(a) Sections 209.601 through 209.621 prescribe rules of procedure for the assessment of civil penalties pursuant to the Federal railroad safety laws, 49 U.S.C. chapters 201 through 213.

(b) When FRA has reason to believe that a person has committed an act which is a violation of any provision of chapter II, subtitle B of this title, or title 49, subtitle V, part A, of the United States Code, for which FRA exercises enforcement responsibility or any waiver or order issued thereunder, it may conduct a proceeding to assess a civil penalty.

A person who violates a requirement of the Federal railroad safety laws, an order issued thereunder, chapter II, subtitle B, of this title, or title 49, subtitle V, part A, of the United States Code, is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. However, penalties may be assessed against individuals only for willful violations, and a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed, where a grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons, or a death or injury has occurred. See 49 CFR part 209, appendix A. Each day a violation continues shall constitute a separate offense. See FRA's website at https://railroads.dot.gov/for a statement of agency civil penalty policy.

(a) FRA, through the Office of the Chief Counsel, begins a civil penalty proceeding by serving a demand letter on a person charging the person with having violated one or more provisions of chapter II, subtitle B of this title, or title 49, subtitle V, part A, of the United States Code. FRA's website at https://railroads.dot.gov/ contains guidelines used by the Office of the Chief Counsel in making initial penalty assessments.

(b) A demand letter 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) FRA may amend the demand letter at any time prior to completion of a fully executed settlement agreement or the entry of an order assessing a civil penalty. If the amendment contains any new material allegation of fact, the respondent is given an opportunity to respond. In an amended demand letter, FRA may change the civil penalty amount proposed to be assessed, up to the maximum penalty amount for each violation. However, if the violation is a grossly negligent violation, or a pattern of repeated violations, that has caused an imminent hazard of death or injury to individuals, or has caused death or injury, FRA may change the penalty amount proposed to be assessed up to the aggravated maximum penalty amount.

(a) Within sixty (60) days of the service of a demand letter issued under § 209.605, the respondent may—

(1) Pay as provided in § 209.609(a) and thereby close the case;

(2) Make an informal response as provided in § 209.611; or

(3) Request a hearing as provided in § 209.613.

(b) The Office of the Chief Counsel may extend the sixty (60) 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 the right to appear and contest the allegations, and authorizes the Office of the Chief Counsel, without further notice to the respondent, to find the facts to be as alleged in the demand letter and to assess an appropriate civil penalty.

(a) Payment of a civil penalty must be made via the internet at https://www.pay.gov/paygov/. Instructions for online payment are found on the website.

(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 contacting the Office of the Chief Counsel.

(a) If a respondent elects to make an informal written response to a demand letter, respondent must submit to the Office of 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) Instead of or in addition to an informal written response as described in paragraph (a), an informal response may consist of a request for a conference.

(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 Office of the Chief Counsel in reviewing the demand letter 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 Office of the Chief Counsel may dismiss the demand letter in whole or in part. If the Office of the Chief Counsel does not dismiss it in whole, the Office of the Chief Counsel may enter into a settlement agreement or enter an order assessing a civil penalty.

(a) If a respondent elects to request a hearing, the respondent must submit a written request to the Office of the Chief Counsel referring to the case number which appeared on the demand letter. The request must—

(1) State the name and email 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 that complies with the requirements of paragraph (a) of this section, the Office of the Chief Counsel schedules a hearing for the earliest practicable date.

(c) The Office of the Chief Counsel, or the hearing officer appointed under § 209.615, may grant extensions of the time of the commencement of the hearing for good cause shown.

(a) When a hearing is requested and scheduled under § 209.613, a hearing officer designated by the Office of 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, at a place convenient to the respondent, or virtually. 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 that may expedite the hearing or aid in the disposition of an issue raised, therein.

(c) The Office of the Chief Counsel has the burden of providing the facts alleged in the demand letter and may offer such relevant information as may be necessary to inform the presiding officer fully as to the matter concerned.

(d) The respondent may appear and be heard on the respondent's own behalf or through counsel of the respondent's choice. The respondent or respondent's counsel may offer relevant information, including testimony, which they believe should be considered in defense of the allegations, or that 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.

(a) After consideration of the evidence of record, the presiding officer may dismiss the demand letter in whole or in part. If the presiding officer does not dismiss it in whole, the presiding officer 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 § 209.621, 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. In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review.

The assessment of a civil penalty under § 209.617 is made only after considering:

(a) the nature, circumstances, extent, and gravity of the violation;

(b) with respect to the violator, the degree of culpability, any history of violations, the ability to pay, and any effect on the ability to continue to do business; and

(c) other matters that justice requires.

(a) Any party aggrieved by a presiding officer's decision or order issued under § 209.617 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. In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review.