49 Cfr 1201.1-1

Section

[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2009]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR209 App C]
[Page 61-63]
TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
PART 209_RAILROAD SAFETY ENFORCEMENT PROCEDURES--Table of Contents
Subpart F_Enforcement, Appeal and Hearing Procedures for Rail Routing
Decisions Pursuant to 49 CFR
172.820
Sec. 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.),
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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.
Small Entity Communication Policy
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

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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.
Small Entity Enforcement Policy
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
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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

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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.
[68 FR 24894, May 9, 2003]

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