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 Post subject: CFR clarification
PostPosted: Fri Aug 10, 2018 4:30 am 

Joined: Sun Aug 22, 2004 11:06 am
Posts: 479
Location: NE PA
In order to educate a future generation of Steam caretakers I feel the need to add additional information to a prior post which talked about a 49 CFR Part 230.29 regulation stating the owner/operator was responsible, but the regulation which in my opinion applies is:

230.7 Responsibility for compliance.
(a) The locomotive owner and/or operator is directly responsible for ensuring that all requirements of this part are satisfied, and is the entity primarily responsible for compliance with this part.

(b) Although the duties imposed by this part are generally stated in terms of the duties of a railroad or a steam locomotive owner and/or operator, any person, including a contractor for a railroad, who performs any function covered by this part must perform that function in accordance with this part.

(c) Chapter 207 of Title 49 of the United States Codes makes it unlawful for any railroad to use or permit to be used on its line any steam locomotive or tender unless the entire steam locomotive or tender and its parts and appurtenances are in proper condition and safe to operate in the service to which they are put, without unnecessary danger of personal injury and have been inspected and tested as required by this part.

We as caretakers do not get to pick and choose which regulation we follow, we must follow the entire regulation. We need to educate ourselves as to all the regulations that apply to our job as caretakers.
Electronic 49 CFR part 200 access:
https://www.ecfr.gov/cgi-bin/text-idx?SID=9023e72ca6980c535ed8b595f5e37050&mc=true&tpl=/ecfrbrowse/Title49/49cfrv4_02.tpl#0
Mike Tillger


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 2:44 pm 

Joined: Fri Dec 17, 2010 2:41 pm
Posts: 110
Spelled out in black and white. A standard regulation is not meant to be left to individual interpretation, otherwise it is not a standard. Unfortunately, there are some in this industry who feel they are free to interpret such regulation in a manner that best suits them.

I feel that, in general, we do a pretty good job adhering to these regulations and understanding their meaning/reasoning. The bigger question is, how do we insure "proper" compliance from all? Is CFR part 230 still strong enough to achieve this in 2018? What improvements, based on it's 19-year history, could/should be implemented?

Best,
DC


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 4:22 pm 

Joined: Wed Feb 02, 2011 9:40 pm
Posts: 788
Once again, someone must point out that the locomotive in question is not and was not in service. As it sits in the shop, in pieces, it is not an operating locomotive and not subject to FRA fines.

Had it been in service, that would be a whole different issue.


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 4:49 pm 

Joined: Sun Aug 22, 2004 7:19 am
Posts: 5476
Location: southeastern USA
Other thread, Linc. No locomotive has been specified in this one.

Reality is that some amount of interpretation is going to happen since every situation is different. Also, some inspectors know more about steam than others. The regulations also refer to applicability of "national or industry standards" as appropriate - there are many nations, and different lines used different standards, as did different builders.

Unless we all want to do the same work on identical locomotives in identical condition for the same use, we need some room for knowledgeable people to do some interpretation when backed up with good information and/or calculations to succeed compliantly and safely - which are not the same thing.

_________________
Santayana: "He who does not remember the past is condemned to repeat it."
Corollary: "He who does is doomed to watch those who don't repeat it anyway."


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 8:14 pm 

Joined: Thu May 24, 2012 1:37 pm
Posts: 1040
Somebody in the preservation community needs to explain something to me.

Why is the issue of fines supposedly the important criterion here, when it is simple common sense to accept the FRA inspector's observations as cautionary safety advice ... or not, as appropriate?

Are people in the community so irresponsible that they don't care if an engine has potentially dangerous problems unless there are financial penalties involved? Or that they might proceed (as, if I recall, Cloquet Terminal was accused of doing with 28) of goin' on ahead and firin' a locomotive up without fulfilling the FRA requirements in part 230?

