The Regulations

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Module Objectives
        - Be aware of applicable FRA Safety Standards.
        - Recognize inspector discretion.
        - Apply the criteria in Part 209, Appendix A when considering a recommendation for a civil penalty.

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Statutes vs. Regulations

	Statutes: 
        - Enacted by acts of U.S. Congress
        - Found in United States Code (U.S.C.)
        - Safety Appliance Acts are Statutes
        - Cannot  be changed or waived by an agency of U.S. government unless such authority granted by Congress.
        -  Example:  49 U.S.C. §20306 (Rock Island Act) Allows FRA to waive SA Act requirements for technological improvements or innovations.

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Statutes vs. Regulations

   Regulations: 
        - Enacted through rulemaking by agency of U.S. government.
        - Found in Code of Federal Regulations (C.F.R.).
        - Safety Appliance and Power Brake Standards (Part 231 and 232) are regulations.
        - Interstate Commerce Commission (ICC) Orders are basically regulations.
        - Can  be changed or waived by an agency of U.S. government.   

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Other Significant Events
        - In 1966, Congress passed the Department of Transportation Act. 
        - On April 1, 1967, the Department of Transportation (DOT) and the Federal Railroad Administration came into existence.  
        - The 1966 Act transferred all powers, duties, and functions of the ICC related to safety appliances to the Secretary of DOT, who has designated FRA with authority.  

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Other Significant Events

In 1970, Congress passed the Federal Railroad Safety Act (FRSA).   Reasons for action included: 
        - Upward trend in railroad accidents. In 1969 there were 8,500 accidents and 2,300 deaths. 
        - Data showed that most accidents due to track, equipment, and human factors.
        - Many of these areas were unregulated at the federal level to any significant extent.   

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Major Elements of 1970 FRSA
        - Jurisdiction:  Gave Secretary of Transportation (FRA) jurisdiction over all railroads (not just railroads engaged in interstate commerce).  
        - Rulemaking Authority:  Gave FRA ability to regulate in “all areas of railroad safety.”
        - Emergency Orders: Authority for FRA to issue emergency orders.
        - Preemption:  Basic principle of national uniformity, FRA rules generally preempt state rules.

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Major Elements of 1970 FRSA
        - State Participation:  Permits state inspectors to play same role as federal inspectors via certification.
        - General Powers:  Provides authority for FRA to conduct investigations, seek documents, and conduct inspections of equipment and operations.
        - Penalties: Granted authority for FRA to assess and collect civil penalties between $250-$10,000, with $20,000 penalty for gross negligence causing death or injury.  

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Recodification
        - In 1994, Congress recodified all the existing federal railroad safety laws.  Congress’ intent was to consolidate all existing federal railroad laws under one Title of the United States Code.
        - The SA Acts were repealed, rewritten, reissued and moved from Title 45 USC to Title 49 USC. Thus, the SA Acts ceased to exist as the SA Acts and are now a separate chapter in 49 USC addressing safety appliances.    

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Recodification
        - When recodifying the federal railroad safety laws, Congress changed the language and structure of the SA Acts.  
        - Congress made clear that the language and organizational changes were for clarity and were not intended to change the intent, meaning, or substance of any of the existing railroad safety laws.  Thus, all existing case law still relevant.

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Statutory Authority & History
        - Congress began enacting laws in 1893 to address safety issues on U.S. railroads
        - Most statutes were found in Title 45 USC until recodification in July 1994
        - Federal statues now found in Title 49 USC
        - Recodification didn’t change the meaning of the law only it’s wording and location

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Key Point

An overview of history and how we got here

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First Safety Acts
        - 1893 Safety Appliance Acts
        - 1907 Hours of Service Act
        - 1910 Accident Reports Act
        - 1911 Locomotive Boiler Inspection Act
        - 1920 Signal Inspection Act

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Key Points

1893 Safety Appliance Acts

Standardized the installation and maintenance of specific appliances used on locomotives and cars to protect railroad employees from injury

1907 Hours of Service Act

Mandated specific number of hours on duty for employees engaged in train or engine service.  Also addressed certain aspects of sleeping quarters for these same employees   

1910 Accident Reports Act

Required railroads to report accidents to the ICC and gave ICC investigative authority

1911 Locomotive Inspection Act

Safety standards for the inspection and test of steam locomotives

1920 Signal Inspection Act

Authorized ICC regulate maintenance, testing, removal and modification of signal systems

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Safety Act of 1970
        - Congress gave Secretary of Transportation, subsequently delegated to FRA, authority over all matters relating to railroad safety. 
        - Included rulemaking authority as well as older safety statutes enacted prior to 1970.
        - Initial transfer of authority from ICC to DOT occurred in 1967. 

