[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Rules and Regulations]
[Pages 8442-8505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1933]



[[Page 8441]]

-----------------------------------------------------------------------

Part III





Department of Transportation





-----------------------------------------------------------------------



Federal Railroad Administration



-----------------------------------------------------------------------



49 CFR Parts 217 and 218



Railroad Operating Rules: Program of Operational Tests and Inspections; 
Railroad Operating Practices: Handling Equipment, Switches and Fixed 
Derails; Final Rule

  Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / 
Rules and Regulations  

[[Page 8442]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217 and 218

[Docket No. FRA-2006-25267]
RIN 2130-AB76


Railroad Operating Rules: Program of Operational Tests and 
Inspections; Railroad Operating Practices: Handling Equipment, Switches 
and Fixed Derails

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Human factors are the leading cause of train accidents, 
accounting for 38 percent of the total in 2005. Human factors also 
contribute to employee injuries. This final rule establishes greater 
accountability on the part of railroad management for administration of 
railroad programs of operational tests and inspections, and greater 
accountability on the part of railroad supervisors and employees for 
compliance with those railroad operating rules that are responsible for 
approximately half of the train accidents related to human factors. 
Additionally, this final rule will supplant Emergency Order 24, which 
requires special handling, instruction and testing of railroad 
operating rules pertaining to hand-operated main track switches in non-
signaled territory. Finally, an appendix has been added to 49 CFR part 
218 to provide guidance for remote control locomotive operations that 
utilize technology in aiding point protection.

DATES: This regulation is effective April 14, 2008.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler, 
Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey 
Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background and Authority
II. Proceedings to Date
    A. Increase in Human Factor Caused Accidents and Noncompliance
    B. Accident at Graniteville, SC and Safety Advisory 2005-01
    C. Emergency Order No. 24
    D. Secretary of Transportation's Action Plan for Addressing 
Critical Railroad Safety Issues
    E. Railroad Safety Advisory Committee (RSAC) Overview
    F. Establishment of the Railroad Operating Rules Working Group 
and Development of the NPRM
    G. Development of the Final Rule
    1. Summary of the Comments
    2. RSAC's Working Group Reviewed the Comments
    3. Consideration of Underlying Principles in Emergency Order 24
    4. Recognition of the Need To Improve Railroad Programs of 
Operational Tests and Inspections
III. Remote Control Operations
    A. Background
    B. Situational Awareness
    C. Technology Aided Point Protection
IV. General Comments/Major Issues
    A. Enforcement
    B. Good Faith Challenge--Legal Issues
    1. FRA's Rulemaking Authority
    2. FRA's Enforcement Authority
    3. Multiple Enforcement Actions
    4. Anti-Retaliation Provision
    C. Preemptive Effect
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Act of 1995
    G. Energy Impact

I. Background and Authority

    The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 
20103, provides that, ``[t]he Secretary of Transportation, as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety supplementing laws and regulations in effect on 
October 16, 1970.'' The Secretary's responsibility under this provision 
and the balance of the railroad safety laws have been delegated to the 
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of 
operating rules and practices, FRA has traditionally pursued a very 
conservative course of regulation, relying upon the industry to 
implement suitable railroad operating rules and mandating in the 
broadest of ways that employees be ``instructed'' in their requirements 
and that railroads create and administer programs of operational tests 
and inspections to verify rules compliance. This approach was based on 
several factors, including a recognition of the strong interest the 
railroads have in avoiding costly accidents and personal injuries, the 
limited resources available to FRA to directly enforce railroad 
operating rules, and the apparent success of management and employees 
in accomplishing most work in a safe manner.
    Over the years, however, it became necessary to ``Federalize'' 
certain requirements, either to remedy shortcomings in the railroads' 
rules or to emphasize the importance of compliance and to provide FRA a 
more direct means of promoting compliance. These actions, which in most 
cases were preceded or followed by statutory mandates, included 
adoption of rules governing--
    1. Blue Signal Protection for employees working on, under or 
between railroad rolling equipment (49 CFR part 218, subpart B);
    2. Railroad Communications (49 CFR part 220);
    3. Prohibition of Tampering with Safety Devices (49 CFR part 218, 
subpart D); and
    4. Control of Alcohol and Drug Use in Railroad Operations (49 CFR 
part 219).
    In addition, FRA has adopted requirements for Qualification and 
Certification of Locomotive Engineers (49 CFR Part 240) that directly 
prohibit contravention of certain specified operating rules and 
practices.
    FRA believes these programs of regulation contribute positively to 
railroad safety, in part because they contribute significantly to good 
discipline among affected employees.
    FRA is not specifically required by statute to issue a regulation 
on the subjects covered by this final rule. However, FRA believes that 
establishing greater accountability for implementation of sound 
operating rules is necessary for safety. FRA initiated and finalized 
this rulemaking because it has recognized that human factor train 
accidents comprise the largest single category of train accident causes 
and because existing regulations have proven inadequate to achieve a 
significant further reduction in their numbers or severity. Moreover, 
the current situation in the railroad industry, which is characterized 
by strong market demand, extensive hiring of new employees, and rapid 
attrition of older employees now becoming eligible for retirement, 
demands a more substantial framework of regulations to help ensure that 
operational necessity will not overwhelm systems of safeguards relied 
upon to maintain good discipline.
    The theme of this final rule is accountability. It embodies both a 
broad strategy intended to promote better administration of railroad 
programs and a highly targeted strategy designed to improve compliance 
with railroad operating rules addressing three critical areas. Within 
this framework, FRA has

[[Page 8443]]

taken responsibility to set out certain requirements heretofore left to 
private action. FRA will be monitoring compliance with those 
requirements through appropriate inspections and audits, and when 
necessary will be assessing appropriate civil penalties to assure 
compliance. Railroad management will be held accountable for putting in 
place appropriate rules, instructions, and programs of operational 
tests. Railroad supervisors will be held accountable for doing their 
part to administer operational tests and establish appropriate 
expectations with respect to rules compliance. Railroad employees will 
be held accountable for complying with specified operating rules, and 
will have a right of challenge should they be instructed to take 
actions that, in good faith, they believe would violate those rules. It 
is intended that this framework of accountability promote good 
discipline, prevent train accidents, and reduce serious injuries to 
railroad employees. In this supplementary information section, FRA 
provides a detailed explanation of the growing number of accidents, the 
severity of some of those accidents, the agency's prior actions, and a 
discussion of major subjects addressed in the proposed rule or raised 
by the comments to that proposal.

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Noncompliance

    FRA has grown steadily more concerned over the past few years as 
the frequency of human factor caused accidents has increased. When 
these accidents are reported, the reporting railroad is required to 
cite the causes of the accident. In the case of a human factor caused 
accident, an employee or employees are typically associated with a 
failure to abide by one or more railroad operating rules. Over the past 
few years, FRA inspectors have simultaneously observed a substantial 
increase in noncompliance with those railroad operating rules that are 
frequently cited as the primary or secondary causes to these types of 
accidents.
    Accidents caused by mishandling of equipment, switches and derails 
rose from 370 to 640 per year from the years 1997 to 2004--an increase 
of 42 percent. The greatest causes of these accidents as identified by 
the railroads were (1) switch improperly lined and (2) absence of 
employee on, at or ahead of a shoving movement. These two issues alone 
account for over 60 percent of all accidents caused annually by 
employees mishandling of equipment, switches and derails.
    A grouping of four other causes saw steady increases from 133 per 
year in 1997 to 213 per year in 2004--a cumulative increase of 37 
percent; these causes are (1) failure to control a shoving movement, 
(2) switch previously run through, (3) cars left in the foul and (4) 
failure to apply or remove a derail. Two additional causes of 
accidents, (1) switch not latched or locked and (2) car(s) shoved out 
and left out of clear, were the cited cause of only 10 accidents in 
1997 and 40 accidents in 2004.
    While the accident data shows significant increases in these areas, 
the data collected by FRA during inspections suggests that the number 
of accidents could easily increase at an even greater rate. FRA 
inspection data shows that noncompliance related to mishandling of 
equipment, switches and derails rose from 319 to 2,954 per year from 
the years 2000 to 2004--a nine-fold increase. The most common areas of 
human factor noncompliance were (1) employee failed to observe switch 
points for obstruction before throwing switch; (2) employee failed to 
ensure all switches involved with a movement were properly lined; (3) 
employee failed to ensure switches were latched or locked; (4) employee 
failed to ensure switches were properly lined before movement began; 
and (5) employee left equipment fouling adjacent track.
    Several other related issues of noncompliance also saw substantial 
increases, although the overall number of incidents found by FRA was 
lower than the top five. These additional areas of noncompliance are: 
(1) Employee left derail improperly lined (on or off); (2) absence of 
employee on, at, or ahead of shoving movement; (3) employee failed to 
ensure train or engine was stopped in the clear; (4) employee failed to 
ensure switches were properly lined after being used; (5) employee 
failed to reapply hasp before making move over switch (if equipped); 
(6) employee failed to relock the switch after use; and (7) one or more 
employees failed to position themselves so that they could constantly 
look in the direction of movement.
    Some noncompliance data applies particularly to human factor 
mistakes FRA noted during inspections of operations involving remotely 
controlled locomotives. FRA assigned noncompliance codes to identify 
the following problems specifically associated with these remote 
control operations: (1) Employee operated equipment while out of 
operator's range of vision; (2) employee failed to provide point 
protection, locomotive leading; and (3) employee failed to provide 
point protection, car leading. In 2004, the first year that FRA 
collected data under those codes, FRA inspectors recorded 29 instances 
of noncompliance with the railroad's operating rules underlying the 
three codes. In 2005, the number of instances of noncompliance with 
those same codes recorded by FRA inspectors increased to 92. These 
types of noncompliance are continuing with some frequency as in 2006, 
FRA noted 43 instances of noncompliance with those cause codes and in 
the first half of 2007, FRA has noted 23 instances.

B. Accident at Graniteville, SC and Safety Advisory 2005-01

    Although the increasing number of human factor caused accidents 
impacted the railroad industry and its employees, a catastrophic 
accident that occurred at Graniteville, South Carolina on January 6, 
2005, catapulted the issue into the national spotlight. As the National 
Transportation Safety Board (NTSB) described in its report NTSB/RAR-05/
04, PB2005-916304 (Nov. 29, 2005), that accident occurred when Norfolk 
Southern Railway Company (NS) freight train 192, while traveling in 
non-signaled territory at about 47 miles per hour (mph), encountered an 
improperly lined switch that diverted the train from the main track 
onto an industry track, where it struck an unoccupied, parked train (NS 
train P22). The collision derailed both locomotives and 16 of the 42 
freight cars of train 192, as well as the locomotive and 1 of the 2 
cars of train P22. Among the derailed cars from train 192 were three 
tank cars containing chlorine, one of which was breached, releasing 
chlorine gas. The train engineer and eight other people died as a 
result of chlorine gas inhalation. About 554 people complaining of 
respiratory difficulties were taken to local hospitals. Of these, 75 
were admitted for treatment. Because of the chlorine release, about 
5,400 people within a 1-mile radius of the derailment site were 
evacuated for 9 to 13 days. The property damage, including damages to 
the rolling stock and track, exceeded $6.9 million. In 2006, NS 
recorded expenses of $41 million related to this incident. This burden 
includes property damage and other economic losses, personal injury and 
individual property damage. (It should be noted that this figure does 
not include losses for which NS was insured, nor other costs that are 
associated with the accident such as liability incurred, increased 
shipping rates, higher insurance rates and other societal costs, i.e., 
expenses for non-

[[Page 8444]]

railroad businesses, and expenses incurred related to claims from this 
accident.) NTSB determined that the probable cause of the collision was 
the failure of the crew of NS train P22 to return a main track switch 
to the normal position after the crew completed work at an industry.
    The crew's failure violated railroad operating rules but did not 
violate any Federal requirement. NS Operating Rule 104, in effect at 
the time, placed primary responsibility with the employee handling the 
switch and other crewmembers were secondarily responsible if they were 
in place to observe the switch's position. NTSB/RAR-05/04 at 8. In 
addition, NTSB concluded that NS rules required a job briefing which 
``would likely have included a discussion of the switches and 
specifically who was responsible for ensuring that they were properly 
positioned [and that] [h]ad such a briefing taken place, the relining 
of the switch might not have been overlooked.'' Id. at 44. FRA concurs 
that the lack of intra-crew communication regarding the switch's 
position was particularly significant at the time the crew was 
preparing to leave the site. Id. at 8-9.
    Four days after the Graniteville accident (and coincidentally, two 
days after a similar accident at Bieber, California with serious, but 
not catastrophic consequences), FRA responded by issuing Safety 
Advisory 2005-01, ``Position of Switches in Non-Signaled Territory.'' 
70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an 
opportunity for the agency to inform the industry and the general 
public regarding a safety issue, to articulate agency policy, and to 
make recommendations. FRA explained in the safety advisory that ``[a] 
review of FRA's accident/incident data shows that, overall, the safety 
of rail transportation continues to improve. However, FRA has 
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of 
railroad employees to return manual (hand-operated) main track switches 
to their normal position, i.e., usually lined for the main track, after 
use. As a result, rather than continuing their intended movement on the 
main track, trains approaching these switches in a facing-point 
direction were unexpectedly diverted from the main track onto the 
diverging route, and consequently derailed.''
    Safety Advisory 2005-1 strongly urged all railroads to immediately 
adopt and comply with five recommendations that were intended to 
strengthen, clarify and re-emphasize railroad operating rules so as to 
ensure that all main track switches are returned to their normal 
position after use. The recommendations emphasized communication both 
with the dispatcher and other crewmembers. FRA recommended that 
crewmembers complete and sign a railroad-created Switch Position 
Awareness Form (SPAF). Proper completion of a SPAF was expected to 
trigger specific communication relevant to critical elements of the 
tasks to be performed. Additional training and railroad oversight were 
also recommended.

C. Emergency Order No. 24

    Safety Advisory 2005-1 did not have the long-term effect that FRA 
hoped it would. The Safety Advisory was intended to allow the industry 
itself a chance to clamp down on the frequency and severity of one 
subset of human factor accidents, i.e., those accidents involving hand-
operated main track switches in non-signaled territory. FRA credits the 
Safety Advisory with contributing to a nearly six-month respite from 
this type of accident, from January 12 through July 6, 2005, but 
following this respite there was a sharp increase in serious accidents.
    Three serious accidents over a 28-day period from August 19 to 
September 15, 2005, were the catalyst for FRA issuing an emergency 
order: Emergency Order No. 24 (EO 24); Docket No. FRA-2005-22796, 70 FR 
61496 (Oct. 24, 2005). The three accidents cited in EO 24 resulted in 
fatal injuries to one railroad employee, non-fatal injuries to eight 
railroad employees, an evacuation of civilians, and railroad property 
damage of approximately two million dollars. Furthermore, each of these 
accidents could have been far worse, as each had the potential for 
additional deaths, injuries, property damage or environmental damage. 
Two of the accidents could have involved catastrophic releases of 
hazardous materials as these materials were present in at least one of 
the train consists that collided.
    FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
immediately impose ``restrictions and prohibitions * * * that may be 
necessary to abate the situation.'' Id.
    EO 24 was necessary because despite the Safety Advisory, there was 
insufficient compliance with railroad operating rules related to the 
operation of hand-operated main track switches in non-signaled 
territory. FRA considered issuing another Safety Advisory, but that 
might at best only provide another temporary respite. The issuance of 
EO 24 was ``intended to accomplish what the Safety Advisory could not: 
implement safety practices that will abate the emergency until FRA can 
complete rulemaking.'' 70 FR at 61498. FRA further concluded that 
``reliance solely on employee compliance with railroad operating rules 
related to the operation of hand-operated main track switches in non-
signaled territory, without a Federal enforcement mechanism, is 
inadequate to protect the public safety.'' 70 FR at 61499.
    EO 24 is built on the foundation of FRA's regulations, at 49 CFR 
part 217, which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
With regard to hand-operated switches in non-signaled territory, EO 24 
requires that each railroad (1) instruct its employees, (2) allow only 
qualified employees to operate and verify switches, (3) require 
employees to confirm switch positions with the dispatcher prior to 
releasing the limits of a main track authority, (4) develop a Switch 
Position Awareness Form for employees to complete when operating 
switches, (5) require employees to conduct job briefings at important 
intervals, (6) require intra-crew communication of switch positions 
after a switch is operated, (7) enhance its program of operational 
tests and inspections under 49 CFR part 217, and (8) distribute copies 
of EO 24, and retain proof of distribution, to all employees affected. 
Minor clarifying amendments were made to EO 24 in a second notice, but 
the overarching requirements remained unchanged from the first notice. 
70 FR 71183 (Nov. 25, 2005).

D. Secretary of Transportation's Action Plan for Addressing Critical 
Railroad Safety Issues

    Prior to the Graniteville accident, FRA had developed and 
implemented procedures to focus agency resources on critical railroad 
safety issues. Such procedures were appropriate even though the 
industry's overall safety record had improved over the last decade and 
most safety trends were moving in the right direction. FRA recognizes 
that significant train accidents continue to occur, and the train 
accident rate has not shown substantive improvement in recent years. 
Several months after the Graniteville accident, the Secretary of 
Transportation announced a National

[[Page 8445]]

Rail Safety Action Plan to address this need. FRA acknowledged in the 
plan that ``recent train accidents have highlighted specific issues 
that need prompt government and industry attention.'' Action Plan at 1 
(published on FRA's Web site at http://www.fra.dot.gov/).
    In the plan, FRA introduced its basic principles to address 
critical railroad safety issues. One basic principle is that FRA's 
safety program is increasingly guided by careful analysis of accident, 
inspection, and other safety data. Another basic principle is that FRA 
attempts to direct both its regulatory and compliance efforts toward 
those areas involving the highest safety risks. The plan is intended to 
be proactive in that it will target the most frequent, highest risk 
causes of accidents.
    FRA identified ``reducing human factor accidents'' as one of the 
major areas in which the agency planned initiatives. In fact, the plan 
discusses this issue first because it constitutes the largest category 
of train accidents, accounting for 38 percent of all train accidents 
over the first five years of this decade, and human factor accidents 
were growing in number at the time the action plan was implemented. 
Furthermore, FRA's plan takes aim at reducing human factor accidents 
because in recent years most of the serious events involving train 
collisions or derailments resulting in release of hazardous materials, 
or harm to rail passengers, have been caused by human factors or track 
problems.
    FRA's analysis of train accident data has revealed that a small 
number of particular kinds of human errors are accounting for an 
inordinate number of human factor accidents. For example, the eight 
human factor causes involving mishandling equipment, switches and 
derails that FRA is addressing in this final rule accounted for nearly 
48 percent of all human factor accidents in 2004; these eight causes, 
which resulted in accidents causing over $113 million in damages to 
railroad property from 2001-2005, can be grouped into three basic areas 
of railroad operations: (1) Operating switches and derails; (2) leaving 
equipment out to foul; and (3) the failure to protect shoving or 
pushing movements. Thus, this rulemaking is meant to address nearly 
half of all human factor caused accidents on all classes of track.
    Of the 118 human factor causes that are tracked, the leading cause 
was improperly lined switches, which alone accounted for more than 16 
percent of human factor accidents in 2004. The next two leading causes 
were shoving cars without a person on the front of the movement to 
monitor conditions ahead, i.e., lack of point protection, and shoving 
cars with point protection but still resulting in a failure to control 
the movement; these two shoving related causes together accounted for 
17.6 percent of human factor accidents in 2004. The remaining five 
causes addressed in this final rule account for nearly 14 percent of 
the total number of accident causes; these causes involve leaving cars 
in a position that fouls an adjacent track, operating over a switch 
previously run through, a failure to apply or remove a derail, a 
failure to latch or lock a switch, and a failure to determine before 
shoving that the track is clear ahead of the movement. The two catch-
all general causes that might be cited when a railroad believes one or 
more related causes may apply or is unsure of the exact cause are: (1) 
Other general switching rules; and (2) other train operation/human 
factors.
    The human factor causes that are the central focus of this final 
rule are of a type that involve noncompliance with established railroad 
operating rules related to fundamental railroad operations. In each 
case, compliance can be objectively and conclusively determined. For 
example, it can be definitively determined whether switches are 
properly lined, locked, latched or had been previously run through. It 
can be determined whether a shoving movement was made without point 
protection or without the signals or instructions necessary to control 
the movement. Similarly, it can be determined whether a car is left 
fouling a track such that it is causing an unsafe operating condition, 
or whether the track is clear ahead for a shoving movement. Finally, it 
can also be determined with certainty whether there has been a failure 
to apply or remove a derail.
    The top human factor causes that FRA is choosing not to address 
with this final rule are already regulated, to some extent, or would be 
significantly more difficult to regulate. For example, several human 
factor causes relate to the failure to apply a sufficient number of 
hand brakes; that issue is already covered by regulation at 49 CFR 
232.103(n). Speeding issues, including restricted speed, are regulated 
to discourage clearly excessive speeding by imposing revocation periods 
or civil penalties for locomotive engineer violators. 49 CFR 
240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for 
regulating a train handling issue, such as a locomotive engineer's 
improper use of an independent brake or air brakes to prevent excess 
buff or slack action, can pose difficulties as train handling is an 
area where locomotive engineers exercise discretion. 58 FR 18982, 18992 
(Apr. 9, 1993) (describing in section-by-section analysis why FRA 
amended the qualification and certification of locomotive engineer's 
rule to require revocation only when there is a failure to conduct 
certain brake tests as opposed to the more general, original 
requirement to revoke for ``failure to adhere to procedures for the 
safe use of train or engine brakes.'' 56 FR 28228, 28259 (June 19, 
1991)). Likewise, the operating conditions related to improper coupling 
are too numerous to easily address through regulation, and 
determination of responsibility related to train handling and train 
make-up involves often complex technical issues that are still subject 
to study. See Safe Placement of Train Cars, Report to the Senate 
Committee on Science, Commerce and Transportation and the House 
Committee on Transportation and Infrastructure (June 2005), published 
at http://www.fra.dot.gov.
    Developing close call data. As part of its mission to improve 
railroad safety, FRA is sponsoring the Confidential Close Call 
Reporting System Demonstration Project to demonstrate the effectiveness 
of a confidential close call reporting system for the railroad 
industry. ``Close calls'' in this context are unsafe events that do not 
result in a reportable accident but very well could have. In other 
industries such as aviation, implementation of close call reporting 
systems that shield the reporting employee from discipline (and the 
employer from punitive sanctions levied by the regulator) have 
contributed to major reductions in accidents. In March of 2005, FRA 
completed an overarching memorandum of understanding with railroad 
labor organizations and railroad management to develop pilot programs 
to document close calls. Participating railroads will be expected to 
develop corrective actions to address the problems that may be 
revealed. The aggregate data may prove useful in FRA's decision-making 
concerning regulatory and other options to promote a reduction in human 
factor-caused accidents. However, the project has not yet produced 
sufficient data to consider in this final rule.

E. Railroad Safety Advisory Committee (RSAC) Overview

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from

[[Page 8446]]

all of the agency's major customer groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AAPRCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation Association (HSGTA);
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
and United Transportation Union (UTU).

    Effective May 2006, the following additional members have been 
added to the Committee:

Transportation Security Administration*;
American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.
*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the full RSAC for a vote. If the proposal is accepted by a simple 
majority of RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
play an active role at the working group level in discussing the issues 
and options and in drafting the language of the consensus proposal, FRA 
is often favorably inclined toward the RSAC recommendation. However, 
FRA is in no way bound to follow the recommendation, and the agency 
exercises its independent judgment on whether the recommended rule 
achieves the agency's regulatory goal, is soundly supported, and is in 
accordance with policy and legal requirements. Often, FRA varies in 
some respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA moves ahead to resolve the issue through traditional 
rulemaking proceedings.

F. Establishment of the Railroad Operating Rules Working Group and 
Development of the NPRM

    On April 14, 2005, FRA held a Human Factors Workshop which convened 
members of RSAC for the purpose of developing a task statement to be 
presented at the next RSAC meeting. FRA explained that current 
regulations do not address compliance with the relevant operating rules 
that cause the preponderance of human factor accidents. The agency 
expressed a desire to standardize and adopt these rules as Federal 
requirements with greater accountability being the goal. It was also 
raised that training and qualification programs should be included as 
part of the task because employee compliance is certainly directly 
related to how well employees are instructed and tested. FRA suggested 
that one area of consideration was to improve its regulations (49 CFR 
part 217) which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
Many participants expressed a preference for non-regulatory action.
    On May 18, 2005, the RSAC accepted a task statement and agreed to 
establish the Railroad Operating Rules Working Group whose overall 
purpose was to recommend to the full committee how to reduce the number 
of human factor caused train accidents/incidents and related employee 
injuries. The working group held eight two-day conferences, one per 
month from July 2005 through February 2006. The vast majority of the 
time at these meetings involved review of an FRA document suggesting 
language that could form the basis of proposed regulatory text.
    The draft proposed rule text that FRA developed for the working 
group was the agency's first attempt to address several broad concerns. 
One, FRA set out to propose regulations that addressed those human 
factors that are the leading cause of train accidents. This involved 
analyzing the accident/incident data, identifying the relevant causes, 
identifying the relevant operating rules and procedures, and 
synthesizing those railroad rules and procedures in clear and 
enforceable language. Two, FRA's issuance of EO 24 was intended to 
address the emergency created by the mishandling of hand-operated main 
track switches in non-signaled territory that caused several tragic 
accidents; however, EO 24 was never intended to be a permanent 
arrangement, and the initiation of an informal rulemaking was necessary 
to provide the public and the regulated community an opportunity to 
provide comment on preferences for a final rule. Three, as the agency 
with oversight of railroad safety, FRA was aware of both the successes 
and failures of each railroad's program of operational tests and 
inspections required pursuant to 49 CFR 217.9. The draft proposed rule 
text was designed to close loopholes and impose specific reviews to 
focus testing and inspection programs on the

[[Page 8447]]

operating rules that have the greatest impact on safety.
    FRA clearly benefitted from the participation of the working group 
in detailed review of railroad operating rules and practices. The 
working group's meetings provided a meaningful forum for interested 
participants to be able to offer insight into the strengths and 
weaknesses of FRA's suggested draft proposed rule text and related 
issues. Unfortunately, the RSAC participants were unable to reach a 
consensus for making formal recommendations prior to issuance of the 
proposed rule. The working group's consensus was limited to an 
agreement to reconvene to discuss the NPRM, and any comments received, 
after the NPRM comment period closed. Relying heavily on items that the 
working group achieved near consensus on and ideas suggested by FRA 
that received support from at least some members of the working group, 
FRA published an NPRM on October 12, 2006. 71 FR 60372.

G. Development of the Final Rule

    As mentioned previously in this preamble, FRA's main purpose in 
issuing this rule is to reduce the number of accidents/incidents 
attributed to human factor causes and this regulation is narrowly 
tailored to accomplish that goal. The correlation between these 
accidents/incidents and the final rule have been established. This 
final rule is the product of FRA's decisions regarding the most 
effective way to regulate after review and consideration of input from 
both the comments filed in the docket and the RSAC. This final rule is 
also the product of FRA's experience with EO 24; FRA is adopting many 
of its requirements and revising others. Furthermore, this final rule 
requires revisions to each railroad's operational testing and 
inspection program to ensure that each railroad's officers are better 
qualified to conduct tests and inspections and each railroad is, in 
fact, focusing its program on the most serious safety concerns.
1. Summary of the Comments
    The NPRM specified that written comments must be received by 
December 11, 2006, and that comments received after that date would be 
considered to the extent possible without incurring additional expense 
or delay. FRA received 12 comments by the deadline and two comments 
after the deadline. As an aid to further discussion at a meeting of the 
RSAC Operating Practices Working Group held in early February 2007, FRA 
prepared two comment summaries which have been added to the docket. 
These documents contained the same information but one document 
arranged the comments by commenter and the other by section commented 
on. The 14th comment received, i.e., the comment of Mr. Walter C. 
Rockey filed on February 5, 2007, was received too late to include in 
these summary documents, although the comment was reviewed and 
considered. Thus, FRA considered all 14 comments filed with the docket.
    The 14 commenters touched upon nearly every section of the NPRM, 
including some who made general comments that applied to the overall 
nature or approach of the NPRM. Some of the comments are addressed in 
the section of this preamble titled ``IV. General Comments/Major 
Issues.'' Most of the comments, however, were specific to a particular 
proposed section and thus it made greater sense to address the comment 
in the section of the preamble titled ``V. Section-by-Section 
Analysis.'' FRA believes that it has addressed each of the comments 
made by the 14 commenters, either directly or indirectly, and has 
consequently considered all known reasonable alternatives to the NPRM.
2. RSAC's Working Group Reviewed the Comments
    The Railroad Operating Rules Working Group held two multi-day 
meetings (February 8-9, 2007 and April 4-5, 2007) in an attempt to 
achieve consensus recommendations based on the proposed rule and the 
comments received. The RSAC participants were able to achieve limited 
consensus on a few items and those consensus items were agreed to by 
the full RSAC. In the areas where RSAC was able to achieve a consensus 
recommendation, FRA honored the principle of each recommendation and 
generally sought to carry forward the elements of the discussion draft 
that had benefited from thoughtful comment by RSAC participants. The 
final rule's text, however, might be slightly different in light of 
regulatory drafting requirements. FRA developed a greater appreciation 
for the nuances of each of the railroad operating rules and practices 
discussed; and, armed with that additional insight, FRA has sought to 
put forth a reasonable final rule that reflects real world railroading.
    FRA has noted in the section-by-section analysis where we have 
adopted an RSAC recommendation or deviated from it. FRA also refers to 
comments and suggestions made by members of the Working Group, full 
RSAC, or other commenters so as to show the origin of certain issues 
and the nature of discussions concerning those issues. FRA believes 
these references serve to illuminate factors it has weighed in making 
its regulatory decisions, as well as the logic behind those decisions. 
The reader should keep in mind, of course, that only the full RSAC 
makes recommendations to FRA, and it is the consensus recommendation of 
the full RSAC on which FRA is acting. However, FRA is in no way bound 
to follow the recommendation, and the agency exercises its independent 
judgment on whether the recommendations achieve the agency's regulatory 
goal, is soundly supported, and is in accordance with policy and legal 
requirements.
3. Consideration of Underlying Principles in Emergency Order 24
    EO 24 illuminated the problems associated with mishandling of hand-
operated main track switches in non-signaled territory. While there may 
be more than one cause that contributes to noncompliance with the 
operating rules, accidents could be prevented by strict employee 
compliance with those rules. Accidents involving this type of switch 
often occur when the employee operating the switch loses focus on the 
task at hand. In an effort to refocus the attention of employees who 
operate switches, EO 24's seven sections can be boiled down to three 
major components: (1) Instruction, (2) communication, and (3) 
verification through testing. FRA's final rule incorporates these three 
major components but with a broader application.
    Instruction. It is fundamental that an employee cannot be expected 
to properly abide by operating rules without proper instruction, 
especially when those operating rules have been amended. To that end, 
EO 24 provides an outline for essential initial instruction and 
periodic instruction. Likewise, FRA is requiring enhanced instruction, 
training, and examination, i.e., qualification, for employees on the 
relevant operating rules, pertaining to handling equipment, switches 
and fixed derails.
    Communication. FRA agrees with the general principle that mistakes 
can be prevented or corrected by proper communication. Communication 
prevents noncompliance and accidents because it generally is how people 
working together know what each other is doing. For example, EO 24 
stressed the importance of communication by requiring job briefings at 
certain crucial intervals: Before work is begun; each time a work plan 
is changed; and at completion of the work. Such regular

