[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Rules and Regulations]
[Pages 47182-47199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23697]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 220

[Docket No. RSOR-12; Notice No. 5]
RIN 2130-AB19


Railroad Communications

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Railroad Administration (FRA) amends its radio 
standards and procedures to promote compliance by making the 
regulations more flexible; to require wireless communications devices, 
including radios, for specified classifications of railroad operations 
and roadway workers; and to retitle this part to reflect its coverage 
of other means of wireless communications such as cellular telephones, 
data radio terminals and other forms of wireless communications used to 
convey emergency and need to know information.
    This final rule is based upon recommendations from a rail industry 
and labor working group convened by FRA and upon review of comments 
received in response to the June 26, 1997 notice of proposed rulemaking 
(62 FR 34544).

DATE: Effective Date: This rule is effective January 4, 1999. 
Compliance Dates: Sections 220.9 and 220.11 are effective July 1, 1999 
for each railroad that:
    (1) provides commuter service in a metropolitan or suburban area;
    (2) provides intercity passenger service; or
    (3) had 400,000 or more annual employee work hours in 1997.
    Sections 220.9 and 220.11 are applicable July 1, 2000 for each 
railroad that had fewer than 400,000 annual employee work hours in 
1997.

ADDRESSES: Any petition for reconsideration should be submitted in 
triplicate to Ms. Renee Bridgers, Docket Clerk, Office of Chief 
Counsel, Federal Railroad Administration, 400 Seventh Street, S.W., 
Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Gene Cox, Operating Practices 
Specialist, Office of Safety, FRA, 400 Seventh Street S.W., Washington, 
D.C. 20590 (telephone: 202-493-6319); Dennis Yachechak, Operating 
Practices Specialist, Office of Safety, FRA, 400 Seventh Street S.W., 
Washington, D.C. 20590 (telephone: 202-493-6260); or Patricia V. Sun, 
Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh Street S.W., 
Washington, D.C. 20590 (telephone: 202-493-6060).

SUPPLEMENTARY INFORMATION:

FRA's 1994 Report to Congress

    FRA first issued railroad radio standards and procedures (49 CFR 
Part 220) in 1977. In 1992, in section 11 of the Rail Safety 
Enforcement and Review Act (RSERA), Pub. L. No. 102-365, 106 Stat. 972, 
Congress required the Secretary of Transportation to conduct an inquiry 
into Part 220 procedures. As part of its inquiry, FRA conducted a field 
investigation of current voice communications technology and practice, 
held three Roundtable discussions on advanced train control 
technologies, published a notice of special safety inquiry (59 FR 
11847; March 11, 1994), conducted a public hearing on voice radio 
communications, contracted with the Department of Commerce's Institute 
for Telecommunications Sciences for a technical evaluation of advanced 
train control systems, and consulted with other agencies within DOT and 
with staff of the Federal Communications Commission.
    In July 1994, FRA published its Report to Congress on Railroad 
Communications and Train Control. FRA concluded that railroad radio 
communications were generally good and had steadily improved since 
FRA's last major study in 1987. However, compliance with the standards 
and procedures in Part 220 was poor, and employees continued to report 
problems with radio equipment. (FRA's June 26, 1997 notice of proposed 
rulemaking, discussed below, details the technology application and 
utilization problems (62 FR 34544-45) uncovered during the inquiry.) 
Based on these findings, FRA committed to revising Part 220 to make the 
regulations more flexible.

Railroad Safety Advisory Committee's Review of Part 220

    In 1996, FRA established the Railroad Safety Advisory Committee 
(RSAC or the Committee) to implement a more consensual approach to 
rulemaking. RSAC is comprised of 48 representatives from 27 member 
organizations, including railroads, labor groups, equipment 
manufacturers, state government groups, public associations, and two 
associate non-voting representatives from Canada and Mexico. To address 
specific tasks, such as railroad communications, RSAC formed standing 
or temporary subcommittees, or working groups, comprised of 
knowledgeable persons from the organizations represented on RSAC. The 
Railroad Communications Working Group (Working Group or Group) was 
comprised of representatives from the following organizations:

American Public Transit Association (APTA)
The American Short Line Railroad Association (ASLRRA)
Association of American Railroads (AAR)
Brotherhood of Locomotive Engineers, American Train Dispatchers 
Department (BLE)
Brotherhood of Maintenance of Way Employes (BMWE)
Brotherhood of Railroad Signalmen
Burlington Northern Santa Fe
Canadian Pacific Rail System
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc.

[[Page 47183]]

FRA
International Brotherhood of Electrical Workers
National Railroad Passenger Corporation (AMTRAK)
Norfolk Southern Corporation (NS)
Railway Progress Institute
Transportation Communications International Union
United Transportation Union.

    In its Task Statement (Task No. 96-3) to the Working Group, RSAC 
charged the Group to report back on the following issues:
    1. all matters relating to revision of the existing standards, 
including data required for regulatory analysis;
    2. communications needs in support of train operations;
    3. communications needs in support of switching operations; and
    4. the role of communications capability in emergency preparedness, 
including passenger service.
    In a series of meetings, the Working Group examined extensive data, 
debated how to improve compliance with FRA radio standards and 
procedures, and considered whether to mandate radios and other forms of 
wireless communications to convey emergency and need to know 
information. In 1997, the Working Group achieved consensus on 
recommendations to amend Part 220, which the RSAC subsequently approved 
by formal ballot. On June 26, 1997, FRA published a notice of proposed 
rulemaking (NPRM) [62 FR 34544] based on the Working Group's 
recommendations.

Summary of Principal Communications Requirements in the NPRM

    FRA proposed to vary communication equipment standards and 
implementation periods according to railroad size, providing small 
railroads more flexibility in recognition of their unique concerns. 
Small railroads were defined as those with fewer than 400,000 annual 
employee work hours (see the Regulatory Flexibility Act analysis below 
for further discussion of how small entities are defined in this part), 
and large railroads were defined as those with 400,000 or more annual 
employee work hours. This reporting cut-off is used in 49 CFR Parts 217 
and 219 (Railroad Operating Rules and Control of Alcohol and Drug Use, 
respectively).
    More communications equipment would be required on trains operated 
by large railroads than on those operated by small railroads. Large 
railroads would be required to equip each train with a working radio in 
each occupied controlling locomotive and with a means of redundant 
working wireless communications. A working radio is one that can 
communicate with the railroad's control center from any location within 
the rail system (through repeater stations, if necessary), with the 
exception of limited segments of territory where topography or 
transient weather conditions prevent effective communications. In the 
case of joint operations on another railroad, the radio must also be 
able to reach the control center of the host railroad. For small 
railroads, each train's communication equipment requirements would be 
determined by a variety of factors, including whether the train 
transports passengers, hauls hazardous materials, engages in joint 
operations with large railroads, or operates above specified speeds.
    For roadway workers, communication equipment requirements would 
also vary according to the size of the railroad. Large railroads would 
be required to equip maintenance-of-way equipment operating without 
locomotive assistance with a working radio. If multiple units are 
traveling together, only one unit would need to be equipped. Each 
maintenance-of-way work group would also be required to have intra-
group communications capability. Each employee designated by the 
railroad to provide on-track safety for a roadway work group, and each 
lone worker, would be required to have immediate access to a working 
radio.
    Small railroads would have to provide each employee responsible for 
on-track safety and each lone worker with immediate access to working 
wireless communications unless railroads do not operate in excess of 25 
miles per hour. A railroad, regardless of size, would be excepted from 
these roadway worker communication requirements whenever the roadway 
work location is inaccessible to trains or has no through traffic or 
traffic on adjacent tracks when roadway workers are present.
    In addition to the proposed equipment requirements, FRA would 
require railroad employees to notify the railroad's control center, 
using the quickest means of communications available, of emergency 
conditions that could result in death or injury, damage to property, or 
serious disruption of railroad operations. FRA also proposed to require 
railroad employees to test radio and redundant wireless communication 
equipment as soon as practicable before the beginning of their work 
assignment, and to remove inoperative equipment from service upon 
detection. The NPRM also proposed a retention period for copies of 
mandatory directives.

Discussion of Comments

    By August 25, 1997, the closing date for the comment period, FRA 
had received comments from the following parties, many of whom were 
represented in the Working Group:

APTA
ASLRRA
AAR
BLE
BLE, Local Chairman 112 (BLE 112)
BLE, General Committee of Adjustment, Southeastern Pennsylvania 
Transportation Authority (BLE SEPTA)
BMWE
Conrail
Duluth, Missabe and Iron Range Railway (DMIR)
Railtex
NS
Union Pacific Railroad Company (UP)

    Comments that were addressed to specific sections of the NPRM are 
discussed in the section-by-section analysis. In reviewing the 
comments, five major issues emerged, which are discussed below.

(1) Coverage

    The NPRM defined a working radio as one that can communicate with 
the railroad's control center from any location within the rail system 
(through repeater stations, if necessary), with the exception of 
limited segments of territory where topography or transient weather 
conditions temporarily prevent effective communications. In the case of 
joint operations on another railroad, the radio must also be able to 
reach the control center of the host railroad. FRA requested comments 
on whether the final rule should allow exclusions in communications 
coverage where the cost of placing additional repeater stations to 
prevent dead spots would be significant in relation to potential 
benefits.
    FRA received the most comments on this issue. Coverage is a 
significant issue for many western railroads because of their greater 
territory and more diverse terrain.
    BLE SEPTA commented that coverage exclusions should only be 
considered on territory without passenger or hazardous materials 
traffic, or on a case-by-case waiver basis. Factors such as 
installation cost, topography or frequency of use should not determine 
coverage limits, since quick communication is needed whenever a 
potential disaster strikes. BMWE also opposed allowing railroads 
subject to the NPRM to define additional coverage limits. BMWE 
commented that the safety risks associated with operating without 
communications capability remain the same regardless of