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R.M.Ellsworth


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 8:43 pm 

Joined: Tue Jul 02, 2013 10:45 pm
Posts: 137
From a legal standpoint, the only difference between a defect (non-compliance - F6180.96)) and a fine (violation report recommending a civil penalty - F6180.111)) is:

[1] Severity of the defect (how far past the limits),
[2] Repetitive nature of the defect (has happened before or often currently),
[3] Location of the defect (more dangerous, such as near a school or an area more likely to fail), or
[4] Past refusal or pattern of failures (the defects in the past weren't enough to get you to change your ways).

A fine cannot be issued if the item is out of service (track, equipment, etc.), but defects can still be noted. These records can then be used to support fines, other actions (see below), or criminal charges should the item be placed in service without the repairs being made. By the way, criminal can only be used when paperwork is forged (creating a fake report), falsified (inspection reports do not show what was actually found or show repairs not actually made), or somehow altered.

Beyond fines, the FRA has a number of other actions they can take. They are:

Special Notice for Repair - provides specific instructions as to what must be done.
Compliance Order Recommendation - requires specific actions, often because previous defect or violation reports have been ignored.
Emergency Order - the FRA actually takes the special remedial action to handle emergency situations as they cannot rely upon the company to do it themselves.

It should be noted, the simple defects can be written up by the field inspector, the rest are simply recommendations of the field inspector, who must consult with the regional office. For the Emergency Order, the inspector takes over with consultation, and additional inspectors are immediately sent to re-inspect and support the actions.

This is a fairly complicated and detailed issue, which is why the FRA has a compliance manual that covers the subject for every field an topic.

I teach this to railroads and contractors on a fairly regular basis, and this subject can take a great deal of time to cover, so this is actually a short version of about 20+ pages of material that I use.

Bart


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 Post subject: Re: CFR clarification
PostPosted: Fri Aug 10, 2018 10:40 pm 

Joined: Fri Mar 26, 2010 11:43 am
Posts: 545
I feel like this whole FRA violation argument is a red herring. Or is this reflecting something happening on another board or in PM's? Yes, of course you are free to do any stupid repair you want with your engine, if you never plan on using it. You can pop rivet in a firebox if you never intend to fire it up. When you call the FRA out to hydro your boiler, however, I would expect that you plan to show off your best work, a boiler that you believe is ready to steam up. The issue here is, about a year later, this same boiler got an inspection that makes it sound like Joe and his Crackerbox had a go at it with some coat hangers for rod and some patches he pulled out of the scrap pile at the local steel yard.

While it was tax money that did this repair, I have no other dog in the fight, I would be interested in hearing the explanation/timeline for the condition the boiler is in now. I should add, I have a hard time believing a reputable contractor was involved in making that shoddy of a boiler, but I also know it can and does happen.....


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 Post subject: Re: CFR clarification
PostPosted: Sat Aug 11, 2018 5:26 am 

Joined: Sun Aug 22, 2004 11:06 am
Posts: 479
Location: NE PA
I started this thread as an educational thread on the CFRs that affect steam locomotives, and I request that posters stay on this topic and away from any specific locomotive and or specific repairs and if you can't stay on topic then start a new thread. Thank you.
Mike Tillger


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 Post subject: Re: CFR clarification
PostPosted: Sat Aug 11, 2018 5:39 pm 

Joined: Thu Feb 23, 2017 10:54 am
Posts: 19
Location: Rossville, GA.
Amen to Brother Tillger.
I advise all interested people who are involved in FRA Compliance to read the FRA Rules ONCE A
MONTH, EVERY MONTH THAT YOU ARE INVOLVED WITH THE PROJECT.
You will learn something from every reading.
YOU are charged with the responsibility to be aware of the rules, and comply.
The FRA Inspector is not your consultant. They do not perform tests nor do they "certify" your hydro, steam test or whatever. YOU are charged with the responsibility to comply. The FRA Inspector is there to witness your compliance.


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 Post subject: Re: CFR clarification
PostPosted: Sat Aug 11, 2018 11:22 pm 

Joined: Fri Dec 17, 2010 2:41 pm
Posts: 110
Lincoln Penn wrote:
Once again, someone must point out that the locomotive in question is not and was not in service. As it sits in the shop, in pieces, it is not an operating locomotive and not subject to FRA fines.