[[Page 8448]]

job briefings ensure that employees working together understand the 
task they are intending to perform and exactly what role is expected of 
them and their colleagues. Through proper job briefings, employees can 
prevent some mishaps and contain others from worsening a bad situation. 
For these reasons, FRA proposes a job briefing component to this 
rulemaking.
    In the background section of EO 24, FRA described a recurrent 
scenario of noncompliance where a train crew's mistake in leaving a 
main track switch lined for movement to an auxiliary track was the last 
act or omission that resulted in an accident; and yet these types of 
accidents are preventable through reliable communication of the actual 
switch position. This scenario ``occurs when a train crew has exclusive 
authority to occupy a specific track segment until they release it for 
other movements and [yet] that train crew goes off duty without lining 
and locking a hand-operated main track switch in its normal position.'' 
70 FR at 61497. It is unfortunate that FRA has to clarify that the 
communication be reliable and accurately reflect the switch position, 
but some accident investigations have revealed employees whose actions 
implied more of an interest in quitting work for the day than taking 
the safe route to verify a switch's position and whether it was 
properly locked. FRA's final rule retains EO 24's emphasis on intra-
crew communication or intra-roadway worker group communication. See 70 
FR at 61499-50 and Sec.  218.105.
    Perhaps the most controversial aspect of EO 24 is the requirement 
that employees operating hand-operated main track switches in non-
signaled territory complete a Switch Position Awareness Form (SPAF). 
The SPAF requirement is controversial because it creates a paperwork 
burden for employees and railroads. Switches may be lined and locked 
properly, but a violation of EO 24 may occur for merely failing to fill 
out a single component on the form. Critics of the form may not 
appreciate that FRA's intention for requiring a SPAF is to create a 
contemporaneous communication that reminds the employee of the 
importance of properly lining and locking such main track switches.
    In the case of a train crew, the contemporaneous communication 
created by the SPAF is twofold: (1) The SPAF itself is a written 
communication that reminds the employee operating the switch to keep 
track of the switch's position and (2) another crewmember, typically 
the locomotive engineer, serves as a secondary reminder to the employee 
operating the switch because that other crewmember is also required to 
request information as to the switch's alignment. As FRA clarified in 
EO 24's second notice, it is immaterial how crewmembers communicate, 
e.g., whether in-person, by radio, by hand signals, or other effective 
means, as long as the communication takes place. 70 FR 71186 and 71188. 
By requiring both the SPAF and the intra-crew communication, FRA is 
requiring some redundancy, i.e., two communication reminders to 
properly line and lock such switches in the case of a train.
    For purposes of EO 24, the paperwork burden and the redundancy in 
communication created by the introduction of the SPAF was acceptable. 
The very sharp increase in collisions, deaths and injuries resulting 
from improperly lined main track switches required FRA to take decisive 
action. Prior to EO 24, many railroads had already adopted the use of a 
SPAF voluntarily as a best practice suggested in Safety Advisory 2005-
1. However, the inclusion of a SPAF in EO 24 does not bind the agency 
to forever require it; and the final rulemaking promulgates an 
alternative approach that does not include it. Of course, as this 
subpart prescribes minimum standards and each railroad may prescribe 
additional or more stringent requirements, each railroad has the choice 
to decide whether to continue using a SPAF after the effective date of 
this rule.
    FRA decided not to require a SPAF in this final rule because the 
comprehensive communication requirements contained in Sec. Sec.  
218.103 and 218.105, create a direct enforcement mechanism that makes 
enforcement through a SPAF redundant. For example, the final rule 
includes a requirement that all crewmembers verbally confirm the 
position of a hand-operated main track switch that was operated by any 
crewmember of that train before it leaves the location of the switch. 
See Sec.  218.105(c)(1). Likewise, the final rule requires that upon 
the expiration of exclusive track occupancy authority for roadway 
workers, roadway workers who operate hand-operated main track switches 
report the position of any such switches operated to the roadway worker 
in charge. See Sec.  218.103(c)(2).
    NTSB also ``does not believe that * * * the use of forms [such as a 
SPAF] is sufficient to prevent recurrences of accidents such as the one 
at Graniteville.'' NTSB/RAR-05/04 at 45. In support of this position, 
NTSB cites to the example of railroads that require train crews to 
record signal indications as they are encountered en route in order to 
lessen the chance that a block or other fixed signal will be missed or 
misinterpreted by a crew. Meanwhile, NTSB states that it ``has 
investigated a number of accidents in which such forms, although 
required and used, did not prevent crews from missing signals and 
causing accidents.'' Id.
    Although NTSB does not support the use of a SPAF, it did express 
agreement with the emergency order in two respects. That is, NTSB 
supported EO 24's requirements directing that job briefings be held at 
the completion of work and that a train crewmember who repositions a 
hand-operated main track switch in non-signaled territory communicate 
with the engineer regarding the switch position. In support of this 
position, NTSB explains that ``a comprehensive safety briefing was not 
held before the work at Graniteville [and] [h]ad such a briefing been 
held before and, more importantly, after the work (as required by the 
FRA emergency order), the accident might have been avoided.'' Id. at 
46. As stated previously, FRA is retaining these two aspects from the 
emergency order in its rule.
    The EO 24 requirements for employees releasing the limits of a main 
track authority in non-signaled territory to communicate with the train 
dispatcher have, for the most part, carried over to this final rule and 
been strengthened. The final rule retains the requirement in EO 24 that 
an employee releasing the limits of a main track authority in non-
signaled territory communicate with the train dispatcher that all hand-
operated main track switches operated have been restored to their 
normal position, unless the train dispatcher directs otherwise, but 
only to the extent that the switches are at the location where the 
limits are being released. 70 FR at 61499 and Sec.  218.105(d). With 
the elimination of the requirement for a SPAF, it would be difficult 
for an employee to recall the condition of any particular hand-operated 
main track switch operated and there would likely be a reaction for an 
employee to believe he or she left all such switches in proper 
position--without much opportunity to double-check the condition of 
those faraway switches at that time. As mentioned previously, accidents 
often occur where the limits are being released and that is why the 
final rule has placed emphasis on addressing the problem prior to 
departing the train's location. The switches located at the point of 
release of the limits should be readily accessible for any employee who 
is unsure of the condition the switch was last left in. The final rule 
also adds the requirement that the employee report

[[Page 8449]]

that the switch has been locked; locking of the main track switch 
should prevent easy access to unauthorized users.
    Hand-in-hand with the EO 24 requirement that the employee contact 
the dispatcher to release main track authority in non-signaled 
territory is the corresponding requirement in EO 24 for train 
dispatchers; that is, EO 24 requires that the train dispatcher must 
also confirm the switch positions with the employee releasing the 
limits before clearing the limits of the authority and confirm that the 
SPAF was initialed as required. The final rule also requires the train 
dispatcher to verify the switch position information with the employee 
and the requirement for the dispatcher to confirm that the switch is 
locked in the intended position by repeating to the employee releasing 
the limits the report of the switch position and asking whether that is 
correct. The final rule also strengthens the current requirement in EO 
24 by requiring that the employee then confirm this information with 
the train dispatcher.
    Verification through testing. The third major component of EO 24's 
requirements involves the verification of compliance through testing. 
FRA's regulations, at 49 CFR Part 217, require each railroad to 
instruct its employees on the meaning and application of its code of 
operating rules, and to periodically test its employees to determine 
their level of compliance. Compliance with railroad operating rules is 
critical, especially when technology does not provide a fail safe 
option.
4. Recognition of the Need To Improve Railroad Programs of Operational 
Tests and Inspections
    Most railroads have excellent written programs of operational tests 
and inspections, but FRA has identified weaknesses in the oversight and 
implementation of nearly all of these programs. For example, some 
railroad testing officers lack the competency to perform operational 
tests and inspections. Likewise, some railroads do not perform 
operational tests that address the root cause of human factor 
accidents, while others view the requirement as a numbers-generating 
exercise, and consequently conduct relatively few meaningful tests. 
That is, while it may be important that employees come to work with the 
proper equipment (and FRA considers that a basic requirement which, of 
course, must be satisfied), FRA's concern is that not enough 
verification testing is occurring on the operating rules most likely to 
cause accidents, including but not limited to rules addressing handling 
of switches.
    In EO 24, FRA's verification through testing and inspection 
requirements were narrowly focused on those operating rules involving 
the operation of hand-operated main track switches in non-signaled 
territory. The purpose of this narrow focus was to create a special 
obligation for only those types of rules violations that were causing 
the emergency situation. FRA still believes compliance with these types 
of rules should be verified. The final rule replaces EO 24's 
requirements and adds requirements for verification of testing on a 
broader number of operating rules directly related to the root cause of 
human factor accidents; that is, the final rule requires testing of all 
the rules related to part 218, subpart F, not just those rules related 
to hand-operated main track switches in non-signaled territory.
    The final rule also amends Sec. Sec.  217.4 and 217.9 to require 
competency of railroad testing officers. In FRA's view, it is 
unfathomable that railroad testing officers would be allowed to conduct 
tests and inspections without proper instruction, on-the-job training, 
and some kind of written examination or observation to determine that 
the person is qualified to do the testing; however, Federal regulations 
currently do not require that railroad testing officers be qualified in 
such a manner. Railroads should already be shouldering this burden 
without Federal requirements so we do not view this as a substantial 
burden; instead, we view the qualification of railroad testing officers 
as a necessary expense of operating a railroad.
    Furthermore, railroad officers that test for noncompliance are 
typically the same officers who are in charge of operations. In that 
regard, a railroad officer, who is knowledgeable of Federal 
requirements and the government's enforcement authority over individual 
officers, should be discouraged from ordering an employee to violate 
any operating rule inconsistent with proposed part 218, subpart F. In 
other words, if all railroad testing officers on a particular railroad 
are properly qualified, it will be more difficult for railroad officers 
to accept inconsistency in the application of operating rules.
    FRA is amending Sec.  217.9 to require railroads to focus programs 
of operational tests and inspections ``on those operating rules that 
cause or are likely to cause the most accidents or incidents.'' See 
Sec.  217.9(c)(1). Except for the smallest freight railroads, FRA is 
requiring that each railroad conduct one or more reviews of operational 
tests and inspections that should help guide each railroad in the 
implementation of its program. The quarterly and six-month reviews for 
freight railroads, as well as the reviews for passenger railroads, in 
Sec.  217.9(e) would formalize a best practice from some of the largest 
and safest railroads nationwide. These reviews are intended to ensure 
that each railroad is conducting tests and inspections directed at the 
causes of human factor train accidents and employee casualties. Each 
program will be specifically required to include appropriate tests and 
inspections addressing the rules dealing with handling of switches, 
leaving equipment in the clear, and protecting the point of the shove. 
Structured tests or observations permit railroads to find employees 
that need additional training or who may benefit from a reminder that 
it is not acceptable to take shortcuts that violate the operating 
rules.
    Furthermore, the final rule's requirements to amend the program of 
operational tests and inspections, by emphasizing its purpose to focus 
on operating rules violations that cause accidents, should cut down on 
the disparity between the few instances of noncompliance found by many 
railroads with the many instances of noncompliance found through FRA 
inspections on the same railroads (see discussion in ``Increase In 
Human Factor Caused Accidents and Noncompliance''). While railroads 
have universally done an acceptable job of taking corrective action 
following an accident, railroads have not done as well in consistently 
testing for the variety of operating rules, at a variety of locations, 
and at different times of the day, in order to meet FRA's expectations 
for an effective testing and inspection program. Accidents and 
incidents of noncompliance should be prevented by the formalization of 
the process of verification through testing and FRA's ability to 
inspect each railroad's program of operational tests and inspections, 
as well as its records.
    Finally, FRA emphasizes that it is retaining an enforcement 
mechanism, as it did in EO 24, because prior reliance on the railroad 
to ensure employee compliance with railroad operating rules without a 
Federal enforcement mechanism has repeatedly proven to be inadequate to 
protect the public and employee safety. Under current regulations, FRA 
has been able to effectively intervene in railroad operating rules 
compliance issues (apart from those already codified as obligations 
under existing regulations) only indirectly, through use of substantial 
resources, and in the case of

[[Page 8450]]

exceptionally pervasive noncompliance. The system of accountability 
provided for in this final rule will, by contrast, encourage railroad 
management to prevent a lessening of oversight or decline in compliance 
by reviewing safety performance in detail, assisting individual 
employees to acquire habits of work that are consistent with safety by 
permitting them to challenge directions that could cause them to cut 
corners, and permitting individual FRA inspectors to more persuasively 
seek corrective action early in the process of deteriorating rules 
compliance.

III. Remote Control Operations

A. Background

    Remote control devices have been used to operate locomotives at 
various locations in the United States for many years, primarily within 
certain industrial sites. Railroads in Canada have made extensive use 
of remote control locomotives for more than a decade. FRA began 
investigating remote control operations in 1994 and held its first 
public hearing on the subject in February 1995 to gather information 
and examine the safety issues relating to this new technology. On July 
19, 2000, FRA held a technical conference in which all interested 
parties, including rail unions, remote control systems suppliers, and 
railroad industry representatives, shared their views and described 
their experiences with remote control operations. This meeting was 
extremely beneficial to FRA in developing its subsequent Safety 
Advisory.
    On February 14, 2001, the FRA published recommended guidelines for 
conducting remote control locomotive operations. See 66 FR 10340, 
Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing 
these recommendations, FRA sought to identify a set of ``best 
practices'' to guide the rail industry when implementing this 
technology. As this is an emerging technology, FRA believes this 
approach serves the railroad industry by providing flexibility to both 
manufacturers designing the equipment and to railroads in their 
different operations, while reinforcing the importance of complying 
with all existing railroad safety regulations. All of the major 
railroads have adopted these recommendations, with only slight 
modifications to suit their individual requirements.
    Regarding the enforcement of Federal regulations as they apply to 
remote control locomotive operations, the Safety Advisory explains 
that: ``although compliance with this Safety Advisory is voluntary, 
nothing in this Safety Advisory is meant to relieve a railroad from 
compliance with all existing railroad safety regulations [and] 
[t]herefore, when procedures required by regulation are cited in this 
Safety Advisory, compliance is mandatory.'' Id. at 10343. For example, 
the Safety Advisory clearly states that ``each person operating an RCL 
[remote control locomotive] must be certified and qualified in 
accordance with 49 CFR Part 240 [FRA's locomotive engineer rule] if 
conventional operation of a locomotive under the same circumstances 
would require certification under that regulation.'' Id. at 10344.
    In November 2001, all six major railroads submitted to FRA their 
training programs for remote control operators as required by Part 240. 
Since that initial filing, several railroads have made changes to their 
remote control training programs at FRA's request. FRA is closely 
monitoring this training and making additional suggestions for 
improvement on individual railroads as they become necessary. These 
training programs currently require a minimum of two weeks classroom 
and hands-on training for railroad workers who were previously 
qualified on the railroad's operating and safety rules. Federal 
regulations require that locomotive engineers be trained and certified 
to perform the most demanding type of service they will be called upon 
to perform. Thus, a remote control operator who will only be called 
upon to perform switching duties using a remote control locomotive 
would not need to be trained to operate a locomotive on main track from 
the control stand of the cab. Major railroads are currently reviewing 
their remote control operator training plans in light of discussions 
with labor representatives and FRA regarding the requirements of these 
positions.
    In addition to the required training, the regulations require 
railroads to conduct skills performance testing of remote control 
operators that is comparable to the testing required of any other 
locomotive engineer performing the same type of work. Federal 
regulations also hold remote control operators responsible for 
compliance with the same types of railroad operating rules and 
practices that other locomotive engineers are required to comply with 
in order to retain certification. See 49 CFR 240.117. Any alleged 
noncompliance triggers an investigation and review process. If a 
violation is found, the remote control operator will be prohibited from 
operating a locomotive on any railroad in the United States for a 
minimum of 15 days to a maximum of three years. The length of the 
prohibition (or revocation of the certificate) depends on whether the 
person was found to have committed other violations within the previous 
three years and whether the railroad, using its discretion, determined 
that the person had completed any necessary remedial training.
    Furthermore, FRA addressed the current Federal locomotive 
inspection requirements and the application of those requirements to 
remote control locomotive technology. For example, the Safety Advisory 
states that the remote control locomotive ``system must be included as 
part of the calendar day inspection required by 49 CFR 229.21, since 
this equipment becomes an appurtenance to the locomotive.'' 66 FR at 
10344 (emphasis added). Another example of a mandatory requirement 
mentioned in the Safety Advisory is that the remote control locomotive 
``system components that interface with the mechanical devices of the 
locomotive, e.g., air pressure monitoring devices, pressure switches, 
speed sensors, etc., should be inspected and calibrated as often as 
necessary, but not less than the locomotive's periodic (92-day) 
inspection.'' Id. (emphasis added); see 49 CFR 229.23. Thus, the Safety 
Advisory reiterated that existing Federal regulations require 
inspection of the remote control locomotive equipment.
    Although some aspects of this proposed rule pertains to main track 
operations where remote control locomotive operations rarely occur, 
most of the problems this proposal is intended to address are found 
equally in conventional and remote control locomotive yard switching 
operations. As FRA reported to Congress earlier this year, ``RCL [i.e., 
remote control locomotive] and conventional train accident rates were 
virtually identical for those major railroads that made extensive use 
of both types of operations.'' ``Final Report--Safety of Remote Control 
Locomotive Operations'' (``Final Report'') (March 2006) (published on 
FRA's Web site at http://www.fra.dot.gov/). The current remote control 
locomotive technology is best used for yard switching operations and is 
primarily used for that purpose. See Final Report at 15-17.
    The final rule would continue FRA's policy of implementing minimum 
requirements for safe remote control locomotive operations within the 
confines of railroad operating rules having broad applicability. As 
previously explained, FRA has found existing rules adequate to 
accommodate safe remote control locomotive

[[Page 8451]]

operations without the need to draft a rule narrowly focused on remote 
control locomotive operations. See Docket No. FRA-2000-8422 (found at 
http://dms.dot.gov/) (denying a request for initiation of a rulemaking 
to solely address remote control locomotive issues). That said, after 
identifying certain characteristics of remote control locomotive 
shoving or pushing operations, FRA is implementing one requirement that 
pertains to remote control locomotive operations; that requirement 
addresses the problem of lack of situational awareness. See Sec.  
218.99(c). FRA also recognizes the relatively new use of permanently 
installed cameras in yards or at grade crossings which permit an 
employee to provide point protection without being physically present 
on, at, or ahead of the movement. Although it is possible for this 
technology to be used in conventional operations, e.g., by a yardmaster 
for a train crew, we believe it is more often used for remote control 
locomotive operations. See Sec.  218.99(b)(2). The following background 
on these two issues should illuminate them further.

B. Situational Awareness

    In FRA's recent report to Congress, the agency identified the 
potential for a reduction in a remote control operator's situational 
awareness as one of four human factor issues that warrant close 
attention as remote control locomotive technology continues to evolve. 
See Final Report at 24-26. A locomotive engineer, including a remote 
control operator, who is located in the cab of a controlling locomotive 
has a greater situational awareness than a remote control operator 
located on the ground. A remote control operator located on the ground 
may also be more easily distracted by conflicting movements or other 
physical dangers caused by continuously moving about the yard than a 
person located in a locomotive cab. The nature of remote control 
locomotive operations can also cause the remote control operator to be 
distracted by concentrating on switching operations, e.g., constantly 
referring to the switch list, coupling and uncoupling cars, and, 
pitching and catching. Also, a remote control operator on the ground 
may forget, or may not know, the locomotive orientation (i.e., the 
particular direction the remote control locomotive is heading) due to 
his or her location away from the remote control locomotive, and thus 
may inadvertently initiate a movement in the wrong direction. 
Similarly, a defective or misaligned switch could cause a movement to 
be diverted onto a connecting track unintentionally and go unnoticed if 
the remote control crewmembers are not observing the direction of 
movement. Apparently, the latter is what happened on December 7, 2003, 
on the Union Pacific Railroad in San Antonio, Texas, when a remote 
control locomotive operator, while switching, was struck and killed by 
his locomotive at the west end of UP's East yard. The employee had 
reversed one end of a crossover switch and was walking toward the other 
end of the crossover switch to line it when he was struck from behind 
by the remote control locomotive. The employee had started the remote 
control locomotive moving as he was walking toward the other end of the 
crossover. See Final Report at 90. This move was initiated after the 
employee pushed a button to realign a power-assisted switch, but likely 
did not wait at the switch machine to confirm visually that the points 
had moved to the correct position. NTSB/RAB-06/02 at 9. In addition to 
lack of adequate railroad oversight of the misaligned power-assisted 
switch, NTSB concluded that the probable cause of this accident was the 
employee's ``inattentiveness to the location of the locomotives and the 
switch position.'' NTSB/RAB-06/02 at 11. Certainly, this 
inattentiveness is another way to describe a lack of situational 
awareness.
    As many railroads were not eager to invest in remote control 
technology until after FRA issued its Safety Advisory 2001-01, there is 
limited data and few studies completed detailing the safety 
implications of remote control operations; however, among the few 
studies that have been completed, situational awareness has arisen as a 
recurring theme. For example, in a study funded by FRA, an 
independently conducted root cause analysis of six remote control 
locomotive-involved accidents/incidents that occurred in 2006, found 
that the loss of situational awareness was a major factor in five of 
the accidents/incidents analyzed. Human Factors Root Cause Analysis of 
Accidents/Incidents Involving Remote Control Locomotive Operations (May 
2006) (DOT/FRA/ORD-06/05) (published on FRA's Web site at http://www.fra.dot.gov/downloads/Research/ord0605.pdf). Further analysis 
suggests that remote control locomotive technology facilitated this 
loss of awareness in four of these five accidents/incidents by enabling 
remote control operators to control their cuts of cars away (i.e., 
remotely) from the point of movement. Additionally, four probable 
contributing factors were related to one or more remote control 
operator's control of a movement from a physical location away from the 
remote control locomotive and/or cut of cars. Consequently, the 
independent contractor who performed the root cause analysis identified 
the loss of remote control operator situational awareness as one of 
only four critical safety issues identified. See Final Report at 85-90.
    FRA also sponsored the same independent contractor to undertake a 
study based on focus group sessions with remote control operators. 
These sessions provided a forum to gather information about operator 
experiences with remote control locomotive operations, to identify 
safety issues, lessons learned, and best practices from those who are 
most familiar with remote control locomotive operations and equipment. 
Focus groups also provided a means to solicit suggestions on how to 
improve remote control locomotive operations. One of the themes 
identified was that situational awareness can be lost when the remote 
control operator is not in the immediate vicinity of the remote control 
locomotive. Among the recommended practices from the focus groups were 
the suggestions to standardize operating practices and to require 
remote control operators to protect the point at all times. See Final 
Report at 79-85.
    The Brotherhood of Locomotive Engineers and Trainmen (BLET) 
sponsored a study by Dr. Frederick C. Gamst, a private consultant 
specializing in railroading, and Mr. George A. Gavalla, a private 
consultant and former FRA Associate Administrator for Safety. ``Hazard 
Survey of Remote Control Locomotive Operations on the General System of 
Railroads in the United States'' (``BLET Study'') (The BLET Study is 
available in the docket for this NPRM). The BLET Study is based on 
anecdotal information supplied by railroad workers and officers who 
voluntarily self-reported their thoughts and experiences concerning 
their interactions with remote control operations. All of the self-
reporting was done in writing and mainly via the Internet in its 
various forms of communication (i.e., e-mails, bulletin-boards, weblog, 
etc.). The study catalogues the myriad experiences, complaints, and 
ideas that were recorded by Dr. Gamst over three years beginning in 
January 2002. The anecdotal information collected by Dr. Gamst reflects 
the same general themes identified in the focus group study sponsored 
by FRA and described in the preceding paragraph. As in FRA's sponsored 
focus group study, the information Dr. Gamst collected is not

[[Page 8452]]

statistically sampled to be representative of all remote control 
operators in the U.S. or Canada. While the main drawback to these types 
of studies is that the researchers do not attempt to validate any 
statements made by employees, as participation is often premised on the 
condition that employees remain anonymous, the collection of individual 
opinions and perceptions taken as a whole are useful in identifying 
problems associated with remote control operations. Like the FRA's 
sponsored studies, the BLET's sponsored study also identified perceived 
problems associated with a remote control crew not observing the 
direction of movement. Specifically, the BLET study raised the issue as 
the reason why a remote control operator might keep shoving or pulling 
after a movement derailed or collided with an obstruction. Id. at 60-
62.

C. Technology Aided Point Protection

    The proposed rule contained a preamble discussion regarding how 
cameras and other technologies are increasingly being installed as an 
alternative to having an employee directly observing the leading end of 
a shoving or pushing movement. The technology permits indirect 
observation and is in use, mainly in yards, to provide point protection 
during remote control operations or when it would be more efficient 
during some conventional operations. In the proposed rule, FRA 
explained that it is possible to set up these cameras and monitors so 
that they provide at least an equivalent level of safety to that of an 
employee protecting the point. Of course, not every operation may be 
set up properly, working properly, or provide an equivalent level of 
safety. In order to facilitate the use of such technology, the final 
rule would only permit such an operation to substitute for an 
employee's direct visual determination where the technology provides an 
equivalent level of protection to that of a direct visual 
determination. See Sec.  218.99(b)(3)(i).
    Even with this clarification, the proposed rule raised the concern 
regarding whether previously published guidance should be incorporated 
in the final rule. The BRS commented that there are too many questions 
regarding the safe use of remote cameras and that regulation is 
necessary to provide that cameras cannot be used when they are not 
working as intended for any reason. FRA believes the final rule 
addresses BRS's concern as the technology cannot possibly afford an 
equivalent level of protection if it is not working properly. 
Furthermore, FRA has decided to incorporate the guidance as an appendix 
to part 218. Appendix D includes further explanation and mandatory 
requirements for exercising the option to provide point protection with 
the aid of technology as permitted in Sec.  218.99(b)(3)(i).
    The issue of reliance on non-crewmembers to carry out some remote 
control locomotive operator crew functions was raised in the focus 
group study sponsored by FRA and summarized in the Final Report. The 
remote control operators that made up the focus groups had indicated 
that there were occasions in which a non-crewmember, generally a 
yardmaster, would provide point protection, line switches, or check the 
status of a derail for a remote control crew. When this was allowed, 
several potential problems could result. First, there is great 
potential for an error in communication or a misunderstanding between 
the non-crewmember and the crewmembers regarding the activity or status 
of equipment. Further, a yardmaster who is occupied with his or her 
other responsibilities might not give the task the attention it 
deserves, or could be distracted and give an incorrect answer to a 
question by a remote control crewmember (e.g., ``is the move lined?''). 
The result could be that the task does not get completed or there is an 
error in task execution. Further, the remote control crew might not 
have any alternative way of determining that there is a problem with 
the point protection provided by the non-crewmember until it is too 
late. See Final Report at 82. Similar issues were raised in the BLET 
Study. BLET Study at 44.
    In response to these concerns, FRA has specified additional 
requirements for technology aided point protection to be used by remote 
control locomotive operations at highway-rail grade crossings, 
pedestrian crossings, and yard access crossings in Appendix D, II. One, 
before conducting such operations, diagnostic testing is required to 
determine the suitability of the crossing for permitting technology 
aided point protection. The Crossing Diagnostic Team shall include 
representatives from the railroad, FRA, as well as the relevant State 
and local governments. Two, Appendix D specifically requires such 
operations to be conducted only ``at crossings equipped with flashing 
lights, gates, and constant warning time train detection systems;'' 
thus, it is clear that such operations are not permitted where there 
are passive warning systems or only some but not all of those active 
warning systems listed. Three, the safety of such operations is 
enhanced by having the remote control operator view the monitor and 
thus that has also been added to the requirements. The fourth and fifth 
requirements for such operations are intended to ensure that the 
cameras are arranged so that the remote control locomotive operator can 
accurately judge the end of the movement's proximity to the crossing as 
well as the speed and driver behavior of any approaching motor 
vehicles. Six, the remote control locomotive operator is required to be 
able to determine that the flashing lights and gates are working as 
intended either by sufficient camera resolution or a remote health 
monitoring system. The seventh and final requirement for such 
operations is that the railroad notify FRA's Associate Administrator 
for Safety in writing when this type of protection has been installed 
and activated at a crossing.

IV. General Comments/Major Issues

A. Enforcement

    FRA received a variety of comments that expressed concern about 
enforcement of the rule. At the RSAC working group meetings, the labor 
organizations expressed concern that the final rule might enable FRA to 
assess civil penalties against individual employees for noncompliance 
with what were formerly just railroad operating rules. FRA understands 
from the comments and RSAC discussions that the labor organizations 
would prefer that FRA implement a process for employees to report 
unsafe conditions, such as FRA's Confidential Close Call Reporting 
System Demonstration Project discussed in this preamble (II. D.), 
rather than penalizing employees. BMWED's comments may have captured 
the labor position best when it expressed that there are underlying 
root causes for why accidents occur and thus FRA should exercise 
maximum restraint in assessing civil penalties against individual 
employees. BMWED also requested that FRA limit enforcement to 
individual railroad employees who commit the most egregious, gross and 
willful violations, and that mistakes, human error, and poor judgment 
do not rise to the level of the most egregious, gross and willful 
violations.
    FRA wishes to clarify some apparent misunderstandings. For 
instance, there was a general idea expressed by labor participants in 
the RSAC meetings that this final rule would be different than the 
other Federal rail safety regulations because this one specifically 
allows FRA to enforce the regulation against an individual employee. 
This is incorrect. Each of FRA's rail safety regulations permit 
enforcement against any person who violates a regulatory requirement or

[[Page 8453]]

causes the violation of any requirement. See e.g., Sec.  217.5 and 
Sec.  218.9. ``Person'' is broadly defined and includes any employee, 
regardless of whether the employer is a railroad or not, or whether the 
employee is a manager, supervisor or other official. In other words, 
this final rule is not unique to FRA's regulations in that it permits 
FRA to take enforcement action against individual persons for a failure 
to comply including the assessment of civil penalties if the violation 
is willful or the issuance of a warning letter for a willful or 
nonwillful violation or a notice of proposed disqualification for a 
willful or nonwillful violation that demonstrates the person's 
unfitness for safety-sensitive service.
    In response to BMWED's concern that FRA limit enforcement to 
individual railroad employees who commit the most egregious, gross and 
willful violations, we note that this is very similar to FRA's existing 
enforcement policy which we would apply to enforcement of this final 
rule. In both parts 217 and 218, FRA already states that ``[p]enalties 
may be assessed against individuals only for willful violations, and, 
where a grossly negligent violation or a pattern of repeated violations 
has created an imminent hazard of death or injury to persons, or has 
caused death or injury.'' Id. FRA's well-established policy with regard 
to the assessment of civil penalties against individuals will apply 
here. See 49 CFR part 209, app. A.
    Likewise, in the NPRM, FRA mentioned the concern that there may be 
instances where an employee realizes that he or she violated an 
operating rule but is afraid of the consequences of reporting the 
error--even when such reporting would have the potential to prevent an 
accident or injury to other workers or innocent bystanders. NTSB 
addressed this point in its report on the Graniteville accident when it 
stated that a ``significant civil penalty may have an unintended impact 
on safety under some circumstances. That is, an employee who, after 
leaving a work site, realizes that a switch has been left improperly 
lined may be made more reluctant than in the past to immediately report 
the error to train dispatchers. The threat of the severe fine may 
prompt the employee to attempt a remedy (such as returning later to 
reline the switch) before the mistake can become known. As happened in 
the September 2005 fatal collision in Shepherd, Texas, such action on 
the part of the employee could contribute to an accident that might 
otherwise have been avoidable.'' NTSB/RAR-05/04 at 46. FRA disagrees 
with NTSB that FRA's enforcement program would have a negative effect 
on an employee's decision to remedy a mistake. Given FRA's published 
enforcement policy, an employee who recognizes noncompliance and seeks 
to correct it has likely not acted willfully nor been grossly 
negligent. Instead, an individual civil penalty is warranted where an 
employee recognizes noncompliance and does not act to correct it. Thus, 
FRA's enforcement policy offers employees an incentive to self-report 
noncompliance as doing so would likely be considered a reason for FRA 
to exercise its enforcement discretion not to take enforcement action 
against the individual. (Self-reporting is not, however, a defense to a 
potential individual liability action, and self-reporting does not 
absolutely preclude FRA from taking enforcement action against an 
individual although FRA would consider self-reporting a strong reason 
for mitigation of the civil penalty, disqualification order, or other 
enforcement remedy.) . When each railroad instructs its employees on 
its operating rules, it should emphasize this incentive to self-report. 
In addition, we encourage each railroad to reconsider its own 
discipline policy so that it does not discourage self-reporting of 
inadvertent noncompliance.