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Key Point

Recognition by congress that more needed to be done in the interest of safety

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Appendix A to Part 209Agency Policy Concerning Enforcement
        - The Civil Penalty Process.
        - Civil Penalties Against Individuals.
        - Assessment of Maximum Penalties.
        - Extent and Exercise of FRA Jurisdiction.
        - Extraordinary Remedies.

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Key Point

Remind students to refresh themselves with Part 209 Appendix A.  Inspectors engaged in most compliance activities should be governed by this policy. 

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Civil Penalties - Railroads
        - A recommendation by the inspector to Chief Counsel to assess a fine on a railroad for non-compliance of federal regulations is a civil penalty.
        - Evidence of non-compliance is presented and based on written factual evidence contained in a report. 

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Civil Penalties - Individuals
        - A recommendation by the inspector to Chief Counsel to assess a fine on a individual for non-compliance of federal regulations is a civil penalty.
        - Evidence of non-compliance is presented and based on written factual evidence contained in a report.

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No difference from railroad civil penalty recommendations

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Maximum Penalties
        - Instances of non-compliance allowing FRA to assess penalties commensurate with the severity of the violation.
        - Requires extra effort in detail to support recommendation in addition to a cover letter from the Regional Administrator.

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Example : Grossly negligent or repeated violations that has caused or potential to cause, imminent hazard of death and/or injury 

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FRA Jurisdiction
        - FRA has authority to regulate all matters pertaining to railroad safety.
        - Authority encompasses all means of “railroad” transportation, excluding self-contained urban rapid transit systems.
        - Certain “insular” operations are also excluded at FRA’s discretion.

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Extraordinary Remedies
        - Disqualification of individuals.
        - Criminal penalties.
        - Compliance orders.
        - Injunctions.
        - Emergency orders.

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Enforcement Tools

	Railroads
        - Verbal Repair Order
        - Exception
        - Violation (Civil Penalty)*
        - Special Notice (MP&E - Track)
        - Compliance Order*
        - Injunction*
        - Emergency Order*

	Individuals
        - Verbal Warning
        - Regional Warning Letter
        - Chief Counsel Warning* Letter
        - Civil or Criminal Penalties*
        - Suspension*
        - Disqualification*

*Under the guidance of Chief Counsel

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Railroad - Verbal Repair Order

	Verbally tell a railroad official to repair defective rolling stock.  Your verbal directive is binding, the railroad is compelled to take appropriate remedial action before returning it to service.

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Railroad - Exception

	Inspection report completed documenting non-complying condition. 

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Railroad - Violation

	Used in conjunction with exception recommending civil penalty.

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Railroad -Special Notice for Repair

	Generally used in conjunction with exception and violation to remove from service, locomotive or car not in compliance with 49 CFR Part(s) 215, 229, 230 and 238.

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Railroad - Compliance Order
        - UPSIDE: Where civil penalties are inappropriate or ineffective, requires railroads to engage in supplementary activities to achieve compliance, e.g., changes in internal policies or develop a training program.
        - DOWNSIDE: Huge investment in legal resources to implement Compliance Order.

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Railroad -Injunction
        - U.S. District Court Judge requires railroad to comply with railroad law immediately.
        - If railroad fails to comply, violator could be held in contempt which could result in criminal penalties.

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Railroad - Emergency Order
        - May be issued by the FRA Administrator either separately or in combination with injunction.
        - Issued on the basis of some practice, action or inaction that creates and imminent safety hazard which could result in death or serious injury. 
        - Track Emergency Order is a special tool used when the Special Notice has proven ineffective or inadequate to abate the emergency condition.

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Individual – Verbal Warning
        - Personally notify individual and first level supervisor of violation of Federal Regulation. 
        - It may be appropriate to consider documenting individual non-compliance on inspection report.

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A separate module is devoted entirely to Individual Liability. We’ll look deeper into IL issues in the next module.

Example: For first bullet: Total failure of employee to provide Blue Signal Protection for himself

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Individual – Regional Warning Letter
        - FRA must show that individual has either “willfully”or “knowingly”violated a regulation or has demonstrated “unfitness” for safety-sensitive service.
        - Prepared at the Regional Level with or without input from Headquarters.
        - Willful violation entails knowledge of facts constituting violation.

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Use the air brake test analogy here

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Individual – Chief Counsel Warning Letter
        - Same criteria as Regional Warning Letter – Willful, Knowingly or Unfit for safety sensitive service.
        - Warning letter from Chief Counsel is considered a more stringent approach and more serious than a Regional Letter. 

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Individual – Civil or Criminal Penalties
        - Same as Regional Warning Letter –Willful, Knowingly or Unfit for safety sensitive service.
        - Depending on circumstances and the nature of the violation. 
        - Criminal penalty only when someone knowingly and willfully falsifies or destroys records or reports required under FRA regulations or emergency orders.
        - Criminal penalties for certain Haz-Mat issues.

