirements of this subpart, FRA will inform the railroad of its non-approval, with specific explanations of any required revisions. The railroad must resubmit its plan with the required revisions within 30 days of the date of FRA’s written notice. Failure to resubmit the plan with the necessary revisions will be a failure to submit a plan under this part.
(c) Plan implementation. Each railroad must implement its random testing plan no later than 30 days from the date of FRA approval.
(d) Plan amendments. (1) Each railroad must submit to FRA a substantive amendment to an approved plan at least 30 days before its intended effective date. A railroad may not implement any substantive amendment before FRA approval.
(2) Each railroad must provide a non-substantive amendment to an approved plan (such as the replacement or addition of service providers) to the FRA Drug and Alcohol Program Manager in writing (by letter or email) before its effective date. However, FRA pre-approval is not required.
(e) Previously approved plans. A railroad is not required to resubmit a random testing plan that FRA had approved before June 12, 2017, unless the railroad must amend the plan to comply with the requirements of this subpart. A railroad must submit new plans, combined plans, or amended plans incorporating new categories of regulated employees (i.e., maintenance-of-way employees) for FRA approval at least 30 days before June 12, 2017.
§ 219.607 Requirements for random testing plans.
(a) General. A random testing plan that a railroad submits under this subpart must address and comply with the requirements of this subpart. The railroad must also comply with these requirements in implementing the plan.
(b) Model random testing plan. A railroad (or a contractor or service agent that submits a part 219-compliant random testing plan to a railroad for submission as a part of the railroad’s random testing plan) may complete, modify if necessary, and submit a plan based on the FRA model random testing plan that can be downloaded from FRA’s Drug and Alcohol Program Web site.
(c) Specific plan requirements. Each random testing plan must contain the following items of information, each of which must be contained in a separate, clearly identified section:
(1) Total number of covered employees, including covered service contractor employees and volunteers;
(2) Total number of maintenance-of-way employees, including maintenance-of-way contractor employees and volunteers;
(3) Names of any contractors who perform regulated service for the railroad, with contact information;
(4) Method used to ensure that any regulated service contractor employees and volunteers are subject to the requirements of this subpart, as required by § 219.609;
(5) Name, address, and contact information for the railroad’s Designated Employer Representative (DER) and any alternates (if applicable);
(6) Name, address, and contact information for any service providers, including the railroad’s Medical Review Officers (MROs), Substance Abuse and Mental Health Services Administration (SAMHSA) certified drug testing laboratory(ies), Drug and Alcohol Counselors (DACs), Substance Abuse Professionals (SAPs), and C/TPA or collection site management companies. Individual collection sites do not have to be identified;
(7) Number of random testing pools and the proposed general pool entry assignments for each pool. If using a C/TPA, a railroad must identify whether its regulated employees are combined into one pool, contained in separate pools, or combined in a larger pool with other FRA or other DOT agency regulated employees, or both.
(8) Target random testing rates;
(9) Method used to make random selections, including a detailed description of the computer program or random number table selection process employed;
(10) Selection unit(s) for each random pool (e.g., employee name or ID number, job assignment, train symbol) and whether the individual selection unit(s) will be selected for drugs, alcohol, or both;
(11) If a railroad makes alternate selections, under what limited circumstances these alternate selections will be tested (see § 219.613);
(12) Frequency of random selections (e.g., monthly);
(13) Designated testing window. A designated testing window extends from the beginning to the end of the designated testing period established in the railroad’s FRA-approved random plan (see § 219.603), after which time any individual selections for that designated testing window that have not been collected are no longer active (valid); and
(14) Description of how the railroad will notify a regulated employee that he or she has been selected for random testing.
§ 219.609 Inclusion of contractor employees and volunteers in random testing plans.
(a) Each railroad’s random testing plan must demonstrate that all of its regulated service contractor employees and volunteers are subject to random testing that meets the requirements of this subpart. A railroad can demonstrate that its regulated service contractor employees and volunteers are in compliance with this subpart by either:
(1) Directly including regulated service contractor employees and volunteers in its own random testing plan and ensuring that they are tested according to that plan; or
(2) Indicating in its random testing plan that its regulated service contractor employees and volunteers are part of a random testing program which is compliant with the requirements of this subpart, e.g., conducted by a contractor or C/TPA (“non-railroad random testing program”). If a railroad chooses this option, the railroad must append to its own random testing plan one or more addenda describing the method it will use to ensure that the non-railroad random testing program is testing its regulated service contractor employees and volunteers according to the requirements of this subpart. A railroad may comply with this requirement by appending the non-railroad random testing program or a detailed description of the program and how it complies with this subpart.