B. Good Faith Challenge--Legal Issues

    Both prior to and subsequent to the publication of the NPRM, AAR 
raised legal objections to FRA promulgating a rule with a good faith 
challenge requirement as found in Sec.  218.97. AAR's objections 
essentially raised four main issues: (1) Whether FRA has the authority 
to issue a regulation requiring good faith challenge procedures; (2) 
whether FRA is preempted by statute from enforcing regulatory good 
faith challenge procedures; (3) whether any regulatory good faith 
challenge procedures would contradict legislative intent by subjecting 
railroads to multiple enforcement actions and penalties; and (4) 
whether FRA is preempted by statute from requiring and enforcing an 
anti-retaliatory provision as part of the good faith challenge 
requirements.
    Some of AAR's concerns are premised on the legislative history and 
statutory construction of 49 U.S.C. 20109 (Section 20109), which offers 
rail employees protections from retaliation when engaged in specified 
safety-related conduct. Meanwhile, Section 20109 was amended between 
the deadline for comments to the NPRM and this final rule. Public Law 
110-53, which became effective on August 3, 2007, substantially amended 
Section 20109 by increasing the number of situations in which an 
employee is statutorily protected from retaliation. For example, 
paragraph (a) of Section 20109 makes it unlawful to discriminate 
against employees when the discrimination is at all based on an 
``employee's lawful, good faith act:'' (1) To aid nearly any type of 
investigation whether initiated by a governmental agency, Congress, or 
another person with supervisory authority over the employee or the 
authority to conduct such investigations; (2) ``to refuse to violate or 
assist in the violation of any Federal law, rule, or regulation 
relating to railroad safety or security;'' (3) to file a complaint, 
directly cause a railroad safety or security enforcement proceeding to 
be brought, or testify in such a proceeding; (4) ``to notify, or 
attempt to notify, the railroad carrier or the Secretary of 
Transportation of a work-related personal injury or work-related 
illness of an employee;'' and (5) to accurately report hours on duty 
pursuant to the Hours of Service Laws. Rail employees looking to seek 
protection against alleged retaliation for refusing to violate or 
assist in the violation of one of the regulations in part 218, subpart 
F, would likely do so under Section 20109(a)(2).
    Under Section 20109(b), the statute prohibits a railroad employer 
from retaliating against an employee for: (1) ``Reporting, in good 
faith, a hazardous safety or security condition;'' (2) refusing to 
work, under certain conditions, when a hazardous safety or security 
condition is confronted in the employee's duties; and (3) refusing to 
authorize the use of any safety-related equipment, track or structures, 
if those items are in a hazardous safety or security condition and 
certain other conditions are met. Unlike Section 20109(a)(2), a refusal 
under Section 20109(b) is not predicated on a refusal to violate or 
assist in the alleged violation of any Federal law, rule, or regulation 
relating to railroad safety or security. Another substantial change to 
Section 20109 is that the statute no longer states that disputes and 
grievances are to be handled under the Railway Labor Act (``RLA''), but 
instead permits relief under this section to be initiated by an 
employee filing a complaint with the Secretary of Labor. Considering 
the substantial changes to Section 20109, rail employees and railroads 
are encouraged to carefully review the statute in order to respectively 
retain the protections afforded and comply with the law.
    In consideration of the statutory amendments to Section 20109, 
there is no longer a need for a regulatory anti-

[[Page 8454]]

retaliation provision. This determination is further discussed in this 
section under the title ``4. Anti-Retaliation Provision.'' We 
anticipate that the elimination of the regulatory anti-retaliation 
provision, as well as other changes to the good faith challenge 
procedures made in response to various comments should allay most 
concerns, both legal and non-legal, raised by AAR and other commenters. 
Furthermore, for the following reasons, FRA remains unconvinced that 
there are any legal impediments to promulgating a good faith challenge 
regulation.
1. FRA's Rulemaking Authority
    One of AAR's legal issues is the assertion that FRA does not have 
rulemaking authority to issue a good faith challenge provision. We 
disagree. FRA has authority to regulate railroad safety under 49 U.S.C. 
20103 (Section 20103). More specifically, the language of Section 
20103(a) mandates that ``[t]he Secretary of Transportation, as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety'' (emphasis added). In addition, case law supports a 
broad interpretation of an agency's authorizing statute. For example, 
in Whirlpool Corp. v. Marshall, 445 U.S. 1 at 11, (1980), the Supreme 
Court concluded that OSHA ``clearly conform[ed] to the fundamental 
objective of the [Occupational Safety and Health] Act''--the purpose of 
which was ``to prevent occupational deaths and serious injuries''--when 
it promulgated a regulation limiting retaliation against employees that 
refuse to work because of a good faith belief that they would be 
subjected to real danger of death or injury. Similarly, in promulgating 
Sec.  218.97, FRA is conforming to the objective of its authorizing 
statute (to improve railroad safety), by prescribing a regulation which 
gives employees the right to challenge what may be an unsafe work 
assignment. Accordingly, FRA is authorized to issue the rule's good 
faith challenge provision because it is intended to improve railroad 
safety.
    AAR does not challenge FRA's authority to regulate railroad safety 
under Section 20103. Instead, AAR claims that Section 20109 precludes 
that authority as it relates to the good faith challenge procedures, 
specifically singling out the proposed anti-retaliation provision 
previously found at Sec.  218.97(b)(2). Meanwhile, changes to the rule 
and the statute have rendered AAR's concerns moot. For instance, the 
final rule does not contain an anti-retaliation provision similar to 
the proposed provision and, thus, there cannot be a conflict between 
Congressional intent and that particular regulatory provision.
    AAR also argues that by legislating to provide employees a right to 
refuse to work in certain circumstances under Section 20109, Congress 
intended to preclude FRA from issuing a rule providing employees the 
right to exercise a good faith challenge in similar circumstances. It 
is important to note that the good faith challenge in both the NPRM and 
this final rule is distinguished from the statutory refusal to work as 
the regulatory challenge does not permit an employee to refuse to 
comply with the challenged directive indefinitely, but instead only 
protects the employee from being required to do the challenged task 
while the appeal process afforded by the good faith challenge 
procedures is on-going. See proposed Sec.  218.97(b)(3), redesignated 
as Sec.  218.97(c)(5)(iv) and (d)(2). The issue thus becomes whether 
Congress intended to preempt this type of rulemaking by FRA.
    In support of such an argument, AAR asserts that FRA does not have 
the authority to issue rules providing for the good faith challenge for 
the same reasons that FRA may not directly regulate hours of service. 
In particular, AAR cites Atchison, Topeka and Santa Fe Ry. v. Pena, 44 
F.3d 437, 441-42 (7th Cir. 1994), aff'd, Bhd. of Locomotive Engineers 
v. Atchison, Topeka and Santa Fe Ry, 516 U.S. 152 (1996), in which the 
Seventh Circuit overturned FRA's interpretation of the Hours of Service 
Act, 45 U.S.C. 61-66 (``Hours of Service Act''). AAR stated that 
``[s]ince Congress has established hours-of-service restrictions, FRA 
has no rulemaking authority to establish its own hours-of-service 
requirements.'' AAR's Comments at 3 (Dec. 11, 2006). By analogy, AAR 
argues that as Congress has established specific standards and a 
specific process for an employee to refuse work in Section 20109, FRA 
has no rulemaking authority to establish its own requirements for an 
employee to refuse work.
    AAR's analogy to, and reliance on, Atchison is misplaced. FRA is 
neither interpreting Section 20109 nor issuing rules that implement 
Section 20109. In order to effectuate that point, the final rule 
specifically requires in Sec.  218.97(b)(2) that a railroad or 
employer's good faith challenge written procedures ``shall indicate 
that the good faith challenge described in paragraph (b)(1) is not 
intended to abridge any rights or remedies available to the employee 
under a collective bargaining agreement, or any Federal law including, 
but not limited to, 29 U.S.C. 651 et seq., 6 U.S.C. 1142, or 49 U.S.C. 
20109.'' This requirement in the regulation is intended to clarify that 
FRA is not attempting to undermine the Congressional intent or language 
found in Section 20109. Instead, FRA is using the clear substantive 
rulemaking authority in railroad safety matters found in Section 20103.
2. FRA's Enforcement Authority
    Another of AAR's legal issues is the assertion that FRA's proposed 
rule provides for resolution of disputes and grievances arising in 
situations already covered by Section 20109. AAR argues that enforcing 
the good faith challenge procedures proposed in the NPRM would 
contradict legislative intent to preclude any agency enforcement of 
this issue and that Section 20109 provides similar employee protections 
and requires disputes, claims and grievances arising under that section 
to be handled by the RLA. AAR further notes that a House of 
Representatives committee report in the legislative history for that 
statute demonstrates that Congress intended the RLA to ``be the 
exclusive means for enforcing this section'' and that it did ``not 
intend for FRA to be involved in this area.'' H.R. Rep. No. 1025, 96th 
Cong., 2d Sess., at 16 (1980). AAR thus argues that the enforcement of 
the regulatory good faith challenge procedures is preempted by Section 
20109(c) and its legislative history. With the recent amendments to 
Section 20109, AAR's references to legislative history have lost 
relevancy. However, FRA disagrees with AAR's position under the former 
statute and the version effective August 3, 2007.
    AAR confuses procedures for handling the initial exercise of a 
right with procedures for handling a claim of retaliation ``resulting 
from'' the initial exercise of a right. Under the former statute, 
Section 20109(c) provided procedures for handling a claim of 
retaliation as a consequence of the initial refusal to work. That 
section stated that ``a dispute, grievance, or claim arising under this 
section is subject to resolution under section 3 of the Railway Labor 
Act.'' This language refers to disputes, claims and grievances 
resulting from a claim of retaliation as a result of the employee's 
exercise of the right under former Section 20109. The legislative 
history of that statute corroborates this assertion. A House of 
Representatives Committee Report discussing the remedy under former 
Section 20109 refers to discrimination not involving discharge or 
suspension ``such as assignment to undesirable duties.'' Since a 
dispute over an assignment of undesirable duties refers to an act of 
retaliation rather than an

[[Page 8455]]

exercise of the initial right to refuse work, this report lends support 
to the proposition that the language ``dispute, grievance, or claim 
arising under this section'' in former Section 20109(c) refers to 
disputes resulting from the retaliation that occurred and not from the 
initial exercise of the right to refuse to work. The same position is 
applicable to Section 20109 as recently amended.
    This rulemaking, on the other hand, only requires procedures for 
handling the ``initial'' exercise of the good faith challenge. These 
procedures include such actions as not requiring the challenging 
employee to complete the work until the good faith challenge is 
resolved and allowing the employee to document the challenge. The 
procedures provide employers and employees with a process for handling 
an employee's good faith challenge. Unlike Section 20109, the 
procedures do not provide employers and employees with a process for 
handling an employee's claim of retaliation resulting from his or her 
good faith challenge. Therefore, FRA's procedures for handling the good 
faith challenge do not contradict legislative intent as applied to this 
issue.
3. Multiple Enforcement Actions
    AAR argues that the good faith challenge would contradict 
legislative intent by subjecting railroads to multiple enforcement 
actions and penalties in situations where both the statutory right to 
refuse work under Section 20109 and the regulatory right to a good 
faith challenge would apply. Assuming the employee chose to make a good 
faith challenge and then claimed that he was consequently retaliated 
against, AAR argues that the employer would not only be subject to a 
civil penalty by the FRA under the regulation but would also be subject 
to damages by the Department of Labor (``DOL'') for violating Section 
20109. AAR argues that multiple penalties for the same occurrence 
contradict legislative intent.
    The statutory and legislative histories of both the former and 
current versions of Section 20109 do not appear to support AAR's claim 
that multiple penalties are impermissible. While former 49 U.S.C. 
20109(d), current 49 U.S.C. 20109(e), and H.R. Report No. 1025 state 
that employees may not seek protection under multiple provisions, they 
do not address the issue of preventing employers from facing multiple 
penalties. The statutory ``election of remedies'' provision is intended 
to protect an employer from having to pay the same types of damages to 
an employee multiple times just because there are multiple statutory 
provisions upon which an employee could file a complaint or a suit. The 
election of remedies provision is intended to prevent, for example, an 
employee from getting double the backpay, compensatory damages, and 
punitive damages the employee is entitled to by seeking protection 
under both the Occupational Safety and Health Act of 1970, 29 U.S.C. 
660(c), and Section 20109. We believe AAR is misinterpreting the 
election of remedies provision by confusing FRA's enforcement of 
penalties against an alleged bad actor versus an employee seeking 
remedies for him or herself. Furthermore, a railroad routinely may face 
multiple demands for penalties or lawsuits in safety matters. Many 
times, when FRA enforces a regulation against a railroad for a set of 
facts, the railroad is privately sued based on the same set of facts. 
This situation is no different and legally acceptable.
4. Anti-Retaliation Provision
    AAR made several arguments suggesting that FRA is prohibited by 
statute from including an anti-retaliation provision in the rule and, 
although FRA disagrees with AAR's legal conclusion, the proposed anti-
retaliation provision found in Sec.  218.97(b)(2) of the NPRM has not 
been retained in the final rule. FRA proposed an anti-retaliation 
provision that required each railroad's good faith written procedures 
to provide that an employee making a good faith challenge not be 
discharged or in any way discriminated against for making the 
challenge. In order for the good faith challenge to achieve its 
intended purpose, i.e., improve railroad safety, it is fundamental that 
an employee be protected from retaliation when holding an employer or 
supervisor accountable. In October 2006, when the NPRM was published, 
the Federal laws protecting rail employees from retaliation were more 
narrowly written than the recently amended statutory protections 
provided for in Section 20109; consequently, when the NPRM was 
published, FRA was concerned that there could be multiple scenarios 
where an employee could raise a good faith challenge and not otherwise 
be legally protected from employer retaliation.
    Given the statutory amendments effective August 3, 2007, it is 
unlikely that a rail employee, whether working for a publicly-owned 
railroad, a privately-owned railroad, or a contractor or subcontractor 
of either type of railroad, would not be protected from retaliation 
under either Section 20109 or 6 U.S.C. 1142, which was also enacted in 
Public Law 110-53. These two statutes protect employees from 
retaliation for ``the employee's lawful, good faith act done, or 
perceived by the employer to have been done or about to be done * * * 
to refuse to violate or assist in the violation of any Federal law, 
rule, or regulation relating to'' either ``public transportation safety 
or security'' or ``railroad safety or security'' respectively. 6 U.S.C. 
1142(a)(2) or 49 U.S.C. 20109(a)(2); see also 29 U.S.C. 660(c). These 
statutes require DOL to investigate complaints of anti-retaliatory 
action and provide an array of remedies to an employee for violation of 
the law including reinstatement, backpay with interest, compensatory 
damages, and punitive damages up to $250,000. 49 U.S.C 20109(d)(3) and 
6 U.S.C 1142(d)(3). Consequently, the recently effective anti-
retaliatory statutory protections afforded to rail employees would now 
protect an employee from retaliation under FRA's good faith challenge 
rule and it is thus unnecessary for this final rule to require that 
each railroad include a similar anti-retaliation provision in its good 
faith challenge procedures.
    Any potential FRA enforcement of anti-retaliation under the good 
faith challenge regulation would likely only add a nominal deterrent 
effect given the substantial remedies employees may seek directly 
against a defendant under the employee protections statutes. FRA's 
enforcement authority is limited to civil penalty assessments up to 
$27,000 against employers and individuals (see 49 U.S.C. 21301), 
emergency orders, compliance orders and agreements, and FRA's other 
statutorily granted enforcement authority. FRA does not have the 
authority to collect damages or back pay on behalf of any employee, nor 
order a railroad to reverse itself on a claim of discharge, 
discrimination or other retaliation. In consideration of these employee 
protection alternatives, FRA has decided to remove the anti-retaliatory 
provision from this rule rather than try to duplicate an investigation 
into alleged anti-retaliatory acts or omissions that an employee will 
certainly want to pursue under a collective bargaining agreement, with 
DOL, or in another forum.
    Given the changed playing field for Federal inquiries into alleged 
retaliation, FRA is now assured that claims of retaliation will be 
adequately investigated and remedied by another Federal agency. FRA has 
already held discussions with DOL on ways to integrate FRA's safety 
program with DOL's whistleblower protection program. For example, FRA's 
employees will be trained to recognize when an

[[Page 8456]]

employee has alleged retaliation so that FRA may inform employees of 
their basic rights and refer such employees to DOL. FRA anticipates 
taking other action to inform employees of the statutory protections, 
such as providing a link to DOL's Web site from FRA's Web site and 
reminding employee complainants of the statutory protection.

C. Preemptive Effect

    The American Association for Justice (AAJ) commented that FRA had 
impermissibly broadened the scope of preemption under 49 U.S.C. 20106. 
AAJ objected to FRA's discussion in the preamble of the NPRM regarding 
49 CFR 217.2 and 49 CFR 218.4. FRA's discussion of each of these 
sections was identical, providing that:

    This section informs the public of FRA's intention and views on 
the preemptive effect of the rule. The preemptive effect of this 
rule is broad, as its purpose is to create a uniform national 
standard. Section 20106 of Title 49 of the United States Code 
provides that all regulations prescribed by the Secretary related to 
railroad safety preempt any State law, regulation, or order covering 
the same subject matter, except a provision necessary to eliminate 
or reduce an essentially local safety hazard that is not 
incompatible with a Federal law, regulation, or order and that does 
not unreasonably burden interstate commerce. Exceptions would be 
rare. In general, 49 U.S.C. 20106 will preempt any State law--
whether statutory or common law--and any State regulation, rule, or 
order, that concerns the same subject matter as the regulations in 
this rule. 71 FR 60372 at 60382 and 60386.

    AAJ specifically objected to FRA's assertion that the preemptive 
effect of the rule is broad, that exceptions would be rare, and that 
Sec.  20106 preempts common law claims. In support of its position that 
these assertions amounted to an expansion of preemption, AAJ cited In 
re Soo Line R. Co. Derailment of January 18, 2002, 2006 WL 1153359, an 
unreported Minnesota state court decision. In that decision, the court 
found for various reasons that plaintiffs' claims were not preempted. 
Some were not preempted, according to the court, because although 
Federal regulations covered the subject matter of the claims, the 
conditions at the location at the time of the derailment constituted an 
essentially local safety hazard. Others were not preempted, the court 
said, because the Federal regulations covering the subject matter of 
the claims were violated. A third category of claims were found not to 
be preempted because the regulations alleged to cover the subject 
matter of the claims were deemed by the court not specific enough to do 
so, and a final group of claims were found not to be preempted because 
there was no regulation covering the subject matter. While FRA 
disagreed with AAJ's comments, AAJ's comments have been rendered moot 
by enactment of Pub. L. No.110-53, discussed below.
    Normal State negligence standards apply where there is no Federal 
action covering the subject matter. In Pub. L. No.110-53, Congress 
recently clarified the availability of State law causes of action under 
section 20106 where there is Federal action covering the subject 
matter. As amended, 49 U.S.C. 20106 provides that issuance of these 
regulations preempts any State law, regulation, or order covering the 
same subject matter, except an additional or more stringent law, 
regulation, or order that is necessary to eliminate or reduce an 
essentially local railroad safety or railroad security hazard; that is 
not incompatible with a law, regulation, or order of the United States 
Government; and that does not unreasonably burden interstate commerce. 
Section 20106 permits State tort actions arising from events or 
activities occurring on or after January 18, 2002, for the following: 
(a) A violation of the Federal standard of care established by 
regulation or order issued the Secretary of Transportation (with 
respect to railroad safety, such as these regulations) or the Secretary 
of Homeland Security (with respect to railroad security); (b) a party's 
violation of, or failure to comply with, its own plan, rule, or 
standard that it created pursuant to a regulation or order issued by 
either of the two Secretaries; and (c) a party's violation of a State 
standard that is necessary to eliminate or reduce an essentially local 
safety or security hazard, is not incompatible with a law, regulation, 
or order of the United States Government, and does not unreasonably 
burden interstate commerce. Nothing in section 20106 creates a Federal 
cause of action on behalf of an injured party or confers Federal 
question jurisdiction for such State law causes of action.

V. Section-by-Section Analysis

Part 217--[Amended]

Section 217.2 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent provision necessary to 
eliminate or reduce an essentially local safety or security hazard that 
is not incompatible with a Federal law, regulation, or order and that 
does not unreasonably burden interstate commerce. Section 20106 permits 
State tort actions arising from events or activities occurring on or 
after January 18, 2002, for the following: (a) A violation of the 
Federal standard of care established by regulation or order issued by 
the Secretary of Transportation (with respect to railroad safety, such 
as these regulations) or the Secretary of Homeland Security (with 
respect to railroad security); (b) a party's violation of, or failure 
to comply with, its own plan, rule, or standard that it created 
pursuant to a regulation or order issued by either of the two 
Secretaries; and (c) a party's violation of a State standard that is 
necessary to eliminate or reduce an essentially local safety or 
security hazard, is not incompatible with a law, regulation, or order 
of the United States Government, and does not unreasonably burden 
interstate commerce. Nothing in section 20106 creates a Federal cause 
of action on behalf of an injured party or confers Federal question 
jurisdiction for such State law causes of action. The NPRM language has 
been amended to reflect the changes made to Section 20106.
    Only one comment addressed this paragraph and that comment has been 
discussed in the preamble. See IV. General Comments/Major Issues, C. 
Preemptive Effect.
Section 217.4 Definitions
    FRA has added a definition of Associate Administrator for Safety to 
this section that is consistent with other definitions of this term in 
this chapter. The purpose of including this definition is to identify 
an official who would have the authority to require amendments to 
programs of operational tests and inspections. FRA did not receive any 
comments related to this definition.
    FRA has added a definition of qualified to this section. The need 
for this definition arose from the new requirements for railroad 
testing officers in Sec.  217.9. As further explained in the analysis 
for that section, it is not acceptable for a railroad testing officer 
to be monitoring or instructing employees without being instructed, 
trained and examined, i.e., qualified, on the railroad's operating 
rules and the tests the officer is expected to perform; thus, FRA is 
requiring such qualification. A person cannot be considered qualified 
unless he or she has successfully completed all ``instruction, 
training, and examination''

[[Page 8457]]

programs required by both the railroad and this part.
    The definition of ``qualified'' is modeled after the definition 
used in Sec.  240.7 in this chapter and should have the same meaning 
despite some slight differences. The phrase ``training and testing'' 
has been replaced by ``instruction, training, and examination'' to more 
thoroughly reflect the educational aspects of the requirements for a 
qualified person. The definition does not contain the word 
``appropriate'' prior to the educational aspects so as to emphasize 
that the educational aspects of qualifying a person are mandatory, not 
discretionary. A word choice was made to substitute the term 
``successfully completed'' for the word ``passed.'' The definition 
added to part 217 is the same definition added to part 218, subpart F. 
The relevant comments FRA received pertained to the proposed 
requirements in Sec.  217.9 and not the definition itself.
Section 217.9 Program of Operational Tests and Inspections; 
Recordkeeping
    FRA is amending and adding paragraphs to this section. Although not 
every existing paragraph is being amended, FRA is reprinting the entire 
section to make it easier for readers to follow.
    FRA's amendment to paragraph (a) would clarify that the requirement 
to conduct operational tests and inspections specifically include tests 
and inspections sufficient to verify compliance with the requirements 
of subpart F of part 218 of this chapter. The proposed and final rules 
identify certain operating rules with which noncompliance has led to an 
increase in human factor-caused accidents. Subpart F of part 218 
requires that each railroad have in effect certain operating rules and 
that each railroad officer, supervisor and employee uphold and comply 
with those rules. As the operating rules identified in subpart F of 
part 218 are designed to address the most frequently caused human 
factor accidents, FRA's amendment to paragraph (a) requires that each 
railroad periodically conduct operational tests and inspections to 
determine the extent of compliance with its code of operating rules, 
timetables, and timetable special instructions, specifically including 
tests and inspections sufficient to verify compliance with the 
requirements of subpart F of part 218 of this chapter, in accordance 
with a written program as required by paragraph (c) of this section. 
The program's increased focus on human factor-caused accident 
prevention should direct awareness to the related operating rules and 
correlate with a decrease in such accidents.
    Paragraph (b) is added to this section to establish new 
responsibilities for both railroads and those railroad officers who 
conduct operational tests and inspections, i.e., railroad testing 
officers. FRA inspections and investigations have revealed railroad 
testing officers who lack the fundamental knowledge to perform adequate 
tests and inspections. In order for these officers to be able to do a 
proper job, they must know the railroad's operating rules, how the 
tests they will conduct fit into the railroad's testing program, and 
how to conduct a proper test. AAR and APTA recommended amending 
paragraph (b)(1)(iii) because they believe this paragraph might be 
wrongly interpreted to require field training on every operational test 
an officer might be authorized to conduct. FRA does not agree that 
changing ``as necessary to achieve proficiency'' to ``when necessary to 
achieve proficiency'' changes the meaning, as AAR and APTA prefer. We 
also disagree with AAR's interpretation of the proposed, and now final, 
paragraph. It is unnecessary for every railroad testing officer to be 
qualified and receive field training on every conceivable operational 
test. Experience can substitute for field training, as long as the 
person is able to conduct an acceptable test. In addition, a railroad 
testing officer does not need to receive field training on an 
operational test that the officer will not be asked to conduct. Of 
course, if an officer who conducts an improperly executed test is found 
to lack relevant experience conducting such a test and any field 
training on how to conduct such a proper test, FRA would consider the 
event to be a violation of the requirement. That said, FRA recognizes 
that some tests and inspections are so simple that no particular 
experience or training should be necessary; a railroad will need to use 
discretion and make training decisions on a case-by-case basis if it 
chooses not to train its railroad testing officers on each operational 
test. Paragraph (b)(1)(iv) requires that railroad testing officers 
conduct operational tests in accordance with the railroad's program for 
such tests and inspections. A test that is incompetently executed 
should not count towards compliance with a railroad's program of 
operational tests and inspections. Finally, this paragraph requires 
written records documenting that each railroad testing officer was 
properly qualified and that such records be made available to FRA upon 
request.
    FRA received several comments with regard to proposed paragraph 
(b). BRS and BLET expressed support for the concept of requiring 
railroad testing officers to be qualified on operating rules, the 
testing program and conducting operational tests. AAR requested a 
``grandfather provision'' that would allow current testing officers to 
continue conducting tests for ninety days after the effective date of 
the rule before records would need to be kept that these testing 
officers were qualified in accordance with paragraph (b)(2). Similarly, 
APTA requested that each railroad have until December 21, 2008, to 
qualify its railroad testing officers on the operational testing 
program. In the NPRM, FRA expressed disagreement with the need for such 
a grandfather provision. However, based on the comments and further 
consideration of the qualification and recordkeeping requirements, FRA 
will not require compliance with this paragraph until July 1, 2008, 
although we encourage each railroad to attempt to comply earlier.
    FRA does not consider the requirements of paragraph (b) to be 
onerous. Each railroad should already maintain an accessible record 
showing when each testing officer was last qualified on the railroad's 
operating rules in accordance with paragraph (b)(1)(i). It is contrary 
to logic that a railroad would allow a person to become a railroad 
testing officer without ensuring that the person is qualified on the 
operational testing program requirements and procedures relevant to 
tests and inspections the testing officer would be expected to conduct. 
We do not understand how a person could possibly do a testing officer's 
job if the person lacked sufficient knowledge of the railroad's testing 
program such that the person could not conduct an adequate test or 
inspection. With that understanding, FRA would not expect that a great 
degree of new training is necessary, nor that it would be burdensome to 
create a record. APTA recommended that FRA relax the record retention 
requirements for ``grandfathered'' or existing testing officers. In the 
alternative, we suggest that if a railroad has not previously kept a 
record of whether an officer is qualified on the operational testing 
program, that the railroad create a short survey which would allow an 
officer to acknowledge whether the officer considers himself/herself 
qualified on the various aspects of the program, as well as qualified 
(either through experience or prior instruction, training, and 
examination) on the various types of tests and inspections that the 
officer may be asked to conduct. Meanwhile,

[[Page 8458]]

FRA acknowledges that each railroad must qualify its railroad testing 
officers on any amended or added operating rules that seek to conform 
with part 218, subpart F of this chapter, and any corresponding changes 
to the railroad's operational testing program by July 1, 2008; however, 
as most of these new Federal requirements are already similar to 
existing operating rules on the vast majority of railroads, we do not 
anticipate that this additional training will be extensive. Except for 
adding this applicability date, the final version of paragraph (b) is 
the same as the version proposed.
    FRA has moved paragraph (b) to (c) and added two new requirements 
found at (c)(1) and (c)(5). Regarding the two new requirements, FRA has 
implemented a scheme that requires each railroad to amend the existing 
program of operational tests and inspections with the purpose of 
requiring railroads to do a better job of focusing their tests and 
inspections on those types of operating rules that either cause the 
most human factor-caused accidents nationwide or are identified as 
problematic on the particular railroad's division or system. At a 
minimum, FRA expects railroads to test and inspect for those operating 
rules identified as problematic in the quarterly or six month reviews, 
i.e., those operating rules violations that have recently caused 
accidents or incidents on the division or system-wide. We also expect 
railroads to regularly spot-check for compliance with those operating 
rules that lead to accidents and incidents nationwide, even if the 
railroad has not specifically encountered any recent incidents. As 
mentioned in the SUPPLEMENTARY INFORMATION section under ``Development 
of the NPRM,'' the verification through testing process does not always 
work well because during some periods of disruption related to 
organizational or personnel changes, some railroads do not perform 
operational tests that address the root cause of human factor 
accidents. At worst, administration of the program may be reduced to a 
numbers-generating exercise, and, consequently, on portions of the 
railroad, officers may conduct relatively few meaningful tests. 
Clearly, FRA intends for the program of operational tests and 
inspections to be meaningful and the amendments are intended to 
forcefully move lagging railroads to produce more meaningful tests and 
inspections.
    Paragraph (c)(1) contains the existing requirement that the program 
shall provide for operational testing and inspection under the various 
operating conditions on the railroad. It has also been amended, so that 
on or after July 1, 2008, each railroad shall be required to amend its 
program to ``particularly emphasize those operating rules that cause or 
are likely to cause the most accidents or incidents, such as those 
accidents or incidents identified in the quarterly reviews, six month 
reviews, and the annual summaries as required under paragraphs (e) and 
(f), as applicable.'' Thus, FRA expects that each railroad would 
conduct a significant number of tests and inspections directed at 
addressing localized problems with compliance, such as those identified 
on a division, problems identified on a system-wide basis, and leading 
causes of human factor-caused accidents nationwide, such as those 
identified through this final rule.
    In order to gain some specificity in each railroad's program, 
paragraph (c)(1) also requires ``a minimum number of tests per year 
that cover the requirements of part 218, subpart F of this chapter.'' 
FRA is reluctant to state a percentage or specific number per number of 
employee work hours as each railroad may have particular operating 
rules it wishes to emphasize to a greater degree than the next; 
however, the objective in including this language is to encourage 
sufficient testing in these critical areas to verify good compliance by 
railroad operating employees and to help establish the expectation that 
there will be compliance with those rules. FRA would be critical of a 
program that placed the majority of its emphasis on enforcing operating 
rules that are not leading causes of accidents/incidents. The 
requirement for a specific minimum number of such tests per year 
follows from such a requirement imposed in EO 24, albeit EO 24 covered 
a smaller subset of the operating rules FRA is covering in part 218, 
subpart F. AAR requested that the rule allow a railroad to specify in 
its program ``a minimum percentage of tests per year'' that cover the 
requirements of part 218, subpart F of this chapter, as opposed to a 
just ``a minimum number of tests per year.'' AAR's comment was somewhat 
unclear in that it did not specify how the percentage might be 
calculated; we assume that AAR means a percentage of the total number 
of operational tests to be performed in a given year will cover part 
218, subpart F requirements. FRA is not adopting AAR's suggestion as we 
do not understand why a railroad that can identify a minimum number of 
total operational tests per year would have trouble identifying a 
minimum number of tests that cover the requirements of part 218, 
subpart F. It may be that railroads would like the flexibility to 
change the minimum number of tests in periods less than a year, i.e., 
monthly, quarterly, or six-month intervals. FRA recognizes that, from 
time-to-time, a railroad may have a reduction in business, a reduction 
in the number of operating employees, a reduction in employee work 
hours, or another factor that reduces the need to conduct as many 
operational tests as it set forth in its operational testing program. 
When such factors occur, a railroad should simply amend its program and 
create a record explaining the reason for the reduction in the amount 
of minimum tests. In that way, when FRA audits the program, we can 
readily deduce why the railroad has reduced the minimum number of tests 
to be conducted, decide whether the reasons are valid, and notify the 
railroad if we disapprove of the action taken pursuant to paragraph 
(i).
    Paragraph (c)(5) adds a new requirement that, on or after July 1, 
2008, the program show the railroad's designation of an officer to 
manage the program at each level of responsibility (division or system, 
as applicable). The officer may be designated either by name or job 
title, as long as the designation clearly identifies a responsible 
person that FRA can contact when FRA audits the program. The officer 
shall also have oversight responsibility to ensure that the program is 
being implemented properly across each division and system-wide. FRA's 
expectation is that this officer will at least manage the program to 
ensure that the overall direction of the program is sound. This 
designated officer would be expected to take an active role in ensuring 
that divisions and the entire system are meeting program requirements 
and ordering changes when expectations are not met. To the degree that 
a system-level officer can identify a division, or a specific railroad 
testing officer, that is failing to appropriately direct efforts, the 
designated officer is expected to take corrective action. In order to 
ensure that the railroad's testing officers are properly directing 
their efforts to reduce accidents/incidents, the designated officer or 
officers will need to make adjustments to the implementation of the 
program based on any reviews that might be required in paragraph (e), 
as well as the annual summary produced in accordance with former 
paragraph (d), which has been redesignated as paragraph (f).
    Additionally, former paragraph (b)(6) has been redesignated as 
paragraph (c)(7) without any changes from the