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Bullet 2 Example: Trainmaster orders crew to take train from Initial Terminal with less than 85% operative brakes 

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Individual Suspension/Disqualification
        - FRA does not have to show that the person acted willfully for a recommendation of suspension or disqualification. 
        - However, FRA must show either: 
        - Person has history of violating FRA regulations, or
        - The violation was so egregious as to preclude any litigate defense, (e.g., on duty use of alcohol or drugs resulting in loss of life or serious injury).

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Now lets look at how to apply these tools

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Enforcement Discretion
        - FRA does not have to respond to every situation of non-compliance of federal railroad regulations with a formal enforcement action.
        - FRA can use it’s discretionary powers based on limited resources and what it believes is the best method for promoting compliance.
        - In most cases, enforcement discretion lies with the inspector. 
        - Enforcement discretion is driven by 7 Governing Factors.

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Discretion calls for general guidelines to ensure effectiveness, fairness, and an acceptable level of consistency in the exercise of that discretion.

Let’s take a look at what those 7 factors are.

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When & What Action?7 Governing Factors

Inherent seriousness of the condition or action

The degree of hazard or potential safety implications based on the facts

Persons or property harmed by the condition or action

Current compliance record 

Recent history of compliance 

What action is appropriate based on the facts

Other immediate factors relevant to circumstances

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Governing FactorNo. 1

	Inherent seriousness of the action
        - Severity of violation apart from immediate circumstances
        - Penalty schedule reflects and takes into account some conditions that are inherently serious
        - Use accident/incident data to link seriousness 

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 Inherent seriousness of the violation

Example for bullet one: Loose wheel more serious than wheel with small crack

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Governing FactorNo. 2

	Kind of degree of hazard or potential safety implications based on the facts

	Potential for injury or property damage posed by the violation in the context of actual facts

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The degree of hazard or potential safety implications

A broken wheel found on an inbound train where designated inspectors are employed to do inspections may pose a risk, but less than at a location where trainmen do all the inspections  

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Governing FactorNo. 3

	Persons or property harmed by the condition or action
        - Enforcement should generally be considered if the violation caused or contributed to the severity of such actual harm.
        -  Appropriate enforcement action,  e.g., individual civil penalty, suspension, disqualification.

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Persons or property harmed by infraction

Where a violation of the Federal railroad safety laws or regulations has actually caused or contributed to the severity of such actual harm, there is every reason to take enforcement action.
          -   Such violations should be submitted to Chief Counsel with a recommendation for Top Priority review.  A cover memo explaining the basis for such review must be included.
          -   The violation report itself must explain the causal link between the violation and the harm.  The violation need not have been the sole or primary cause, and need not have been a cause at all if it contributed to the severity of the harm.
          -   It will not suffice to say that a violation and some actual harm coincided (e.g., a shipping paper violation is discovered on a train involved in a fatal accident, but the violation played no apparent role in the accident’s cause or severity).  If no relationship between the violation and the harm can be shown, the violation may still be a strong candidate for enforcement, but not based on consideration of this irrelevant factor.
          -   A violation report in such a case must also explain the extent of the harm.  The report should discuss the nature and extent of any injuries.

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Governing FactorNo.4

	 Current compliance record 
        - Conclusion about the railroad or individual’s general level of compliance when the inspection or observation was made.
        - Look at the big picture, if compliance on the whole is good, it might be appropriate to just take exceptions and not file violations. 
        - Conversely, it the big picture indicates multiple serious defects, violations may be the best course of action.

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Current compliance or general record
          - Most inspections or investigations entail observation of more than one event or piece of equipment.  This enables the inspector to draw a conclusion about the railroad’s general level of compliance at the current time.
          -   At one end of the spectrum, this factor could lead the inspector to conclude that a violation is merely an aberration and enforcement action is not needed to encourage compliance.
          -   At the other end of the spectrum, violations may be so common that enforcement action--perhaps even an extraordinary remedy such as an emergency order if the violations are serious enough-- is obviously in order.
          -   Ordinarily, the facts will be somewhere in between, requiring the inspector to balance this factor against the seriousness of the violations and other factors.  

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Governing FactorNo. 5

	Recent history of compliance
        - Level of compliance at a given location.
        - Use RISPC to develop defect ratios by railroad, division or geographical location.
        - Failure to adhere to conditions stipulated in a SACP Action Plan.

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Governing FactorNo. 6

	What action is appropriate based on the facts
        - Weigh the benefits before deciding.
        - Preparing violation reports takes time which translates into less time in the field.
        - Be selective based on the seriousness, frequency or other compelling reasons.

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Governing FactorNo. 7

	Other immediate factors relevant to circumstances
        - Consider the violator’s level of culpability or blame.
        - Was the regulation violated new or recently been revised.

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