49 CFR Part 209, Appendix C

Federal Railroad Administration, DOT
49 CFR section
180.509(a) ............................

180.509(b) ............................

180.509(c) ............................
180.509(d) ............................
180.509(e) ............................
180.509(f) .............................
180.509(h) ............................
180.509(i) .............................
180.509(j) .............................
180.509(l) .............................

180.513 ................................

180.515 ................................
180.517 ................................

Pt. 209, App. C
Guideline amount 2

Description
Failure to comply with requirements for inspection and test.
—Failure to mark a car passing a periodic inspection and test.
—Failure to prepare written report for inspection
and test performed under this section.
Failure to perform inspection and test when at
least one of the qualifying conditions has been
met.
Failure to perform inspection and test at specified interval.
Failure to properly perform visual inspection .......
Failure to properly perform structural integrity inspection and test.
Failure to properly perform thickness test ............
Failure to properly inspect safety systems ...........
Failure to properly perform lining and coating inspection and test.
Failure to properly perform leakage pressure test
Failure to perform inspection and test in accordance with the quality assurance program. (Applies to all non-DOT specification tank cars as
of July 1, 2000, but see § 180.509(l)(3) for
‘‘20-year’’ cars. See also § 179.7(f).).
Failure to repair the tank according to Appendix
R of the AAR Tank Car Manual.
Use of an employee to perform welding on a
tank when that employee does not have the
qualifications for that type of welding procedure.
Failure to mark the tank as required ....................
Failure to report, record, and retain required documentation.

See § 180.515.
See § 180.517.
5,000.

5,000.
7,500.
10,000.
10,000.
7,500.
10,000.
7,500.
10,000.

10,000.
10,000.

7,500.
7,500.

Provisions for tank cars other than single unit tank car tanks:
180.519(a) ............................
180.519(b)(1) .......................
180.519(b)(2) .......................
180.519(b)(3) .......................
180.519(b)(4) .......................
180.519(b)(5) .......................
180.519(b)(6) .......................
180.519(c) ............................

180.519(d) ............................

Failure to retest at required interval .....................
Failure to perform hydrostatic pressure/expansion test as required.
Failure to perform interior air pressure test as required.
Failure to test pressure relief valves as required
Failure to remove and inspect frangible discs
and fusible plugs.
Failure to retest at required interval .....................
Failure to stamp tank as required ........................
Failure to visually inspect as required ..................
Failure to use competent persons to perform visual inspection.
Failure to record and retain documentation. Mitigate/aggravate depending on the extent of the
violation.

Cite 180.519(b)(5).
7,500.
7,500.
7,500.
5,000.
3,000.
5,000.
5,000.
5,000.
7,500.

2 A person who knowingly violates the hazardous materials transportation law, or regulation, special permit, approval, or order
issued thereunder, is subject to a civil penalty of at least $250 but not more than $55,000 for each violation, except that the maximum civil penalty for a violation is $110,000 if the violation results in death, serious illness or severe injury to any person, or
substantial destruction of property; and a minimum $450 civil penalty applies to a violation related to training. Each day that the
violation continues is a separate offense. 49 U.S.C. 5123; 28 U.S.C. 2461, note.

[61 FR 38647, July 25, 1996, as amended at 69 FR 30591, May 28, 2004; 71 FR 77295, Dec. 26, 2006;
73 FR 72200, Nov. 26, 2008; 73 FR 79701, Dec. 30, 2008; 75 FR 43842, July 27, 2010]

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.),

APPENDIX C TO PART 209—FRA’S POLICY
STATEMENT CONCERNING SMALL EN-

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TITIES

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

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Pt. 209, App. C

49 CFR Ch. II (10–1–10 Edition)

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 compliancerelated inquiries of small entities, and to ensure proper handling of civil penalty and
other enforcement actions against small
businesses.

ticularly 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.

jdjones on DSK8KYBLC1PROD with CFR

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 par-

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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Federal Railroad Administration, DOT

§ 210.3

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
Sec.
210.1 Scope of part.
210.3 Applicability.
210.5 Definitions.
210.7 Responsibility for noise defective railroad equipment.
210.9 Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.
210.11 Waivers.
210.13 Penalty.

Subpart B—Inspection and Testing
210.21 Scope of subpart.
210.23 Authorization.
210.25 Measurement criteria and procedures.
210.27 New locomotive certification.
210.29 Operation standards (moving locomotives and rail cars).
210.31 Operation standards (stationary locomotives at 30 meters).
210.33 Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).
APPENDIX A TO PART 210—SUMMARY OF NOISE
STANDARDS, 40 CFR PART 201
APPENDIX B TO PART 210—SWITCHER LOCOMOTIVE ENFORCEMENT POLICY
AUTHORITY: Sec. 17, Pub. L. 92–574, 86 Stat.
1234 (42 U.S.C. 4916); sec. 1.49(o) of the regulations of the Office of the Secretary of Transportation, 49 CFR 1.49(o).
SOURCE: 48 FR 56758, Dec. 23, 1983, unless
otherwise noted.

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,

[68 FR 24894, May 9, 2003]

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