[[Page 8459]]

prior existing rule. Former paragraph (c) has been redesignated as 
paragraph (d) also without change.
    Paragraph (e) adds requirements for periodic reviews for any 
railroad with at least 400,000 total employee work hours annually. FRA 
has decided to provide each Class I railroad (including the National 
Railroad Passenger Corporation) until July 1, 2008 to comply with this 
paragraph and, the remaining railroads to which this paragraph applies, 
shall comply with an applicability date of January 1, 2009. The NPRM 
only would have provided until the effective date of the rule to comply 
with this section and FRA decided to heed the concerns raised during 
the RSAC working group meetings that the effective date of the rule 
would not provide sufficient time for each railroad to implement the 
reviews required by this paragraph.
    FRA has decided to exclude freight railroads that have less than 
400,000 total employee work hours annually from conducting periodic 
reviews and analyses as provided in paragraph (e)(1) because only 135 
smaller railroads that meet this criterion reported any human factor 
caused rail accidents, and of those 135 that reported such accidents, 
only 20 railroads reported five (5) or more human factor caused rail 
accidents during the years 2002 through 2005. During this four year 
period, these 135 smaller railroads experienced 334 human factor caused 
rail accidents amounting to 7 percent of all human factor caused rail 
accidents. It should also be considered that there are almost 600 
smaller railroads that fit this criterion and yet only 135 reported any 
human factor caused rail accidents at all. On that basis, FRA is 
excepting the smallest railroads, based on the less than 400,000 
employee work hours threshold, from the monthly and quarterly reviews. 
Of course, if FRA accumulates evidence to suggest that railroads with 
less than 400,000 employee work hours are experiencing a significant 
number of human factor caused accidents, FRA will consider whether to 
initiate a new rulemaking revising this final rule.
    Similarly, Amtrak and the railroads providing commuter service in a 
metropolitan or suburban area also experience a relatively low number 
of human factor caused rail accidents compared to the freight railroads 
with greater than 400,000 employee work hours annually. During the 
years 2002-2004, Amtrak and the commuter railroads experienced a total 
of 270 accidents attributed to human factor causes. At a meeting held 
with members of APTA on April 27, 2006, (notes of this meeting are in 
the docket of this proceeding) APTA explained that many of its member 
railroads do not keep accident/incident data and/or operational testing 
data electronically and, thus, conducting periodic reviews greater than 
annually would create a substantial burden for those railroads that 
could not simply run a report from a computer. In addition, APTA 
members reminded FRA that a commuter railroad's budget is dependant on 
the generosity of local and state governments, which may not want to 
upgrade computers and software which would permit quicker and more 
efficient accident/incident reviews. Passenger railroads are generally 
more stable in their organizations and experience greater continuity 
with respect to staffing at the line officer level (where many problems 
often develop).
    With regard to six month reviews, however, there is a definite 
benefit for Amtrak and the commuter railroads to conduct a thorough 
system level review to achieve some degree of accountability. 
Meaningful reviews should help drive proper implementation of the 
program of operational tests and inspections--thus driving down the 
number of accidents/incidents attributable to human factors. APTA 
explained in its comments that there are funding and development issues 
that will require a period of training on these new regulations and any 
new automated reporting system that is created in response to the rule; 
consequently, APTA requested 12 months to implement the first six-month 
review under paragraph (e)(2). FRA has decided to deny APTA's request 
to delay implementation of the six-month review for a year. FRA does 
not agree with APTA that the six-month review requires a ``new 
automated reporting system'' for any railroad that does not already 
have one up and running. The records and reviews required by this 
section could be maintained by old-fashioned written records, and the 
analysis required could be completed without the aid of a computer or 
with software readily available in stores now. That said, we agree that 
an automated system would likely provide for more efficiently completed 
analysis. FRA, however, has not required such automation. Finally, FRA 
has not excepted even the smallest commuter railroads from the 
requirement that reviews be conducted, because in FRA's experience no 
railroad is free from the risk that good discipline will erode over 
time, and the consequences of a passenger train accident can be very 
serious indeed. The benefits of the review are too important to 
postpone for a year.
    For the major freight railroads, the quarterly review is to be 
developed and conducted at the division level unless no division 
headquarters, or its equivalent, exists. Most larger railroads have 
created division headquarters (see current definition in Sec.  217.4 of 
this part) to manage portions of the railroad and, certainly, railroads 
that have divisions do so because it is more efficient. That is, it is 
easier for an officer at a division headquarters to know what safety 
issues are problematic in his or her division than an officer of a 
large railroad at the system level.
    AAR asserted in its comments an overall objection to paragraph (e) 
as it deems the reviews and recordkeeping requirements of this section 
as ``micro-management''and ``command-and-control regulation at its 
worst.'' AAR maintains that monthly, quarterly, and six-month reviews 
are not typically conducted by freight railroads as FRA asserted in its 
proposed rule and that FRA is wrong to maintain that it is a best 
practice for freight railroads to adjust its program of tests and 
inspections based on one quarter's worth of data. Furthermore, AAR 
asserts that even if some railroads voluntarily conducted the same 
types of reviews without regulation, FRA is not justified to impose 
this ``regulatory straitjacket, with the formality and recordkeeping 
that are byproducts of regulatory requirements,'' on each railroad.
    FRA appreciates the comments of AAR with regard to paragraph (e) 
and certainly has given AAR's counterpoint due consideration. The main 
focus of this rule is to reduce the number of human factor caused 
accidents, and FRA's experience has been that one way to do that is to 
impose these types of review requirements which force needed 
improvements on a railroad's operational testing and inspection 
program. Prior to the publication of this rule, when FRA has identified 
significant problems with such a program and there has also been a 
correlation of noncompliance with important safety laws, FRA has shown 
some restraint in enforcement while working with some railroads in 
trying to improve compliance. On a case-by-case basis, FRA has entered 
into a voluntary compliance agreement with a railroad so that it is 
clear what enforcement action FRA will take if the operational testing 
and monitoring changes requested by FRA are not completed by a specific 
deadline.
    Although voluntary compliance agreements are typically effective in 
improving safety on a particular railroad

[[Page 8460]]

or division, FRA's experience has been that the problems that trigger 
the need for such agreements are fairly common in the industry. The 
regulatory approach in this rule is significantly more efficient than 
entering into tens or hundreds of individual agreements. The 
implementation of this rule will effectively require the implementation 
of best practices that should aid in the reduction of accidents/
incidents before FRA is able to pinpoint any problem associated with a 
particular railroad's system of tests and inspections. Rather than 
changing one railroad, or one division on a large railroad, at a time, 
this rule will require all but the smallest freight railroads to place 
greater emphasis on human factor caused accidents in each operational 
test and inspection program.
    AAR also commented that FRA should not require that a designated 
officer for each division shall be the sole officer who may perform the 
required monthly and quarterly reviews of tests and inspections, if a 
railroad has divisions. AAR suggests that the rule permit each railroad 
the flexibility to choose whether an officer at headquarters can 
perform the required reviews. FRA is rejecting AAR's comment as it 
applies to the quarterly review. In order to comply with the 
requirements for the quarterly review under paragraph (e)(1)(i), an 
officer would need to have a detailed knowledge of the operation. It is 
our experience that railroads that have divisions are too large for a 
person at the system headquarters to have the kind of mastery over each 
division to conduct the kind of in-depth analysis required of the 
quarterly review. Where FRA has audited strong programs, division 
officers are conducting periodic analysis of accidents/incidents at the 
division level and making appropriate adjustments at the division level 
as remedial action. We are surprised at AAR's comments because the 
divisions typically operate semi-autonomously from system headquarters, 
albeit with regular coordination on system-wide matters. As a practical 
matter, if a division headquarters exists, an officer at the division 
level will be in the best position to perform the types of reviews 
required by the quarterly review.
    Meanwhile, FRA has responded to AAR's comment by deleting the 
requirement for a monthly review. Instead, the review to determine 
whether each railroad testing officer is conducting the minimum number 
of each type of test or inspection required by the railroad's program 
will only be required on a quarterly basis, as opposed to a monthly 
basis. What was formerly referred to as the monthly review, but is now 
part of the quarterly review, is not expected to be an onerous task. It 
is merely a quick written tally of the number of tests performed by 
each railroad testing officer, including the railroad operating rules 
tested for, and a determination made whether the tally shows adherence 
to the written program of operational tests and inspections. When this 
type of review reveals noncompliance with the program, the designated 
officer is required to make any necessary adjustments to the tests and 
inspections required of railroad officers for the subsequent period(s). 
The designated railroad officer in paragraph (c)(5) may or may not be 
the officer who performs this review, but this designated railroad 
officer would be required to ensure that the quarterly review is 
properly completed. As FRA would expect that this aspect of the 
quarterly review would be derived from data collected at the division 
level, FRA does not anticipate any problems for a division officer 
producing this information in a quarterly review.
    FRA is mandating a comprehensive quarterly review for freight 
railroads under paragraph (e)(1)(i). In addition to the scorecard for 
each railroad testing officer (i.e., the formerly proposed monthly 
review), it shall include a ``review of the [railroad's] accident/
incident data, the results of prior operational tests and inspections, 
and other pertinent safety data for that division or system to identify 
the relevant operating rules related to those accidents/incidents that 
occurred during the quarter.'' The focus of the quarterly review is to 
identify those operating rules which pose the greatest risk of being 
violated--which should then be targeted for regular tests and 
inspections. That is why FRA is requiring that based upon the results 
of the quarterly review, the designated officer shall make any 
necessary adjustments to the tests and inspections required of railroad 
officers for the subsequent period. The quarterly review must be in 
writing and include the data upon which any conclusions are based. In 
response to several comments, FRA has clarified that any review, record 
or other information required by this section to be in writing may be 
retained electronically pursuant to paragraph (g).
    FRA expects that in order to conduct a meaningful quarterly review, 
each railroad will review accident/incident data, operational test 
data, and other pertinent data. For example, a railroad should identify 
the relevant facts for each category of data. The relevant facts are 
usually covered if a railroad can answer the questions signifying who, 
what, where, when, why, and how often. For accident/incident data, 
these questions would involve identifying all the employees involved in 
the accident/incident, a description of the accident/incident, the 
location where it occurred, the time it occurred, the root cause and 
any secondary causes, and whether the division or system has suffered 
this type of accident/incident often, sometimes or never. For 
operational test data, the issues include identifying the railroad 
testing officer(s) responsible for the particular location, whether the 
testing officers are testing for the operating rules responsible for 
any recent accidents/incidents, whether the testing officers conducted 
any tests where any recent accidents/incidents occurred, whether the 
testing officers are testing during the hours of highest incident 
rates, whether any railroad officers are briefing the employees as to 
the root or secondary causes and the fact that the railroad will be 
testing for compliance, and how often the officers are conducting any 
follow-up testing and job briefings.
    FRA believes there are at least five other types of pertinent 
safety data that should be included in a proper quarterly review. One, 
if FRA has conducted any recent inspections, the railroad should check 
whether its officers' tests reflect FRA's findings. Two, if an employee 
is involved in an accident/incident, the employee's safety record may 
provide insight. Three, the railroad should determine if there is any 
correlation between the training or experience of the local railroad 
testing officers and the locations where accidents/incidents have 
occurred. Four, a railroad should similarly consider the extent to 
which employee experience plays a part in any given accident/incident. 
Fifth, a railroad's review should consider whether any operational 
conditions have recently changed that increased the likelihood of 
either noncompliance with the operating rules or accidents/incidents. 
Special attention to all these details in the quarterly or six month 
review, as applicable, should lead a railroad to meaningful application 
of its written program of operational tests and inspections with a 
greater potential for driving down the frequency and severity of 
accidents/incidents.
    Although it would be best if quarterly reviews were completed 
immediately following the end of each quarter, FRA is requiring 
completion no later than 30 days after the quarter has ended. We did 
not receive any negative comments regarding the 30 day period. FRA 
originally considered requiring the quarterly review in half that time 
but railroads participating at a Railroad

[[Page 8461]]

Operating Rules Working Group meeting suggested that additional time 
would be needed for those railroads that do not maintain their safety 
data electronically. For those railroads that keep records 
electronically, FRA encourages quarterly reviews to take place 
contemporaneously with the conclusion of the quarter. Regardless of how 
long it takes to complete the quarterly review, each division or system 
should be prepared to redirect its railroad testing officers in order 
to appropriately react to any accidents/incidents of noncompliance 
during the previous quarter. Even where a division or system has had a 
particularly safe quarter, railroad testing officers should be 
instructed to adjust the way in which they are conducting their tests 
so that employees cannot easily anticipate the types of tests to be 
conducted, nor the dates and locations of such tests. Because freight 
railroads with divisions might find it difficult to do the system-wide 
six month review in only 30 days, especially since the quarterly 
reviews might not be completed until the 30th day, FRA has amended the 
proposed rule by allowing freight railroads 60 days after the review 
period has ended to complete the six month review. Passenger railroads 
with divisions are not quite as large or complex that completion of the 
six month review should take more than 30 days.
    In paragraphs (e)(1)(ii) and (e)(2), six month reviews are only 
required for each Class I railroad, Amtrak, and each railroad providing 
commuter service in a metropolitan or suburban area. The basis for the 
requirement is that the identified freight railroads are so large that 
each would benefit from an officer, likely at the system headquarters, 
who is identifiable by name or job title, who will oversee whether each 
division, line or segment is complying with the program of operational 
tests and inspections. It is expected that such an officer would have 
the authority to intervene in division, line or segment operations to 
the extent that this officer could order changes to the way divisions 
are implementing the program. The purpose for such intervention would 
be to require certain types of operational tests or inspections based 
on observations made system-wide that may not be apparent to each 
designated division officer armed only with data from his or her own 
division.
    In the case of Amtrak and the commuter railroads, paragraph (e)(2) 
requires reviews equivalent to those for the freight railroads in 
paragraph (e)(1), however all the reviews are to take place at least 
every six months. Of course, these are minimum requirements and 
passenger railroads are free to initiate more frequent reviews. For 
example, paragraphs (e)(2)(i) and (ii) describe reviews that are 
equivalent to the review required for freight railroads on a quarterly 
basis and certainly passenger railroads may perform that review on a 
quarterly basis as well; however, the passenger railroads are required 
to comply with those two requirements at least every six months. 
Paragraph (e)(2)(iii) describes a review that is to be completed at 
least once every six months and is the equivalent of the six month 
review required for freight railroads. As it is required that the 
passenger railroads conduct the same reviews as the freight railroad 
with the exception of the timing of those reviews, the prior section-
by-section analysis description for each review is applicable here.
    Because FRA needs to be assured that each railroad is complying 
with any required reviews, the regulation requires that the reviews be 
retained for one year after the end of the calendar year to which they 
relate and shall be made available to FRA upon request. FRA also 
encourages railroads to store these records electronically, pursuant to 
paragraph (g), as long as the information can be produced upon request.
    Former paragraph (d), which is redesignated as paragraph (f), is 
being amended in two respects. One amendment is merely to change the 
term ``manhours'' to ``employee work hours'' as the latter is gender 
neutral. The second amendment would clarify that this requirement does 
not apply to ``a railroad with less than 400,000 total'' employee work 
hours annually, as the current rule accidentally fails to include the 
qualification of the time period.
    In the NPRM, FRA questioned the necessity of retaining the annual 
summary requirement in paragraph (f) and FRA received several comments, 
including from AAR, APTA, and UTU, supporting the elimination of the 
annual summary on operational tests and inspections requirement. After 
further consideration, FRA realizes that the annual review requires 
different information than the other reviews and that eliminating it 
would have a serious detrimental effect on FRA's ability to audit a 
railroad's program. The annual summary requires all but the smallest 
railroads to create a written summary of the number, type, and result 
of each operational test and inspection, stated according to operating 
divisions where applicable, that was conducted as required by 
paragraphs (a) and (c) of this section. This written record may be kept 
in an electronic format pursuant to paragraph (g). Generally, railroads 
keep the data used to create this report in an electronic database 
which makes it relatively simple to generate the required annual 
summary.
    Former paragraph (e) is redesignated paragraph (g) with one 
amendment. The former rule specified that the railroad maintain a 
``desk-top'' computer upon which the railroad can retrieve data. As 
laptop and notebook computers have become more common, and their 
computing abilities now rival desk-top models, there is no reason to 
restrict railroads from using any computer to retrieve records for FRA 
under this section.
    Proposed paragraph (h), which suggested a requirement specifying 
that railroads and individuals can be liable for falsifying or 
deliberately mutilating records required by this section, has been 
deleted as unnecessary for two reasons. One, if FRA has sufficient 
evidence to prove that a railroad or individual has falsified a program 
required under this section or a record kept for such a required 
program, then that railroad or individual could be cited by FRA for a 
willful violation of the underlying section. The penalty assessed would 
be greater than a typical civil penalty assessment. See 49 CFR 217.5 
and app. A to Part 217. Thus, even with the deletion of this proposed 
paragraph, FRA retains the authority to assess civil penalties for 
falsification of the required records pertaining to this section. Two, 
the activity at issue is also prohibited by criminal law. See, e.g., 49 
U.S.C. 21311. Consequently, FRA has decided to remove this paragraph 
from the final rule and would expect that the existing criminal law and 
this final rule will provide sufficient disincentives for railroads and 
individuals to complete the programs and records required under this 
part without falsifying, mutilating, or destroying such a record.
    Proposed paragraph (i), which has been redesignated as paragraph 
(h) requires that FRA have some specific oversight mechanism for 
disapproving a railroad's program of operational tests and inspections. 
It also requires minimum procedures and structure for the review 
process. The paragraph requires that the Associate Administrator for 
Safety only disapprove programs required by this section for cause 
stated. As the disapproval decision is made for cause, it is 
significant for the railroad to understand exactly why FRA is 
disapproving the program; thus, notification of such disapproval will 
be made in writing and specify the basis for the disapproval decision. 
If the Associate Administrator for Safety disapproves the program, the 
railroad

[[Page 8462]]

has 35 days from the date of the written notification of such 
disapproval to either (1) amend its program and submit it to the 
Associate Administrator for Safety for approval, or (2) provide a 
written response in support of the program to the Associate 
Administrator for Safety. If the railroad chooses the second option to 
defend the allegedly defective program, the Associate Administrator for 
Safety will inform the railroad of FRA's final decision in writing. 
Although the rule is silent regarding whether a railroad may request an 
extension, FRA intends for the Associate Administrator for Safety, as 
the agency's decision-maker, to have the flexibility to decide 
procedural issues, such as having the ability to grant or deny requests 
for extensions of time, as the issues arise. The Associate 
Administrator for Safety renders a final decision in writing which will 
specify the terms and conditions under which the program will be 
considered approved or disapproved. If the decision denies the 
railroad's request in whole or in part, FRA intends for the railroad to 
amend its program and submit it to the Associate Administrator for 
Safety for approval within 35 days of the final decision as that is the 
period of time accorded for amending programs when a railroad chooses 
not to appeal the disapproval. Again, a railroad may request an 
extension of time to amend its program and submit it to the Associate 
Administrator for Safety for approval, and FRA intends for the 
Associate Administrator for Safety to have the flexibility to decide 
whether to grant or deny such procedural requests. Although enforcement 
action is always discretionary, FRA believes that enforcement action is 
warranted when a railroad fails to appropriately and timely amend its 
program; for this reason, FRA is requiring in paragraph (h)(2) that a 
failure to submit the program with the necessary revisions to the 
Associate Administrator for Safety will be considered a failure to 
implement a program under this part.
    The approach in paragraph (h) recognizes that FRA will want to 
review such written programs during audits or investigations and that 
FRA should have the authority to request changes to the program if it 
does not meet the minimum requirements of this rule. Although FRA 
retains the authority to review in detail each railroad's program, FRA 
is not requiring that each railroad submit its program for prior review 
and approval. Rather, FRA intends to review the programs of the major 
railroads over a multi-year cycle to determine if they are effective. 
In BLET's written comment, it requested that FRA reconsider this 
approach and instead advocated that each railroad be required to submit 
its operational tests and inspections program for FRA's explicit 
approval. BLET's reason for requiring a submission and approval process 
is that employees need to be afforded no less than the highest degree 
of assurance that a railroad's compliance monitoring is appropriate if 
the employee can be held responsible for noncompliance. A similar 
comment was raised by UTU in the context that FRA should prohibit 
testing officers from performing operational tests that violate 
operating rules or endanger employees. While FRA appreciates these 
comments, we are not adopting them for the following reasons. Although 
FRA has found deficiencies with some railroads' programs from time-to-
time, if a railroad has a program, it will typically contain all the 
requirements necessary to be deemed approved. Most problems with a 
program cannot be determined until an audit or investigation reveals 
inadequacies. Thus, a mandatory approval process is both a drain on the 
agency's resources and also unlikely to reveal many programmatic 
deficiencies. The best time to request a programmatic change is when an 
inadequacy is revealed. However, the NPRM did not provide for specific 
procedures for FRA to take place when an inadequacy was identified. The 
rule has been strengthened to provide for specific oversight authority 
vesting with the Associate Administrator for Safety. It is also helpful 
to remember that FRA is requiring railroad testing officers to conduct 
tests and inspections in accordance with a railroad's program, and that 
it is implicit that an improperly conducted test shall not be 
considered a valid test toward satisfying any requirement under the 
program.
    In the proposed rule, FRA solicited comments as to whether the 
final rule should require each railroad to instruct its employees on 
operating rules at least once every three years. BLET submitted a 
comment supporting triennial qualification of employees on all 
Federalized operating rules. As BLET points out, adding this 
requirement would merely expand the proposal to require each railroad 
to qualify its employees on Part 218, subpart F in this chapter, and 
many employees are already covered as locomotive engineers are 
currently required to be qualified every three years pursuant to Sec.  
240.210(c) of this chapter. FRA would add that a triennial operating 
class is the typical standard requirement on most railroads today. 
However, FRA also recognizes that our definition of qualified might be 
deemed to lead to more extensive or rigorous instruction, training, and 
examination than is currently in practice. While that might be a 
positive development, FRA recognizes that there might be costs involved 
with assuring the additional qualifications are met, and FRA has not 
found a correlation between the lack of operating rules training in 
general and accidents/incidents. FRA's decision only requires such 
periodic instruction as it applies to those operating rules that would 
be required by part 218, subpart F because the rules set out in that 
subpart do have a direct correlation to a substantial number of 
accidents/incidents and other noncompliance detected by FRA. See Sec.  
218.95(a)(5). FRA will consider implementing another rulemaking if 
noncompliance with other operating rules are identified that are 
causing a significant number of accidents/incidents. Based on available 
information, the current requirement, that each railroad periodically 
instruct each employee on the meaning and application of the railroad's 
operating rules, appears to be sufficient. See Sec.  217.11.
Section 217.11 Program of Instruction on Operating Rules; 
Recordkeeping; Electronic Recordkeeping
    FRA did not propose any changes to this section in the NPRM; 
however, after the NPRM's publication we realized that it contained a 
cross-cite to Sec.  217.9(e)(1) through (e)(5), which has been 
redesignated as Sec.  217.9(g)(1) through (5). This citation change is 
the only amendment to this section.

Part 218--[Amended]

Section 218.4 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent provision necessary to 
eliminate or reduce an essentially local safety or security hazard that 
is not incompatible with a Federal law, regulation, or order and that 
does not unreasonably burden interstate commerce. Section 20106 permits 
State tort actions arising from events or activities occurring on or 
after January 18, 2002, for the following: (a) A

[[Page 8463]]

violation of the Federal standard of care established by regulation or 
order issued the Secretary of Transportation (with respect to railroad 
safety, such as these regulations) or the Secretary of Homeland 
Security (with respect to railroad security); (b) a party's violation 
of, or failure to comply with, its own plan, rule, or standard that it 
created pursuant to a regulation or order issued by either of the two 
Secretaries; and (c) a party's violation of a State standard that is 
necessary to eliminate or reduce an essentially local safety or 
security hazard, is not incompatible with a law, regulation, or order 
of the United States Government, and does not unreasonably burden 
interstate commerce. Nothing in section 20106 creates a Federal cause 
of action on behalf of an injured party or confers Federal question 
jurisdiction for such State law causes of action. The NPRM language has 
been amended to reflect the changes made to Section 20106.
    Only one comment addressed this paragraph and that comment has been 
discussed in the preamble. See IV. General Comments/Major Issues, C. 
Preemptive Effect.
Section 218.5 Definitions
    FRA is amending the definition of flagman's signals in order to 
eliminate a reference to ``torpedoes.'' Torpedoes are antiquated 
signaling devices which have fallen into disuse in the industry. 
Likewise, we are amending Sec.  218.37, which refers to this definition 
and the placing of torpedoes when providing flag protection.
    FRA is also amending the definition of locomotive to explain that 
this particular definition of locomotive does not apply to subpart F. 
The definition of locomotive in this section is a more mechanically-
minded definition than the definition contained in 49 CFR 218.93. This 
definition continues to apply to the requirements in part 218, with the 
exception of subpart F.
Section 218.37 Flag Protection
    FRA is eliminating references to ``torpedoes'' as these are 
antiquated signaling devices which have fallen into disuse in the 
industry. The former rule required each railroad to have in effect an 
operating rule which complies with this section, and thus contains 
references to the use of torpedoes, even though the railroad could meet 
other flagging requirements without ever needing to carry or use 
torpedoes. In the former section, there are two paragraphs that 
reference torpedoes. Former paragraph (a)(1)(iii) states, in part, that 
``[w]hen a train stops on main track, flag protection against following 
trains on the same track must be provided as follows: A crew member 
with flagman's signals must immediately go back at least the distance 
prescribed by timetable or other instructions for the territory, place 
at least two torpedoes on the rail at least 100 feet apart and display 
one lighted fusee.'' The language in italics has been deleted by this 
final rule. Former paragraph (a)(1)(iv) states that ``[w]hen required 
by the railroad's operating rules, a forward crew member with flagman's 
signals must protect the front of his train against opposing movements 
by immediately going forward at least the distance prescribed by 
timetable or other instructions for the territory placing at least two 
torpedoes on the rail at least 100 feet apart, displaying one lighted 
fusee, and remaining at that location until recalled.'' Again, the 
language in italics has been deleted by this final rule. Elimination of 
the references to torpedoes does not eliminate the requirement that 
each railroad have in effect an operating rule that complies with the 
requirements in this section. Furthermore, FRA has made minor 
amendments to make the regulatory language gender neutral.

Subpart F--Handling Equipment, Switches, and Fixed Derails

Section 218.91 Purpose and Scope
    As previously explained in the supplementary information, FRA has 
identified that noncompliance with a small number of railroad operating 
rules has caused an inordinate percentage of total human factor caused 
accidents. FRA's purpose is first to establish clear and unambiguous 
procedures that will provide for the safety of railroad employees and 
the public. In the RSAC Working Group discussions that preceded the 
preparation of the proposed rule, FRA noted significant variation in 
basic safety procedures followed on participating railroads. Although 
some variation is necessary to address local conditions, the presence 
of extensive joint operations in the railroad industry makes it 
essential that certain common procedures apply. Joint operations are 
not new to the railroad industry, as evidenced by the historic role of 
terminal companies. However, the practice has more recently expanded 
through mergers and consequent awards of trackage rights and through 
the creation of hundreds of small railroads that are often provided 
access to larger railroad's facilities to facilitate efficient 
interchange of cars.
    In order to ensure compliance with operating rules, it is essential 
that they be consistent, commonly understood, and applied in a 
predictable manner. Further, it must be understood that the rules may 
not be circumvented at the whim of a supervisor or employee to hasten 
completion of the work. The rules in this subpart are intended to 
support these purposes.
    In addition, making these rules mandatory from a Federal standpoint 
provides an enforcement mechanism to discourage noncompliance.
    FRA is standardizing this small number of railroad operating rules 
by establishing minimum requirements. The minimum requirements are 
based on accepted best practices and rules currently in use. Of course, 
railroads may choose to prescribe additional or more stringent 
requirements.
    FRA received one comment regarding this section. AAR proposed that 
FRA add a paragraph that exempts employees subject to blue signal 
protection under subpart B of this chapter, or to employees moving 
equipment within the confines of a locomotive repair or servicing area, 
or a car shop repair track area. FRA disagrees with AAR's premise that 
employees performing these functions do not need to be qualified on the 
requirements of this subpart. It is absolutely imperative that all 
employees operating a hand-operated switch or fixed derail understand 
how to properly operate and determine the position of such switches and 
derails. We do not share AAR's belief that there is any conflict with 
the blue signal requirements of this chapter. Additionally, FRA did 
carve out one exception under proposed Sec.  218.103(g)(2)(a), 
redesignated as Sec.  218.107(c)(1)(i), so that hand-operated crossover 
switches could be left out of correspondence when used to provide blue 
signal protection under Sec.  218.27.
    FRA has also clarified in the title to this subpart, the purpose 
and scope section, and in Sec.  218.109, that this subpart applies to 
``fixed'' derails and does not apply to ``portable derails.'' In the 
NPRM, FRA did not distinguish between the two general types of derails, 
i.e., fixed and portable. FRA is using the term ``fixed derails'' to 
contrast it with derails that are portable. Portable, or temporary, 
derails can easily be transported and applied at different locations 
throughout the day in order to protect workers and equipment as needed. 
Fixed, or permanent, derails cannot be easily transported because they 
are typically affixed to the track structure in some manner. Fixed 
derails are normally found prior to entering a locomotive servicing 
area or car shop repair area, where they are used to protect workers in 
those areas from