[[Page 47184]]

topography, and that cost issues had been adequately addressed by the 
NPRM's exclusion of railroads with fewer than 400,000 annual employee 
work hours and allowance for temporary fluctuations due to weather or 
terrain.
    DMIR, on the other hand, commented that FRA needed to clarify what 
communications capability would be required for each piece of on-track 
equipment and for intra-group communication. While DMIR's present 
portable radios could communicate with other nearby radios, there were 
areas on its system where topography prevented these radios from being 
able to reach the dispatcher. DMIR estimated that providing each lone 
worker with a portable radio capable of reaching the dispatcher would 
cost the railroad approximately $200,000 (ten additional base stations, 
six towers and forty more portable radios).
    UP commented that it would not be cost effective or practicable to 
design and implement a wide area system with 100% coverage all of the 
time. Instead, UP suggested that FRA define its coverage requirements 
using common terminology such as ``90% of the territory is covered 90% 
of the time'' since this would reduce future waiver applications. With 
respect to the proposed communications requirements for roadway workers 
in Sec. 220.11, UP noted that portable radios do not provide the same 
coverage as locomotive radios because of differences in transmitted 
power, antenna height, and antenna efficiency and therefore could not 
be expected to communicate with the control center from anywhere on the 
right-of-way.
    AAR commented that the preamble's implied requirement to construct 
and install new base stations was not agreed to by the Working Group, 
contained in the rule text or analyzed in the regulatory impact 
analysis. ASLRRA supported AAR, adding that it would be cost-
prohibitive to require all railroads to install repeater stations to 
eliminate dead spots and provide complete radio coverage. ASLRRA also 
commented that the Working Group had never voted or reached consensus 
on this issue because of the unavailability of data demonstrating the 
safety benefits of full coverage.
    The issue of ``coverage'' is separable into two dimensions. The 
first has to do with the ability of mobile radios (mounted semi-
permanently within the cabs of locomotives, on-track equipment or 
trucks assigned to roadway workers) to transmit and receive from any 
place along the length of a railroad right-of-way. Major railroads 
maintain thousands of repeater stations that facilitate communication 
with control centers from such locations. However, even the most 
complete of the current repeater station arrays may be unable to 
receive from or transmit to mobile radios at isolated (localized) sites 
such as long tunnels, at the base of cliffs, or at certain locations 
within gorges. The working group did not discuss, and FRA did not 
intend to propose, that every such ``dead spot'' be remedied, since 
this could require the expenditure of large sums of money to place 
repeating stations where no commercial power is available in order to 
yield very modest increases in communication capability. The final rule 
requires that radio coverage of all territories be provided (as is 
generally the case today) with the following exceptions: (a) tunnels or 
other localized places of extreme topography; and (b) temporary lapses 
of coverage due to atmospheric or topographic conditions.
    FRA also recognizes that certain existing ``dead spot'' locations 
may warrant further study for special treatment. Examples may include 
very long tunnels where an engine fire or derailment could create an 
immediate need for rescue by a relief train. One commentator in this 
proceeding, BLE Local 112, suggested that this final rule expressly 
mandate such coverage. However, this proceeding has focused on the 
equipping of trains and provision of communications capability to 
roadway workers, rather than the density of the communications 
infrastructure. Accordingly, FRA does not have available the data that 
would be needed to resolve these issues in this final rule. To the 
extent passenger operations are conducted through long tunnels, FRA 
will expect railroads to address communications needs in formulating 
plans under the new requirements for Passenger Train Emergency 
Preparedness (64 FR 24632; May 4, 1998).
    As noted in the final rule, transient weather conditions (alone or 
in combination with topographic features) may also give rise to 
temporary coverage gaps over which the railroad will have no control. 
These interruptions are inherent to communications in the 160 MHZ band 
and cannot be effectively addressed through regulatory fiat.
    The second dimension of the coverage issue involves those 
situations where roadway workers may find it necessary to work at some 
distance from trucks or on-track equipment equipped with mobile radios, 
in territory where only a mobile radio can be relied upon to 
communicate with the control center. In these situations, it is again 
unrealistic to require that repeater stations be installed in a pattern 
so dense that portable radios will always be capable of reaching the 
control center. Portable radios transmit at lower wattage than mobile 
radios, and their smaller antennas are less able to receive faint 
signals. Particularly in the Western States, adding repeater stations 
to accommodate communication with the control center using only 
portable radios could result in massive expenditures for additional 
radio infrastructure. FRA has reviewed this issue in light of the 
public comments and fashioned the following approach in this final 
rule:
     Those in charge of obtaining protection for roadway 
workers (including lone workers) must be provided with whatever radio 
equipment is needed to reach the control center from their work area, 
subject to the same localized and transient exceptions that apply to 
trains above. (Groups or lone workers traveling by rail will already 
have this capability in the form of a mobile radio, and trucks used by 
signal maintainers and other roadway workers must be similarly equipped 
unless portable radios are sufficient for the purpose of reaching the 
control center.)
     To the extent that it is not practicable for such workers 
to maintain immediate access to communications capability with the 
control center (because of the need to work at some distance from 
equipment on which mobile radios are mounted), portable radios must be 
provided. Portable radios will permit these workers to monitor local 
transmissions from trains, a major objective sought by representatives 
of these workers during the working group negotiation. In an emergency 
involving injury to a roadway worker, it may also be possible to relay 
information to the control center through crews of passing trains or 
through another roadway worker situated within earshot of the group's 
on-track equipment or truck.
    FRA believes that the final rule upholds the intent of the working 
group to provide effective communications capability for trains and 
roadway workers while responding to the detailed comments on coverage 
received in response to the NPRM. FRA recognizes that standards for 
effective communication will continue to evolve as technology improves 
and the rail industry gains experience in the application of this final 
rule.

(2) Roadway Worker Protection

    The NPRM proposed to require large railroads to provide each 
designated employee in charge, and each lone worker, with immediate 
access to a

[[Page 47185]]

working radio. Small railroads would have the option of providing 
immediate access to either a working radio or working wireless 
communications.
    Several commentators raised issues concerning the NPRM and FRA's 
Roadway Worker Protection regulations (49 CFR Part 214, Subpart C). 
Referring to FRA's proposed lone worker definition, DMIR suggested that 
FRA substitute ``work group'' for ``work gang'' to be consistent with 
Part 214 terminology. FRA agrees and has substituted ``group'' for 
``gang'' throughout this final rule. To further harmonize this part 
with Part 214, FRA substitutes ``employee responsible for on-track 
safety'' for ``designated employee in charge'' (a term used in the 
NPRM's preamble, but not the rule text) and ``employee in charge of on-
track equipment'' to ensure consistent terminology, and amends 
Sec. 220.61(b) to require the employee responsible for on-track safety 
to retain a copy of a mandatory directive while it is in effect, to 
parallel the retention requirements in Sec. 214.321 (retention of 
mandatory directives is discussed in more detail elsewhere in this 
preamble).
    NS expressed concerns about ``substantial'' duplication between the 
NPRM and Part 214. Additionally, AAR commented that the preamble had 
incorrectly stated that the Working Group's recommendations resulted 
from a decision to enhance roadway worker compliance with Part 214 and 
ability to communicate unsafe conditions. ASLRRA supported AAR's 
comments, adding that the preamble had misstated the tasks of the 
Working Group by implying that the Group had been tasked with equipping 
maintenance-of-way equipment and/or extending roadway worker 
requirements into the railroad communications rule.
    After examining both rules, FRA finds them complementary, not 
conflicting or duplicative, since the communications requirements in 
this final rule reinforce compliance with on-track safety procedures by 
workers performing duties on or adjacent to live track. While there may 
not be agreement concerning the Group's reasons for amending Part 220, 
the changes contained in the NPRM were the product of consensus.
    BMWE's comments are addressed in the section-by-section analysis.

(3) Non-Radio Wireless Communications Procedures

    FRA asked for comments on whether non-radio wireless communications 
procedures paralleling the radio procedures in Subpart B should be 
adopted for cellular telephones and other wireless communications 
devices that would be covered under the NPRM. To focus on this issue, 
FRA inquired whether non-radio wireless communications had the same 
opportunities for misunderstanding as radio transmissions, and asked 
how such procedures would be enforced (e.g., ``over'' and ``out'' with 
cellular telephones where usually only one party to the conversation 
could be overheard).
    BLE SEPTA recommended that FRA adopt certain sections of the 
current radio procedures for non-radio wireless communications, 
specifically identification (Sec. 220.27), statement of numbers and 
letters (Sec. 220.29), ending a transmission (Sec. 220.35), consistency 
with federal regulations and railroad operating rules (Sec. 220.43), 
complete communications (Sec. 220.45), and transmission of mandatory 
directives (Sec. 220.61). BLE SEPTA noted that while cellular 
telephones have less interference from other communications there is 
also no listener redundancy to detect errors. BMWE also supported 
adoption of non-radio wireless communications procedures to ensure the 
accurate transmittal and copying of information. In particular, BMWE 
advocated requiring all mandatory directives transmitted via non-radio 
wireless communications to be repeated back and verified before being 
acted upon. BLE Local 112 suggested that FRA require the dispatcher to 
have a separate telephone number for emergencies.
    Conversely, UP commented that non-radio wireless communications 
procedures were unnecessary, and that railroads could combine ordinary 
telephone procedures with operating rules to govern such 
communications. APTA also commented that non-radio wireless 
communications procedures were unnecessary, since wireless 
communications other than radio would not involve heavy communications 
traffic on shared channels. With cellular telephones, for example, 
parties to a call would not be subject to interfering traffic so the 
potential for confusion would be diminished. APTA also believed that 
non-radio wireless communications procedures would be difficult to 
monitor, and consequently, both unenforceable and counterproductive.
    After reviewing the comments, FRA has decided not to promulgate 
non-radio wireless communications procedures at this time, since the 
Working Group did not consider in depth how to ensure the accuracy and 
completeness of non-radio wireless communications. As proposed, in this 
final rule FRA addresses only the testing and failure of non-radio 
wireless communications equipment (in Secs. 220.37 and 220.38 
respectively).
    FRA emphasizes, however, that the procedures in Sec. 220.61(b) 
should be followed even when a cellular telephone or other form of 
wireless communication is used to transmit a mandatory directive, since 
there is a risk of miscommunication. Regardless of the means of 
transmission, an employee should not copy a mandatory directive while 
at the controls of moving equipment. Regardless of the means of 
transmission, FRA expects a mandatory directive to be copied in its 
entirety and retained for the duration of the work assignment, to 
ensure that those responsible for executing the directive understand 
(if train crew) or acknowledge (if roadway workers) it. While existing 
railroad operating rules will otherwise continue to govern non-radio 
communications, FRA will monitor compliance with Sec. 220.61, and will 
revisit the issue of non-radio wireless communications procedures if 
necessary.

(4) Ending a Transmission

    In the NPRM, FRA asked for comment on whether use of ``over'' and 
``out'' at the end of each radio transmission should remain a 
requirement or become a recommended practice .
    Comments in response to the NPRM were divided. BMWE was not opposed 
to retention of ``over'' and ``out'' provided that failure to end a 
transmission in this manner did not result in individual liability. 
Conrail supported changing ``over'' and ``out'' to a recommended 
practice, commenting that this requirement was unique to railroads. UP, 
also in favor of anti-retention, suggested that ``over'' and ``out'' be 
required only when necessary to ensure transmission quality. Finally, 
AAR and ASLRRA both favored allowing railroads to follow their own 
current radio practices, commenting that ``over'' and ``out'' had no 
special safety significance.
    After reviewing these comments, FRA has decided to retain ``over 
and out'' in the final rule, except in yard switching operations, where 
radio congestion is a frequent problem and rapid delivery of 
information supports real time decisions that are crucial to safety. 
This exception is consistent with the latitude allowed under current 
FRA enforcement practice. Use of ``over'' and ``out'' makes clear to 
the conversants, and to any listeners monitoring and using that 
frequency, when a radio transmission is in progress and when it has 
concluded. Past audits demonstrate that overall compliance with radio 
rules improves whenever this requirement is strictly

[[Page 47186]]

enforced. Moreover, crews may act on incomplete information or 
overlapping transmissions without a standard procedure to indicate when 
a transmission is over.