(b) Each railroad’s random testing plan(s) and any addenda must contain sufficient detail to fully document that the railroad is meeting the requirements of this subpart for all personnel performing regulated service on its behalf.
(c) If a railroad chooses to use regulated service contractor employees and volunteers who are part of a non-railroad random testing program, the railroad remains responsible for ensuring that the non-railroad program is testing the regulated service contractor employees and volunteers according to the requirements of this subpart.
(d) FRA does not pre-approve contractor or service agent random testing plans, but may accept them as part of its approval process of a railroad’s plan.
§ 219.611 Random alcohol and drug testing pools.
(a) General. Each railroad must ensure that its random testing pools include all regulated employees who perform regulated service on its behalf, except that a railroad’s random testing pools do not have to include regulated employees who are part of a non-railroad random testing program that is compliant with the requirements of this subpart and that has been accepted by the railroad.
(b) Pool entries. Each railroad must clearly indicate who will be tested when a specific pool entry is selected.
(1) Pool entries may be employee names or identification numbers, train symbols, or specific job assignments, although all the entries in a single pool must be of generally consistent sizes and types.
(2) Pool entries must not allow a field manager or field supervisor to have discretion over which employee is to be tested when an entry is selected.
(3) Pool entries must be constructed and maintained so that all regulated employees have an equal chance of being selected for random testing for each selection draw.
(c) Minimum number of pool entries. A railroad (including a service agent used by a railroad to carry out its responsibilities under this subpart) may not maintain a random testing pool with less than four pool entries. Placeholder pool entries (entries that do not represent legitimate selections of regulated employees) are not permitted. A railroad or contractor with less than four regulated employees can comply with this requirement by having its regulated employees incorporated into a railroad or non-railroad random testing pool that contains more than four entries.
(d) Pool construction. (1) An individual who is not subject to the random testing requirements of FRA or another DOT agency may not be placed in the same pool as a regulated employee.
(2) A railroad may not include a regulated employee in more than one random testing pool established under the regulations of a DOT agency.
(3) A regulated employee may be placed in a random testing pool with employees subject to the random testing requirements of another DOT agency, only if all entries in the pool are subject to testing at the highest minimum random testing rate required by the regulations of a DOT agency for any single member in the pool.
(4) A regulated employee does not have to be placed in separate pools for random drug and random alcohol testing selection.
(5) A regulated employee must be incorporated into a random testing pool as soon as possible after his or her hire or first transfer into regulated service.
(e) Frequency of regulated service. (1) A railroad may not place a person in a random testing pool for any selection period in which he or she is not expected to perform regulated service.
(2) A railroad employee who performs regulated service on average less than once a quarter is a de minimis safety concern for random testing purposes, and does not have to be in a random testing program. A railroad that chooses to random test de minimis employees must place them in a separate random testing pool from employees who perform regulated service on a regular basis (e.g., engineers, conductors, dispatchers, and signal maintainers).
(3) A railroad must make a good faith effort to determine the frequency of an employee’s performance of regulated service and must evaluate the employee’s likelihood of performing regulated service in each upcoming selection period.
(f) Pool maintenance. Pool entries must be updated at least monthly, regardless of how often selections are made, and a railroad must ensure that each of its random testing pools is complete and does not contain outdated or inappropriate entries.
(g) Multiple random testing pools. A railroad may maintain more than one random testing pool if it can demonstrate that its random testing program is not adversely impacted by the number and types of pools or the construction of pool entries, and that selections from each pool will meet the requirements of this subpart.
§ 219.613 Random testing selections.
(a) General. Each railroad must ensure that each regulated employee has an equal chance of being selected for random testing whenever selections are made. A railroad may not increase or decrease an employee’s chance of being selected by weighting an entry or pool.
(b) Method of selection. (1) Each railroad must use a selection method that is acceptable to FRA and meets the requirements of this subpart, such as a computer selection program, proper use of a random number table, or an alternative method which FRA has approved as part of the railroad’s random testing plan.
(2) A selection method must be free of bias or apparent bias and employ objective, neutral criteria to ensure that every regulated employee has an equal statistical chance of being selected within a specified time frame. The selection method may not utilize subjective factors that permit a railroad to manipulate or control selections in an effort to either target or protect any employee, job, or operational unit from testing.
(3) The randomness of a selection method must be verifiable, and, as required by § 219.623, any records necessary to document the randomness of a selection must be retained for not less than two years from the date the designated testing window for that selection expired.