Had it been in service, that would be a whole different issue.


I was not referring to any particular locomotive. I have no interest in locking another potentially useful thread.

Overmod wrote:
Are people in the community so irresponsible that they don't care if an engine has potentially dangerous problems unless there are financial penalties involved? Or that they might proceed (as, if I recall, Cloquet Terminal was accused of doing with 28) of goin' on ahead and firin' a locomotive up without fulfilling the FRA requirements in part 230?


That situation with the 28 as detailed by Overmod is exactly the kind of “regulation interpretation” my comment was referring to. I believe it most relative to the OP’s educational intention.

Best,
DC


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 Post subject: Re: CFR clarification
PostPosted: Sun Aug 12, 2018 4:49 am 

Joined: Sat Feb 05, 2005 1:05 am
Posts: 415
This was addressed a few years ago:

LINK = FRA Part 230 Boiler Repair Standards

Quote:
This is what it says:

§ 230.29 Inspection and repair.
(b) Repair standards.
(2) Any welding to unstayed portions of the boiler made pursuant to § 230.33 shall be made in accordance with an accepted national standard for boiler repairs.

These are the definitions in Part 230:

ANSI. American National Standards Institute.
ASME. American Society of Mechanical Engineers.
NBIC. National Board Inspection Code published by the National Board of Boiler and Pressure Vessel Inspectors.*
Unstayed portion of the boiler. That portion of the boiler designed to be self-supported in retaining internal pressure without additional strength members such as staybolts, braces, diagonal stays, tubes, etc.
*(From the National Board:
The NBIC is an American National Standards Institute (ANSI) accredited standard and provides rules and guidelines for the installation, inspection, repair and alteration of boilers, pressure vessels and pressure relief devices. It is required in many United States and Canadian jurisdictions.)

=============
During the rule making process the contention was expressed that invoking the National Board Inspection Code by name was not necessary nor was the 3rd party inspection requirement required by the NBIC, if that was the boiler repair standard chosen by the repairer.

Federal Register/Vol. 64, No. 221/Wednesday, November 17, 1999/Rules and Regulations
Federal Railroad Administration
49 CFR Parts 209 and 230
[Docket No. RSSL–98–1, Notice No. 3]
VI. Major Issues
D. Standard for Repairs
…..FRA is imposing a repair standard that allows the locomotive owner and/or operator a
measure of flexibility while simultaneously insuring an adequate minimum level of safety. Accordingly, the agency is requiring that any welded repairs to unstayed portions of the boiler be performed in ‘‘accordance with an accepted national standard for boiler repairs.’’ This modifies the general repair standard discussed above to more narrowly apply to boiler repairs. By referencing an accepted national standard for boiler repairs, the task force and the agency sought to impose a measure of quality control that would
provide assurance that all welding is performed properly. Because there are several national organizations that prescribe such procedures, the operator will be allowed to follow any one of a number of recognized methods. ‘‘In accordance with an accepted national standard for boiler repairs,’’ therefore, means that all the physical, mechanical,
and documentation requirements delineated in a particular standard such as the NBIC have been satisfied. The task force considered recommending that FRA simply adopt the NBIC standard but decided that the financial burden imposed on owners and/or operators would be too great. The NBIC program requires reporting of the final repair and third-party oversight throughout the repair, which can be very costly. Accordingly, the task force decided to simply reference the standard to which the repair should be done, without imposing the reporting or third-party inspection requirements of the standard. FRA agrees with and has adopted the task force’s position.