(5) Copying and Retention of Mandatory Directives

    In the NPRM, FRA clarified that Sec. 220.61 has always required 
that the conductor and the engineer each have an individual copy of 
every mandatory directive transmitted by radio, since each is 
responsible for ensuring that all train crew members (with the 
exception of passenger and commuter train personnel not directly 
involved in the operation of the train) read and understand the 
directives before they are acted upon.
    In its comments, NS suggested that a single copy of a mandatory 
directive in the possession of either the conductor or engineer could 
be used to ensure that both read and understand a mandatory directive 
before acting upon it, thus avoiding the copying and paperwork burden 
of duplicate copies. FRA disagrees and this final rule tracks the 
proposed rule; too much potential for misunderstanding exists when the 
engineer and conductor share a single copy of a mandatory directive, 
even if both have read it. DMIR, however, asked if a two-part form 
could be used to avoid possible transcription errors in making a 
duplicate written copy of the mandatory directive. FRA has no 
objections, so long as the engineer and conductor each retain a part of 
the form containing the complete mandatory directive.
    For roadway groups, FRA proposed to require that a mandatory 
directive be ``acknowledged,'' instead of ``read and understood,'' by 
the designated employee in charge, who would then provide a detailed 
job briefing at the beginning of the assignment notifying the other 
roadway workers of the group's movement limitations, authorities, and 
other relevant information.
    FRA received no comments on this proposal, and adopts it in this 
final rule.
    FRA proposed requiring that fulfilled or canceled mandatory 
directives be marked with an ``X'' or in accordance with the railroad's 
operating rules to prevent later employee confusion as to which 
mandatory directives were applicable at any point of time, and that 
each employee responsible for executing a mandatory directive within a 
train crew or roadway group retain copies of those directives for the 
duration of his or her work assignment. FRA also solicited comments on 
the value of requiring retention of copies of mandatory directives for 
seven work days after completion of the work assignment as recommended 
in a recent FRA Safety Bulletin (61 FR 64191, August 26, 1996), and as 
already required on NORAC (the Northeast Operating Rules Advisory 
Committee) member railroads. This proposal would enable both railroads 
and FRA to enforce compliance with the copying requirement.
    Commentators uniformly supported marking directives fulfilled or 
canceled. Commentators were divided on FRA's suggestion to retain 
copies until the end of the work assignment, and uniformly opposed 
retention for seven work days after completion of the work assignment. 
Railtex, for example, commented that a seven day retention period would 
be unenforceable, but supported retaining copies of mandatory 
directives for the duration of the crews' work assignment. AAR, ASLRRA, 
and BMWE, on the other hand, commented that retaining mandatory 
directives beyond their effective period could lead to confusion as to 
which directives had been fulfilled and which remained active, and that 
marking fulfilled directives with an ``X'' or in accordance with 
railroad operating rules would be sufficient. ASLRRA added that FRA's 
Roadway Worker Protection regulations require retention only until the 
directive has been fulfilled or canceled.
    After considering this issue further, FRA continues to believe that 
those employees responsible for ensuring that mandatory directives are 
read and understood, namely engineers and conductors, should be 
required to retain their copies for the duration of the work assignment 
and mark copies of directives that have been fulfilled or canceled with 
an ``X'' or in accordance with the railroad's operating rules and this 
final rule so provides. Inspecting retained copies will enable 
railroads and FRA to monitor and ensure that all mandatory directives 
are correctly copied, read, and understood before being acted upon by 
those with a need to know.
    FRA agrees, however, that these part's retention requirements 
should be consistent with those in Part 214 for employees responsible 
for on-track safety. To avoid potential confusion, in 
Sec. 220.61(b)(5)(ii) the final rule requires the employee responsible 
for on-track safety to retain a copy of the mandatory directive while 
it is in effect, the same retention period required for a copy of 
authority for exclusive track occupancy under Sec. 214.321. Copies of 
fulfilled or canceled directives need not be marked because of their 
anticipated short retention time.

Other comments

    In addition, FRA received some comments that did not address 
specific sections of the NPRM or the five issues discussed above.
    BLE suggested that each working radio should be equipped with a 
hand held microphone and speaker, to allow the engineer greater range 
of vision and movement while operating the controls of the locomotive, 
and to screen out interference and background noise. Communication 
equipment design specifications is a significant issue that was not 
considered by the Working Group, and consequently is not within the 
scope of the NPRM. FRA will therefore defer resolution of this issue to 
future rulemakings.
    BLE SEPTA made several comments specific to SEPTA's predominantly 
short train operations. BLE SEPTA expressed concern that on two car 
trains any interference with the primary radio would also block the 
redundant radio because of the short distance between radios. Since 
SEPTA engineers often operate multiple unit cars with dual operating 
compartments separated by a passenger compartment, BLE SEPTA also 
suggested requiring the redundant working wireless communication to be 
located in the operating compartment of the controlling locomotive to 
ensure access by the engineer. While FRA believes that such equipment 
should be located in the back of the consist, where it would be better 
protected and available for emergency notification in the event of a 
frontal impact, the final rule does not specify where redundant 
communication equipment should be placed in a train. BLE SEPTA would 
also require voice tests for each radio frequency used during the 
train's tour and for each instance where a train proceeds after an 
interruption of power. Implicit in the working radio definition, 
however, is the presumption that the radio works on all relevant 
channels. This communications capability should not be affected by a 
change in radio frequency or an interruption of power.
    BLE SEPTA also recommended that FRA prohibit the use of radio to 
transmit public service announcements and promotional information to 
the crew for conveyance to passengers. FRA agrees that radio channels 
should not be used for non-essential broadcasts, but has not included 
this prohibition since it is already included in many railroad 
operating rules, such as NORAC Rule 709, which prohibits broadcast of 
unnecessary, irrelevant, or unidentified information. An additional BLE 
SEPTA comment concerning incomplete

[[Page 47187]]

transmissions is discussed in Sec. 220.45 below.
    Finally, referring to appendix B's Recommended Pronunciation of 
Numerals, DMIR stated that the number ``0'' should be spoken as 
``zero,'' not ``0;'' and that ``1600'' should be ``wun six hundred'' 
not ``wun six thousand.'' FRA appreciates DMIR noting these long-
standing errors, and has corrected them in this rule.

Effective Dates

    As proposed, this final rule becomes effective 120 days after 
publication to allow all railroads four months to implement the new 
streamlined procedures, which should not require extensive investment 
or retraining. Since the timetable for implementation is, of course, 
determined by the issuance date of this final rule, FRA is extending 
the proposed implementation dates for Secs. 220.9 and 220.11 an 
additional nine months to allow both large and small railroads 
sufficient time for equipment purchase. Thus, Secs. 220.9 and 220.11 
apply July 1, 1999 for railroads providing commuter service in a 
metropolitan or suburban area, railroads providing intercity passenger 
service, and railroads with 400,000 or more annual employee work hours 
in 1997. Since small railroads are allowed an additional year for 
capital investment, Secs. 220.9 and 220.11 apply July 1, 2000 for 
railroads with fewer than 400,000 annual employee work hours in 1997.
    As mentioned above, this part is retitled to reflect its coverage 
of other means of wireless communications such as cellular telephones 
and data radio terminals. The section-by-section analysis discusses the 
remaining amendments to Part 220.

SECTION-BY-SECTION ANALYSIS

Subpart A-General

Section 220.1 Scope

    As proposed, FRA expands the scope of this part to allow for newer 
forms of technology already in use. For this reason, FRA changes the 
phrase ``radio communications'' to ``wireless communications'' and adds 
definitions for ``working radio'' and ``working wireless 
communications'' to this part.

Section 220.2 Preemptive Effect

    This new section parallels the preemption language in 49 U.S.C. 
Sec. 20106.

Section 220.3 Application

    This section is unchanged.

Section 220.5 Definitions

    Throughout this rule, FRA substitutes ``locomotive,'' which also 
includes cab cars and MU units, wherever the term ``engine'' appeared. 
Also, as mentioned above, FRA changes the term ``gang'' to ``group'' 
when referring to roadway workers, to be consistent with FRA's Roadway 
Worker Protection regulations.
    Unless otherwise noted, the following definitions are adopted as 
proposed.
    Adjacent tracks. This definition, taken from FRA's Roadway Worker 
Protection regulations (see below), means two or more tracks with track 
centers spaced less than 25 feet apart.
    Control center. By control center, FRA means the locations from 
which a railroad issues instructions governing its operations.
    Employee. In 1992, the Rail Safety Enforcement and Review Act 
(RSERA) clarified that FRA's safety jurisdiction extends to all 
entities, including contractors and their employees, that may violate 
the railroad safety laws. FRA has therefore amended this definition to 
include contractors and their employees, and any individuals authorized 
by railroads who use radios, or any other form of wireless 
communications in connection with railroad operations.
    Immediate access. This term, discussed in the preamble of the NPRM, 
is now added to the definitions section. Immediate access to a radio 
means that a radio is either on the employee's person, or sufficiently 
close to the employee to allow the employee to make and receive radio 
transmissions.
    Joint operations. This term means rail operations conducted by more 
than one railroad on the tracks of a railroad with 400,000 or more 
annual employee work hours, except as necessary for the purposes of 
interchange.
    Locomotive. This term is taken from FRA's Railroad Locomotive 
Safety Standards (49 CFR Part 229).
    Lone worker. For consistency, this definition and terms that cross-
reference roadway worker protection throughout this document are taken 
from the Roadway Worker Protection regulations.
    Mandatory directive. In this part, FRA replaces the term ``train 
order'' with ``mandatory directive,'' which conveys the same meaning as 
the traditional train order, but refers specifically to speed 
restrictions and movement authorities such as track warrants, Form D's, 
and DTC (Direct Train Control) authorities. Excluded from this 
definition are verbal instructions that are advisory in nature and 
typically involve imminent conditions, such as verbal permission to: 
pass a block or interlocking signal indicating stop; open a main track 
switch and enter the main track in interlocking limits or in CTC 
(Centralized Traffic Control) territory; move with the current of 
traffic in Rule 251 territory; make a reverse movement within the 
limits of the same block, pass a stop sign or red flag and enter 
working limits; and obtain foul time. Verbal warnings of obstructions 
or trespassers on or along the right-of-way, or instructions to stop a 
train due to an imminent danger, are also excluded. All of these 
instructions must be repeated as prescribed in Sec. 220.33(b), but need 
not be copied since the crew will shortly act upon the information 
conveyed. Copying requirements are addressed further in the discussion 
of Sec. 220.33.
    Railroad operation. This definition substitutes ``locomotive'' for 
``engine,'' and makes an editorial change from ``single'' to 
``singly.''
    Roadway worker. This definition, taken from FRA's Roadway Worker 
Protection regulations, means any employee of a railroad, or of a 
contractor to a railroad, whose duties include inspection, 
construction, maintenance or repair of railroad track, bridges, 
roadway, signal, and communication systems, electrical traction 
systems, roadway facilities or roadway maintenance machinery on or near 
track or with the potential of fouling a track, and flagmen and 
switchman/lookouts.
    Train. Any railroad operation subject to the air brake testing 
requirements of FRA's regulations on Railroad Power Brakes and Drawbars 
(49 CFR Part 232) is considered a train for purposes of this rule. This 
includes transfer trains, but not switching operations, or the assembly 
and disassembly of rail cars within a railroad yard, since these 
operations do not require an air test.
    Working radio. A working radio is one with an adequate power 
source, free of mechanical malfunctions, that can both transmit and 
receive communications to and from the railroad's control center from 
any location within the rail system (through repeater stations, if 
necessary), with certain exceptions noted below. In the case of joint 
operations on another railroad, the radio must also be able to reach 
the control center of the host railroad.
    A radio satisfies this definition even if there are localized dead 
spots (such as a tunnel) within a territory and even if temporary 
fluctuations or interference from weather or terrain occur. (It should 
be noted, however, that under Sec. 220.45 of this part, any 
communications which are not fully understood or properly completed may 
not be acted upon and must be treated as if not sent.) Railroads must 
maintain the communications

[[Page 47188]]

capability to broadcast in all territory over which they operate, 
however.
    Working wireless communications. With the exceptions noted, the 
final rule requires communications redundancy to compensate for radio 
communication failures due to interference, equipment failure, 
transmission difficulties and other problems which will occur with even 
the most advanced equipment. This term means the capability to 
communicate with either a control center or emergency responder of the 
railroad through a radio, portable radio, cellular telephone, or other 
means of two-way communication from locations within the rail system. 
(Emergency responder in this part means a member of a police or fire 
department, or other organization involved with public safety charged 
with providing or coordinating emergency services, who responds to a 
passenger or freight train emergency. See FRA's Passenger Train 
Emergency Preparedness regulations for additional discussion of this 
term.)

