§ 33.129. Enforcement.
(a) Application. The provisions of this section apply to violations of the Commission’s regulations or orders or other law of the Commonwealth which is enforceable by the Commission. It shall not apply to the exercise of authority which a Federal agency has delegated to state enforcement personnel under section 206 of the Federal Railroad Safety Act of 1970 (45 U.S.C.A. § 435) or to other regulation or requirement preempted by Federal law.
(b) Issuance of emergency order. When a qualified safety inspector determines through testing, inspection, investigation or research that a locomotive, car, other facility or equipment of a railroad is so imminently hazardous as to present a dangerous or potentially dangerous condition likely to result in injuries to any persons or in damage to property or in breakdown by reason of the fact that the equipment, track, locomotive, rolling stock or other facility being in violation of a law, regulation or order which the Commission is legally authorized to enforce, such inspector shall declare such locomotive, car or other facility ‘‘OUT OF SERVICE.’’
(c) Action by inspector. When an inspector declares a locomotive, car or other facility ‘‘OUT OF SERVICE,’’ he shall affix thereto in a prominent place an ‘‘OUT OF SERVICE NOTICE’’ on Form PUC-BT-6. Such affixing of ‘‘OUT OF SERVICE NOTICE’’ shall constitute legal notice that the locomotive, car or other facility shall not be used or operated except as provided under Part IV regulations until all defects noted thereon shall be repaired. Such form shall not be removed by anyone until the defects noted by the inspector have been corrected by the railroad company, and the locomotive, car or other facility is placed in full compliance. In the case of a track or other facility for which it is not practical to affix an ‘‘OUT OF SERVICE’’ notice, the qualified inspector shall furnish immediate telephone or telegraphic notification to the owner of the track (in lieu of the affixing an ‘‘OUT OF SERVICE NOTICE’’), describing the conditions, specific locations and defect. When an ‘‘OUT OF SERVICE NOTICE’’ has been affixed, the qualified inspector shall furnish Form PUC-BT-5 in duplicate by the most expeditious manner to the railroad immediately responsible for the operation of the defective locomotive, car or track. Such Form PUC-BT-5 shall indicate thereon the nature of the defects involved which caused the equipment or other facility to be placed ‘‘OUT OF SERVICE’’. In addition the inspector shall immediately forward a copy of the Form PUC-BT-5 to the Secretary of the Commission, with a copy thereof to be retained by the qualified inspector.
(d) Reduction in maximum speed of track. When a qualified Commission inspector determines the existence of a hazardous local track condition, the inspector shall furnish immediate telephone or telegraphic notification to the owner of the track that movements within defined limits of the track must be made at a reduced maximum speed, which shall be that speed applicable to the highest FRA class designation which the inspector determines is appropriate. Within 48 hours of the telephone or telegraphic notification, the qualified inspector shall furnish Form PUC-BT-5 in duplicate to the owner of the track or to the owner’s agent immediately responsible for the affected track. PUB-BT-5 shall indicate thereon the full particulars of the conditions and the violations which create local safety hazards. Such conditions or violations shall be fully repaired or otherwise brought into compliance with the highest FRA class designation applicable to the speed at which trains will operate on the track in question.
(e) Action by a railroad. When any locomotive, car or facility of a railroad has been declared ‘‘OUT OF SERVICE,’’ it shall be removed from service until the defect or defects are corrected. In the case of track being reduced in class, the railroad shall take the steps necessary to insure compliance with the findings of the Inspector. For the purpose of making necessary corrections, defective locomotive units, freight cars, cabin cars and passenger carrying cars may be moved to the nearest available point where the unit can be repaired, provided that other similar units in suitable operation condition are also a part of the consist. When the defects noted on Form PUC-BT-5 have been corrected, the railroad shall complete the ‘‘Carrier Certification’’ portion of Form PUC-BT-5 and forward the entire form to the Secretary of the Commission at the address shown thereon.
(f) Review. Review shall be in accordance with the following:
(1) Upon issuance of Form PUC-BT-5, the railroad involved may request a reinspection. The Chief Engineer or an engineer designated by the Commission shall arrange for an immediate reinspection by a second qualified Commission inspector. If, on reinspection, the decision of the original inspector is sustained or modified by the Chief Engineer or an engineer designated by the Commission, the Chief Engineer or an engineer designated by the Commission shall notify in writing the railroad that the original finding is affirmed or modified. If, however, the decision of the original inspector is not sustained, the inspector shall immediately remove the ‘‘OUT OF SERVICE NOTICE,’’ and enter an appropriate notation on the related Form PUC-BT-6; and the restrictions of the Notice shall then cease to be effective.
(2) In the event the Chief Engineer or an engineer designated by the Commission, on the basis of the reinspection, affirms or modifies the original finding, a railroad may then request complete review within 30 days of the affirmation or modification, by the Commission, which may, after affording an opportunity for hearing, at which the inspectors shall be present, and at which other interested parties may testify, affirm, set aside, or modify in whole or in part, the actions taken. Requests for review by the Commission shall recite the facts relevant to the issuance and review of the ‘‘OUT OF SERVICE NOTICE.’’ Actions on such reviews will be scheduled on an expedited basis in relation to other Commission business.
(3) The requirements of an ‘‘OUT OF SERVICE NOTICE’’ shall be effective pending action by the Commission.
(4) Requests for extension of time for compliance based on good cause will be decided by the Commission upon petition of the common carrier.
(g) Penalties. Any violation of this section shall subject the violator to civil or criminal penalties as the act may provide. Each day of non-compliance shall constitute a separate violation. However, where a car or locomotive shall have been properly equipped and such equipment shall have become defective or insecure while such car or locomotive was being used by such carrier, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such equipment can be repaired, without liability for the penalties imposed by this section, if such movement is necessary to make such repairs and such repair cannot be made except at such repair point.
Source The provisions of this § 33.129 adopted March 26, 1976, effective March 27, 1976, 6 Pa.B. 611.
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