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