Section 220.7  Penalty

    As discussed above, the RSERA expanded coverage of FRA's 
regulations to include contractors and their employees. FRA therefore 
amends this section to clarify that this part applies not only to 
railroads but also to any other entity that may violate this part, 
including independent contractors who provide goods and services to 
railroads and the employees of such contractors. Thus, any person 
authorized by a railroad to use its wireless communications facilities 
must comply with Part 220 procedures, regardless of whether the person 
has a direct employment relationship with the railroad.
    The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. 
L. 101-410 194 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt 
Collection Improvement Act of 1996, Pub. L. 104-134, April 26, 1996), 
required agencies to adjust the maximum civil monetary penalties within 
their jurisdiction for inflation. FRA determined the resulting $11,000 
and $22,000 maximum penalties in this part by applying the criteria set 
forth in sections 4 and 5 of the statute to the maximum penalties 
otherwise provided for in the Federal railroad safety laws. 
Additionally, the minimum penalty for violations of this part is now 
$500, as required by the RSERA.

Section 220.8  Waivers

    This new section adopts by reference the procedures in Subpart C of 
49 CFR Part 211 (Rules of Practice) for petitioning for a waiver from 
compliance with the requirements of this part.

Section 220.9  Requirements for Trains

    Paragraph (a): As discussed above in the section summarizing the 
communications equipment requirements for trains, large railroads must 
equip all trains with a working radio in the controlling locomotive and 
with a back-up means of wireless communications. This requirement 
applies to both freight and passenger operations.
    The controlling locomotive must be equipped with a working radio 
only when the locomotive is occupied by an assigned train crew and the 
train is involved in railroad operations. To allow for possible radio 
failure en route, the train must also have a form of working wireless 
communications upon departure from a terminal. As required in 
Secs. 220.37 and 220.38, all required communication devices must be 
tested prior to the commencement of a work assignment, and removed from 
service if found not to be functioning as intended. Wireless 
communications must be able to reach the railroad's control center or 
an emergency responder.
    Paragraph (b): As discussed above, small railroads have to meet the 
same heightened communication equipment standards as large railroads 
when operating passenger trains. Thus, all passenger trains, regardless 
of the size of the operating railroad, have to be equipped with both a 
working radio in the occupied controlling locomotive and with redundant 
working wireless communication equipment.
    For freight trains, the communication requirements are determined 
by two factors: train operating speed, and extent of joint operations. 
If a freight train operates at greater than 25 miles per hour, or 
engages in joint operations on track where the maximum authorized speed 
for freight trains is greater than 25 miles per hour, the train must be 
equipped with a working radio in the occupied controlling locomotive. 
Similarly, a freight train engaged in joint operations on track that is 
adjacent to and within 30 feet measured between track center lines of 
another track on which the maximum authorized speed for passenger 
trains is greater than 40 miles per hour, must also be equipped with a 
working radio in the occupied controlling locomotive. When any of the 
operating conditions described above are met, the freight train crew 
must have a working radio to enable them to communicate with the host 
railroad's control center and the other trains on the host railroad.
    The term ``within 30 feet of another track center,'' a criteria 
used in FRA's exercise of jurisdiction over tourist railroads, and also 
in the excepted track definition in FRA's Track Safety Standards (49 
CFR Part 213), defines when a railroad operates sufficiently close to 
passenger train operations to create the potential for interference. 
This requirement ensures that all freight trains operating in close 
parallel proximity to passenger trains are equipped with radios.
    A train that engages in joint operations on track where the maximum 
authorized speed for freight trains is 25 miles per hour or less is 
required to have working wireless communications, but not a working 
radio in the occupied controlling locomotive. A train that transports 
hazardous materials must also have working wireless communications even 
if it does not transport passengers or engage in joint operations. No 
communication equipment is required if a train does not transport 
passengers or hazardous material, and does not engage in joint 
operations or operate at greater than 25 miles per hour.

Section 220.11  Requirements for Roadway Workers

    As proposed, large railroads must provide a working radio on 
maintenance-of-way equipment moving to or from a work location, or 
between multiple work locations on the same day, to enable the roadway 
work group to contact the control center in the event of an emergency 
when traveling. A unit of equipment traveling alone must also be radio 
equipped. A small railroad is exempted if its trains do not operate in 
excess of 25 miles per hour. Several commentators noted areas in which 
the preamble discussion of this section differed from the proposed rule 
text; these are clarified below.
    Paragraph (a)(1): BMWE alerted FRA that the preamble discussion of 
this paragraph could be read as being more encompassing than the 
proposed rule text. In the NPRM's preamble, FRA stated that ``[i]f 
several maintenance-of-way units are physically separated, only one 
unit would have to be equipped with a working radio, provided that all 
of the units are under the control of the same employee (emphasis 
added),'' while the rule text referred to multiple pieces of 
maintenance-of-way equipment traveling together under the same movement 
authority. As BMWE noted, the term ``under the control of the same 
employee'' could vary from railroad to railroad. FRA agrees that the 
preamble misstated the intent of the Working Group, which was to ensure

[[Page 47189]]

that multiple pieces of maintenance-of-way equipment traveling together 
under the same movement authority be able to communicate with the 
control center.
    Additionally, AAR, APTA and UP all correctly pointed out that the 
preamble discussion of intra-group communications was overly 
restrictive when it twice referred to a requirement for maintenance-of-
way intra-group wireless communications capability, since the proposed 
rule text only required maintenance-of-way equipment to have intra-
group communications capability with each other. Under the final rule 
alternatives to wireless communications, such as horns, hand signals, 
and amplified voice systems are acceptable means of intra-group 
communications.
    Paragraph (b): Access to a working radio is determined by function, 
with two categories of roadway workers, the employee responsible for 
on-track safety of a roadway work group, and the lone worker, required 
to have access to a working radio. Both categories have analogous 
communication needs, since in each case, the employee is responsible 
for providing protection, either for an entire roadway group, or for 
him or herself.
    As discussed above, large railroads must provide each employee 
responsible for on-track safety and each lone worker with access to a 
working radio, and with a portable radio whenever immediate access to 
the working radio is unavailable. Small railroads have the option of 
providing access to either a working radio or working wireless 
communications.
    Paragraph (c)(2): As proposed, a railroad, regardless of size, is 
not required to provide communication equipment whenever the work 
location of the roadway work group or lone worker is physically 
inaccessible to trains, or has no through or adjacent track traffic 
when roadway workers are present.
    BMWE suggested narrowing this proposed exclusion by requiring the 
conditions in both (i) and (ii) to be present, to ensure communications 
capability whenever rail traffic is expected on tracks adjacent to work 
locations protected in accordance with the inaccessible track 
requirements of Part 214. By changing the underlined ``or'' to ``and,'' 
BMWE would require physically inaccessible locations to have 
communications capability to protect against traffic on adjacent tracks 
not within the limits described in Sec. 220.11(c)(2)(i).
    Although most short lines are single track operations, a double 
track railroad could not operate on either track if it wished to 
qualify for BMWE's proposed exclusion. To address BMWE's concerns and 
be compatible with FRA's Roadway Worker Protection regulations, FRA 
instead incorporates Part 214's adjacent tracks definition, two or more 
tracks with track centers spaced less than 25 feet apart, into 
Sec. 220.11(c)(2)(ii). By doing so, FRA requires railroads not exempt 
under Sec. 220.11(c)(1) to provide access to a working radio to a 
employee responsible for on-track safety or lone worker whenever there 
is adjacent traffic within 25 feet of their work location.

Section 220.13 Reporting Emergencies

    Paragraphs (a)-(c): In this new section, FRA proposed to require an 
employee to use the quickest means of communications available to 
notify the control center before undertaking other forms of emergency 
response, such as medical treatment or evacuation, to ensure that 
properly trained and equipped personnel respond to the scene as quickly 
as possible. While agreeing that an employee should use the quickest 
means available to notify the railroad, BMWE suggested that the on-site 
employee should be allowed discretion to determine the priorities in an 
emergency (e.g., by choosing to render medical attention before 
notifying the railroad). Although FRA agrees that an emergency may 
occasionally require immediate action prior to notification, as a 
general rule, on-site employees should not undertake responsive action 
without sufficient information and proper training. Requiring 
notification to be the first priority facilitates the quick arrival of 
professional emergency response personnel in situations when the right 
actions and reactions are critical.
    The employee should follow the emergency radio transmission 
procedures in Sec. 220.47 of this part when using a radio, or the 
procedures specified in the railroad's timetable or timetable special 
instructions when using another means of wireless communications. This 
section also includes language on emergency procedures originally 
contained in Sec. 220.47(a).
    Paragraph (d): FRA adds this paragraph to require an alternative 
means of emergency reporting whenever railroad operations are conducted 
while the control center is unattended or unable to receive radio 
transmissions. For example, a railroad may provide its employees with 
cellular telephones or portable radios with a dedicated police channel 
in lieu of maintaining 24-hour control center staffing to handle after 
hours emergencies. In such scenarios, employees would then have the 
capability to inform the staffed operating center of another railroad 
or to contact emergency responders directly. FRA anticipates that this 
added flexibility will primarily benefit medium-sized railroads, since 
many small railroads already rely on cellular telephones for emergency 
notification and large railroads staff their control centers around the 
clock.

Subpart B--Radio and Wireless Communication Procedures

    FRA retitles Subpart B to make clear that the definition for 
working wireless communications, like that for working radio, requires 
that communications equipment be tested and in working condition before 
a work assignment commences. Both wireless communication and radio 
equipment are covered by Secs. 220.37 and 220.38; section titles in 
this Subpart that apply only to radio operations have accordingly been 
retitled to reflect that fact.

Section 220.21 Railroad Operating Rules; Radio Communications; 
Recordkeeping

    FRA deletes the implementation dates from this section since these 
references are no longer necessary.
    Paragraph (b): FRA received no comments on its proposed editorial 
changes, which are incorporated into this final rule.
    Paragraph (c): FRA retains the carrier classifications (Class I, 
II, and III railroads) created by the former Interstate Commerce 
Commission (ICC) and retained unchanged by the ICC's successor, the 
Surface Transportation Board.