[[Page 8464]]

encroachment by unauthorized movements of rolling equipment. Fixed 
derails are also used on industry tracks to prevent rolling equipment 
from unintentionally rolling out onto a main track.
Section 218.93 Definitions
    The definitions in this section only have applicability to this 
subpart so it should be easier for the reader to locate each definition 
in this section rather than in subpart A--General, Sec.  218.5.
    Several definitions are consistent with other definitions of these 
terms in this chapter. These terms are Associate Administrator for 
Safety, employee, locomotive, pedestrian crossing, qualified, and 
roadway worker. In an effort to be as clear as possible, FRA is 
including definitions of these terms in this subpart for the benefit of 
anyone unfamiliar with these terms.
    FRA is defining the term clearance point because this term is 
necessary to describe an important concept that is used several times 
in this subpart. ``Clearance point'' means the location near a turnout 
beyond which it is unsafe for passage by equipment or a person riding 
the side of a car on an adjacent track. While clearance points may be 
identified by marks on the rail, signs, or other visible identifiers, 
these points are often referring to an approximate location that will 
need to be deduced by an employee. Railroads shall implement procedures 
for identifying such approximate locations and for waiting to line 
hand-operated switches away until equipment that has entered the track 
has passed this point. See Sec. Sec.  218.101(c) and 218.103(d). 
Without a definition of clearance point, it would be difficult to 
define what is meant by ``foul or fouling a track.'' Through the proper 
identification of clearance points, employees can avoid collisions and 
personal injury to other employees riding the sides of cars.
    The definitions for correspondence of crossover switches and 
crossover are interrelated, and should be familiar to people working in 
the railroad industry. FRA defined the term ``correspondence of 
crossover switches'' in the NPRM and no comments were filed suggesting 
that the industry was confused by the term. Crossover switches are 
considered in correspondence under two conditions: (1) When it is 
desired to travel from one adjacent track to another, both crossover 
switches would need to be lined for the crossover movement; or (2) if 
no crossover movement is desired or intended, both crossover switches 
must be lined for the straight-away movement, i.e., straight track.
    FRA is adding a definition of crossover because, while drafting 
this final rule, we realized that the industry has not settled on one 
common definition of the term. Some railroads define the term crossover 
in their rule books as ``a combination of two switches that connect two 
adjacent tracks.'' One railroad adds the following sentence to that 
definition: ``When lined, this switch combination allows movements to 
cross from one track to the other.'' Other railroads simply define a 
crossover as ``a track connection between two adjacent tracks.'' 
Meanwhile, Christoper Schulte's Dictionary of Railway Track Terms, (3d 
ed. 2003), defines a crossover as ``a pair or group of turnouts which 
allows rolling stock and on-track equipment to cross from one track to 
another.'' Still another dictionary of railway terms, Don Dressel's 
Railroad Terminology, Definitions, & Slang, (4th ed.1994), defines a 
crossover as ``two turnouts * * * connecting two nearby and usually 
parallel tracks.'' FRA is aware that there are many variations of track 
configurations that may resemble a crossover, or may fall generally 
within the parameters of one of the definitions referenced above but, 
as a practical matter, are not crossovers in the purest sense that FRA 
and most of the industry understand and intend the term to mean. 
Therefore, in the application of this subpart, the term crossover 
applies to a track connection between two adjacent, but not necessarily 
parallel, tracks, consisting of two switches, which is intended to be 
used primarily for the purpose of crossing over from one track to 
another. Categorically excluded from this application are track 
connections between adjacent tracks that, while they may physically 
permit equipment to pass from one track to another, are of sufficient 
length so as to be able to store or hold rolling equipment on them, or 
to set out bad order cars, or to store track equipment, or for any 
other purpose than solely for crossover movements. Of course, it is 
possible to have a crossover that holds just a few pieces of rolling 
equipment and that is not typically used for allowing other movements 
to pass or used for storage, but yet is used for such purpose. In 
response to these atypical situations, FRA intends to use its 
enforcement discretion on a case by case basis.
    A definition for foul or fouling a track is provided because this 
term is necessary to describe an important concept that is used several 
times in this subpart. Foul or fouling a track means rolling equipment 
or on-track maintenance-of-way equipment is located such that the end 
of the equipment is between the clearance point and the switch points 
of the switch leading to the track on which the equipment is standing. 
The potential for an accident is great when equipment is left standing 
on a track in such a manner that a movement on an adjacent track would 
collide with it; this is especially true when the standing equipment is 
left so that it appears that equipment might be able to pass by on the 
adjacent track. Equipment, or a person riding a side of a car, on 
adjacent track could strike fouling equipment. This type of accident is 
usually a side-swipe type accident and the severity of the accident 
depends on the factors involved; e.g., the factors determining severity 
include, but are not limited to, the speed of the moving equipment, the 
type of equipment struck, the contents of the cars struck, whether a 
person was riding a car and whether an occupied locomotive struck the 
equipment. The issue of foul or fouling a track is addressed in Sec.  
218.101 titled ``Leaving Rolling and On-Track Maintenance-of-Way 
Equipment in the Clear,'' because certain scenarios of fouling are 
avoidable and FRA believes that each railroad should have an operating 
rule that prohibits this dangerous practice. The final rule was amended 
from the NPRM to clarify an issue raised during the RSAC process. FRA 
was asked to clarify what it meant by the term ``any part of the 
equipment.'' Some commenters questioned whether FRA would consider a 
high-and-wide load, or a shifted load of lumber protruding from the 
side of a flat car, as ``fouling'' an adjacent track even though the 
end of the car might still be within the clearance point of the switch. 
FRA's experience has been that when there are high-and-wide or shifted 
loads, railroads have implemented proper procedures for employees to 
take appropriate action and address the safety concerns. The situation 
FRA intends to address in this rule by defining ``foul and fouling'' 
occurs when the end of a car itself is fouling and struck by a movement 
on an adjacent track; the reason for FRA's narrower focus is because 
that situation is the type of accident described universally in the 
accident/incident reports filed with FRA that are categorized as ``cars 
left foul'' or ``car(s) shoved out and left out of clear.'' By 
referring to the end of the equipment, FRA's regulation is patterned 
after the long-standing operating rule, and we would hope make it 
easier to understand for employees. This

[[Page 8465]]

clarification is based on an RSAC recommendation. FRA will consider 
initiating a new rulemaking amending the definition of ``foul or 
fouling'' if future data reveals that high-and-wide or shifted loads 
become an increasing explanation for accidents/incidents.
    FRA defines hand-operated switch broadly to identify any type of 
switch when operated by manual manipulation including traditional hand-
operated (rigid) switches, power switches, and spring switches. 
Excluded from this definition are switches operated by push button or 
radio control if the switch is protected by distant switch indicators, 
switch point indicators, or other visual or audio verification that the 
switch points are lined for the intended route and fit properly. The 
definition includes all switches which are normally operated by manual 
manipulation of the switch lever. As FRA has defined this term, ``hand-
operated switch'' includes switches operated by push button or radio 
control, but only when such switch is not protected by distant switch 
indicators, switch point indicators, or other visual or audio 
verification that the switch points are lined for the intended route 
and fit properly. For example, the two types of indicators provide a 
visual indication of the switch alignment; and other electronic 
advancements are capable of sending a message to a receiver indicating 
the switch's alignment; such that a visual check by an employee to 
determine that the switch is properly aligned would be redundant after 
receiving an electronic message that has already served that purpose. 
For switches that use push button or radio control technology, the 
``manual manipulation'' aspect is that the employee is required to 
throw the switch; and the electronic aspect of the switch manipulation 
is primarily an option for avoiding personal injuries due to the 
throwing of a switch lever. FRA does not intend to address issues 
related to power-assisted switches operated from central consoles, 
whether within or outside of signaled territory, when so operated.
    With regard to the definition of hand-operated switch, several 
members of the RSAC Operating Rules Working Group requested that FRA 
explain which employees would be required to comply with the 
requirements for hand-operated switches. FRA explained that the 
definition intended to characterize the types of switches normally 
operated by operating employees, whether or not there is some 
electronic aspect to the operation of the switch. Such operating 
employees include, but are not limited to, conductors, brakemen, 
trainmen, switchmen and remote control operators. On rare occasions, a 
conventional locomotive engineer might operate a switch, although, with 
push button and radio control technology, it is possible that 
locomotive engineers may find themselves operating a greater number of 
switches in future years. Maintenance-of-way and mechanical employees 
also have occasion to operate these switches. That being said, the rule 
is focused on the type of switch that is operated and not the job title 
of the person operating; thus, regardless of a person's job 
classification, a person who operates a switch fitting the definition 
of a ``hand-operated switch'' is required to comply with the 
requirements of this subpart.
    BRS commented that the proposed definition of hand-operated switch 
was problematic. In general, the view raised by BRS, in comments and 
discussions during the RSAC working group, was that the definition did 
not accurately describe what signalmen would consider a ``hand-operated 
switch.'' In BRS's view, FRA's definition included other types of 
switches and was thus over-inclusive. BRS also raised a concern that if 
FRA has a definition of ``hand-operated switch'' in this subpart, that 
this definition might eventually be adopted by FRA in other parts of 
the chapter. FRA gave great consideration to this request and attempted 
to draft the definition according to the preferences expressed by BRS 
in its comments; however, FRA has decided not to amend the rule for the 
following reasons. In attempting to craft an alternative that defined 
hand-operated switch more narrowly, FRA found itself having to create 
and define at least three other terms as well (e.g., power switch, 
dual-control power switch, and manually-operated switch), in order to 
cover all of the types of switches FRA wanted the rule to cover. In our 
view, the regulation would be more complicated with four definitions 
when one will do. The definitions located in this section are 
explicitly identified as to be ``used in this subpart;'' any rule that 
FRA promulgates concerning the maintenance of different types of 
switches will be written in a separate part or subpart of this chapter 
and may require more technically detailed descriptions. Certainly, FRA 
is not required to maintain this definition of hand-operated switch 
throughout all of its regulations if it requires greater detail in 
other contexts. Considering all of the different crafts of workers, 
signalmen should have the least amount of difficulty understanding how 
to properly operate and verify switches. This regulation is geared more 
for the perspective of operational railroad workers who simply need to 
know that no matter what the signal department calls the switch, FRA 
requires it to be treated as the equivalent of a hand-operated switch 
if it is unprotected by any type of indicator or verifier, and has some 
manual operation aspect to it--regardless of whether that manual 
operation is by push button or radio control. BRS's concern is a valid 
one, but is one that is likely to perplex more signalmen than 
operations employees. Finally, we make the observation that EO 24 was 
issued without ever defining what FRA meant by a ``hand-operated 
switch'' in non-signaled territory; this emergency order, which this 
final rule supercedes, has been in effect since November 22, 2005, 
without any person requesting interpretive guidance on this term and 
yet FRA's experience has been that every railroad has applied EO 24 to 
those types of switches defined by the ``hand-operated switch'' 
definition FRA has promulgated in this rule.
    Finally, BRS requested that FRA use this rulemaking to regulate the 
design, inspection, and maintenance of the signals that are protected 
by distant switch indicators, switch point indicators, or other visual 
or audio verification, i.e., all those non-hand-operated switches. FRA 
agrees that use of substandard technology can lead to inappropriate 
reliance on audible or visual indications that a switch is in the 
desired position and locked when it is not properly aligned and 
secured. FRA further notes that failure to provide fouling circuits in 
cases where employees cannot visually confirm that no equipment is out 
to foul the intended route could substantially undercut the redundant 
safety protections intended by this rule. Finally, we acknowledge that 
this rule fails to adequately address the ability of employees to 
confirm that conflicting movements are not approaching a switch 
location when radio controlled switches are employed and approach 
circuits are not in place. FRA also agrees with BRS that there is a 
safety concern if any railroad is failing to regularly inspect or 
maintain these ``other signal arrangements.'' However, FRA believes any 
such regulation of these other signal arrangements should be part of a 
separate rulemaking, not one intended to solely focus on railroad 
operating rules and practices. FRA has not yet initiated a rulemaking 
in this area, but held a technical conference on April 19, 2007, in 
Washington, DC to address the technical aspects of this issue (72 FR 
14641; March 28, 2007). Interested parties may wish to file

[[Page 8466]]

comments to Docket No. FRA-2007-27623. Until FRA is able to provide 
suitable regulations to address technology being employed to perform 
functions described in this final rule, and similar functions, 
railroads should exercise caution and prudence in implementing that 
technology. FRA was encouraged to note that many participants in the 
Special Safety Inquiry appeared sensitive to this need.
    FRA defined highway-rail grade crossing in the NPRM, but has 
refined the definition for purposes of this final rule. The definition 
in the NPRM mirrored the definition in Sec.  234.5 of this chapter. FRA 
originally intended to try and keep the definition simple by carrying 
the same definition for this term used in the Grade Crossing Signal 
System Safety rule found at 49 CFR part 234; however, upon further 
reflection, FRA realized that the proposed definition would include 
many ad hoc crossings on private property that are often created and 
removed in short order. Some of these temporary crossings may also be 
illegal or built without consent of the railroad that owns the track. 
As the term ``highway-rail grade crossing'' is used in this rule in the 
context of protecting shoving or pushing movements, the proposed 
definition would have required that a railroad and its employees be 
responsible for determining that such ad hoc crossings are protected 
during shoving or pushing movements. It is conceivable that the 
proposed requirement could have created enforcement dilemmas, 
especially when a crossing is created without any notification to the 
railroad or train crew, or the operation occurs at night, on a curve, 
or there is some other reason that the ad hoc crossing would be 
difficult to spot without prior knowledge of its existence.
    Consequently, to avoid setting this trap, FRA has changed the 
definition to exclude the type of ad hoc crossings that are not part of 
the DOT National Highway-Rail Grade Crossing inventory or are unmarked 
by signage indicating the presence of an at-grade crossing. If a 
crossing has a DOT inventory number but is not an ``at-grade 
crossing,'' the crossing does not fall within this definition. In 
contrast, if a crossing does not have a DOT inventory number, but has 
signage (e.g., crossbuck or stop sign) indicating the presence of an 
at-grade crossing, the crossing would fall within the definition. 
Although it is possible that a private property owner might quickly 
construct a crossing that included appropriate signs of the newly 
established at-grade crossing without the track owner's permission, it 
would seem ill-advised to absorb such expenses without proper 
permission; thus, we would expect that at nearly every crossing with 
crossbucks, stop signs, or other appropriate signage indicating the 
presence of an at-grade crossing, the railroad will be able to identify 
these crossings and alert its employees of the need to protect such 
crossings during shoving or pushing movements pursuant to Sec.  218.99.
    FRA did not propose, but has added, a definition of industry track 
in order to refine the requirements in Sec.  218.101 ``Leaving Rolling 
and On-Track Maintenance-of-Way Equipment in the Clear.'' Industry 
track is defined as a switching track, or series of tracks, serving the 
needs of a commercial industry other than a railroad. Thus, it should 
be absolutely clear that a railroad yard does not contain industry 
track, even though, admittedly, there might be industry track connected 
to the yard. The RSAC recommended this definition as it distinguishes 
industry track from other types of tracks used for similar purposes 
(e.g., yard tracks, team tracks, sidings, etc.). The definition RSAC 
recommended, and which is the definition FRA is promulgating, is the 
same definition FRA uses in its Guide for Preparing Accident/Incident 
Reports.
    FRA has maintained from the NPRM a definition of locomotive that is 
consistent with the definition contained in 49 CFR 240.7. FRA has 
promulgated this definition because the shoving and pushing 
requirements of this subpart apply to certified locomotive engineers 
who may be operating vehicles that meet this definition, but do not 
fall within the more mechanically-minded definition used elsewhere in 
this chapter and part. FRA is aware that this part already contains a 
more mechanically-minded definition, see Sec.  218.5, and intends that 
the definition used in this subpart supercede that other definition. To 
clarify that there are two definitions of this term with different 
applicability, FRA has added language to the definitions to clarify 
which definition is applicable to subpart F and which is applicable to 
the part ``except for purposes of subpart F.''
    FRA has added a definition of qualified which is identical to the 
definition added for 49 CFR 217.4 in this rule. A person cannot be 
qualified unless he or she has successfully completed all 
``instruction, training, and examination'' programs required by both 
the railroad and this subpart. Where FRA specifies that a qualified 
employee is to do the work, it is because we want some assurance that 
the person either has actual knowledge, or may reasonably be expected 
to have knowledge, such that there is no question the person should be 
able to do the work in accordance with the railroad's operating rules. 
It is imperative that only employees who have been qualified should do 
such work that the rule restricts to qualified employees because a 
railroad that allows unqualified employees to do such work is 
increasing the likelihood of an accident/incident.
    FRA defines remote control operator merely to aid in the 
clarification of shoving or pushing movement requirements involving 
remote control operations versus the requirements for conventional 
operations. Remote control operators are ``locomotive engineers'' per 
FRA's regulations found at 49 CFR part 240. Traditional engineers, 
i.e., those persons qualified to operate locomotives in a conventional 
manner, may be trained on remote control equipment--and are thus also 
certified for remote control operations; in that situation, the term 
remote control operator applies to the conventional engineer. Hence, 
the term ``remote control operator'' is not limited to those persons 
who only are certified to operate remote control locomotives, but to 
anyone certified to operate such locomotives. The industry uses the 
shorthanded term ``remote control operator'' to refer to ``remote 
control locomotive operators'' and, because FRA solicited but did not 
receive any comments to the contrary, we trust that no one is confused 
by the dropping of the reference to ``locomotives'' in the terminology. 
FRA received one comment from AAR raising two concerns with regard to 
this definition. First, AAR correctly noted that the proposed 
definition mistakenly cited Sec.  240.5 when Sec.  240.7 is the 
accurate cite; FRA has corrected this mistake. Second, AAR suggested an 
alternative definition of remote control operator because it stated 
that the industry does not normally describe such operators as 
locomotive engineers. AAR's suggestion for an alternative definition 
eliminates the term locomotive engineer from the definition, and refers 
to the operator as ``an employee certified by a railroad to operate 
remote control locomotives pursuant to part 240 of this chapter.'' FRA 
rejects AAR's second suggestion because we do not agree with the 
distinction AAR is trying to make. Functionally, a locomotive engineer 
operating from a control stand in a cab and a remote control locomotive 
operator play the same role in switching operations, and, in some 
cases, they play the same role in train movements.

[[Page 8467]]

Thus, we consider it fundamental to both part 240 of this chapter and 
this final rule that a remote control operator be considered a 
locomotive engineer.
    FRA defines remote control zone in order to permit a shoving or 
pushing operation that is safe and yet protected differently from 
conventional shoving or pushing operations. This zone is a term adopted 
by railroads that designate one or more segments of track, typically in 
a yard, where remote control operators can safely switch cars without 
continually determining that the track is clear for the movement, as 
long as a prior determination has been made. Although the location of a 
remote control zone may be permanent, the regulation requires certain 
conditions to be met each time a zone is used for its intended purpose 
of allowing an operation without an employee assigned to protect the 
leading end in the direction of movement, i.e., the pull-out end, of 
the remote control movement. See Sec.  218.99(d).
    FRA has noticed some confusion between the terms ``remote control 
zone'' and ``remote control area.'' A ``zone'' is an integral part of 
remote control operations, whereas an ``area'' describes for 
informational purposes only a location within which remote control 
operations occur and does not directly affect such operations. The 
``area'' is usually created by putting up signs to warn employees 
working in the vicinity that moving locomotives may be unmanned. The 
``area'' is typically larger than the ``zone'' as it covers anywhere 
the remote control operation could take place. It is important to 
create these areas so that employees are warned to use care in moving 
around the yard with the knowledge that using hand signals to convey a 
message to a moving locomotive may be in vain as there may not be an 
engineer in the cab to see them. Thus, these terms do not mean the same 
thing and should not be used interchangeably.
    FRA defines roadway maintenance activity to distinguish between 
those duties prescribed for roadway workers, including movement of on-
track maintenance-of-way equipment other than locomotives, and other 
types of duties that a roadway worker may perform which are not so 
limited. In other words, a person designated a ``roadway worker'' may 
engage in an activity that is not a ``roadway maintenance activity.'' 
This term is used to describe an exception to the general shoving and 
pushing requirements found in Sec.  218.99(e)(3).
    FRA defines roadway worker in charge in order to provide a generic 
title to the roadway worker who is in charge of a roadway work group. 
The designation of such a worker enables FRA to require leaving main 
track switches in such a person's charge as well as being the conduit 
for switch alignment information when other workers in the group have 
operated switches. The communication among group members is similar in 
importance to the communication that is required between train 
crewmembers. FRA intends this term to have the same general usage as in 
subpart C of 49 CFR part 214.
    FRA has added a definition of the term siding to describe an 
auxiliary track, adjacent and connected to a main track, used for 
meeting or passing trains. In Sec.  218.101, the term ``siding'' is 
used in connection with an exception to leaving equipment in the clear. 
FRA understands that, in conversational or common usage, the term 
``siding'' can also be taken to mean a customer's siding or an 
industry's siding. Meanwhile, the regulation exempts operations from 
abiding by the requirements for leaving equipment in the clear on 
industry tracks beyond the clearance point of the switch leading to the 
industry. By adding the definition of the term ``siding,'' FRA intends 
to clarify the narrow meaning of the term in this subpart from its 
broader, conversational usage.
    FRA has added a definition of signaled siding to this rule to 
describe a siding within a traffic control system (TCS) territory or 
within interlocking limits where a signal indication authorizes the 
siding's use. In the NPRM, this definition was used to define a 
controlled siding, but, upon further reflection, FRA realizes that this 
definition actually defines a ``signaled siding.'' The NPRM used the 
term ``controlled siding'' in its exceptions to making a shoving or 
pushing movement on main tracks and controlled sidings, without 
requiring point protection, if certain conditions or prerequisites were 
met. The reason for the change to signaled siding is because the term 
controlled siding is not consistently applied to mean the same thing on 
all railroads. The term signaled siding, however, more accurately 
captures FRA's meaning and intent, which is a siding that is circuited 
(bonded) throughout its length. FRA also changed the term ``centralized 
traffic control (CTC)'' to ``traffic control system (TCS)'' to use the 
generic term rather than one specific brand of TCS.
    FRA defines switchtender because a few railroads still utilize a 
worker with responsibilities for lining specific switches for trains 
and a person with this position is not a crewmember. FRA defines this 
term because we want to acknowledge that this type of worker may be 
qualified to operate switches, so switches can be safely left in a 
switchtender's charge. FRA has not defined ``switchtender'' in order to 
suggest that railroads create such positions or that there is any sort 
of requirement to employ switchtenders.
    FRA defines the term track is clear to describe the required 
condition of the track prior to initiating or continuing a shoving or 
pushing movement under Sec.  218.99. If the four conditions for 
determining that the track is clear are met, then if an accident 
occurs, it is unlikely to be the fault of the person making the 
determination. That is, when the portion of the track to be used is 
clear there should not be any rolling equipment, on-track maintenance-
of-way equipment or conflicting on-track movements that could collide 
with the shoving or pushing movement; there should be no intervening 
motor-vehicles or pedestrians to strike as all intervening public 
highway-rail grade crossings, private highway-rail grade crossings 
outside the physical confines of a railroad yard, pedestrian crossings 
outside of the physical confines of a railroad yard, and yard access 
crossings are to be protected; there should be no intervening switches 
or fixed derails to run through or over as these devices should all be 
properly lined for the intended movement; and, the shoving or pushing 
movement should not accidentally collide with cars on a connecting 
track if the portion of the track to be used has sufficient room to 
contain the equipment being shoved or pushed.
    Within the definition of track is clear are the conditions for 
determining that intervening public highway-rail grade crossings, 
private highway-rail grade crossings outside the physical confines of a 
railroad yard, pedestrian crossings outside of the physical confines of 
a railroad yard, and yard access crossings are protected. As shoving or 
pushing movements typically occur without a locomotive engineer in a 
locomotive leading the movement, it is vital to protect crossings to 
prevent easily avoidable accidents. The definition for track is clear 
considers the crossing protected if the gates are in the fully lowered 
position, and have not been observed or known to be malfunctioning. 
Whether or not there are working gates, a crossing may be protected by 
stationing a designated and qualified employee at the crossing who has 
the ability to communicate with trains. A third option for protecting a 
crossing would be available when crossings are equipped only with

[[Page 8468]]

flashing lights or passive warning devices; in that situation, the 
crossing would be considered protected when it is clearly seen that no 
traffic is approaching or stopped at the crossing and the leading end 
of the movement over the crossing does not exceed 15 miles per hour.
    In response to AAR's comment and input during the RSAC process, FRA 
has modified the definition of ``track is clear'' from the NPRM in 
several places. FRA has removed the requirement that a crewmember or 
other qualified employee make a visual determination because that 
requirement is already found in redesignated Sec.  218.99(b)(3), 
formerly paragraph (b)(2). FRA has changed the term ``conflicting 
movements'' in the proposed first numbered condition to ``conflicting 
on-track movements'' in the final rule. The purpose for this change is 
to reflect that the track can be considered clear even if maintenance-
of-way equipment is in the vicinity of the track to be shoved or pushed 
onto; instead, if the equipment is not on a track at the time the move 
is commencing or continuing, it is not considered a conflicting 
movement that would prevent the movement from being initiated. As 
discussed previously, a definition of ``yard access crossing'' has been 
added to ensure that railroads protect the crossings in railroad yards 
that someone other than an employee is likely to use. FRA has amended 
paragraph (2)(i) to reflect the proposed section analysis that 
crossings are protected when the crossing gates are in the fully 
lowered position but only when the gates have not been observed or 
known to be malfunctioning; FRA notes that the employees involved in 
the shoving or pushing move in which a determination that the track is 
clear is required need to share any information regarding 
malfunctioning grade crossings and may collectively be responsible for 
improperly protecting an observed or known to be malfunctioning 
crossing. Finally, FRA has added the qualifier in the third condition 
that any intervening ``fixed'' derails, as well as intervening 
switches, shall be lined for the intended movement when determining 
that track is clear; although FRA would also expect employees to be on 
the lookout for portable derails before determining that the track is 
clear, there certainly is no excuse for operating over an intervening 
fixed derail.
    FRA is defining, for purposes of this subpart, the term yard access 
crossing in order to further define what grade crossings must be 
protected to ensure that the ``track is clear'' (another term defined 
in this section) during shoving and pushing movements under Sec.  
218.99. A yard access crossing is a highway-rail grade crossing that is 
located within a yard and is either (1) open to unrestricted public 
access, or (2) open to persons other than railroad employees going 
about their normal duties, e.g., business guests or family members. A 
yard access crossing is one of the types of crossings that must be 
protected. The name is intended to describe a crossing in a railroad 
yard, that is regularly used by people who are not railroad employees 
(although railroad employees will, of course, also use these 
crossings). For example, one or more crossings in a yard may be open to 
anyone needing to get to a yard office or building. Family members and 
others may need to come drop off or pick up railroad employees, or make 
other pick-ups and deliveries; if that activity is permitted by the 
railroad and a crossing in the yard must be traversed, then the 
crossing shall be considered a yard access crossing for purposes of 
this rule. If the crossing is located away from yard buildings such 
that they would not need to be traversed by non-employees, then the 
crossing should not be considered a yard access crossing. FRA does not 
intend for every crossing in a yard to be considered a yard access 
crossing just because a non-employee might be foolish enough to take an 
unmarked or circuitous, unconventional route to the yard office. Of 
course, FRA advises each railroad to provide adequate signs for 
visitors to its yards so that there is no confusion about where to go--
and thus no confusion for employees regarding which crossings are 
required to be protected. Generally speaking, we would expect that a 
crossing that consists of ballast thrown down to allow maintenance-of-
way vehicles and employees to cross a track within a yard would not be 
the type of crossing a railroad would expect the members of the general 
public to cross; thus, those ad hoc crossings would nearly always not 
be considered a yard access crossing and would not need to be protected 
in accordance with the shoving and pushing requirements in this rule.
Section 218.95 Instruction, Training, and Examination
    In paragraph (a), FRA requires that each railroad maintain a 
written program that will qualify its employees for compliance with 
operating rules implementing the requirements of this subpart to the 
extent these requirements are pertinent to the employee's duties. Thus, 
the pool of employees that would need to be covered by the program are 
those employees involved in shoving or pushing operations, remote 
control operations, and any operation where equipment might be left 
fouling a connecting track--as well as any employee that may be 
required to operate hand-operated switches and fixed derails. The 
written program may be a stand-alone program or consolidated with the 
program of instruction required under Sec.  217.11 of this chapter. FRA 
anticipates that most railroads would choose to consolidate this 
program with the part 217 requirement. Although FRA encourages the 
efficiencies consolidation is sure to bring, FRA's expectation is that 
the consolidated written program will sufficiently emphasize the 
requirements of this subpart. Each railroad is required to establish 
the program no later than July 1, 2008, and continue to maintain it 
thereafter.
    Paragraphs (a)(1) and (a)(2) provide more details regarding what 
should be included in the written program. Paragraph (a)(1) requires 
that the program include instruction on consequences of noncompliance, 
i.e., that FRA can take enforcement action through civil penalties or 
disqualification from safety sensitive service. See 49 CFR part 209, 
subpart D-Disqualification Procedures. Paragraph (a)(2) requires that 
the written program address the need to qualify employees on all 
aspects of the technology the employees will be utilizing when 
complying with the operating rules required by this subpart. For 
example, employees may be expected to operate a variety of hand-
operated switches and must be taught how to properly operate them as 
well as what to do if a malfunction or deviation is detected. This 
final rule differs slightly from the proposal. In the NPRM, FRA 
requested comments regarding whether the final rule should include any 
specific reference to qualification of employees on the territory where 
they will be working. FRA explained in the proposal that it was not 
immediately obvious how this concept should be applied in the subpart F 
context. During the RSAC discussions and in comments, labor 
representatives asked for a more explicit recognition of this 
requirement and suggested revising paragraph (a)(2) to require that 
each worker be ``qualified,'' rather than just ``trained,'' on the 
items listed in that paragraph. FRA agrees and has changed the relevant 
proposed phrasing from ``shall include training'' to ``shall include 
qualifying the employee.'' Although this change does not amount to a 
specific requirement that every employee shall be territorially 
qualified, it is implicit that this type of qualification is required 
when necessary

[[Page 8469]]

to provide the knowledge required to comply with the subject rules. 
Locomotive engineers, including those that are remote control 
operators, are already required to be territorially qualified pursuant 
to part 240 of this chapter. Furthermore, FRA hopes to allay labor's 
fears by reminding interested parties that if territorial qualification 
is a necessary component for complying with one of the subpart F 
operating rule requirements and that qualification was not provided to 
an employee, FRA is unlikely to bring an enforcement action against the 
employee because FRA would likely have difficulty proving that the 
violation was ``willful.'' See 49 CFR part 209, app. A. Finally, FRA 
has revised paragraph (a)(2) by changing the word ``employed'' to 
``necessary'' because, in context, the word ``employed'' implied 
``used;'' the change clarifies that an employee cannot be deemed 
qualified to accomplish the work without satisfying the qualifications 
requirements in the program that specify any instruction, training and 
examination needed to operate the technology and understand any related 
procedures.
    Paragraphs (a)(3) and (a)(4) address the implementation schedule 
for this subpart. Paragraph (a)(3) requires that prior to January 1, 
2009, employees performing duties subject to these requirements shall 
be qualified per the minimum requirements in this subpart. It is 
further required under paragraph (a)(3) that employees who are hired 
during the period following April 14, 2008 through January 1, 2009, 
would not be provided such a grace period; instead, is required that 
new hires receive the proper qualification training before being 
allowed to perform duties subject to the requirements of this subpart. 
Furthermore, under paragraph (a)(4), after January 1, 2009, no further 
grace period is provided and employees shall receive recurrence 
training at least every three years. FRA is requiring this three year 
window because it is becoming a standard industry practice to re-
qualify employees on operating rules at least every three years and 
that is a reasonable time period in which to conduct continuing 
education. The dates in paragraphs (a)(3) and (a)(4) were extended so 
that they would coincide with the calendar year, rather than the 
effective date of the final rule. Finally, pursuant to paragraph 
(a)(5), the record for each employee shall document qualification of 
employees under this subpart by including any records of required 
instruction, examination and training.
    Both AAR and APTA requested that FRA change the training schedule 
through a longer grandfather provision than the one year proposed and 
extend all the schedules for implementation so that the required 
training could be accomplished during the normal three year cycle. The 
latter concern is that a large railroad with many employees to qualify 
will only need to train about a third of its employees each year, while 
FRA proposed requiring all current employees to be trained within one 
year from the date of the rule's publication. FRA is not adopting the 
suggestions because one full year should be sufficient time for a 
railroad to modify its operating rules according to this subpart and 
qualify its employees on the small number of operating rules covered by 
this subpart. Many railroads may find little difference, if any, 
between the subpart F requirements and their existing operating rules. 
Experienced employees should have little difficulty understanding the 
nuances of any of the new rules, so FRA does not envision qualifying 
existing employees to be greater than a refresher course with limited 
subjects to be covered. FRA perceives that the commenters may be 
expressing a frustration that the railroads will need to schedule this 
qualification class and not be able to logistically combine it with a 
regularly scheduled operating rules training class under Sec.  217.11 
for every one of its employees; i.e., employees scheduled to receive 
operating rules training this year would be covered, but not those 
previously scheduled for the following two years. FRA permits railroads 
to combine the training under this subpart with the Sec.  217.11 
training, but not to extend the deadlines for the subpart F training. 
Again, AAR and APTA's requests are denied mainly because the 
qualifications requirements under this subpart cover a limited number 
of operating rules and subject areas that experienced employees should 
readily comprehend without many questions or concerns.
    Paragraph (b) requires that qualification records required by this 
subpart be retained at a railroad's system headquarters and at the 
division headquarters, if any, where the employee is assigned. This 
will enable FRA to quickly obtain such qualification records upon 
request. FRA has not required a retention schedule for these records as 
we believe the section mandates that at a minimum: (1) Records must be 
kept for each employee qualified and (2) when an employee is 
requalified, there is no longer a need for a railroad to retain the old 
record as it has been superceded by the new one. Paragraph (b) also 
includes the option to allow a railroad to retain these records 
electronically in accordance with Sec. Sec.  217.9(g) and 217.11(c) of 
this chapter; this option was added to address a comment from APTA for 
FRA to specify that electronic recordkeeping would be acceptable.
    Paragraph (c) provides a mechanism for FRA to review and disapprove 
of a railroad's written program required under paragraph (a). It also 
requires minimum procedures and structure to the review process. The 
paragraph provides that the Associate Administrator for Safety will 
only disapprove programs of instruction, training, and examination 
required by this section for cause stated. As the disapproval decision 
is made for cause, it is significant for the railroad to understand 
exactly why FRA is disapproving the program; thus, notification of such 
disapproval will be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program, the railroad has 35 days from the date of the 
written notification of such disapproval to either (1) amend its 
program and submit it to the Associate Administrator for Safety for 
approval, or (2) provide a written response in support of the program 
to the Associate Administrator for Safety. If the railroad chooses the 
second option to defend the allegedly defective program, the Associate 
Administrator for Safety will inform the railroad of FRA's final 
decision in writing. Although the rule is silent regarding whether a 
railroad may request an extension, FRA intends for the Associate 
Administrator for Safety, as the agency's decision-maker, to have the 
flexibility to decide procedural issues, such as having the ability to 
grant or deny requests for extensions of time, as the issues arise. The 
Associate Administrator for Safety renders a final decision in writing 
which will specify the terms and conditions under which the program 
will be considered approved or disapproved. If the decision denies the 
railroad's request in whole or in part, FRA intends for the railroad to 
amend its program and submit it to the Associate Administrator for 
Safety for approval within 35 days of the final decision as that is the 
period of time accorded for amending programs when a railroad chooses 
not to appeal the disapproval. Again, a railroad may request an 
extension of time to amend its program and submit it to the Associate 
Administrator for Safety for approval, and FRA intends for the 
Associate Administrator for Safety to have the flexibility to decide 
whether to