==========
When this program was presented to the "Industry" at Strasburg circa 2000, the FRA was there with a full contingent, including attorneys.
I specifically questioned the wording to the attorney on
"shall be made in accordance with an accepted national standard for boiler repairs."
1. Shall means mandatory. He agreed.
2. In accordance with means "in accordance with". He agreed.
3. Accepted national standard means recognized by ANSI. He agreed.
4. And the only boiler repair standard recognized by ANSI was the NBIC. He agreed.
5. "So doesn't IAW an accepted national standard for boiler repairs invoke the NBIC?" He nodded his head implying agreement.
Then I asked this question:
"If the NBIC requires 3rd party inspection and the NBIC is legally invoked, how can the repair be legal without 3rd party inspection?" The attorney said, "We have a 'gentleman's agreement' with the ESC not to enforce that requirement."

So the question for our legal experts is:
"Does lack of enforcement by a federal agency protect and alleviate liability for those performing repairs without full NBIC compliance?"


Close attention should be paid to this section:

Quote:
The task force considered recommending that FRA simply adopt the NBIC standard but decided that the financial burden imposed on owners and/or operators would be too great. The NBIC program requires reporting of the final repair and third-party oversight throughout the repair, which can be very costly. Accordingly, the task force decided to simply reference the standard to which the repair should be done, without imposing the reporting or third-party inspection requirements of the standard. FRA agrees with and has adopted the task force’s position.



Back to the regulation:

Quote:
§ 230.29 Inspection and repair.
(b) Repair standards.
(2) Any welding to unstayed portions of the boiler made pursuant to § 230.33 shall be made in accordance with an accepted national standard for boiler repairs.


NOTE: The only boiler repair standard recognized by ANSI is the NBIC.

So, I submit, that if/when a failed welded repair on an unstayed boiler section causes a death, and the owner/operator/contractor claims that they followed the Ecuadorian National Boiler Repair Code, the "Gentleman's agreement" to partially enforce a mandatory "SHALL" will vaporize and the cost savings from not following the NBIC invoked Quality Control program/third party inspection/certification requirements will vaporize by orders of magnitude.


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 Post subject: Re: CFR clarification
PostPosted: Sun Aug 12, 2018 5:07 am 

Joined: Sat Feb 05, 2005 1:05 am
Posts: 415
As an addendum to the above post:

For those not familiar, the NBIC invokes not only ASME welding protocols, but also ASME material specifications, design specifications, weld joint geometry, ad infinitum. All determined necessary by the boiler industry to provide a safe boiler.


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 Post subject: Re: CFR clarification
PostPosted: Sun Aug 12, 2018 11:02 am 

Joined: Tue Jul 02, 2013 10:45 pm
Posts: 137
For those who are interested in knowing if railroad contractors are ever fined, here is some information from the “Federal Railroad Administration Fiscal Year 2016 Enforcement Report”.

This is the part of the report about civil penalties against contractors.

5. For Contractors in the Aggregate in FY 2016
Number of cases with civil penalties initially assessed: 67
Number of violations with civil penalties initially assessed: 96
Number of violation reports declined during legal review: 2
Initial amount of civil penalty assessed: $374,499

5. For Contractors in the Aggregate in FY 2016
Number of cases closed: 56
Number of violations in cases closed: 96
Initial amount of civil penalty assessed for cases closed (POCA): $367,000
Final amount of civil penalty assessed or settlement for cases closed: $258,100
Amount terminated (generally due to legal defenses presented during settlement negotiations): $28,500
Amount of revised assessment after terminations (PRCA): $338,500
Difference between initial civil penalty assessment (POCA) and final assessment or settlement amount for cases closed: $108,900
Difference between revised assessment (PRCA) and final assessment or settlement amount for cases closed: $80,400

Note that the numbers don’t totally agree as the first report is assessed penalties while the second is cases closed.


A quick scan of some of my FRA files, many available to the public, see that the ‘Contractor” is included in most FRA regulations today, and “volunteer” is also now being included in some. Here are a few examples beyond the steam discussion that has already taken place:


49 CFR Part 219 - Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review-Based Amendments

As has been its practice, FRA is holding railroads, contractors, and subcontractors equally responsible for ensuring that their employees who perform MOW activities are in compliance with the requirements of this rule.