Section 220.23 Publication of Radio Information

    FRA received no comments on its proposed editorial changes, which 
are incorporated into this final rule.

Section 220.25 Instruction and Operational Testing of Employees

    Paragraph (c): This paragraph requires a railroad to test employees 
authorized to use a radio for railroad operations on the procedures in 
this part. The railroad shall administer radio procedure tests in 
accordance with its written program of operational tests and 
inspections filed under Sec. 217.9 (Railroad Operating Rules, 49 CFR 
Part 217), and in conjunction with mandatory periodic operating rules 
tests.

Section 220.27 Identification

    Paragraph (a): FRA combines paragraphs (a)(2) and (a)(3), and 
deletes

[[Page 47190]]

paragraph (a)(3)'s requirement for an employee (usually the dispatcher) 
to identify the location of the station from which the employee is 
broadcasting, for those railroads that use central or regional 
dispatching, with a uniquely designated station for each dispatching 
system. If a station does not have a unique designation, both the 
station's name and location should continue to be stated.
    Paragraph (b): FRA received no comments on its proposed editorial 
changes, which are incorporated into this final rule.

Section 220.29 Statement of Letters and Numbers in Radio Communications

    This section is retitled to limit its applicability to radio 
communications.
    Paragraph (b): FRA received no comments on its proposed editorial 
changes, which are incorporated into this final rule.
    Paragraph (c): This paragraph is amended to provide that a decimal 
point may also be indicated by the use of the words ``dot,'' or 
``point,'' in addition to ``decimal.''

Section 220.31 Initiating a Radio Transmission

    This section is retitled to limit its applicability to radio 
communications. FRA had asked for comment on whether to change its 
current order of identification, which requires the caller to identify 
him or herself before identifying the intended receiver, to the reverse 
order, with the caller first identifying who he or she seeks to 
contact, and then identifying him or herself. FRA received no comments 
on this proposal, and accordingly retains its current order of 
identification.

Section 220.33 Receiving a Radio Transmission

    This section is retitled to limit its applicability to radio 
communications.
    Paragraph (a): FRA adopts a proposed change which clarifies that an 
employee need not monitor the radio when other immediate duties 
intervene, but must resume monitoring once those circumstances are 
over.
    Paragraphs (b) and (c): FRA deletes paragraph (b) since it is made 
redundant by paragraph (a), and redesignates current paragraph (c) as 
paragraph (b).
    As discussed above, unless required by a railroad's operating 
rules, a railroad employee does not have to copy advisory instructions, 
since the train either already possesses authority to occupy the main 
track by signal indication, or through the railroad's operating rules. 
Similarly, advisory information on conditions ahead such as trespassers 
or debris on track also involves imminent conditions that often change 
by the time the next train passes by. While these short-term 
instructions must be repeated, they need not be copied since they will 
soon be acted upon. (In non-signaled territory, in contrast, occupying 
or fouling a main track typically requires written initial movement 
authority from the train dispatcher or control operator.)
    On the other hand, copying is necessary when an order will be acted 
upon later, or is of a long-term nature. In such instances, FRA 
believes that an employee must have a written reference to avoid the 
risk that the employee may later rely on a faulty recollection of the 
instruction.
    Paragraph (b)(1): FRA received no responses to its request for 
comments on whether to continue requiring communications to be repeated 
in switching operations. Therefore, FRA leaves this section unchanged. 
As before, communications involving yard switching operations do not 
have to be repeated back to the transmitting party, since switching in 
yards often requires the rapid exchange of information being acted upon 
in real time, and the higher volume of operations in yards contributes 
to greater congestion on yard channels.

Section 220.35 Ending a Radio Transmission

    This section is retitled to limit its applicability to radio 
communications. As discussed above, use of ``over'' and ``out'' is no 
longer required in yard switching transmissions, because of their high 
volume and the need to keep phrasing as terse as possible in light of 
the real time decision making for which the information is employed. 
For all other radio transmissions, use of ``over'' and ``out'' 
continues to be required to ensure that employees act on complete 
information and do not inadvertently interrupt transmissions already in 
progress.

Section 220.37 Testing Radio and Wireless Communication Equipment

    As discussed above, this section is retitled and expanded in scope 
to cover testing of all the communication equipment required by 
Secs. 220.9 and 220.11.
    Paragraph (a): As proposed, FRA substitutes ``as soon as 
practicable'' for ``at least once during each tour of duty,'' to 
require the crew to perform a voice test at the start of their tour 
rather than at any point during their trip, thus enabling the crew to 
learn before they first need to use the radio whether it works properly 
or needs to be replaced. BMWE noted that the NPRM preamble discussion 
implied that the requirement to perform such voice tests is limited to 
the engineer and conductor, when in fact the rule requires all 
employees who use wireless communications equipment to perform voice 
tests as soon as practicable.
    DMIR, however, felt that requiring voice testing for ``all workers 
using radios'' is unnecessary and would also require recordkeeping. As 
mentioned above, FRA has always required voice testing; FRA is 
modifying and expanding this requirement to ensure that employees have 
access to working wireless communications equipment before beginning 
their work assignments. FRA has not previously required recordkeeping 
of voice tests, and does not do so in this rule.
    Also as proposed, FRA deletes the phrase ``outside yard limits'' to 
ensure that a voice test is conducted even when a train does not leave 
yard limits, and the phrase ``where the train is made up'' to make 
clear that at each intermediate crew change point, the new crew must 
perform a voice test at the start of their tour.
    Paragraphs (b) and (c): Existing paragraphs (b) and (c) are 
deleted, since these requirements would be covered in proposed 
Sec. 220.38, discussed below. A new paragraph (b) is added requiring 
that the test of a radio shall consist of voice transmissions with 
another radio, with the employee receiving the transmission advising 
the employee conducting the test of the clarity of the transmission.

Section 220.38 Communication Equipment Failure

    This new section addresses failure of the communication equipment 
required by Secs. 220.9 and 220.11.
    Paragraph (a): If a radio or wireless communication device failure 
occurs, the employee is required to notify the proper authorities. In 
addition, FRA now requires inoperative radios and inoperative mandatory 
wireless communication equipment to be removed from service upon 
discovery.
    Paragraph (b): As proposed, if a radio or wireless communication 
device fails en route, the controlling locomotive may proceed until the 
earlier of the next calendar day inspection or the nearest repair point 
where the equipment could be repaired or replaced. The movements 
allowed for communication equipment repair in paragraph (b) are taken 
from Sec. 229.9(b) of FRA's Railroad Locomotive Safety Standards, which 
specifies the movements allowed for repair of non-complying 
locomotives.

[[Page 47191]]

    In the NPRM, FRA asked for comment on whether, to encourage prompt 
replacement of failed radios, the final rule should expressly provide 
that placement of one or more radios on locomotives at a particular 
location does not constitute that location as a ``repair point.'' Both 
UP and AAR agreed with this suggested guidance, which FRA will employ 
as a rule of reason to encourage railroads to replace failed radios as 
soon as feasible with a reasonable deployment of equipment. (FRA 
anticipates that failed radios will usually be replaced and not 
repaired, since the capability to repair these solid state units is 
normally available only at central shops or the manufacturer). Thus, 
FRA will not consider a location to be a designated repair point merely 
because the railroad voluntarily makes or has made repairs there.

Section 220.39 Continuous Radio Monitoring

    This section is retitled to limit its applicability to radio 
communications. FRA received no comments on its proposed editorial 
changes, which are incorporated into this final rule.

Section 220.41 Notification on Failure of Radio

    FRA removes and reserves this section since it is made redundant by 
Sec. 220.38, discussed above, which also addresses radio and equipment 
failures. In its comments, Conrail correctly noted that the proposed 
removal of this section would require the removal of its corresponding 
penalty. Accordingly, FRA also removes the penalty for this section 
from the penalty schedule.

Section 220.43 Radio Communications Consistent With Federal Regulations 
and Railroad Operating Rules

    This section is retitled to limit its applicability to radio 
communications, and reworded, to make clear that radio communications 
must be in compliance with this part, FCC regulations, and railroad 
operating rules.

Section 220.45  Radio Communications Shall Be Complete

    This section is retitled to limit its applicability to radio 
communications, but is otherwise unchanged. BLE SEPTA suggested that 
employees should be required to comply with the more restrictive 
condition whenever an incomplete communication may contain a more 
restrictive operating condition, until communications have been 
reestablished. FRA believes that requiring employees not to act upon 
incomplete communications is safer practice than requiring employees to 
speculate and possibly make incorrect assumptions about the content of 
unfinished communications.

Section 220.47  Emergency Radio Transmissions

    This section is retitled to limit its applicability to radio 
communications. As discussed above, since Sec. 220.13(a) now addresses 
emergency notification, Sec. 220.47(b) has been deleted. The revised 
section continues to require an initial emergency transmission to begin 
with the word ``emergency'' repeated three times.

Section 220.49  Radio Communication Used in Shoving, Backing or Pushing 
Movements

    This section is retitled to limit its applicability to radio 
communications, and to make clear that the section applies to back-up 
moves only. In addition, the phrase ``in lieu of hand signals'' is 
deleted to emphasize that this section applies whenever a radio is 
used. To make the section easier to understand, FRA also makes several 
editorial changes simplifying its language.

Section 220.51  Radio Communications and Signal Indications

    This section is retitled to limit its applicability to radio 
communications.
    Paragraph (b): As proposed, FRA deletes the phrase ``in automatic 
block territory'' to emphasize that the prohibition against conveying 
signal indications applies to all types of territory. UP, however, 
asked for clarification on whether a dispatcher or control operator 
could advise a crew if the indication or aspect of a signal 
unexpectedly changed from proceed to stop. UP noted that such warnings 
have previously prevented emergencies by providing crews sufficient 
notice to stop their trains safely.
    In emergency situations, FRA has always allowed signal indications 
or aspects to be conveyed on a need to know basis. FRA will continue to 
allow such radio communications when necessary to prevent imminent 
danger or accidents.

Section 220.61  Radio Transmission of Mandatory Directives

    FRA substitutes ``mandatory directive'' for ``train order'' 
wherever that term appeared and integrates this section, which 
addresses the transmission of mandatory directives by radio, into 
Subpart B, which covers all radio procedures. The word ``radio'' has 
been added to the title of this section. Other than this change, the 
section is adopted as proposed with the addition of new retention 
requirements. For train crews, the conductor and engineer are required 
to retain copies of mandatory directives for the duration of their work 
assignments. For on-track equipment, the employee responsible for on-
track safety must retain copies of mandatory directives while they are 
in effect.

Appendices

    As discussed above, FRA amends appendix B to correct some 
longstanding errors in its recommended pronunciation of numerals, and 
amends appendix C to delete the penalty for Sec. 220.41, which has been 
removed and reserved. FRA also amends appendix C to add penalties for 
failure to comply with the communications equipment standards contained 
in Secs. 220.9 and 220.11. Also as discussed above, FRA amends the 
minimum and maximum penalties for this part in accordance with the 
RSERA and the Federal Civil Penalties Inflation Adjustment Act of 1990, 
respectively.

Environmental Impact

    FRA has evaluated this rule for its potential environmental 
impacts, as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.) and related directives, and determined that it is 
a non-major action for environmental purposes.