[[Page 8470]]

grant or deny such procedural requests. Although enforcement action is 
always discretionary, FRA believes that enforcement action is warranted 
when a railroad fails to appropriately and timely amend its program; 
for this reason, FRA is requiring in paragraph (c)(2) that a failure to 
submit the program with the necessary revisions to the Associate 
Administrator for Safety will be considered a failure to implement a 
program under this part.
    The approach in paragraph (c) recognizes that FRA will typically 
want to review such written programs during audits or investigations 
and that FRA should have the authority to request changes to the 
program if it does not meet the minimum requirements of this rule. The 
oversight authority vests with the Associate Administrator for Safety. 
Although FRA would have authority to review in detail each railroad's 
program, FRA is not requiring each railroad to submit its program for 
review and explicit approval. Rather, FRA will review the qualification 
programs of the railroads over a multi-year cycle, in connection with 
review of the overall program of operating rules, to determine if they 
are effective. Among the factors that would be considered would be the 
extent to which the program is founded on appropriate task analysis, 
the completeness of the curriculum, the types of instructional methods, 
appropriateness of written and other tests, criteria for successful 
completion, and--most importantly--the ability of employees said to be 
qualified to apply the rules in practical situations. The final rule 
contains more details than in the NPRM but the overall approach is not 
significantly different.
Section 218.97 Good Faith Challenge Procedures
    FRA received a wide-variety of comments pertaining to the proposed 
good faith challenge procedures section. In short, the labor 
organizations generally supported the procedures and offered small 
suggestions for improvement, while the associations representing 
railroad management generally requested more significant changes based 
on legal and policy concerns. The legal concerns raised by the comments 
are addressed earlier in this rule in the preamble. See IV. General 
Comments/Major Issues, Good Faith Challenge--Legal Issues. While most 
of the procedures in this paragraph are maintained from the proposed 
rule, FRA has amended this section to allay valid concerns raised by 
the comments and to correct deficiencies in enforcing the challenge.
    The main purpose of requiring that each railroad establish 
operating rules containing certain minimum requirements under this 
subpart is to ensure safe handling requirements of certain operations 
by employees where human factor caused accidents have historically 
occurred. Codifying these requirements will enable FRA to take 
enforcement action when necessary, and will therefore discourage 
noncompliance with these important safety rules. FRA is convinced that 
human factor caused accident rates and incidents of noncompliance would 
be significantly lower if each railroad were properly qualifying 
employees and consistently enforcing its own operating rules. FRA's 
perception is that on occasion some railroad officers are permissive in 
allowing occasional violations of operating rules in order to achieve 
short-term perceived efficiencies. For example, a railroad officer may 
order an employee to shove blind, i.e., without ensuring that the track 
is clear for the movement, in an effort to finish a job quickly and get 
a train out of the yard. If the move originated from a direct order by 
a railroad official, the employee might fear challenging the railroad 
official on the order or might have complied with so many similar 
orders in the past as to not perceive the danger in occasionally 
violating an operating rule. Another example could occur when an 
employee is told he or she may leave work early as soon as a particular 
assignment is complete. Rather than taking the longer but safer route 
to determine that a switch was left properly lined, the employee 
assumes the switch was left properly lined, even though some time has 
passed since the employee last observed it. This rule is intended to 
check emergence of the culture that occasionally accepts some degree of 
noncompliance with a railroad's operating rules.
    One essential aspect of changing this undesirable culture of 
complacency with some noncompliance is to establish better lines of 
communication between employees and railroad officers. Section 218.95 
requires that railroads have a written program that will ensure that 
employees are well trained and qualified to do the work. A qualified 
employee should readily recognize when a railroad officer has given the 
employee an order that does not comply with the railroad's own 
operating rules. In order to address this issue further, FRA is 
requiring good faith challenge procedures.
    The good faith challenge procedures are about establishing 
dialogues between employees and railroad officials. A good faith 
challenge is initiated by an employee who believes that if he or she 
obeys a particular order issued by a railroad official, the employee 
would violate one or more of the operating rules required by this 
subpart. At its core, the good faith challenge and its attendant 
procedures should force a railroad official to listen to an employee's 
concern regarding such an order and to reconsider the validity of the 
order. FRA has created a mechanism for appealing the first official's 
order to a second official in the situation where dialogue and 
compromise do not resolve the discrepancy.
    FRA has added paragraph (a) so that the regulation sets forth the 
responsibility of employees to provide consistence with other good 
faith challenge regulations promulgated by FRA. See 49 CFR 214.503(a) 
and 214.313. This paragraph clarifies that whenever an employee makes a 
good faith determination that the employee has been directed to violate 
either FRA regulations or a railroad's operating rules regarding the 
handling of equipment, switches, and fixed derails, the employee shall 
inform the railroad or employer (as not all rail employees work 
directly for a railroad) of the belief that the order may be in 
violation. Thus, in the interest of safety, an employee has a duty to 
raise challenges to perceived non-complying orders. With the addition 
of paragraph (a), all of the proposed paragraphs required renumbering.
    As explained in the proposed rule, FRA refers to the challenge as 
the ``good faith'' challenge because we do not intend for employees to 
abuse it. We expect bad faith challenges to never or rarely occur and 
for the challenge to provide, in part, for a dialogue between employee 
and supervisor that railroads should be permitting and encouraging 
without being prompted by regulation. That said, it is possible for bad 
faith challenges to occur. For example, if several experienced 
employees in a particular yard were all to initiate separate challenges 
where no real dispute could be articulated, this concerted effort to 
create a work stoppage or slowdown would be in bad faith. It might also 
be considered bad faith, or at least cause for concern, if an employee 
repeatedly made similar challenges that were without merit; in such an 
instance, the facts and circumstances of each incident would need 
evaluation as the problem could be inadequate qualifications or 
experience--not necessarily a challenge made in bad faith. It is 
certainly not an act of bad faith for an employee who

[[Page 8471]]

makes a challenge to have simply misinterpreted the operating rule or 
practice, and we would have serious concerns with a railroad that 
sought to punish an employee merely for asserting the challenge and 
being wrong. Again, we emphasize that we do not anticipate abuse of the 
challenge as FRA has not heard any anecdotal discussions of abuse with 
the already existing good faith challenges. Furthermore, if the good 
faith challenge is found to be regularly abused, FRA would consider 
amending the challenge to reduce the likelihood of abuse or abolishing 
the challenge during a future rulemaking.
    FRA is promulgating good faith challenge procedures that are more 
detailed than those established for roadway workers because the 
officer/employee relationship dynamic is different for roadway work 
versus operations work. That is, the strict chain of command is more 
prevalent in operations than roadway work. Thus, a supervisor of 
roadway work may be more accepting of a challenge than an operations 
supervisor, e.g., a yardmaster.
    The concept of a good faith challenge applied to operations is not 
wholly unknown in the railroad industry. For example, we applaud the 
efforts of Metro-North Railroad, which has instituted a good faith 
challenge that is much broader than what FRA is requiring through this 
rule. Metro-North allows good faith challenges to any directive that 
would violate an operating rule or instruction in the following areas: 
operating rules, timetable, equipment operating instructions, 
electrical instructions, hazardous material instructions, safety 
instructions, and bulletin orders and general notices. Metro-North 
provides its employees the right to have a second supervisor review the 
challenge and lists the titles of the supervisors who are able to 
perform a second review: Operations Managers, District Superintendents, 
Line Superintendents, General and System Road Foremen, Chief Rail 
Traffic Controllers, and Operating Rules Department Supervisors. Metro-
North also pledges that it will not subject an employee to discipline 
for a violation of a rule or instruction when being ordered to comply 
by a second supervisor, provides for the right to document the 
challenge prior to the completion of the tour of duty, and the right to 
a written decision if requested promptly. Metro-North has also 
instituted its own form for tracking each challenge. Of course, FRA is 
prescribing minimum good faith challenge requirements only and each 
railroad may prescribe additional or more stringent requirements. See 
49 CFR 218.1.
    Proposed paragraph (a) is redesignated as paragraph (b). Paragraph 
(b) provides the general procedures for implementing a good faith 
challenge specific to the requirements of this subpart; railroads or 
employers of railroad employees subject to this subpart, of course, are 
free to implement a good faith challenge in areas not subject to this 
subpart as Metro-North has done. Paragraph (b) requires that each 
employer be responsible for the training and compliance by its 
employees with the requirements of this subpart. Obviously, railroads 
will have to instruct employees on all aspects of the good faith 
challenge or it will have no effect. The good faith challenge 
procedures must be made available to roadway workers as the definition 
of ``employee'' includes ``an individual who is engaged or compensated 
by a railroad or by a contractor to a railroad to perform any of the 
duties defined in this subpart. Although FRA does not anticipate that 
roadway workers would be involved in many, if any, shoving or pushing 
movements, the regulations pertaining to switches, fixed derails and 
leaving equipment in the clear would likely be applicable. FRA intends 
to take enforcement action where a railroad fails to properly instruct 
employees or a railroad's officers fail to comply with implementation 
of the good faith challenge procedures.
    Paragraph (b)(1) requires that each employer adopt and implement 
written procedures which guarantee each employee the right to challenge 
in good faith whether the procedures that will be used to accomplish a 
specific task comply with the requirements of this subpart or any 
operating rule relied upon to fulfill the requirements of this subpart. 
Therefore, it is not enough for an employer to maintain such a 
guarantee in its written procedures as the employer has a duty to 
implement this guarantee. If an employee is denied the right to make a 
challenge, or is denied any aspect of the required procedures, FRA may 
seek enforcement action against the employer or individual responsible 
for denying the employee's right. Of course, the requirement's 
applicability would only be for a challenge to any order that violates 
a requirement in subpart F.
    Paragraph (b)(1) of the rule also requires a railroad to adopt and 
implement written procedures as the mechanism for instituting the good 
faith challenge. Such written procedures should not lead to protracted 
arguments that are unusually disruptive to operations as FRA is 
requiring that each railroad's procedures provide for ``prompt'' 
challenges. FRA's expectations are that such challenges should be 
resolved in a matter of minutes, certainly not an hour or more. It is 
within this context that FRA also specified the concept that a 
railroad's written procedures provide for ``equitable resolution of 
challenges;'' by this requirement, FRA meant for a railroad officer to 
give deference to an employee's challenge if the employee has suggested 
a safe way to do the work that is in compliance with the relevant 
operating rules. Follow-up to clarify the correct application of the 
rule leading to the challenge can be done at a later time or date so 
that a definitive answer may be provided by the railroad to the 
railroad officer and employee involved; e.g., a railroad's manager of 
operating rules may want to issue a bulletin generically outlining the 
challenge and the proper application of the rule. As a good practice, a 
railroad should take this extra step to clarify a definitive answer 
even if the employee does not request such a review, as provided for in 
paragraph (d)(4), as it may be used as a learning experience for other 
employees and supervisors.
    FRA is revising proposed paragraph (a)(2), which has been 
redesignated as paragraph (b)(2). The proposed paragraph would have 
required that a railroad's good faith procedures indicate that the 
challenge is not intended to supplant any rights or remedies available 
to the employee under a collective bargaining agreement or under the 
statute providing for employee protections found at 49 U.S.C. 20109. As 
discussed earlier, the employee protections of this statute have been 
expanded and the authority to investigate whistleblower complaints has 
been transferred to DOL. The paragraph's revisions require that the 
written procedures required by this section shall indicate that the 
good faith challenge described in paragraph (b)(1) is not intended to 
abridge any rights or remedies available to the employee under a 
collective bargaining agreement, or any Federal law including, but not 
limited to, 29 U.S.C. 651 et seq., 6 U.S.C. 1142, or 49 U.S.C. 20109. 
The citation to 29 U.S.C. 651 et seq. is a reference to the 
Occupational Safety and Health Act of 1970 (OSH Act of 1970) that is 
implemented by DOL's Occupational Safety and Health Administration 
(OSHA) and is designed to regulate employment conditions relating to 
occupational safety and health and to achieve safer and more healthful 
workplaces. Section 11(c) of the OSH Act of 1970, found at 29 U.S.C.

[[Page 8472]]

660(c), generally protects employees from retaliation for raising 
concerns or filing complaints alleging workplace safety or health 
violations under the Act. The citations to 6 U.S.C. 1142 and 49 U.S.C. 
20109 are references to protections afforded to public transportation 
employees and employees of a railroad carrier engaged in interstate or 
foreign commerce respectively, including employees of contractors and 
subcontractors. Both of these provisions are implemented by DOL. 
Although FRA views these statutory provisions as wholly separate from 
the regulation we are promulgating and FRA's enforcement authority, the 
statutory provisions provide employees with rights and remedies in 
cases of retaliation for refusing to violate or assist in the violation 
of any Federal law, rule, or regulation related to railroad safety as 
well as taking other enumerated actions. The citation to these laws in 
the written procedures is a reminder to employees of their rights and 
remedies which provide an opportunity to pursue an assortment of 
relief, including punitive damages, against an employer for an improper 
action.
    FRA's decision to expand paragraph (b)(2) is being made in 
conjunction with the deletion of proposed (b)(2). Proposed paragraph 
(b)(2) would have required that each railroad's good faith written 
procedures contain a requirement that would provide that an employee 
making a good faith challenge shall not be discharged or in any way 
discriminated against for making the challenge. FRA viewed the proposal 
as an essential aspect of the good faith challenge procedures as 
employees would certainly be discouraged from raising a challenge if 
the employer is not prohibited from retaliating against an employee for 
making a challenge. However, as explained in the preamble, the recently 
amended statutory employee protection provisions changed the landscape 
of whistleblower protection for railroad employees such that FRA no 
longer perceives a need for a separate regulatory requirement against 
retaliatory conduct. See B. Good Faith Challenge--Legal Issues, 4. 
Anti-Retaliation Provision.
    Proposed paragraph (a)(3) is redesignated as paragraph (b)(3). This 
paragraph requires that a railroad instruct affected employees on the 
good faith challenge procedures contemporaneously with the training 
railroads are required to provide under 49 CFR 217.11. The idea is that 
an employee's chance of understanding the proper application of the 
good faith challenge should be greatest at the time the employee is 
receiving instruction on the relevant operating rules. Of course, FRA 
does not expect a railroad to instruct an employee whose duties do not 
involve handling equipment, switches and derails. If an employee's 
duties change to include these activities, the railroad will have to 
provide the instruction prior to assigning the new duties.
    The good faith challenge procedures are a critical component of 
this final rule, which is narrowly tailored with the intention to drive 
down the number of accidents caused by human factors. Employees learn 
in the classroom but there are often so many topics covered in an 
operating rules class that it could be difficult for an employee to 
retain everything taught. To compensate, railroads traditionally 
provide operating rule books not only to put employees on notice that 
compliance with these rules is expected, but also, as a reference so 
that each employee can check the rules and be reminded of their 
requirements. In similar fashion, FRA is requiring in paragraph (b)(4), 
previously proposed paragraph (a)(4), that each railroad provide a 
current copy of its written good faith procedures to each affected 
employee. By requiring a current copy, FRA has incorporated the idea in 
the proposed rule that each railroad provide each affected employee 
with any amendments to its written procedures prior to the effective 
date of the amendments. Also, like any other record FRA requires, a 
railroad would need to make the written procedures available for 
inspection by FRA during normal business hours.
    Proposed paragraph (b) has been redesignated as paragraph (c). 
Paragraph (c) requires additional procedures for each railroad to 
include in its written good faith procedures. Each of these more 
specific requirements lays the framework for what FRA envisions as a 
respectful dialogue between two individuals with differences of opinion 
on an operations issue with a safety component; the two individuals 
are, of course, an employee and an officer of the railroad or employer.
    Paragraph (c)(1) requires written procedures granting each employee 
the right to challenge any directive which, based on the employee's 
good faith determination, would cause the employee to violate any 
requirement of this subpart or any operating rule relied upon to 
fulfill the requirements of this subpart. The good faith challenge 
procedures should eliminate any stigma employees have regarding 
challenging railroad officers on safety issues pertaining to handling 
equipment, switches and derails. Likewise, standardization of the 
challenge should cause railroad officers to truly reflect on the orders 
issued and whether any aspect of an order would result in noncompliance 
with the relevant railroad operating rules.
    Proposed paragraph (b)(3) contained two components, one of which 
has been redesignated as paragraph (c)(2). Paragraph (c)(2) contains a 
similar requirement to the first component of proposed (b)(2), but with 
some important differences. Several railroads, and the associations 
that represent them, objected to the proposed paragraph in that it 
stated that the good faith written procedures include a provision 
``that no work is to be performed with respect to the challenged task 
until the challenge is resolved.'' The proposal was intended to 
duplicate a similar provision found in the roadway worker rule that 
required allowing the challenging employee ``to remain clear of the 
track until the challenge is resolved.'' 49 CFR 214.311(b). And while 
this requirement has not posed any problems for employers of roadway 
workers, many railroads expressed dismay at this provision and sought 
additional amendment or deletion of this paragraph.
    The amendments to paragraph (c)(2) are intended to protect the 
employee who made the challenge from being required to comply with the 
challenged directive while the challenge is unresolved. The first part 
of the paragraph requires that the written program ``provide that the 
railroad or employer shall not require the challenging employee to 
comply with the directive until the challenge resulting from the good 
faith determination is resolved.'' This language more closely conforms 
to FRA's other good faith challenge regulations than the NPRM.
    In RSAC Working Group meetings, FRA heard two related complaints 
from railroads regarding proposed paragraph (b)(3). One, several 
railroads commented that the proposed regulatory text did not address 
whether the challenging employee could be ordered to do other work 
while the challenge is unresolved. As it was FRA's intent to allow for 
this type of work, we have added paragraph (c)(3) to address this 
issue. Paragraph (c)(3) requires that the written procedures shall 
provide that the railroad or employer may require the challenging 
employee to perform tasks unrelated to the challenge until the 
challenge is resolved. Of course, whether or not a railroad or employer 
chooses to exercise the option of switching an employee's duties while

[[Page 8473]]

the challenge is being resolved is a decision for the railroad or 
employer.
    The second of the two complaints from railroads regarding proposed 
paragraph (b)(3) involved a concern that the NPRM indicated that nobody 
could do the work with respect to the challenged task until the 
challenge was resolved. FRA did not agree that the NPRM prohibited 
another employee from doing the challenged task prior to resolving the 
challenge. Meanwhile, we had, and still have, reservations about 
providing a railroad or employer with a clear path to order some other 
employee to do work that another employee is challenging as non-
complying--and thus unsafe. In response to the requests for 
clarification, paragraph (c)(4) has been added. This paragraph requires 
the written procedures to provide that the employer may direct an 
employee, other than the challenging employee, to perform the 
challenged task prior to the challenge being resolved as long as this 
other employee is informed of the challenge and does not also make a 
good faith determination that the challenged task would violate FRA 
regulations regarding the handling of equipment, switches, and fixed 
derails as required in this subpart, or a railroad's operating rules 
implementing the requirements of this subpart. Thus, paragraph (c)(4) 
prohibits an employer from ordering a second employee to do the work 
without verbally notifying this second employee that another employee 
has asserted a good faith challenge. At a minimum, for purposes of this 
paragraph being ``informed of the challenge'' means that the person 
giving the directive shall explain that another employee has made a 
good faith determination that the task does not comply with an 
operating rule or FRA regulation, as well as provide a synopsis of the 
specifics of the challenge. This option permits an employer, who is 
certain that the challenging employee is wrong, an opportunity to get 
the work done by another qualified person. Of course, any employee 
asked to perform a task that does not comply with this subpart has the 
same right to challenge the task, regardless of whether any other 
employee has also challenged that task. Also, all employees have the 
same responsibility under paragraph (a) to inform the employer of 
directives that violate this subpart or any operating rules 
implementing this subpart.
    The second part of proposed paragraph (b)(3), which has been 
redesignated as (c)(5), identifies the ways that a challenge may be 
``resolved.'' Each of the ways that a challenge may be resolved has 
been designated in its own paragraph numbered (i) through (iv). One, we 
expect that some railroad officers when challenged will realize that 
the employee's suggested alternative method of operation is an 
acceptable option that is in compliance with this subpart and the 
carrier's operating rules implementing this subpart. The officer may or 
may not agree that the original directive was non-complying but the 
challenge in this case can be resolved amicably. Two, after making a 
challenge and receiving an explanation or recitation of the rule from 
the officer, an employee may likewise realize that the officer's 
directive was in compliance and decide to comply with the directive. 
Three, in some situations, the challenge may lead to a discussion of 
options on how the task can be performed in compliance with the 
operating rules. That discussion may lead to a realization either that 
both persons were only partially correct or there is another option not 
previously asserted. Under those circumstances, an amicable resolution 
would be the advancement of a third option that was reached through 
communication and compromise, and is therefore satisfactory to both 
parties. Four, there may be instances when an officer believes the 
directive is permitted by the operating rules, and that either the 
employee's challenge is being made in bad faith or there is no 
reasonable alternative to the direct order; in those situations, the 
written procedures will provide for review as further determined under 
paragraph (d) of this section.
    Proposed paragraph (c), which was redesignated as paragraph (d), 
requires each railroad to provide additional written procedures in the 
event that a challenge cannot be resolved amicably. Thus, the 
additional procedures in this paragraph are required to be complied 
with when the person issuing the directive determines that the 
employee's challenge has not been made in good faith or there is no 
reasonable alternative to the direct order. As it is often difficult to 
determine that a person is acting in bad faith, the person issuing the 
directive should typically give the challenging employee the benefit of 
the doubt that the challenge is being made in good faith and attempt to 
resolve the challenge without the need for further review.
    In the event of a stalemate, where the challenging employee and the 
person issuing the directive cannot agree to resolve the challenge, 
paragraph (d) requires that the written procedures provide that four 
additional requirements be met. Paragraph (d)(1) carries over from the 
NPRM the requirement that an immediate review by another railroad or 
employer officer be provided. The immediate review must be held by 
another officer who cannot be unduly influenced by the officer who 
issued the challenged directive or the review will not have the 
appearance of fairness. FRA expects that fair review will be 
accomplished if the reviewing officer is a different officer who is not 
a subordinate of the officer who issued the challenged directive. FRA 
envisions this immediate review as a quick check with another officer 
that should not be unduly burdensome.
    In the NPRM, FRA requested comments regarding whether some smaller 
railroads might have difficulty complying with an immediate review 
requirement. FRA did receive comments, mostly oral during the RSAC 
Railroad Operating Rules Working Group meetings, explaining that the 
smallest railroads would likely encounter problems providing an 
immediate review when so few officers would be available to conduct 
them. Consequently, FRA has decided to revise the requirement in 
paragraph (d)(1) so that the immediate review will not be mandatory for 
each railroad with less than 400,000 total employee work hours 
annually.
    In paragraph (d)(1)(i), FRA retains from the NPRM the requirement 
that the immediate review not be conducted by the person issuing the 
challenged directive, or that person's subordinate. APTA commented that 
it is not always clear what other officers are in another's chain of 
command, and whether one officer is subordinate to another. Although 
not directly addressed in the rule, the rule's silence on this issue is 
intended to provide each railroad with the flexibility to describe its 
approach in its procedures and how the intent of the rule will be 
followed. Similarly, during the RSAC Railroad Operating Rules Working 
Group meetings, AAR and APTA voiced opposition to the idea of the 
promulgation of a good faith challenge. Both associations were 
concerned that implementation of such a challenge would pose numerous 
logistical difficulties as well as a perceived high potential for abuse 
by employees. One concern raised was that on-time performance could 
easily be compromised if an employee raised a challenge and a quick 
compromise solution could not be reached. The rule does not need to 
address this issue as each railroad or employer needs to address it by 
setting up effective protocols for supervisors to follow when issuing 
direct orders to proceed; i.e., each yardmaster or other supervisor 
should know who to contact in the event that an immediate review is

[[Page 8474]]

needed. A railroad may wish to provide contact lists to each supervisor 
of other supervisors so that each supervisor has multiple people to 
contact in the event a challenge needs immediate review. Again, the 
intent of the rule is to provide for an immediate review by a railroad 
officer who cannot be unduly influenced by the officer who issued the 
initial order so that a fair review may be perceived. As explained 
previously in this analysis, Metro-North has addressed this issue in 
its good faith challenge program and has thus provided an example of 
how to address this issue.
    The requirement in paragraph (d)(1)(ii) is based on a requirement 
in proposed paragraph (c)(1). During an immediate review, the reviewing 
officer has the same options to resolve the challenge as the person who 
issued the challenged directive, however, the officer making the 
immediate review shall also have the option described in paragraph 
(d)(2). FRA believes that there has to be some finality to the 
immediate review process and that one review is enough. Of course, 
paragraph (d)(1) provides the minimum immediate review requirements and 
a railroad is not prohibited from providing a second immediate review 
or other additional requirements.
    Paragraph (d)(2) provides that if the officer making the railroad's 
or employer's final decision concludes that the challenged directive 
would not cause the employee to violate any requirement of this subpart 
or the railroad's or employer's operating rule relied upon to fulfill 
the requirements of this subpart and directs the employee to perform 
the challenged directive, the officer shall further explain to the 
employee that Federal law may protect the employee from retaliation if 
the employee refuses to do the work and if the employee's refusal is a 
lawful, good faith act. This paragraph is based on the option in 
proposed paragraph (b)(3) that suggested permitting an officer to 
resolve a challenge by issuing a direct order to proceed with the work 
as initially ordered. There may be situations where the officer making 
the final decision concludes that the direct order would not violate 
this subpart, or any operating rule relied upon to fulfill the 
requirements of this subpart; in that situation, the officer may direct 
the employee to perform the challenged directive after explaining to 
the employee that Federal law may protect the employee from retaliation 
if the employee refuses to do the work and if the employee's refusal is 
a lawful, good faith act. This notification requirement serves several 
purposes. One, it reminds the employee of the statutory anti-
retaliation protection prior to the employee choosing between doing or 
refusing to do the work. Two, it reminds the employee that if he or she 
refuses to do the work, the statutory protections will not protect him 
or her from retaliation if the employee is acting unlawfully or in bad 
faith. Three, the officer's act of providing this notification to the 
employee also provides a reminder to the officer that the employee is 
likely protected from retaliation for refusing to do the work except 
where there is evidence proving that the employee's refusal is unlawful 
or made in bad faith. An officer ordering an employee to do such work 
would be expected to have a high degree of confidence in issuing such 
an order, and we would expect railroads and employers to carefully 
instruct officers on these procedures, as a challenging employee might 
file a complaint or lawsuit based on the failure to follow proper good 
faith challenge procedures or for later retaliation based on a refusal 
to do the work.
    Paragraph (d)(3) maintains a similar requirement from proposed 
paragraph (c)(2) that the written procedures provide the employee with 
an opportunity to document electronically or in writing any protest to 
the railroad or employer's final decision before the tour of duty is 
complete. The employee shall also be afforded the opportunity to retain 
a copy of the protest. Examples of electronic records may include, but 
are not limited to, recorded radio communications, electronic mail 
(i.e., e-mail), or filling out a computer form or database. If 
electronic recording is permitted by the railroad's program, railroads 
will need to maintain methods for providing the employee with a copy of 
that record. Maintaining such a record facilitates the employee's 
ability to follow-up on any further review requested under paragraph 
(d)(3). FRA considered whether to require that the employee be provided 
with the opportunity to create this record immediately following the 
direct order to proceed with the task, however, FRA has accepted 
several railroads' arguments that this could prove too disruptive to 
operations, especially passenger and commuter operations where on-time 
performance is critical. Additional time delays would result if an 
employee had the right to immediately document the challenge before 
returning to work. FRA has addressed this issue by requiring in 
paragraph (d)(3) that the employee be afforded an opportunity to 
document the protest electronically (e.g., by radio transmission to be 
recorded) or in writing any time ``before the tour of duty is 
complete.'' This additional requirement also reflects an existing 
statutory requirement that entitles an individual to document a protest 
of a direct order of a railroad carrier official or supervisor under 
protest communicated to the official or supervisor. 49 U.S.C. 21304. Of 
course, ``the absence of such a protest will not be viewed as 
warranting a presumption of willfulness on the part of the employee who 
might have communicated it.'' 49 CFR part 209, app. A, ``Civil 
Penalties Against Individuals.'' Paragraph (d)(3) does not supercede 
the statutory requirement nor does it exceed it. Given the existing 
statutory requirement, the time needed to document a protest should not 
pose a new burden on railroads.
    FRA has deleted proposed paragraph (c)(3) which stated that the 
written program ``provide that the employee be orally advised that 
completing the work as ordered will not subject the employee to 
penalties or consequences for noncompliance with this subpart.'' When 
FRA published the NPRM, this paragraph was intended to further clarify 
existing statutory rights under 49 U.S.C. 21304. Upon further 
reflection, FRA found the proposed paragraph could be confusing in that 
it might suggest that a railroad officer or supervisor could bind the 
FRA in the use of the agency's enforcement discretion. This might be 
true even where the railroad official misapplied the law, or the 
individual was not entitled to the right. APTA also raised a valid 
concern that the proposed paragraph could easily be misinterpreted in 
another way; e.g., an employee who invokes a good faith challenge on a 
shoving move may believe that he can't be disciplined, or have 
certification revoked if the employee is a locomotive engineer, for 
passing a stop signal related to that same movement even though the 
officer did not give the crew authority or permission to pass the 
signal. Despite the fact that this paragraph was deleted and that 
employees are not required to be orally advised that completing the 
work as ordered will be a defense to penalties or consequences of 
noncompliance under this subpart, section 21304 is still applicable. 
Thus, ``[a]n individual is deemed not to have committed a willful 
violation if the individual was following the direct order of a 
railroad carrier official or supervisor under protest communicated to 
the official or supervisor.'' 49 U.S.C. 21304.