This rule also adopts FRA’s proposal to define the term “employee” to include employees, volunteers, and probationary employees of railroads and contractors (including subcontractors) to railroads, and to adopt the term “regulated service” to encompass both covered service and MOW activities. Performance of regulated service makes an individual a “regulated employee” subject to part 219, regardless of whether the individual is employed by a railroad or a contractor to a railroad.

With respect to a contractor who performs MOW activities for a railroad, FRA is amending § 219.3 to apply part 219 to an MOW contractor to the same extent as it applies to the railroad for which the MOW contractor performs regulated service...New language in the small railroad exception states that a contractor who performs MOW activities exclusively for small railroads that are excepted from full compliance with part 219 will also be excepted from full compliance.


PART 228—HOURS OF SERVICE OF RAILROAD EMPLOYEES

§ 228.1 Scope.
This part—
(a) Prescribes reporting and recordkeeping requirements with respect to the hours of service of certain railroad employees and certain employees of railroad contractors and subcontractors;

§ 228.3 Application.
(a) Except as provided in paragraph (b) of this section, this part applies to all railroads and contractors and subcontractors of railroads.

Employee means an individual employed by a railroad or a contractor or subcontractor to a railroad


49 CFR Part 233 – Signal Systems Reporting Requirements
§ 233.11 Civil penalty.
Any person (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; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $650 and not more than $25,000 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 $100,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. See Appendix A to this part for a statement of agency civil penalty policy.


49 CFR Part 234 – Grade Crossing Signal System Safety and State Action Plans
§ 234.6 Penalties.
(a) Civil penalty. Any person (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; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $650, but not more than $25,000 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 $100,000 per violation may be assessed.
Each day a violation continues shall constitute a separate offense. Appendix A to this part contains a schedule of civil penalty amounts used in connection with this rule. The railroad is not responsible for compliance with respect to any condition inconsistent with the technical standards set forth in this part where such variance arises as a result of actions beyond the control of the railroad and the railroad could not have prevented the variance through the exercise of due diligence. The foregoing sentence does not excuse any instance of noncompliance resulting from the actions of the railroad's employees, agents, or contractors.

(b) Criminal penalty. Whoever knowingly and willfully makes, causes to be made, or
participates in the making of a false entry in reports required to be filed by this part, or files a false report or other document required to be filed by this part, except for any document filed pursuant to § 234.11, is subject to a $5,000 fine and 2 years imprisonment as prescribed by 49 U.S.C. 522(a) and 21311(a).

The same applies to 49 CFR Part 235 and 49 CFR Part 236


There are a number of these rules that now include contractor in the "Civil Penalty" and "Criminal Penalty" sections. As each Part is updated, the FRA is working to include that term in the regulations.

There is also a second factor that hasn't been discussed much, and that is legal liability. Having worked several cases where contractors are involved, their presence at the worksite opens them up to lawsuits. Should someone be hurt or killed, and the work of the contractor is involved, the attorneys will have no problem including the contractor in any lawsuits.

The real lesson of all of this is that any contractor performing any work for a railroad must be aware and current with the FRA and industry practices and regulations. It doesn't matter if they are directly or indirectly supervised by the railroad, all parties involved (railroad, contractor, employees of both) need to be able to rely upon each other for full compliance.


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 Post subject: Re: CFR clarification
PostPosted: Mon Aug 13, 2018 6:59 pm 

Joined: Fri Jul 23, 2010 12:41 pm
Posts: 432
Location: Minneapolis, MN
M Austin wrote:
As an addendum to the above post:

For those not familiar, the NBIC invokes not only ASME welding protocols, but also ASME material specifications, design specifications, weld joint geometry, ad infinitum. All determined necessary by the boiler industry to provide a safe boiler.

Which was a huge bone of contention when Part 230 came into effect. The reason? The ASME standards did not meet the Part 230 requirements, so some boilers were built that did not comply with Part 230 but DID comply with ASME code. Fortunately we are now beyond that and it looks good for the three boilers now under construction in St. Louis.


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