Federalism Implications

    FRA has analyzed this rule in accordance with the principles of 
Executive Order 12612 (``Federalism''), and determined that these 
amendments to Part 220 do not have sufficient federalism implications 
to warrant the preparation of a Federalism Assessment. The fundamental 
policy decision providing that Federal regulations should govern 
aspects of service provided by municipal and public benefit 
corporations (or agencies) of State governments is embodied in the 
statute quoted above. To provide reasonable flexibility to State-level 
decision making, FRA included commuter authorities as full partners in 
the development of this rule.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and been determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
February 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of the final rule. 
Document inspection and

[[Page 47192]]

copying facilities are available at 1120 Vermont Avenue, 7th Floor, 
Washington, D.C. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Federal Railroad Administration, 400 Seventh Street, S.W., Washington, 
D.C. 20590.
    As part of the regulatory impact analysis FRA has assessed 
quantitative measurements of costs and benefits expected from the 
adoption of the final rule. Over a twenty year period, the Net Present 
Value (NPV) of the estimated quantifiable societal benefits is $57.8 
million, and the NPV of the estimated costs is $37.1 million.
    The major costs anticipated from adopting this final rule include 
the installation of radios in some locomotives; the purchase of 
cellular telephones or other forms of wireless communication by smaller 
railroads; usage fees for cellular telephones; the installation of 
radios in some maintenance-of-way equipment; the purchase of additional 
portable radios for roadway work groups and lone workers; training on 
radio procedures; maintenance of locomotive and portable radios; and 
replacement cellular telephones.
    The major benefits anticipated from adopting this final rule 
include a reduction in injuries and fatalities to roadway workers; a 
reduction in trespasser fatalities; a reduction in the severity of 
railroad worker injuries due to quicker emergency response; a reduction 
in grade crossing accidents; and a reduction in railroad accidents due 
to the improper usage of radios. Additionally, FRA anticipates other 
qualitative benefits accruing from this final rule which have not been 
factored into the quantified analysis. These include increased 
efficiency within the industry and a reduction in hazardous material 
spills.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of final rules to assess their impact on small 
entities. FRA's Regulatory Flexibility Assessment can be found in 
Appendix B of the final rule's Regulatory Impact Analysis, located in 
the docket.
    After consultation with the Office of Advocacy of the Small 
Business Administration (SBA), FRA decided to use the delineation of 
fewer than 400,000 annual employee hours to define small entities. This 
grouping is one that FRA has used in the past (in 49 CFR Parts 217 
(Railroad Operating Rules) and 219 (Control of Alcohol and Drug Use)) 
to define who is subject to reporting requirements. Typically, FRA uses 
the Surface Transportation Board's revenue-based classification of 
Class III railroads as being representative of small entities. Although 
many Class III railroads have fewer than 400,000 annual employee hours, 
using 400,000 annual employee hours as the line between small and large 
entities is preferable since FRA already maintains a database of 
information on railroads below this cut-off. Additionally, defining 
small railroads as those with fewer than 400,000 annual employee hours 
does not automatically exempt switching and terminal railroads, unlike 
the Class III distinction. By using this grouping for small railroads, 
FRA captures most small entities that would be defined by the SBA as 
small businesses.
    FRA certifies that this rule is expected to have a significant 
economic impact on a substantial number of small entities. 
Approximately 435 small entities will be impacted. However, the actual 
burden on most of these railroads will vary because of their different 
operating characteristics. There are no small government jurisdictions 
affected by this regulation.
    Entities that are not subject to this rule include railroads that 
do not operate on the ``general railroad system of transportation'' due 
to FRA's current exercise of its jurisdiction (See 49 CFR Part 209, 
Appendix A). FRA's jurisdictional approach greatly reduces the number 
of tourist, scenic, historic, and excursion railroads that are subject 
to this rule and its associated burdens. FRA estimates that 
approximately 180 small entities will be exempted from the final 
requirements of this regulation since they do not operate on the 
general system of transportation.
    The communication requirements pertaining to locomotives, as set 
forth in Sec. 220.9 of this rule, have been designed to minimize their 
impact on small railroads. While large railroads are required to have a 
working radio and wireless communication redundancy in every train, 
small railroads are only required to comply with this standard for 
trains used to transport passengers. A radio is required on a freight 
train operated by a small railroad only when the train operates at 
greater than 25 miles per hour or engages in joint operations on a 
large railroad where either the maximum authorized speed for freight 
trains exceeds 25 miles per hour on the track being used, or the train 
operates on track adjacent to and within 30 feet of another track on 
which the maximum speed for passenger trains exceeds 40 miles per hour. 
Any form of wireless communication device can be used on a freight 
train operated by a small railroad when the train is engaged in joint 
operations with a large railroad and the maximum authorized speed on 
the track being used is 25 miles per hour or less.
    In addition, a wireless communications device is required when a 
freight train of a small railroad transports hazardous material that is 
required to be placarded under 49 CFR Part 172 (Hazardous Materials) 
and does not otherwise fit into one of the above mentioned categories 
requiring other types of communications equipment. The flexibility 
afforded to small railroads with these alternatives will lessen the 
costs imposed on these railroads.
    The communications requirements pertaining to roadway workers, as 
set forth in Sec. 220.11 of this rule, have been designed to minimize 
their impact on small railroads. Section 220.11(a)'s requirement to 
equip maintenance-of-way equipment with communications capability upon 
arriving at a work site does not apply to small railroads. Under 
Sec. 220.11(b), large railroads must provide each employee responsible 
for on-track safety and each lone worker with immediate access to a 
working radio. However, small railroads can instead provide such 
employees with immediate access to working wireless communications. 
Small railroads may also be able to avoid any of the communication 
equipping requirements of Sec. 220.11 if they meet the exceptions set 
forth in Sec. 220.11(c).
    Most small railroads will have a low enough volume and train 
frequency not to be impacted by the requirements of Sec. 220.11, since 
Sec. 220.11(c) exempts small railroads that meet certain specified 
conditions. To qualify for an exemption from Sec. 220.11, a small 
railroad may not operate a large volume of traffic over a branch line. 
Generally, the ability of a railroad to perform track-related 
maintenance on track(s) that are taken out of service is inversely 
related to the volume and frequency of trains on its branch lines.

Paperwork Statement

    The final rule contains new information collection requirements. 
The information collection requirements currently contained in 49 CFR 
220 were approved by the Office of Management and Budget (OMB) under 
OMB approval numbers 2130-0035 and 2130-0524. These information 
collection requirements plus the new information collection 
requirements resulting from this rulemaking have been submitted to OMB 
for approval under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501

[[Page 47193]]

et seq. The sections containing new information collection requirements 
are listed below. All estimates include the time for reviewing 
instructions; searching existing data sources; gathering or maintaining 
the needed data; and reviewing the information.
      
      

[[Page 47194]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Average time per                                                                 Total annual 
              CFR section                  Respondent universe       Total annual responses           response                          Total annual burden hours                   burden cost 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
220.8--Waivers........................  680 railroads............  2 letters................  1 hour..................                                                   2 hours             $50
220.13--Reporting emergencies.........  680 railroads............  N/A......................  Usual & Customary                                                              N/A             N/A
                                                                                               Practice.                                                                                        
*220.21--Railroad operating rules;      680 railroads............  N/A......................  Approved under # 2130-                                                         N/A             N/A
 radio communication; recordkeeping.                                                           0035.                                                                                            
220.23--Publication of radio            680 railroads............  N/A......................  Usual and Customary                                                            N/A             N/A
 information.                                                                                  Procedure.                                                                                       
*220.25--Instruction and operational    N/A......................  N/A......................  Approved under # 2130-                                                        N/A/             N/A
 testing of employees.                                                                         0035.                                                                                            
    Instruction--1st Yr...............  680 railroads............  15,000 instr. sessions...  30 minutes..............                                               7,500 hours         187,500
    Instruction--Subseq. Yrs..........  680 railroads............  1,000 instr. sessions....  30 minutes..............                                                 500 hours          12,500
    Periodic operational testing--new   680 railroads............  33,333 tests.............  15 minutes..............                                               8,333 hours         208,325
     requirement.                                                                                                                                                                               
220.27--Identification................  N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
                                                                                               Procedure.                                                                                       
220.31--Initiating a radio              N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
 transmission--identification.                                                                 Procedure.                                                                                       
220.33--Receiving a radio               N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
 transmission--acknowledgment.                                                                 Procedure.                                                                                       
220.35--Ending a radio transmission...  N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
                                                                                               Procedure.                                                                                       
220.37--Testing radio and wireless      680 railroads............  780,000 tests............  30 seconds..............                                               6,500 hours         162,500
 communication equipment.                                                                                                                                                                       
220.38--Communication equipment         N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
 failure--notification.                                                                        Procedure.                                                                                       
220.47--Emergency radio transmission..  N/A......................  N/A......................  Usual and Customary                                                            N/A             N/A
                                                                                               Procedure.                                                                                       
220.61--Transmission of mandatory       .........................  .........................  ........................  ........................................................  ..............
 directives.                                                                                                                                                                                    
    Copying and repeating of mandatory  680 railroads............  7,200,000 directives.....  1.5 minutes.............                                             180,000 hours       5,400,000
     directive.                                                                                                                                                                                 
    Train crews--marking with an X      680 railroads............  624,000 marks............  15 seconds..............                                               2,600 hours         $65,000
     mandatory directives fulfilled or                                                                                                                                                          
     cancelled.                                                                                                                                                                                 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 47195]]

    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA will obtain current OMB control numbers for 
any information collection requirements resulting from this rulemaking 
action prior to the effective date of the final rule. The valid OMB 
control number for this information collection is 2130-0524.

List of Subjects in 49 CFR Part 220

    Communications, Railroad.
    Accordingly, for the reasons stated in the preamble, FRA revises 49 
CFR part 220 to read as follows:

PART 220 --RAILROAD COMMUNICATIONS

Subpart A--General

Sec.
220.1  Scope.
220.2  Preemptive effect.
220.3  Application.
220.5  Definitions.
220.7  Penalty.
220.8  Waivers.
220.9  Requirements for trains.
220.11  Requirements for roadway workers.
220.13  Reporting emergencies.

Subpart B--Radio and Wireless Communication Procedures

220.21  Railroad operating rules; radio communications; 
recordkeeping.
220.23  Publication of radio information.
220.25  Instruction and operational testing of employees.
220.27  Identification.
220.29  Statement of letters and numbers in radio communications.
220.31  Initiating a radio transmission.
220.33  Receiving a radio transmission.
220.35  Ending a radio transmission.
220.37  Testing radio and wireless communication equipment.
220.38  Communication equipment failure.
220.39  Continuous radio monitoring.
220.41  [Reserved].
220.43  Radio communications consistent with federal regulations and 
railroad operating rules.
220.45  Radio communication shall be complete.
220.47  Emergency radio transmissions.
220.49  Radio communication used in shoving, backing or pushing 
movements.
220.51  Radio communications and signal indications.
220.61  Transmission of mandatory directives.
Appendix A to Part 220--Recommended Phonetic Alphabet
Appendix B to Part 220--Recommended Pronunciation of Numerals
Appendix C to Part 220--Schedule of Civil Penalties

    (Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311 (1994); 
and 49 CFR 1.49.)