[[Page 8475]]

    Proposed paragraph (c)(4), redesignated as paragraph (d)(4), 
requires that the direct order procedures shall also provide the 
employee with the right to one more review by a railroad officer 
designated by name or title in the written procedures who will make the 
final interpretation of the applicable operating rule. The railroad is 
not prohibited from designating more than one individual by name or 
title, although it would likely be useful to have one person or office 
overseeing these interpretations. In the proposed rule, FRA did not 
specify a deadline for issuing the verification decision; after further 
consideration, FRA has decided that some reasonable time limit should 
be imposed to prevent a railroad from taking an inordinate amount of 
time to respond to an employee's request. FRA has decided to require 
that a railroad issuing a verification decision must do so within 30 
days after the expiration of the month during which the challenge 
occurred. Thus, regardless of whether the challenge occurred on 
November 1st or 30th, the verification decision must be provided to the 
employee no later than December 30. FRA considered imposing a strict 
30-day deadline, but decided that this type of deadline, patterned 
after the one found in 49 CFR 225.11, for reporting of accidents/
incidents, provides greater flexibility without unduly delaying the 
verification decision. This paragraph was also changed to require that 
the employee make the request for further review in writing; the 
proposed paragraph left open the possibility of a verbal request which, 
if left unanswered, could potentially lead to arguments over whether 
the request was actually made. FRA is not requiring that the written 
request be on a form, but a railroad may choose to create one. However, 
rather than permit the employee to decide whether or not the railroad 
should provide the employee with a written decision as in the NPRM, the 
railroad is required to provide the employee with a written decision so 
that there is no dispute regarding whether the railroad fulfilled this 
obligation. A final written decision will also permit FRA with the 
opportunity to more easily investigate claims that the challenge had 
merit or the railroad is not properly applying the Federal regulations.
    FRA did not propose, but has added, paragraph (e) to address 
recordkeeping and record retention issues pertaining to the good faith 
challenge procedures. For example, in the NPRM, FRA required each 
railroad to maintain written procedures, but did not specify where the 
procedures needed to be kept so FRA could inspect or copy them. 
Paragraph (e)(1) addresses this issue by requiring a copy of the 
procedures to be retained at both the railroad's system headquarters 
and at each division headquarters. This paragraph also explains that 
the procedures shall be made available to representatives of the FRA 
for inspection and copying during normal business hours.
    In paragraph (e)(2), FRA has added a new record retention 
requirement for any written good faith challenge verification decision 
made in accordance with paragraph (d)(4). The good faith challenge 
procedures are designed so that most challenges will be resolved on the 
spot through employee/officer discussions that will not produce a 
written decision. When the conflict between the parties cannot be 
resolved on the spot, a written decision is required. FRA needs to be 
able to review those written verification decisions to analyze what 
types of conflicts did not get resolved amicably. Those types of 
challenges may have some merit and result in further FRA involvement to 
resolve underlying safety issues. The written decision should provide 
enough background to understand the challenge by citing the applicable 
rules and procedures, and providing an in-depth explanation of any 
interpretations necessary to analyze the factual circumstance. FRA is 
also requiring that those decisions be retained for at least one 
calendar year after expiration of the year during which the decision 
was issued. The requirement for record retention, while not proposed, 
follows as a logical requirement from proposed paragraph (c)(4) 
permitting the employee to request that the railroad provide a written 
decision. We cannot fathom that a railroad would produce such a written 
decision and not retain it for some reasonable period thereafter in 
order to retain an unaltered original and possibly to use as a 
reference to help address future, similar challenges.
    Paragraph (e)(3) was added to clarify that each railroad is 
authorized to retain any records required by this section in an 
electronic format so long as the electronic records are kept in 
accordance with the standards set forth in Sec.  217.9(g)(1) through 
(5) of this chapter. Of course, any records required by this section 
may be maintained in either written or electronic form at the option of 
the railroad.
Section 218.99 Shoving or Pushing Movements
    Although the majority of this section remains the same as the 
proposed rule, a number of changes have been made in consideration of 
the comments received. Four commenters raised specific issues in 
written comments: BMWED, AAR, UTU, and BLET. The discussions of these 
comments are integrated into the paragraphs under which they apply.
    Generally, in conventional operations, shoving or pushing movements 
occur when the controlling locomotive is not leading the movement 
because the locomotive engineer is not in a position to have an 
unobstructed view of the track in the direction of the shoving 
movement. However, in remote control operations, there may be an issue 
with respect to point protection in either direction of movement. The 
terms ``shoving'' and ``pushing'' have the same meaning but FRA uses 
both terms because our nation's railroads have split in the usage of 
each term.
    The requirement proposed in paragraph (a) has been redesignated as 
paragraph (a)(1) and revised, but the reasons behind the requirement 
remains the same. The reasons behind this paragraph are to ensure that 
(1) each railroad adopt and comply with an operating rule which 
complies with the requirements of this section; and (2) when any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person be 
considered to have violated the requirements of this section. The NPRM 
was not intended to mean, but could possibly have read, that each 
person was only to uphold and comply with the railroad's operating rule 
and not the regulation itself. The revisions to this paragraph are 
intended to clarify FRA's intent.
    Paragraph (a)(2) adds a new requirement that the shoving or pushing 
movement requirements of this section do not apply to free rolling 
equipment--a clarification that was not in the proposed rule. FRA added 
this clarification regarding free rolling equipment because several 
participants at the RSAC working group meetings were unclear regarding 
whether FRA intended the rule to apply to switching activities that 
result in free rolling equipment, in which a shoving or pushing 
movement is the initial movement that allows equipment to roll free 
without power attached. The addition of paragraph (a)(2) is intended to 
clarify that this section does not apply to the rolling equipment once 
it is free rolling. It would be impossible to engage in this type of 
acceptable switching activity if a determination would need to be made 
that the ``track is clear'' prior to each release of a free

[[Page 8476]]

rolling car. Therefore, the rule does not apply to kicking, humping, or 
dropping cars as FRA does not consider those activities to be 
controlled shoving or pushing movements. Furthermore, FRA's experience 
is that each railroad that permits these activities maintains operating 
rules that require employees to protect free rolling equipment from 
traveling over highway-rail grade crossings, pedestrian crossings, and 
yard access crossings. FRA is rejecting the idea of regulating the 
movement of free rolling equipment initiated by a shoving or pushing 
movement because we have not seen an increase in the number of 
accidents/incidents in this area attributed to human factor causes; of 
course, if we document an increasing trend of such accidents/incidents, 
FRA will consider whether to initiate a rulemaking.
    As specified in paragraphs (b) through (d), shoving or pushing 
movements can be made safely if precautions are taken. This section 
states those minimum precautions and requires that each railroad have 
in effect specific operating rules incorporating the precautions. The 
precautions take direct aim at those human factor causes that have been 
identified as causing the increasing trend of noncompliance and 
accidents. As specified in paragraph (e), there are other movements 
that could be considered shoving or pushing movements but FRA believes 
these other movements can be treated differently as they are safe if 
certain operating conditions are met.
    Paragraph (b)(1) requires that prior to rolling equipment being 
shoved or pushed, the locomotive engineer and the employee directing 
the move shall be required to participate in a job briefing which will 
cover the means of communication to be used and how protection will be 
provided. The job briefing requirement in this paragraph, which remains 
the same as the proposed paragraph, requires that the locomotive 
engineer (conventional or remote control operator) shall have a job 
briefing detailing the method of communication used to relay 
information, e.g., radio, hand signals, or pitch and catch. If the 
employee providing protection is not part of the crew, the job briefing 
shall include how that qualified employee will provide that protection; 
for example, if a yardmaster is the qualified employee, the conductor 
directing the move would explain in the briefing that the yardmaster 
intends to provide point protection by viewing a monitor that provides 
a real-time image of the track from a camera set up in the yard. Under 
this scenario, the yardmaster would be performing covered service under 
the hours of service laws.
    Paragraph (b)(2) of the final rule contains the requirement that 
during the shoving or pushing movement, the employee controlling the 
movement shall not engage in any task unrelated to the oversight of the 
shoving or pushing movement. This requirement, which was not in the 
proposed rule, was added to address a concern brought to FRA's 
attention following the fatal accident involving a remotely controlled 
movement that led to FRA's issuance of Safety Advisory 2007-01. 72 FR 
2333. It was also a position raised by BMWED, UTU and BLET in their 
comments. In both the NPRM and this final rule, the preamble addresses 
the problem that remote control operators may not always have complete 
situational awareness of the movement even if the operator is observing 
the movement. Obviously, if a remote control operator or other employee 
controlling the shoving or pushing movement is distracted by engaging 
in an unrelated task, that person's disengagement with the movement, 
even briefly, may increase the probability or severity of an accident/
incident. For example, in the accident in Manlius, New York that was 
the subject of Safety Advisory 2007-01, FRA raised the issues of 
``multi-tasking'' and trying to accomplish other tasks that cause the 
person to divert attention from providing point protection. These are 
two separate issues. The issue of ``multi-tasking'' as raised in the 
notice involved a remote control operator who allegedly operated from 
the passenger seat of a moving motor vehicle; such moves are inherently 
fraught with hazards, although this was not the cause of this accident/
incident. The issue of diverted attention occurred after the operator 
determined that the track was clear for the entire length of the 
movement; instead of looking down the track waiting for his train to 
come into view, FRA's investigation suggested that the remote control 
operator (RCO) may have been attending to duties unrelated to the 
movement as the RCO did not observe the collision and initiated a brake 
application only after hearing a radio transmission from the 
yardmaster.
    By requiring that the employee directing the movement not engage in 
any task unrelated to the oversight of the movement, the regulation 
increases the probability that the controlling employee will be in a 
position to reduce the severity of any accident that might occur. FRA 
considers a ``task unrelated to the oversight of the movement'' to be 
any activity that carries significant potential to distract the person 
directing the movement from adequately overseeing the movement. The 
unrelated task would most likely be a work related activity, but 
certainly tasks of a personal nature could be considered significantly 
distracting. Any unrelated task that would remove the person from a 
location where oversight could be effectively performed is strictly 
prohibited. The following are not significantly distracting activities 
and are arguably not even ``tasks:'' momentary glances away from the 
direction of movement; acknowledging another person's presence; and 
sneezing. In contrast, the filling out of any form, e.g., a switch 
list, would be a distracting, unrelated task that can not be safely 
accomplished while the movement is occurring.
    FRA acknowledges that its adoption of the requirement in paragraph 
(b)(2) will not prevent all accidents. A rule that requires a 
controlling employee to continuously observe the leading end of the 
movement might be more effective in preventing accidents; however, as 
FRA stated earlier, a ``continuous observation'' requirement would 
force more employees to either walk or ride the point--creating an even 
greater vulnerability that someone could get hurt. An employee walking 
the point could slip, trip, or fall, and an employee riding the point 
could be injured or killed in any collision with another piece of 
rolling equipment. In addition, this final rule's required 
determination that the track is clear prior to initiating the shoving 
or pushing movement should substantially reduce the likelihood of any 
collisions. That is, a determination that the track is clear includes 
the determination that ``the portion of the track to be used is 
unoccupied by rolling equipment, on-track maintenance-of-way equipment, 
and conflicting on-track movements.'' The application of FRA's final 
rule reduces the likelihood of an accident between a carman operating a 
pickup truck across a yard crossing if the pickup truck is crossing the 
track at a type of yard crossing to be protected (i.e., a `highway-rail 
grade crossing' or ``yard access crossing'' as those terms are defined 
under Sec.  218.93). In addition, the severity of a collision between a 
shoving or pushing movement and off-track maintenance-of-way equipment 
may be reduced by an alert employee protecting the point who responds 
quickly to stop the movement. Meanwhile, railroad employees operating 
off-track machinery will need to continue to be careful to follow 
railroad operating rules that require them to protect themselves when

[[Page 8477]]

crossing tracks at unprotected yard crossings.
    Former paragraph (b)(2), which has been redesignated as paragraph 
(b)(3) states the requirements for establishing point protection during 
shoving or pushing movements. The rule requires that only a crewmember 
or other qualified employee shall provide point protection. In this 
context, crewmembers or qualified employees include remote control 
operators working together, members of other train crews, and other 
employees, regardless of job title, who are qualified to perform the 
job (see definitions of ``employee'' and ``qualified'' in this 
subpart). The requirements of this section address work that is 
``covered service'' under the hours of service laws. 49 U.S.C. 21101, 
et seq. Thus, to be a qualified employee, the employee will need to 
receive instruction and testing, be subject to Federal regulations 
controlling alcohol and drug use and hours of service recordkeeping 
provided for, respectively, in parts 217, 219 and 228 of this chapter. 
The purpose of requiring a qualified employee, as opposed to any 
employee, is to prevent persons that may not be qualified (e.g., taxi 
drivers, crane operators, or clerks) from making safety sensitive 
operating decisions without the proper instruction and safeguards in 
place. Incidently, if an unqualified person were to perform this work 
in violation of the rule, the person would still have to be accounted 
for under the hours of service laws or the railroad would incur 
additional liability.
    FRA has decided that some of the proposed requirements in paragraph 
(b)(2)(i) needed alteration based on comments received and the 
consideration of the facts surrounding the accident that led to the 
issuance of Safety Advisory 2007-01. The purpose of this paragraph 
remains the same, although the final rule's requirements are altered 
from that originally proposed. Shoving accidents often occur because a 
train crew makes a shoving movement without determining that the track 
is clear in the direction of movement. The proposed rule suggested a 
requirement that the employee providing point protection visually 
determine, for the duration of the shoving or pushing movement, that 
the track is clear within the range of vision or for the complete 
distance to be shoved or pushed. AAR commented that the phrase ``the 
duration of the shoving movement'' is problematic as there could be 
instances where an employee's vision is momentarily obscured and so it 
would not be possible to always provide a continuous, visual 
observation for the entire duration of the movement. Further 
discussions at the RSAC working group meetings raised additional 
concerns. Both labor and management representatives were concerned that 
the requirement meant that every shoving or pushing movement would 
require an employee to be in position to watch the leading end of the 
movement even when doing so would place the employee in danger. The 
proposed rule would have required employees watching shoving and 
pushing movements to walk greater distances than most current operating 
rules and practices require, the result being a greater likelihood of 
experiencing slip, trip or fall injuries. FRA agrees with these 
comments. We certainly did not intend to reduce one kind of accident 
only to increase another type.
    AAR suggested an alternative to ``the duration of the shoving 
movement'' proposed requirement. AAR's suggestion was to change the 
first sentence in paragraph (b)(2)(i) to read as follows: ``[v]isually 
determining that the track is clear and will remain clear either within 
the range of vision or for the complete distance the equipment is to be 
shoved or pushed.'' This alternative is similar to FRA's proposal and 
many current railroad operating rules, however, the plain meaning of 
the alternative does not reflect how it is typically interpreted. The 
plain meaning of this alternative appears to also contain the 
expectation that a continuous, visual observation for the entire 
duration of the movement is required even if the ``the duration of the 
shoving movement'' language has been removed. Meanwhile, a near 
universal position was that employees can safely make shoving or 
pushing movements without continuously observing the leading car for 
the entire distance of the movement. The key to a safe move is the 
determination that the portion of the track to be used for the intended 
move is clear. The determination that the track is clear will be made 
prior to initiating a shoving or pushing movement, but additional 
portions of track may be determined to be clear during the duration of 
one continuous shoving or pushing movement. Furthermore, FRA did not 
agree with AAR's suggestion to include the phrase ``and will remain 
clear'' as this phrase adds a condition that is outside of the control 
of the employee providing the point protection.
    After considering the comments, FRA realized that its proposed rule 
was also flawed in that it was repetitive. The definition of ``track is 
clear'' and the proposed point protection paragraph both required that 
a crewmember or qualified employee make a visual determination. This 
repetitive issue has been resolved by removing the visual determination 
requirement from the ``track is clear'' definition.
    The final rule differs from the proposed rule in that the 
determination that the track is clear no longer explicitly requires 
that the determination can be made ``either within the range of vision 
or for the complete distance the equipment is to be shoved or pushed.'' 
FRA believes this proposed phrase merely added extraneous language, and 
thus it has been deleted from the final rule. As a practical matter, 
the deletion of this phrase should not have any impact on how an 
employee provides point protection. If a crewmember or other qualified 
employee responsible for controlling a shoving or pushing movement can 
ensure that every requirement specified in the definition of track is 
clear has been met, the employee may initiate and continue the movement 
for the full distance of the movement. For example, if a shoving 
movement of less than 100 car lengths is to be made onto track that is 
capable of holding 100 cars and a crewmember or other qualified 
employee observes that the track is clear for the entire length of the 
track, the employee may initiate movement onto or down the track; as 
the shoving movement continues, the employee will provide updates to 
the locomotive engineer, as necessary, until the entire movement is 
complete. Meanwhile, if the employee providing the visual determination 
that the track is clear can only see part of the way down the track to 
be shoved or pushed, and does not have the option to travel ahead of 
the movement to determine that the track is clear for the entire length 
of the movement, the employee shall only be permitted to initiate 
movement for the distance that the employee can visually ensure that 
the track is clear. In this second example, the facts are the same 
except that there is curvature in the track that does not allow the 
observing employee to see more than 20 car lengths at a time; in this 
situation, the employee may initiate movement onto or down the track 
but must have either continuous visual contact with the locomotive 
engineer or be in radio communication with the locomotive engineer, so 
as to provide distance instruction on how far the locomotive engineer 
may safely shove, until the shoving or pushing movement is complete. In 
other words, there is nothing in this rule that prohibits

[[Page 8478]]

incremental or multiple determinations that the track is clear until 
the complete distance to be shoved or pushed is traversed.
    In paragraph (b)(3), the term ``rolling equipment,'' which is 
defined in Sec.  218.5, is used. The definition of ``rolling 
equipment'' states that the term ``includes locomotives, railroad cars, 
and one or more locomotives coupled to one or more cars.'' Thus, the 
definition of ``rolling equipment'' explicitly includes locomotives. 
Meanwhile, FRA is aware that some railroads may incorrectly consider 
any movements involving consists made of locomotives alone not to be 
shoving or pushing movements. By adding that lite locomotives are also 
covered in paragraph (b)(3) and defining ``lite locomotive consist'' in 
this subpart, FRA is ensuring that lite locomotive consists are covered 
by the shoving or pushing movement requirements. To do otherwise would 
permit lite locomotive consists to shove blind without adequate point 
protection.
    FRA has expressed the intention to provide railroads and qualified 
employees with the option of making the visual determination required 
in paragraph (b)(3)(i) with the aid of monitored cameras or other 
technological means, provided that the technological means and 
attendant procedures provide an equivalent level of protection to that 
of a direct visual determination. Railroads shall ensure that any 
monitored camera have sufficient resolution and real time coverage to 
provide protection equal to a direct visual determination. Concerning 
attendant procedures, one such procedure may be for an employee viewing 
a monitor to communicate updates to the locomotive engineer or 
controlling crewmember at appropriate intervals. FRA equates the 
employee monitoring the camera to the employee controlling the movement 
who must not engage in any task unrelated to the oversight of the 
movement; thus, each railroad utilizing such cameras shall implement 
attendant procedures limiting any of the monitoring employee's 
ancillary duties that might distract from the employee's ability to 
provide continual visual determinations and communication.
    FRA also amended paragraph (b)(3)(i) to add a requirement that if a 
railroad intends to use monitored cameras or other technology to 
determine that the track is clear, the railroad is required to abide by 
the procedures prescribed in this section as well as the additional 
requirements prescribed in appendix D to this part. As explained in the 
analysis to appendix D, the addition of this mandatory appendix is to 
establish safeguards for establishing technology driven point 
protection. The alternative would continue the haphazard application of 
such technology, without appropriate assurances of Federal, State, or 
local governmental input when such technology potentially impacts the 
general public.
    Other technological means may include, but are not limited to, a 
completely circuited track indicating track occupancy, and electronic 
switch position indicators. AAR requested that FRA consider shove 
lights to be an ``equivalent technological means.'' Shove lights are 
lights that are sequentially circuited on the ends of tracks to 
indicate a shoving movement's approach to the opposite end of a track. 
Shove lights are limited, however, as they do not show if the track is 
occupied between the entrance of the track and the beginning of the 
track circuit; in other words, shove lights alone cannot provide 
absolute notification that the track is clear of equipment. 
Consequently, FRA is willing to consider shove lights as an acceptable 
technological alternative to visually protecting the point as long as 
either: (1) The track is completely circuited to indicate occupancy; 
or, (2) a visual determination is made that the track is clear to the 
beginning of the circuited section of the track.
    The requirements listed in proposed paragraph (b)(2)(ii), 
redesignated as paragraph (b)(3)(ii), state that a crewmember or other 
qualified employee give signals or instructions necessary to control 
the movement. Such signals or instructions may be made verbally, i.e., 
either via face-to-face or radio communication. However, any effective 
method of communication is acceptable. For example, some acceptable 
forms of communication include, but are not limited to, hand signals, 
whistle signals, and electronic signals utilizing remote control 
technology.
    In paragraph (c), FRA requires that all remote control movements be 
treated as shoving or pushing movements, except when the remote control 
operation is being conducted like a conventional pulling operation such 
that the operator controlling the movement is riding the leading 
locomotive in a position to observe conditions ahead in the direction 
of movement. Under this situation, the operator is riding the point in 
a position to visually determine that the track ahead of the movement 
is clear, and is certainly in a position to determine the direction the 
equipment is moving. One particular reason for a remote control 
operator to ride the point is to be in a position to observe that grade 
crossings are not obstructed.
    Paragraph (c) also states two additional requirements for remote 
control operations during shoving or pushing movements. The first 
additional requirement, paragraph (c)(1), is necessary so that the 
remote control operator, either directly or indirectly, can confirm 
that the movement is observed moving in the direction intended. If the 
remote control operator does not confirm or receive confirmation that 
the equipment is traveling in the intended direction, the operator must 
immediately stop the movement. Accident reports indicate that remote 
control operators who have forgotten which way the controlling 
locomotive is headed may unintentionally make a reverse movement when a 
forward movement was intended, or vice versa; had these operators been 
abiding by this rule, at least some of these types of accidents could 
have been avoided by abiding by this rule. Further discussion on this 
issue may be found in the Supplementary Information section titled 
``Situational Awareness.''
    FRA suggests that each railroad instruct its remote control 
operators that, whenever possible, the operator or crewmember should 
view the controlling locomotive when determining the direction of 
movement, as opposed to any other piece of equipment in the movement. 
It is not always logistically possible or safe for the operator or 
crewmember to have direct visual contact with the controlling 
locomotive when initiating movement--which explains why FRA is not 
requiring it. However, where it is logistically possible and safe to do 
so, that should be the preferred method. If a person is viewing the 
direction the controlling locomotive moves, the person would have a 
greater chance of observing a problem with the locomotive becoming 
uncoupled from the rest of the movement or a similar problem if a 
coupler broke between other equipment in the movement. In the 
alternative, as intended by paragraph (c)(1), an operator or crewmember 
watching the equipment for the direction of movement will need to be 
cognizant of time and distance from the controlling locomotive so that 
immediate action may be taken to stop the movement if the movement is 
initiated but not observed to be moving within expectations.
    The title of paragraph (c) has been changed from ``Remote control 
movement requirements'' in the NPRM to ``Additional requirements for 
remote control movements.'' The reason for the

[[Page 8479]]

change in title is to emphasize that the requirements in paragraph (c) 
apply to shoving movements implemented with remote control locomotives 
and adds additional requirements to those general movement requirements 
described in paragraph (b). In other words, by changing the title, we 
are hoping to avoid confusion that some railroads might perceive 
paragraph (c) as the only requirements for shoving movements 
implemented with remote control locomotives. Comments were not received 
regarding paragraph (c).
    Paragraph (c)(2) adds another requirement for remote control 
movements that was suggested in the preamble of the NPRM, but was not 
part of the proposed regulatory text. At the end of the section-by-
section analysis for this section in the NPRM, FRA raised concerns 
regarding the reliance on technology used to contain remote control 
operations within zones, where remote control operators cannot directly 
observe the far end of the pull-out movement. Such technology is used 
to prevent incursions into other rail operations. The NPRM noted that 
``[a]lthough the rule text does not contain language on this point, FRA 
requests comment on whether such technology should be required to fail 
safe in design or at least include redundant safeguards.'' FRA did not 
receive any comments on this issue and has decided to act to address 
the concern. The safety concern is that without a specific requirement 
some railroads might try to implement technology that is not 
demonstrated to be safe and therefore provides a false sense of 
protection to remote control crews. Without some kind of standard for 
concluding that the technology has either been demonstrated to be 
failsafe or demonstrated to provide suitable redundancy to prevent 
unsafe failure, a remote control crew could unreasonably conclude that 
the technology is safe enough to stop a movement when such reliance is 
unfounded. Given this inevitable reliance, failsafe or redundant 
technology is required to prevent collisions and derailments at the 
perimeter of these zones. The pull-out protection technology would not 
likely be relied upon as the typical method of stopping the movement 
from leaving the zone, but might be used to expedite a movement where 
the crew would ordinarily be slowed down by having to count cars and 
estimate the length of the movement in relation to the configuration of 
the facility. When determining whether the technology, such as 
transponders backed up by a global positioning system (GPS) with a 
facility database is acceptable, FRA finds that 49 CFR part 236, 
subpart H and the corresponding appendix C to part 236 (``Safety 
Assurance Criteria and Processes'') contains appropriate safety 
analysis principles.
    In paragraph (d), FRA recognizes that many railroads utilizing 
remote control technology will create a designated area of track, 
controlled by a remote control operator, that can make a remote control 
operation more efficient; this area is called a remote control zone and 
it is defined in this subpart. When a remote control zone is activated, 
a designated remote control operator has the authority to deny other 
movements entry into the tracks designated as within the zone. However, 
it is not until the remote control crewmembers determine that a 
particular segment meets the definition of ``track is clear'' that the 
operation may shove, push, or pull cars into the cleared track segment 
of the zone as required in paragraph (b)(3).
    Paragraph (d) permits the point protection required by paragraph 
(b)(3) to be provided by a prior determination that the track is clear 
for a remote control operation that is shoving within an activated 
remote control zone, as long as the movement will take place on the 
pull-out end, the zone is not jointly occupied, and certain conditions 
are met for the prior determination that provides a reasonable 
assurance that the track is clear. If conditions change, such that the 
track is no longer clear, a new determination that the track is clear 
must be made. This paragraph has undergone substantial revision from 
the NPRM, although the underlying concept has remained unchanged. In 
the NPRM, the proposed rule mis-characterized this requirement as an 
exception to the point protection requirement, when we intended and 
described a point protection requirement. The final rule clarifies 
FRA's intent that point protection, and all the general movement 
requirements under paragraph (b), are applicable to remote control 
movements in the zone when the remote control movement is to take 
advantage of the zone setup. Thus, when the movement occurs in an 
activated zone, on the pull-out end, and is not jointly occupied, it is 
possible for the remote control operator to rely on a prior 
determination that the track is clear rather than making a separate 
determination for each shoving or pushing movement.
    Paragraph (d) states the obvious that, at some point in time, after 
the zone is activated, an initial determination must be made that the 
track is clear. If there is no initial determination, then the crew 
certainly does not have any prior determination to fall back on. 
Paragraph (d)(3) provides the requirements for determining that a prior 
determination that the track is clear may be relied on. These changes, 
which are further described below, should better reflect, in hopefully 
what will be considered plain language, what a remote control crew 
needs to do to determine that the track is clear so that railroads may 
take advantage of shoving or pushing within a remote control zone.
    Paragraph (d)(1) specifies that the remote control zone exception 
to a separate track is clear determination for each shoving or pushing 
movement applies only when the controlling locomotive of the remote 
control movement is on the leading end in the direction of movement. 
This describes a movement that is typically referred to as a remote 
control movement occurring on the pull-out end, and that reference is 
made in this paragraph. When the controlling remote control locomotive 
is not located on the leading end in the direction of movement, the 
remote control crew cannot rely on a prior determination that the track 
is clear and shall, instead make a separate track is clear 
determination for each shoving or pushing movement regardless of 
whether the operation is to take place within the remote control zone. 
FRA does not subscribe to the view that an entire yard can be 
characterized as a remote control zone and, as long as it is not 
jointly occupied, the remote control crewmembers are free to shove or 
push anywhere in the zone without determining that the track is clear 
for each shoving or pushing movement; again, the reason FRA disagrees 
with this view is that we believe that is an unsafe practice and that 
is why the rule only permits the zone exception to apply to remote 
control movements when the controlling locomotive of the remote control 
movement is on the leading end in the direction of movement.
    Paragraph (d)(1) is changed from the NPRM to reflect that the 
remote control movement does not need to be ``operated from a 
controlling locomotive'' to fit the exception, but instead ``the 
controlling locomotive'' of the movement shall be on the leading end in 
the direction of the movement. This change was made to prevent future 
confusion that the proposed language might be interpreted to only apply 
when a remote control operator was actually on the controlling 
locomotive, when it was intended to allow for the operator to either be 
on the locomotive or someplace else when the controlling locomotive on 
the leading end in the

[[Page 8480]]

direction of movement is operated. In other words, the amendment is 
made to specifically include remote control operations no matter where 
the operator is located.
    FRA has switched the numbers of proposed paragraphs (d)(2) and 
(d)(3) in an effort to lay out the sequence of determinations in a 
logical order.
    Paragraph (d)(2) requires that the zone may not be jointly occupied 
at the time that a remote control crew exercises the exception 
permitting the reliance on a prior determination that the track is 
clear. This condition is directed to prevent collisions between a 
remote control operation that is controlling the zone, and any 
equipment or switches controlled or manipulated by a jointly occupying 
crew. Thus, this condition means that if there is a jointly occupying 
crew, the remote control crewmembers shall determine that the track is 
clear for each shoving or pushing movement and shall not rely on a 
prior determination that the track is clear. FRA has deleted from the 
proposed requirement the phrase ``and has not been jointly occupied 
since the last determination that the track is clear.'' This condition 
has been deleted because an amendment to proposed paragraph (d)(2), 
redesignated (b)(3)(iii) addresses the issue by diverting from this 
proposed requirement. That is, paragraph (b)(3)(iii) permits the last 
jointly occupying crew to make a direct relay of the track is clear 
determination to the remote control crewmembers. The basis for this 
latter change is that accidents have generally occurred when jointly 
occupying crews did not seek permission into the remote control zone, 
not that the jointly occupying crews failed to provide accurate 
information regarding whether the track was left clear. This issue is 
explained in more detail below.
    Paragraph (d)(3) describes the three methods for a remote control 
crew to determine whether a prior determination that the track is clear 
is acceptable when the controlling locomotive of the remote control 
movement is on the leading end in the direction of movement and the 
zone is not jointly occupied. Paragraph (d)(3)(i) describes that, if 
the remote control crewmembers themselves made the prior determination, 
it is acceptable and a separate determination is unnecessary for each 
movement. Paragraph (d)(3)(ii) carries over the option from the 
proposed rule that one remote control crew may pass onto a relieving 
remote control crew an activated zone that meets the definition of 
track is clear. Some railroads currently allow for this transfer for 
efficiency purposes; otherwise, any relieving crew would need to make 
an initial determination that the pull-out end of the track is clear.
    FRA has added a third option, not proposed, that would permit the 
crewmembers from a jointly occupying crew to directly communicate to a 
remote control crewmember that the zone is no longer jointly occupied 
and meets the requirements for track is clear. This option is based on 
an RSAC consensus item that recommended allowing the verbal 
determination that the ``track is clear'' between the crews jointly 
occupying the remote control zone, provided that it is a direct 
communication between the crews involved, and not through a third 
party. The RSAC's rationale is that a verbal, direct communication to 
determine ``track is clear'' between remote control crews is currently 
permitted at shift changes, so why not after a joint occupancy? After 
further review of FRA's accident database, we cannot find sufficient 
justification to disallow this practice. If FRA develops any accident 
data to suggest that the practices permitted by paragraphs (d)(3)(ii) 
or (iii) are unsafe, we will consider amending the rule. The addition 
of this third option is largely based on comments received by the AAR 
stating that this option is currently implemented safely by its 
members. We want to emphasize that the ``direct'' communication 
requirement means that the crew that completed its joint occupation of 
the zone must speak directly with one of the remote control 
crewmembers. Thus, it is unacceptable for a yardmaster or other 
employee to relay the information between the two sets of crewmembers.
    There is a greater chance of a communication error if information 
is allowed to be relayed from someone who does not have firsthand 
information. Indirect communication reduces the likelihood that a 
remote control crewmember would have the option to ask the crew that 
previously jointly occupied the zone a follow up question. ``Directly 
communicate,'' in this instance, does not mean that crewmembers are 
prohibited from communicating by radio, or any other communication that 
is not face-to-face. As further clarification, the rule includes the 
description that ``directly communicates'' means ``not through a third 
party.'' To illustrate this point, please consider the situation where 
two remote control operations are working side-by-side in the same 
remote control area. The two operations cannot share a pull-out end 
safely, because that would mean there is joint occupation, and, thus, 
each operation must be in control of different zones. (For the 
difference between a remote control area and a remote control zone, 
please see the section analysis for the definition of ``remote control 
zone'' under Sec.  218.93). Likewise, if another crew enters and 
departs the remote control zone, that last jointly occupying crew 
cannot contact just any remote control crewmember working in the area, 
but instead is required to directly communicate with a remote control 
crewmember from the crew of the zone just departed. To allow otherwise 
would mean that, at best, the last jointly occupying crew would pass on 
the determination that the track is clear indirectly, and, at worst, 
not at all.
    As specified in paragraph (e), shoving or pushing movements are 
safe under certain operating conditions and, thus, FRA chooses to 
exempt these listed operations from the requirements in paragraphs (b) 
through (d) under the specified conditions. One, paragraph (e)(1) 
exempts push-pull operations when operated from the leading end in the 
direction of movement because if a cab control car is on the leading 
end of a movement and a locomotive engineer is operating the train from 
the cab control car, the operation is as safe as a conventional 
locomotive operation that does not involve shoving or pushing. Two, 
paragraph (e)(2) also describes a situation where a locomotive engineer 
is operating a train from the leading end in the direction of movement, 
albeit with assistance from other power. That other power assisting in 
the movement may be occupied and operated by a locomotive engineer, 
i.e., a manned helper locomotive, or an unmanned locomotive, i.e., a 
distributed power locomotive. Because the additional power may be 
located in the back or the middle of the train, this type of operation 
could be considered a shoving or pushing movement. The exception 
clarifies that as long as a manned locomotive is being operated from 
the leading end of the train in the direction of movement, this type of 
operation will not be considered a shoving or pushing movement that 
must comply with paragraphs (b) through (d). FRA has made minor changes 
to this paragraph from the NPRM in order to clarify that the manned 
helper locomotives or distributed power shall be ``assisting a train'' 
when ``the train is being'' operated from the leading end in the 
direction of movement for the exception to apply.
    Pursuant to paragraph (e)(3), the third operational exception to 
the shoving or pushing minimum requirements set out in paragraphs (b) 
through (d) of this section is the allowance of the