(c) Minimum random testing rate. (1) Each railroad must distribute random tests reasonably throughout the calendar year and make sufficient selections to ensure that each random testing pool meets the Administrator’s minimum annual random testing rates as established according to § 219.625.
(2) Each railroad must continually monitor changes in its workforce to ensure that the required number of selections and tests are conducted each year.
(d) Selection frequency. Each railroad must select at least one entry from each of its random testing pools every three months.
(e) Discarded selection draws. Each selection draw must identify who will be subject to random testing. A railroad cannot discard a selection draw without an acceptable explanation (e.g., the selection was drawn from an incomplete or inaccurate pool). A railroad must document and retain records for all discarded selection draws, including the specific reason the selection draw was not used, as required by § 219.623.
(f) Increasing random selections. A railroad that is unable to complete a collection for each selection made during a designated testing period may increase the number of selections in a subsequent selection period to ensure that it meets the annual minimum random testing rate for the calendar year.
(g) Selection snapshots. Each railroad must capture and maintain an electronic or hard copy snapshot of each random testing pool at the time it makes a testing selection. A railroad must not re-create pool entries from records after the time of the original selection. The railroad must maintain this snapshot for a period of two years, as required by subpart J of this part.
(h) Multiple DOT agencies. Each railroad must ensure that each regulated employee who performs functions subject to the random testing requirements of more than one DOT agency is subject to random selection at or above the current minimum annual testing rate set by the DOT agency that regulates more than 50 percent of the employee’s DOT-regulated functions.
§ 219.615 Random testing collections.
(a) Minimum random testing rates. Each railroad must complete a sufficient number of random alcohol and drug testing collections from each of its random testing pools to meet the Administrator’s minimum annual testing rates established in accordance with § 219.625.
(b) Designated testing window. Each railroad must complete the collection for a selected pool entry within the FRA-approved designated testing window for that selection. Once a designated testing window has closed, any selections not collected during that window are no longer valid and may not be subject to random testing.
(c) Collection timing. (1) A regulated employee may be subject to random testing only while on duty and subject to performing regulated service.
(2) Each railroad’s random alcohol and drug testing collections must be unannounced and spread reasonably throughout the calendar year. Collections must also be distributed unpredictably throughout the designated testing window and must reasonably cover all operating days of the week (including operating weekends and holidays), shifts, and locations.
(3) Random alcohol test collections must be performed unpredictably and in sufficient numbers at either end of an operating shift to attain an acceptable level of deterrence throughout the entire shift. At a minimum, a railroad must perform 10% of its random alcohol tests at the beginning of shifts and 10% of its random alcohol tests at the end of shifts.
(4) If a regulated employee has been selected for both random drug and alcohol testing, a railroad may conduct these tests separately, so long as both required collections can be completed by the end of the employee’s shift and the railroad does not inform the employee that an additional collection will occur later.
(d) Collection scheduling. While pool entries must be selected randomly, a railroad may schedule each random test collection during a designated testing window according to its approved plan.
(1) A railroad may schedule a collection based on the availability of the selected pool entry, the logistics of performing the collection, and any other requirements of this subpart.
(2) If a selected pool entry does not identify the selection by name (i.e., train crews or job functions), a railroad may not use its scheduling discretion to deliberately target or protect a particular employee or work crew. Unless otherwise approved in a random testing plan, railroad field supervisors or field management personnel may not use discretion to choose or to change collection dates or times if that choice could intentionally alter who is to be tested.
(e) Notification requirements. (1) A railroad may notify a regulated employee that he or she has been selected for random testing only during the duty tour in which the collection is to be conducted, and only so far in advance as is reasonably necessary to ensure the employee’s presence at the scheduled collection time and place.
(2) A railroad must make collections as soon as possible. Each collection must begin within two hours after the railroad has notified the employee of his or her selection for random testing, unless the railroad has an acceptable reason for the delay. A railroad should monitor each employee after notification and, whenever possible, arrange for the employee to be immediately escorted by supervisory or management personnel to the collection location.
(3) A railroad must inform a
(f) Incomplete collections. A railroad must use due diligence to ensure that a random testing collection is completed for each selected pool entry, unless it has an acceptable explanation for not conducting the collection. All reasons for incomplete collections must be fully documented and are subject to inspection by FRA upon request.
(g) Hours-of-service limitations. (1) Except as provided by paragraph (g)(2) of this section, a railroad must immediately terminate a random collection and may not reschedule it if the collection is not completed within a covered employee’s hours-of-service limitations.
(2) If a random collection requires a direct observation collection under § 40.67 of this title, the directly observed collecti