Subpart A--General


Sec. 220.1  Scope.

    This part prescribes minimum requirements governing the use of 
wireless communications in connection with railroad operations. So long 
as these minimum requirements are met, railroads may adopt additional 
or more stringent requirements.


Sec. 220.2  Preemptive effect.

    Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad 
Safety Act of 1970, 45 U.S.C. 434), issuance of the regulations in this 
part preempts any State law, rule, regulation, order, or standard 
covering the same subject matter, except a provision necessary to 
eliminate or reduce an essentially local safety hazard that is not 
incompatible with this part and that does not unreasonably burden 
interstate commerce.


Sec. 220.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to railroads that operate trains or other rolling equipment on 
standard gage track which is part of the general railroad system of 
transportation.
    (b) This part does not apply to:
    (1) A railroad that operates only on track inside an installation 
which is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not 
connected with the general railroad system of transportation.


Sec. 220.5  Definitions.

    As used in this part, the term:
    Adjacent tracks means two or more tracks with track centers spaced 
less than 25 feet apart.
    Control center means the locations on a railroad from which the 
railroad issues instructions governing railroad operations.
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad, who is authorized by a 
railroad to use its wireless communications in connection with railroad 
operations.
    Immediate access to a radio means a radio on the employee's person, 
or sufficiently close to the employee to allow the employee to make and 
receive radio transmissions.
    Joint operations means rail operations conducted by more than one 
railroad on the track of a railroad subject to the requirements of 
Sec. 220.9(a), except as necessary for the purpose of interchange.
    Locomotive means a piece of on-track equipment other than hi-rail, 
specialized maintenance, or other similar equipment--
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic, or both; or
    (3) Without propelling motors but with one or more control stands.
    Lone worker means an individual roadway worker who is not being 
afforded on-track safety by another roadway worker, who is not a member 
of a roadway work group, and who is not engaged in a common task with 
another roadway worker.
    Mandatory directive means any movement authority or speed 
restriction that affects a railroad operation.
    Railroad operation means any activity which affects the movement of 
a train, locomotive, on-track equipment, or track motor car, singly or 
in combination with other equipment, on the track of a railroad.
    Roadway worker means any employee of a railroad, or of a contractor 
to a railroad, whose duties include inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts.
    System headquarters means the location designated by the railroad 
as the general office for the railroad system.
    Train means one or more locomotives coupled with or without cars, 
requiring an air brake test in accordance with 49 CFR part 232, except 
during switching operations or where the operation is that of 
classifying and assembling rail cars within a railroad yard for the 
purpose of making or breaking up trains.
    Working radio means a radio that can communicate with the control 
center of the railroad (through repeater stations, if necessary to 
reach the center) from any location within the rail system, except:
    (1) Tunnels or other localized places of extreme topography, and
    (2) Temporary lapses of coverage due to atmospheric or topographic 
conditions. In the case of joint operations on another railroad, the 
radio

[[Page 47196]]

must be able to reach the control center of the host railroad.
    Working wireless communications means the capability to communicate 
with either a control center or the emergency responder of a railroad 
through such means as radio, portable radio, cellular telephone, or 
other means of two-way communication, from any location within the rail 
system, except:
    (1) Tunnels or other localized places of extreme topography, and
    (2) Temporary lapses of coverage due to atmospheric or topographic 
conditions. In the case of joint operations on another railroad, the 
radio must be able to reach the control center of the host railroad.


Sec. 220.7  Penalty.

    Any person (including but not limited to a railroad; any 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 $500 and not more than $11,000 per violation, 
except that: Penalties may be assessed against individuals only for 
willful violations; where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury, 
or has caused death or injury, a penalty not to exceed $22,000 per 
violation may be assessed; and the standard of liability for a railroad 
will vary depending upon the requirement involved. Each day a violation 
continues shall constitute a separate offense. (See appendix C to this 
part for a statement of agency civil penalty policy.)


Sec. 220.8  Waivers.

    (a) Any person subject to a requirement of this part may petition 
the Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver must be filed in the manner and 
contain the information required by part 211 of this chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec. 220.9  Requirements for trains.

    (a) Except as provided for in paragraphs (b)(1) through (4) of this 
section, on and after July 1, 1999, each occupied controlling 
locomotive in a train shall have a working radio, and each train shall 
also have communications redundancy. For purposes of this section, 
``communications redundancy'' means a working radio on another 
locomotive in the consist or other means of working wireless 
communications.
    (b) On and after July 1, 2000, the following requirements apply to 
a railroad that has fewer than 400,000 annual employee work hours:
    (1) Any train that transports passengers shall be equipped with a 
working radio in the occupied controlling locomotive and with redundant 
working wireless communications capability in the same manner as 
provided in paragraph (a) of this section.
    (2) Any train that operates at greater than 25 miles per hour; or 
engages in joint operations on track where the maximum authorized speed 
for freight trains exceeds 25 miles per hour; or engages in joint 
operations on a track that is adjacent to and within 30 feet measured 
between track center lines of another track on which the maximum 
authorized speed for passenger trains exceeds 40 miles per hour, shall 
be equipped with a working radio in the occupied controlling 
locomotive.
    (3) Any train that engages in joint operations, where the maximum 
authorized speed of the track is 25 miles per hour or less, shall be 
equipped with working wireless communications in the occupied 
controlling locomotive.
    (4) Any train not described in paragraph (b) of this section that 
transports hazardous material required to be placarded under the 
provisions of part 172 of this title shall be equipped with working 
wireless communications in the occupied controlling locomotive.


Sec. 220.11  Requirements for roadway workers.

    (a) On and after July 1, 1999, the following requirements apply to 
a railroad that has 400,000 or more annual employee work hours:
    (1) Maintenance-of-way equipment operating without locomotive 
assistance between work locations shall have a working radio on at 
least one such unit in each multiple piece of maintenance-of-way 
equipment traveling together under the same movement authority. The 
operators of each additional piece of maintenance-of-way equipment 
shall have communications capability with each other.
(2) Each maintenance-of-way work group shall have intra-group 
communications capability upon arriving at a work site.
    (b) On and after July 1, 1999, each employee designated by the 
employer to provide on-track safety for a roadway work group or groups, 
and each lone worker, shall be provided, and where practicable, shall 
maintain immediate access to a working radio. When immediate access to 
a working radio is not available, the employee responsible for on-track 
safety or lone worker shall be equipped with a radio capable of 
monitoring transmissions from train movements in the vicinity. A 
railroad with fewer than 400,000 annual employee work hours may provide 
immediate access to working wireless communications as an alternative 
to a working radio.
    (c) This section does not apply to:
    (1) Railroads which have fewer than 400,000 annual employee work 
hours, and which do not operate trains in excess of 25 miles per hour; 
or
    (2) Railroad operations where the work location of the roadway work 
group or lone worker:
    (i) Is physically inaccessible to trains; or
    (ii) Has no through traffic or traffic on adjacent tracks during 
the period when roadway workers will be present.


Sec. 220.13  Reporting emergencies.

    (a) Employees shall immediately report by the quickest means 
available derailments, collisions, storms, wash-outs, fires, 
obstructions to tracks, and other hazardous conditions which could 
result in death or injury, damage to property or serious disruption of 
railroad operations.
    (b) In reporting emergencies, employees shall follow:
    (1) The procedures of Sec. 220.47 when using a radio; or
    (2) The procedures specified for reporting emergencies in the 
railroad's timetables or timetable special instructions, when using 
another means of wireless communications.
    (c) Employees shall describe as completely as possible the nature, 
degree and location of the hazard.
    (d) An alternative means of communications capability shall be 
provided whenever the control center is unattended or unable to receive 
radio transmissions during a period in which railroad operations are 
conducted.

[[Page 47197]]

Subpart B--Radio and Wireless Communication Procedures


Sec. 220.21  Railroad operating rules; radio communications; 
recordkeeping.

    (a) The operating rules of each railroad with respect to radio 
communications shall conform to the requirements of this part.
    (b) Thirty days before commencing to use radio communications in 
connection with railroad operations each railroad shall retain one copy 
of its current operating rules with respect to radio communications at 
the locations prescribed in paragraphs (b) (1) and (b)(2) of this 
section. Each amendment to these operating rules shall be filed at such 
locations within 30 days after it is issued. These records shall be 
made available to representatives of the Federal Railroad 
Administration for inspection and photocopying during normal business 
hours.
    (1) Each Class I railroad, each Class II railroad, each railroad 
providing intercity rail passenger service, and each railroad providing 
commuter service in a metropolitan or suburban area shall retain such 
rules at each of its division headquarters and at its system 
headquarters; and (2) Each Class III railroad and any other railroad 
subject to this part but not subject to paragraph (b)(1) of this 
section shall retain such rules at the system headquarters of the 
railroad.
    (c) For purposes of this section, the terms Class I railroad, Class 
II railroad, and Class III railroad have the meaning given these terms 
in 49 CFR Part 1201.


Sec. 220.23  Publication of radio information.

    Each railroad shall designate where radio base stations are 
installed, where wayside stations may be contacted, and the appropriate 
radio channels used by these stations in connection with railroad 
operations by publishing them in a timetable or special instruction. 
The publication shall indicate the periods during which base and 
wayside radio stations are operational.


Sec. 220.25  Instruction and operational testing of employees.

    Each employee who a railroad authorizes to use a radio in 
connection with a railroad operation, shall be:
    (a) Provided with a copy of the railroad's operating rules 
governing the use of radio communication in a railroad operation;
    (b) Instructed in the proper use of radio communication as part of 
the program of instruction prescribed in Sec. 217.11 of this chapter; 
and
    (c) Periodically tested under the operational testing requirements 
in Sec. 217.9 of this chapter.


Sec. 220.27  Identification.

    (a) Except as provided in paragraph (c) of this section, the 
identification of each wayside, base or yard station shall include at 
least the following minimum elements, stated in the order listed:
    (1) Name of railroad. An abbreviated name or initial letters of the 
railroad may be used where the name or initials are in general usage 
and are understood in the railroad industry; and
    (2) Name and location of office or other unique designation.
    (b) Except as provided in paragraph (c) of this section, the 
identification of each mobile station shall consist of the following 
elements, stated in the order listed:
    (1) Name of railroad. An abbreviated name or initial letters of the 
railroad may be used where the name or initial letters are in general 
usage and are understood in the railroad industry;
    (2) Train name (number), if one has been assigned, or other 
appropriate unit designation; and
    (3) When necessary, the word ``locomotive'', ``motorcar'', or other 
unique identifier which indicates to the listener the precise mobile 
transmitting station.
    (c) If positive identification is achieved in connection with 
switching, classification, and similar operations wholly within a yard, 
fixed and mobile units may use short identification after the initial 
transmission and acknowledgment consistent with applicable Federal 
Communications Commission regulations governing ``Station 
Identification''.


Sec. 220.29  Statement of letters and numbers in radio communications.

    (a) If necessary for clarity, a phonetic alphabet shall be used to 
pronounce any letter used as an initial, except initial letters of 
railroads. See appendix A of this part for the recommended phonetic 
alphabet.
    (b) A word which needs to be spelled for clarity, such as a station 
name, shall first be pronounced, and then spelled. If necessary, the 
word shall be spelled again, using a phonetic alphabet.
    (c) Numbers shall be spoken by digit, except that exact multiples 
of hundreds and thousands may be stated as such. A decimal point shall 
be indicated by the words ``decimal,'' ``dot,'' or ``point.'' (See 
appendix B to this part, for a recommended guide to the pronunciation 
of numbers.)


Sec. 220.31  Initiating a radio transmission.

Before transmitting by radio, an employee shall:

    (a) Listen to ensure that the channel on which the employee intends 
to transmit is not already in use;
    (b) Identify the employee's station in accordance with the 
requirements of Sec. 220.27; and
    (c) Verify that the employee has made radio contact with the person 
or station with whom the employee intends to communicate by listening 
for an acknowledgment. If the station acknowledging the employee's 
transmission fails to identify itself properly, the employee shall 
require a proper identification before proceeding with the 
transmission.


Sec. 220.33  Receiving a radio transmission.

    (a) Upon receiving a radio call, an employee shall promptly 
acknowledge the call, identifying the employee's station in accordance 
with the requirements of Sec. 220.27 and stand by to receive. An 
employee need not attend the radio during the time that this would 
interfere with other immediate duties relating to the safety of 
railroad operations.
    (b) An employee who receives a transmission shall repeat it to the 
transmitting party unless the communication:
    (1) Relates to yard switching operations;
    (2) Is a recorded message from an automatic alarm device; or
    (3) Is general in nature and does not contain any information, 
instruction or advice which could affect the safety of a railroad 
operation.


Sec. 220.35  Ending a radio transmission.

    (a) Except for transmissions relating to yard switching operations, 
at the close of each transmission to which a response is expected, the 
transmitting employee shall say ``over'' to indicate to the receiving 
employee that the transmission is ended.
    (b) Except for transmissions relating to yard switching operations, 
at the close of each transmission to which no response is expected, the 
transmitting employee shall state the employee's identification 
followed by the word ``out'' to indicate to the receiving employee that 
the exchange of transmissions is complete.


Sec. 220.37  Testing radio and wireless communication equipment.

    (a) Each radio, and all primary and redundant wireless 
communication equipment used under Secs. 220.9 and 220.11, shall be 
tested as soon as practicable to ensure that the equipment

[[Page 47198]]

functions as intended prior to the commencement of the work assignment.
    (b) The test of a radio shall consist of an exchange of voice 
transmissions with another radio. The employee receiving the 
transmission shall advise the employee conducting the test of the 
clarity of the transmission.


Sec. 220.38  Communication equipment failure.

    (a) Any radio or wireless communication device found not to be 
functioning as intended when tested pursuant to Sec. 220.37 shall be 
removed from service and the dispatcher or other employee designated by 
the railroad shall be so notified as soon as practicable.
    (b) If a radio or wireless communication device fails on the 
controlling locomotive en route, the train may continue until the 
earlier of--
    (1) The next calendar day inspection, or
    (2) The nearest forward point where the radio or wireless 
communication device can be repaired or replaced.


Sec. 220.39  Continuous radio monitoring.

    Each radio used in a railroad operation shall be turned on to the 
appropriate channel as designated in Sec. 220.23 and adjusted to 
receive communications.


Sec. 220.41  [Reserved]


Sec. 220.43  Radio communications consistent with federal regulations 
and railroad operating rules.

    Radio communication shall not be used in connection with a railroad 
operation in a manner which conflicts with the requirements of this 
part, Federal Communication Commission regulations, or the railroad's 
operating rules. The use of citizen band radios for railroad operating 
purposes is prohibited.


Sec. 220.45  Radio communication shall be complete.

    Any radio communication which is not fully understood or completed 
in accordance with the requirements of this part and the operating 
rules of the railroad, shall not be acted upon and shall be treated as 
though not sent.


Sec. 220.47  Emergency radio transmissions.

    An initial emergency radio transmission shall be preceded by the 
word ``emergency,'' repeated three times. An emergency transmission 
shall have priority over all other transmissions and the frequency or 
channel shall be kept clear of non-emergency traffic for the duration 
of the emergency communication.


Sec. 220.49  Radio communication used in shoving, backing or pushing 
movements.

    When radio communication is used in connection with the shoving, 
backing or pushing of a train, locomotive, car, or on-track equipment, 
the employee directing the movement shall specify the distance of the 
movement, and the movement shall stop in one-half the remaining 
distance unless additional instructions are received. If the 
instructions are not understood, the movement shall be stopped 
immediately and may not be resumed until the misunderstanding has been 
resolved, radio contact has been restored, or communication has been 
achieved by hand signals or other procedures in accordance with the 
operating rules of the railroad.


Sec. 220.51  Radio communications and signal indications.

    (a) No information may be given by radio to a train or engine crew 
about the position or aspect displayed by a fixed signal. However, a 
radio may be used by a train crew member to communicate information 
about the position or aspect displayed by a fixed signal to other 
members of the same crew.
    (b) Except as provided in the railroad's operating rules, radio 
communication shall not be used to convey instructions which would have 
the effect of overriding the indication of a fixed signal.


Sec. 220.61  Radio transmission of mandatory directives.

    (a) Each mandatory directive may be transmitted by radio only when 
authorized by the railroad's operating rules. The directive shall be 
transmitted in accordance with the railroad's operating rules and the 
requirements of this part.
    (b) The procedure for transmission of a mandatory directive is as 
follows:
    (1) The train dispatcher or operator shall call the addressees of 
the mandatory directive and state the intention to transmit the 
mandatory directive.
    (2) Before the mandatory directive is transmitted, the employee to 
receive and copy shall state the employee's name, identification, 
location, and readiness to receive and copy. An employee operating the 
controls of moving equipment shall not receive and copy mandatory 
directives. A mandatory directive shall not be transmitted to employees 
on moving equipment, if such directive cannot be received and copied 
without impairing safe operation of the equipment.
    (3) A mandatory directive shall be copied in writing by the 
receiving employee in the format prescribed in the railroad's operating 
rules.
    (4) After the mandatory directive has been received and copied, it 
shall be immediately repeated in its entirety. After verifying the 
accuracy of the repeated mandatory directive, the train dispatcher or 
operator shall then state the time and name of the employee designated 
by the railroad who is authorized to issue mandatory directives. An 
employee copying a mandatory directive shall then acknowledge by 
repeating the time and name of the employee so designated by the 
railroad.
    (5)(i) For train crews, before a mandatory directive is acted upon, 
the conductor and engineer shall each have a written copy of the 
mandatory directive and make certain that the mandatory directive is 
read and understood by all members of the crew who are responsible for 
the operation of the train. Mandatory directives which have been 
fulfilled or canceled shall be marked with an ``X'' or in accordance 
with the railroad's operating rules, and retained for the duration of 
the train crew's work assignment.
    (ii) For on-track equipment, before a mandatory directive is acted 
upon, the employee responsible for on-track safety shall have a written 
copy of the mandatory directive, and make certain that the mandatory 
directive is acknowledged by all employees who are responsible for 
executing that mandatory directive. The employee responsible for on-
track safety shall retain a copy of the mandatory directive while it is 
in effect.
    (6) A mandatory directive which has not been completed or which 
does not comply with the requirements of the railroad's operating rules 
and this part, may not be acted upon and shall be treated as though not 
sent. Information contained in a mandatory directive may not be acted 
upon by persons other than those to whom the mandatory directive is 
addressed.

Appendix A to Part 220--Recommended Phonetic Alphabet

A--ALFA
B--BRAVO
C--CHARLIE
D--DELTA
E--ECHO
F--FOXTROT
G--GOLF
H--HOTEL
I--INDIA
J--JULIET
K--KILO
L--LIMA
M--MIKE
N--NOVEMBER
O--OSCAR
P--PAPA

[[Page 47199]]

Q--QUEBEC
R--ROMEO
S--SIERRA
T--TANGO
U--UNIFORM
V--VICTOR
W--WHISKEY
X--XRAY
Y--YANKEE
Z--ZULU

    The letter ``ZULU'' should be written as ``Z'' to distinguish it 
from the numeral ``2''.

Appendix B to Part 220--Recommended Pronunciation of Numerals

    To distinguish numbers from similar sounding words, the word 
``figures''should be used preceding such numbers. Numbers should be 
pronounced as follows:

------------------------------------------------------------------------
                  Number                               Spoken           
------------------------------------------------------------------------
0........................................  ZERO.                        
1........................................  WUN.                         
2........................................  TOO.                         
3........................................  THUH-REE-.                   
4........................................  FO-WER.                      
5........................................  FI-YIV.                      
6........................................  SIX.                         
7........................................  SEVEN.                       
8........................................  ATE.                         
9........................................  NINER.                       
------------------------------------------------------------------------

    (The figure ZERO should be written as ``0'' to distinguish it 
from the letter ``O''. The figure ONE should be underlined to 
distinguish it from the letter ``I''. When railroad rules require 
that numbers be spelled, these principles do not apply.)
    The following examples illustrate the recommended pronunciation 
of numerals:

------------------------------------------------------------------------
                 Number                               Spoken            
------------------------------------------------------------------------
44.....................................  FO-WER FO-WER.                 
500....................................  FI-YIV HUNDRED.                
1000...................................  WUN THOUSAND.                  
1600...................................  WUN SIX HUNDRED.               
14899..................................  WUN FO-WER ATE                 
                                         NINER NINER.                   
20.3...................................  TOO ZERO DECIMAL               
                                         THUH-REE.                      
------------------------------------------------------------------------


         Appendix C to Part 220--Schedule of Civil Penalties \1\        
------------------------------------------------------------------------
                                                              Willful   
                 Section                     Violation       violation  
------------------------------------------------------------------------
220.9 Requirements for trains...........          $5,000          $7,500
220.11 Requirements for roadway workers.           5,000           7,500
220.21 Railroad Operating rules; radio                                  
 communications.........................                                
(a).....................................           5,000           7,500
(b).....................................           2,500           5,000
220.23 Publication of radio information.           2,500           5,000
220.25 Instruction of employees.........           5,000           7,500
220.27 Identification...................           1,000           2,000
220.29 Statement of letters and numbers.           1,000           2,000
220.31 Initiating a transmission........           1,000           2,000
220.33 Receiving a transmission.........           1,000           2,000
220.35 Ending a transmission............           1,000           2,000
220.37 Voice test.......................           5,000           7,500
220.39 Continuous monitoring............           2,500           5,000
220.41 [Reserved]  .....................                                
220.43 Communication consistent with the                                
 rules..................................           2,500           5,000
220.45 Complete communications..........           2,500           5,000
220.47 Emergencies......................           2,500           5,000
220.49 Switching, backing or pushing....           5,000           7,500
220.51 Signal indications...............           5,000           7,500
220.61 Radio transmission of mandatory                                  
 directives.............................           5,000          7,500 
------------------------------------------------------------------------
\1\ A penalty may be assessed against and only for a willful violation. 
  The Administrator reserves the right to assess a penalty of up to     
  $22,000 for any violation where circumstances warrant. See 49 CFR part
  209, appendix A.                                                      


    Issued in Washington, D.C. on August 28, 1998.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 98-23697 Filed 9-3-98; 8:45 am]
BILLING CODE 4910-06-P