[[Page 8481]]

performance of roadway maintenance activity under the direct control of 
a roadway worker performing work in accordance with railroad operating 
rules specific to roadway workers. In other words, a crewmember or 
qualified employee is not required to provide point protection when a 
train crew is working under the direct control of a roadway worker and 
that roadway worker can provide adequate point protection. For example, 
if a ballast or work train is operated by a train crew, a roadway 
worker may direct the ballast or work train crew to move the train in 
order to perform the maintenance activity. This exception would not 
permit a railroad to have an operating rule allowing a roadway worker 
to direct a train crew on logistical or revenue moves and such action 
would violate paragraph (c) of this section.
    Paragraph (e)(4) permits an exception from the shoving and pushing 
rules because few of the shoving or pushing accidents have occurred on 
a main track or signaled siding. From 2002 through 2005, only about 5 
percent of shoving or pushing accidents occurred on main track. 
However, in order to make this exemption work, a long list of 
conditions apply that would provide an equivalent level of safety to 
that of the requirements found in paragraphs (b) through (d) of this 
section. The requirements should look familiar to the industry as the 
requirements follow commonly used railroad operating rules. See General 
Code of Operating Rules (GCOR) 5th Edition, (effective Apr. 3, 2005) 
Rules 6.5, 6.6, and 6.32, and Northeast Operating Rules Advisory 
Committee (NORAC) Rules 116 and 138e. The following clarification is 
provided for a few of the requirements that may not be quite as evident 
as the others. Paragraph (e)(4)(i)(A) requires that if another movement 
or work authority is in effect within the same or overlapping limits, 
the shoving or pushing movement shall not be initiated until the 
leading end of the movement is protected by a qualified employee. 
Paragraph (e)(4)(ii) requires that movement is limited to the train's 
authority because the danger of an accident increases substantially 
when a train shoves beyond the limits of its current authority. The 
requirement in paragraph (e)(4)(iv) is met by meeting either (A), (B), 
or (C), as meeting any one of these three requirements should ensure 
safe movement into and over a highway-rail grade crossing or pedestrian 
crossing as those terms are defined in the definitions section of this 
subpart. To meet the requirement of paragraph (e)(4)(iv)(B), a 
designated and qualified ``employee,'' as defined in this subpart, must 
be stationed at the crossing and have the capability to communicate 
with trains in sufficient time to inform the train of the condition of 
the crossing; the rule does not specify the method of communication as 
the key issue is that the communication be effective. In paragraph 
(e)(4)(v), FRA uses the terms ``interlocking limits,'' which is defined 
in Sec.  218.5 of this part, and ``controlled point limits,'' which is 
undefined but FRA considers as having the same meaning as 
``interlocking limits.'' Interlocking limits means the tracks between 
the opposing home signals of an interlocking. In paragraph 
(e)(4)(v)(C), a crewmember is in a position to determine that the 
train's movement has occupied the circuit controlling a signal such 
that the crewmember has the ability to determine that it is the leading 
wheels of his or her own movement that has activated the signal 
circuit.
Section 218.101 Leaving Rolling and On-Track Maintenance-of-Way 
Equipment in the Clear
    The title of this section has changed from the NPRM, as well as a 
corresponding change in paragraph (b), to clarify that the section is 
intended to apply to both rolling and on-track maintenance-of-way 
equipment. In the NPRM, FRA used the generic term ``equipment'' and 
assumed that the term would be understood to include both types of 
equipment. Rather than risk confusion regarding whether the regulation 
only applies to rolling equipment, the rule now specifies that both 
rolling equipment and on-track maintenance-of-way equipment are covered 
by this section.
    The requirement proposed in paragraph (a) has been revised, but the 
reasons behind the requirement remains the same. The reasons behind 
this paragraph are to ensure that (1) each railroad adopt and comply 
with an operating rule which complies with the requirements of this 
section; and (2) when any person including, but not limited to, each 
railroad, railroad officer, supervisor, and employee violates any 
requirement of an operating rule which complies with the requirements 
of this section, that person shall be considered to have violated the 
requirements of this section. The NPRM was not intended to mean, but 
could possibly have read, that each person was only to uphold and 
comply with the railroad's operating rule and not the regulation 
itself. The revisions to this paragraph are intended to clarify FRA's 
intent that each railroad adopt and comply with an operating rule which 
establishes minimum requirements for preventing equipment from fouling 
connecting tracks unsafely, and that each railroad implement procedures 
that will enable employees to identify when the equipment is fouling. 
The purpose for requiring that each railroad, railroad officer, 
supervisor, and employee shall be considered in violation of this 
section when a railroad operating rule that complies with this section 
is violated is so that FRA has the authority to enforce this regulation 
as opposed to merely requiring that each railroad maintain and have in 
effect such a rule. In order to fully understand this section, one must 
consider FRA's definitions of ``clearance point'' and ``foul or fouling 
a track'' under Sec.  218.93.
    Paragraph (b) sets forth the general rule that rolling and on-track 
maintenance-of-way equipment not be left where it will foul a 
connecting track except as permitted in paragraphs (b)(1) through 
(b)(4) discussed below. This paragraph differs from FRA's proposed rule 
in that each of the two proposed exceptions were divided into two 
simpler exceptions. We hope that by breaking out the two proposed 
exceptions into four exceptions that the section will be easier to 
understand.
    Paragraph (b)(1) permits equipment standing on a main track to foul 
a siding track switch if the fouling switch is lined for the main track 
on which the equipment is standing. For example, it is permissible for 
a train on the main track to be stopped at an absolute signal with the 
rear of the train fouling a siding switch lined for the main track upon 
which the train is standing. Additionally, this would prohibit the 
switch that is being fouled from being thrown underneath the train 
while it is fouling the switch. See also Sec.  218.103(b)(4) and 
(b)(7). Signal systems and main track authority rules should protect 
such movements from approaching trains.
    Paragraph (b)(2) permits equipment standing on a siding to foul a 
main track switch if the fouling switch is lined for the siding on 
which the equipment is standing. While this is permissible, it is 
obviously not safe to do so unless movements on the main track are 
required to operate prepared to stop for the switch.
    Paragraph (b)(3) permits equipment that is standing on a yard 
switching lead track (commonly referred to as a lead track, switching 
lead, or ladder track) to foul a yard track if the switch is lined for 
the yard switching lead track upon which the equipment is standing. 
Conversely, it is not permissible for equipment to be standing on a 
yard track and foul the yard switching lead

[[Page 8482]]

track, regardless of the position of the switch on which the equipment 
is standing (fouling). In simple terms, it is permissible to occupy a 
yard switching lead track and foul a track connected to it, but it is 
not permissible to occupy the connecting track in a manner that fouls 
the yard switching lead track.
    Paragraph (b)(4) permits equipment to be left where it will foul a 
connecting track when the equipment is on an industry track beyond the 
clearance point of the switch leading to the industry. During the RSAC 
process, several commenters raised the issue that when picking up or 
setting off cars at an industry customer, a railroad is often faced 
with limited industry track on which to set off or pick up cars. The 
problem of limited track at some industries would make compliance with 
this rule extremely difficult within those industries and could 
potentially have a detrimental economic effect on those industry 
customers, as well as the railroads that service those industry 
customers. FRA's accident/incident data does not reflect that fouling 
within an industry has been a problem. FRA accident data indicates that 
of the 5% total human factor accidents caused by equipment left in the 
foul during the four-year period 2003 through 2006, only 0.5% (\1/2\ of 
one percent) occurred on industry tracks. Further, industries are 
constantly moving equipment around within their plants for loading/
unloading, or for other purposes, thereby rendering the enforceability 
of the regulation within industry tracks somewhat dubious at best. 
Meanwhile, if an industry has limited track, and that track is crowded 
with rolling equipment, FRA expects railroads servicing those 
industries to operate at extremely slow speeds and with particularly 
careful observation to protect all movements from anything that may be 
potentially fouling the track. This change from the NPRM is based on an 
RSAC recommendation. FRA will certainly consider initiating a new 
rulemaking to include industry tracks in this section if accident/
incidents increase due to fouling equipment.
    Paragraph (c) requires that each railroad, whether at the system, 
division, or terminal level, shall implement procedures for instructing 
employees who handle equipment so that the employees can identify 
clearance points and avoid leaving equipment out to foul. One way to 
implement such procedures is to show employees that there are readily 
observable clearance points on or near the track, e.g., marks on the 
rails or ties indicating a clearance point. When clearance points are 
not identified on or near the track, railroads must institute 
procedures for instructing employees on how to calculate clearance 
points; e.g., a railroad may choose to implement a procedure requiring 
employees to stand next to the rail and extend an arm to simulate the 
width of equipment. Great care should be used in instituting procedures 
for determining clearance points so that the margin of error is 
appropriate where employees are permitted to ride the side of a car and 
as the clearance point would be further back on the track for employees 
with bigger or longer bodies than the average person. This section is 
not intended to apply to close clearance as it relates to buildings, 
loading docks, or doorways, although a railroad may choose to provide 
procedures for implementing safe operations under such circumstances.
    FRA received a comment from the AAR to delete this entire section 
because, in AAR's view, this section duplicates requirements found in 
other sections of the NPRM. After discussions in the RSAC process, the 
RSAC achieved consensus that this section is necessary, and recommended 
that FRA retain it. The requirement that equipment not be left where it 
will foul other tracks is a long-standing operating rule in the 
industry which is merely being Federalized to strengthen 
enforceability. Leaving equipment in the foul accounted for 5% of all 
human factor accidents during the four-year period 2003 through 2006. 
The RSAC acknowledged that there are other elements in the NPRM that 
require the track to be clear prior to a pushing or shoving movement, 
and for all hand-operated switches to be properly lined before fouling 
a track, and that these requirements might appear, perfunctorily, to 
obviate the need for a fouling rule. However, the RSAC also recognized 
that leaving equipment in the foul sets the stage for a potential 
accident in the event one or more of the ancillary requirements in the 
regulation are overlooked. In light of RSAC's consensus recommendation, 
and FRA's view that a specific rule is useful to reducing the many 
accidents attributed to failing to leave equipment in the clear, FRA is 
retaining this section.
    FRA received several comments from BLET suggesting operational 
situations where it may be possible to leave equipment in the clear 
safely. For example, BLET suggested that FRA prohibit leaving equipment 
in the foul where the authorized speed is greater than restricted 
speed. Another BLET suggestion was for FRA to add a requirement that 
permission must be obtained from the employee controlling the track 
prior to leaving equipment in the foul. FRA appreciates BLET's 
suggestions because each suggestion provided the basis for useful RSAC 
discussions exploring the intricacies of leaving equipment in the 
clear. In the end, though, FRA did not adopt BLET's suggestions because 
adding such suggestions would likely complicate what FRA believes is a 
fairly clear and concise rule.
    Finally, FRA acknowledges that some railroads have yard tracks or 
other types of track arrangements outside of a yard which are not 
described as exceptions to the general requirement in paragraph (b), 
and fouling equipment under these particular track arrangements may not 
pose a real safety concern. Because of the many different types of 
track arrangements that are atypical, it would be difficult to craft a 
rule that fully encompasses every such arrangement and excepts those 
that pose no danger. Where there is truly an atypical arrangement that 
appears to violate this section but poses no true safety hazard, FRA 
intends to consider the safety implications when deciding whether to 
exercise its enforcement authority.
Section 218.103 Hand-Operated Switches, Including Crossover Switches
    In the NPRM, this section was titled ``Hand-operated Switches and 
Derails.'' After the RSAC process had concluded, FRA considered the 
scope of this section and decided that it covered several interrelated 
but separate issues. By including so many requirements in one section, 
the section appeared disjointed. Consequently, this section differs 
from the proposed section because it contains only a portion of the 
requirements found in proposed Sec.  218.103. The rest of the proposed 
requirements have been redesignated within Sec. Sec.  218.105, 218.107, 
and 218.109. Although each of these sections contains slight 
modifications from the proposed requirements, overall, the final rule 
does not differ greatly in its requirement from what was proposed.
    The requirement proposed in paragraph (a) has been revised, but the 
reasons behind the requirement remains the same. The reasons behind 
this paragraph are to ensure that (1) each railroad adopt and comply 
with an operating rule which complies with the requirements of this 
section; and (2) when any person including, but not limited to, each 
railroad, railroad officer, supervisor, and employee violates any 
requirement of an operating rule which complies with the requirements 
of this section, that person

[[Page 8483]]

be considered to have violated the requirements of this section. The 
NPRM was not intended to mean, but could possibly have read, that each 
person was only to uphold and comply with the railroad's operating rule 
and not the regulation itself. The purpose for requiring that each 
railroad, railroad officer, supervisor, and employee shall be 
considered in violation of this section when a railroad operating rule 
that complies with this section is violated is so that FRA has the 
authority to enforce this regulation as opposed to merely requiring 
that each railroad maintain and have in effect such a rule. This 
section applies to all hand-operated switches, as that term is defined 
in Sec.  218.93, including hand-operated crossover switches. This 
represents a departure from FRA's current enforcement scheme which is 
limited to hand-operated switches in non-signaled territory as 
specified in EO 24.
    Paragraph (a)(2) has been added to require that each railroad 
specify minimum requirements for an adequate job briefing concerning 
hand-operated switches, including crossover switches. This requirement 
was found in the proposed rule in paragraph (i), but was redesignated 
in paragraph (a)(1). Because this is such a fundamental requirement, it 
was redesignated at the beginning of the section. As previously 
mentioned in the SUPPLEMENTARY INFORMATION section titled ``Accident at 
Graniteville, SC and Safety Advisory 2005-01,'' NTSB found that 
catastrophic accidents, such as the one at Graniteville, SC, could be 
prevented by adequate job briefings. The requirement is for each 
railroad to have its own rules and procedures governing the minimum 
requirements for a satisfactory job briefing, which to FRA's knowledge, 
nearly all railroads already do. It is essential that employees working 
together know exactly what each person's role is in the job, what the 
methods of operation and protection will be, and the order in which 
segments of the job are to be accomplished. With such knowledge, one 
employee could recognize the mistakes of another and correct them 
before any operating rule violation or serious accident occurred.
    Paragraph (b) sets forth certain general rules for employees who 
operate or verify the position of a hand-operated switch. A reference 
to Sec.  218.93 has been added so that anyone reading this section will 
understand that ``hand-operated switch'' has a specific meaning for 
this section and subpart. Proposed paragraph (i)(2) has been 
redesignated as paragraph (b)(1). Paragraph (b)(1) requires frequent 
job briefings at important junctures. It is critical that employees 
know what is expected of them before they start working, know what is 
expected to happen if the work plan changes after work is initiated but 
before the work is completed, and to confirm whether all the work was 
completed to everyone's satisfaction and according to the operating 
rules. For experienced employees, each job briefing should not be a 
particularly long meeting; in fact, FRA expects that some job briefings 
may last less than one minute, but the length of an adequate briefing 
will most likely depend on the complexity of the job.
    Proposed paragraph (b)(1) has been redesignated as paragraph 
(b)(2). This paragraph sets forth the fundamental requirement that an 
employee operating or verifying a hand-operated switch's position shall 
be ``qualified,'' as that term is defined in this subpart. It would be 
easy for an unqualified person to make a mistake in switch alignment or 
fail to recognize a defective switch because, unlike a qualified 
employee, the unqualified person is not trained on proper switch 
operation or on how to detect a defective switch. It is exactly these 
types of defective conditions that cause accidents and may be 
preventable by promulgation of this rule.
    Proposed paragraph (b)(2) has been redesignated as paragraph 
(b)(3). This paragraph establishes a requirement that each railroad 
have an operating rule warning employees that each person who operates 
or verifies the position of a hand-operated switch is individually 
responsible for the position of the switch in use. The purpose of this 
paragraph is to remind an employee that FRA may take enforcement action 
against the employee personally for a willful violation. FRA hopes that 
the personal liability aspect of this rule will reinforce among 
employees the critical importance of ensuring that hand-operated 
switches are left properly lined before leaving the location of the 
switch.
    Proposed paragraphs (b)(3) and (b)(4) have been redesignated as 
paragraphs (b)(4) and (b)(5) respectively. These paragraphs require 
employees to make certain observations. A slight modification has been 
made to each of these paragraphs by changing the phrase ``visually 
ensure'' to ``visually determine.'' The reason for this change is to 
maintain consistent terminology throughout this subpart. The 
requirements listed are to ``visually determine'' that hand-operated 
switches are properly lined for the intended route, that no equipment 
is fouling the switches, that the points fit properly, and the target, 
if so equipped, corresponds with the switch's position. These 
requirements specify the need for the operating/verifying employee to 
take a good, hard look at the switch. For example, a proper observation 
would deduce whether the switch points fit properly against the stock 
rail, i.e. no gaps. The operating/verifying employee should certainly 
not be relying on second-hand knowledge of the switch or derail's 
position in verifying its position.
    Paragraph (b)(4) differs from the proposed requirement in that FRA 
has added that when an employee visually determines that hand-operated 
switches are properly lined for the intended route that the employee 
also visually determine that ``no equipment is fouling the switches.'' 
If there is rolling equipment close by, an employee may have to 
identify the clearance points to determine whether the equipment is in 
fact fouling or it is safe to operate over the switch. See Sec.  
218.101. For example, if an employee can see that the switch is 
properly lined from the locomotive cab but is not absolutely certain 
that rolling equipment is in the clear, this rule prohibits movement 
over the switch until a proper determination can be made; in this 
example, the situation will likely require that the movement be stopped 
and a crew member get off the locomotive or train to determine the 
clearance points. If there is another method to safely determine the 
clearance points, e.g., if the rail is marked, then the requirement may 
be satisfied by this alternative method for determining the clearance 
points. FRA is not requiring that an employee disembark from a movement 
in all instances to determine clearance points, but is instead 
requiring that employees act responsibly when making this visual 
determination.
    The issues addressed by proposed paragraphs (b)(5) and (b)(6) have 
been addressed by redesignated paragraph (b)(6). Paragraph (b)(5) had 
proposed a requirement that if the switch or derail is equipped with a 
lock, hook or latch, it must be in the hasp, before making movements in 
either direction over the switch. Proposed paragraph (b)(6) referred to 
physically testing a hand-operated switch or derail's lock to ensure it 
is secured. FRA stated in the proposed section-by-section analysis, and 
we restate here that this regulation does not require switches to be 
equipped with locks, hooks or latches. FRA's intention remains that 
employees must ensure that the switch is secured from unintentional 
movement of the switch points before making movements in either 
direction over the switch. Rather than confuse the requirements by

[[Page 8484]]

getting into the tedium of explaining how to lock, hook, or latch when 
FRA does not even require such securement devices, FRA has decided to 
set forth a rule that distinguishes the securement with a lock, hook, 
or latch from the securement of the switch from unintentional movement 
over it. For example, some switches do not have locks, hooks, or 
latches but are considered secure from unintentional movement when the 
switch handle is rotated down parallel to the ground. If the 
requirement in paragraph (b)(6) is followed, it should prevent 
derailments and accidental misalignments caused by the switch points 
moving under equipment.
    FRA has also added the phrase ``after operating a switch'' to 
clarify that the requirement in paragraph (b)(6) does not apply to an 
employee who is merely verifying the position of a hand-operated 
switch, as opposed to actually operating the position of such a switch. 
Operations would be significantly delayed if every time a train crew 
needed to verify the position of a hand-operated switch it would also 
have to ensure that the switch is secure from unintentional movement of 
the switch points. Such a requirement would require that the train be 
stopped prior to movement over the switch, and a crewmember disembark 
to check the switch. It is reasonable to expect that the last employee 
who operated the switch ensured that the switch was properly secured. 
If certain types of switches are found to regularly fail to protect 
against unintentional movements, FRA will consider whether to initiate 
a rulemaking then.
    A new requirement has been added to paragraph (b)(7). The final 
rule adds the prohibition of operating the switch while rolling and on-
track maintenance-of-way equipment is fouling the switch. FRA 
overlooked this straightforward prohibition in the NPRM, although the 
NPRM arguably covered the issue through other proposed requirements. 
See Sec. Sec.  218.101(c) and 218.103(d). However, following the fatal 
accident of a remote control operator riding the side of a car on 
August 30, 2007, in BNSF's Mormon Yard in Stockton, California, FRA 
realized that, from an enforcement perspective, neither of these other 
requirements explicitly covered an employee who operated a switch when 
someone else left equipment fouling the switch. (Although FRA's 
investigation of the Morman Yard accident is on-going, preliminary 
information indicates that a crew left some cars fouling a crossover 
switch, and the crossover switch was later lined for the crossover by 
one member of a remote control crew without moving the fouling cars. 
The other remote control crewmember, while riding the side of a car, 
operated through the crossover and was struck and killed by the static 
fouling equipment.) By adding this prohibition to the final rule, each 
railroad employee who operates or verifies the position of hand-
operated switches will be required to ensure that before a switch is 
operated or verified, and a movement over the switch is initiated, the 
employee is responsible for checking that equipment is not fouling the 
switch, whether or not the employee had left the equipment fouling.
    Paragraph (b)(7) has also been amended for clarification purposes. 
The proposed requirement stated that an employee shall ``ensure that 
switches are not operated while the equipment is standing or moving 
over a switch.'' The final rule requires that an operating/verifying 
employee shall ensure that a switch is not operated while rolling and 
on-track maintenance-of-way equipment is fouling the switch, or 
standing or moving over the switch. Thus, in addition to the added 
prohibition previously discussed, the final rule clarifies what it 
meant by ``equipment.'' The reason for this rule is that operating a 
switch under a moving train or while rolling and on-track maintenance-
of-way equipment is standing over it is an obvious recipe for disaster 
but apparently occurs with enough frequency that a requirement is 
necessary to discourage taking this risk. The NPRM contained a related 
proposed requirement that several commenters believed was ambiguous, 
and BMWED described as unnecessary. Given the retention of the 
requirement in paragraph (b)(7), we agree with the comments. This 
related proposed requirement was found in paragraph (f) of the NPRM. 
Proposed paragraph (f) mirrored an operating rule many railroads have 
which requires an employee, who has lined a hand-operated switch to let 
equipment enter or leave the main track, to stand at least 20 feet from 
that switch until the movement is complete. Upon further reflection, 
FRA believes the proposed paragraph (f) is not practical to comply with 
and enforce in all situations due to physical restrictions.
    Under paragraph (b)(8), it is required that after operating a 
switch, an employee ensure that each switch , when not in use, is 
locked, hooked, or latched, if so equipped. This means that if the 
switch is equipped with a latch or hook, it must be applied and secured 
after it is operated. For locks, this means the lock is in the hasp, 
and the lock is locked. If it is a latch or hook, the latch or hook 
must be in the hasp. For purposes of this section, ``not in use'' means 
that there is either no crew or equipment in the vicinity of the switch 
or there is a crew in the vicinity of the switch but the crew has no 
intention of using the switch. FRA has also added the phrase ``after 
operating a switch'' to clarify that the requirement in paragraph 
(b)(8) does not apply to an employee who is merely verifying the 
position of a hand-operated switch, as opposed to actually operating 
the position of such a switch.
    Proposed paragraph (d) has been redesignated as paragraph (c). This 
paragraph requires that when rolling and on-track maintenance-of-way 
equipment has entered a track, approaching a hand-operated switch not 
lined for its intended movement, it shall not foul a track (see 
definition of ``foul or fouling a track'' in this subpart) until the 
switch is properly lined for the intended movement. If the switch is 
intended to be trailed through, such as with a spring switch, or a yard 
type switch commonly referred to as a ``rubber switch,'' a ``run-
through switch,'' or a ``variable switch,'' movement shall not trail 
through the switch until the route is seen to be clear or the equipment 
has been granted movement authority by the employee in charge of that 
track segment or switch. Additionally, if a train, rolling equipment or 
on-track maintenance-of-way equipment is closely approaching a switch 
and an employee observes a conflicting movement also closely 
approaching the switch, the track with the approaching conflicting 
movement shall not be fouled.
    Proposed paragraph (e) has been redesignated as paragraph (d). 
Paragraph (d) specifies that when rolling and on-track maintenance-of-
way equipment has entered a track, it is required that the hand-
operated switch to that track shall not be lined away from the track 
until that equipment has passed the ``clearance point'' (as defined in 
this subpart) of that track. If complied with, this requirement will 
prevent an employee from operating a switch while equipment is fouling 
it, directly on it, or in close proximity to it. The purpose of this 
requirement is to prevent injuries and accidents caused by improper 
operation of switches. Injuries should be reduced by this requirement 
because when switches are operated with equipment fouling a switch, or 
directly on a switch, a switch can be hard to operate or may be put 
under tension such that when an employee begins to operate the switch 
handle, it may move unexpectedly; thus, back injuries and other muscle 
strains may be reduced. In

[[Page 8485]]

addition, accidents may be reduced as employees will not be allowed to 
operate switches under tension, i.e., when cars are on a switch.
Section 218.105 Additional Operational Requirements for Hand-Operated 
Main Track Switches
    As explained in the section-by-section analysis to Sec.  218.103, 
FRA has divided proposed Sec.  218.103 into several sections so that 
the requirements will be easier to follow and be in a more logical 
order. The requirements found in this section were derived from 
proposed Sec.  218.103.
    The requirement proposed in paragraph (a) has been revised, but the 
reasons behind the requirement remains the same. The reasons behind 
this paragraph are to ensure that (1) each railroad adopt and comply 
with an operating rule which complies with the requirements of this 
section; and (2) when any person including, but not limited to, each 
railroad, railroad officer, supervisor, and employee violates any 
requirement of an operating rule which complies with the requirements 
of this section, that person be considered to have violated the 
requirements of this section. The NPRM was not intended to mean, but 
could possibly have read, that each person was only to uphold and 
comply with the railroad's operating rule and not the regulation 
itself. The purpose for requiring that each railroad, railroad officer, 
supervisor, and employee shall be considered in violation of this 
section when a railroad operating rule that complies with this section 
is violated is so that FRA has the authority to enforce this regulation 
as opposed to merely requiring that each railroad maintain and have in 
effect such a rule.
    Proposed Sec.  218.103(c)(1) titled ``Hand-operated Main Track 
Switches'' has been redesignated as Sec.  218.105(b) and retitled 
``Designating switch position,'' but has otherwise remained unchanged. 
This paragraph provides regulatory authority over the hand-operated 
main track switches so that FRA regulates the positioning of all such 
switches. In contrast, FRA only prescribes requirements for hand-
operated main track switches in non-signaled territory in EO 24.
    The rule specifies that each railroad will retain discretion 
regarding the normal position of a hand-operated main track switch. 
Generally, railroad operating rules pertaining to the operation of 
switches provide that the normal position for a main track switch is 
lined and locked for movement on the main track when not in use. The 
purpose of this rule is so that trains traveling on main track will not 
be inadvertently diverted onto another track. (Of course, this can be 
avoided if all trains were required to approach all main track switches 
prepared to stop, but that requirement would impose a substantial 
burden on railroads under most circumstances and would also introduce 
other safety concerns.) Railroads may designate a different position as 
normal, as some operations may be more efficient with a hand-operated 
main track switch's ``normal'' position designated in what would 
otherwise be referred to as the ``reverse'' position. No matter what 
position a railroad designates as the normal position of each hand-
operated main track switch, the requirement is for such designations to 
be made in writing. The railroad may designate the normal position of 
the switch in its operating rules, system special instructions, 
timetables, general orders, or any other written documentation that 
will provide adequate notice to employees operating and verifying hand-
operated main track switches.
    FRA is unaware of any railroads that do not require locking of main 
track switches as a safeguard against unauthorized use. Paragraph (b) 
requires that employees operating and verifying hand-operated main 
track switches should pay careful attention to ensure that these 
switches, when not in use, are lined and locked in that position except 
under two circumstances. The first circumstance under which the 
employee does not need to return the switch to the designated normal 
position occurs when the train dispatcher directs otherwise; thus, the 
train dispatcher, with movement control over that main track segment, 
directs the crew using the switch to leave the switch in other than the 
normal position. The dispatcher would then be responsible for the 
switch and must follow railroad operating procedures for the necessary 
protection of the switch. Such ``necessary protection'' entails that 
the dispatcher take steps to ensure that the next train crew 
approaching the switch has a track warrant informing that the switch 
has been left reversed. In some instances, the dispatcher will need to 
make a note in a log of train movements, or other similar document, to 
ensure that subsequent dispatchers have access to the reversed switch 
information. The second circumstance under which the employee does not 
need to return the switch to the designated normal position occurs when 
the switch is left in the charge of a crewmember of another train, a 
switchtender, or a roadway worker in charge. Paragraph (b)(2) should be 
an alternative safe procedure because these other employees will 
likewise be individually responsible for the safe and proper operation 
of that hand-operated main track switch; the employees performing these 
jobs shall be qualified on operating switches and verifying switch 
position according to this subpart, so there should be no inherent 
problems with the transfer of responsibility for the switch. Regardless 
of the position of the switch when the train dispatcher directs 
otherwise or the switch is left in the charge of another qualified 
employee, it must still be locked, hooked or latched, if so equipped, 
when not in use, as required by Sec.  218.103(b)(8).
    Just in case there is any confusion that the operation of a hand-
operated main track switch is a function requiring job briefings, 
paragraph (c), formerly proposed Sec.  218.103(i)(3), sets forth the 
requirements for such briefings where employees should be engaging in 
meaningful communication. Thus, in paragraph (c)(1), FRA specifically 
requires that before a train leaves the location where any hand-
operated main track switch was operated, all crewmembers shall have 
verbal communication to confirm the position of the switch. Similarly, 
paragraph (c)(2) addresses that communication amongst employees is 
vital when roadway workers are working within the same work limits and 
operate hand-operated main track switches. Thus, when any roadway work 
group is working under the protections of the specified form of working 
limits, any employee who operates a hand-operated main track switch 
within such limits shall do so under the direction of the roadway 
worker in charge. Further, it is required that the employee operating 
the hand-operated main track switch shall report to the roadway worker 
in charge the position of all hand-operated main track switches the 
employee has operated to the roadway worker in charge prior to the 
expiration of the authority limits.
    In some roadway work group situations, a roadway worker may be 
instructed during a job briefing to convey switch position information 
to an employee who is not the roadway worker in charge. In this 
alternative situation, the contact person is acting as an intermediary 
between the employee operating the switch and the roadway worker in 
charge. This intermediary person is commonly referred to as an 
``employee in charge.'' The rule permits the employee in charge to pass 
on the switch position information from the employee operating the 
switch to the roadway worker in charge without firsthand verification 
of the switch

[[Page 8486]]

position. The important aspect of this requirement is that the work 
group members are communicating the switch position and not who conveys 
the information. The allowance of this option reflects the reality of 
current operations.
    A recurring concern raised by the labor organizations was that some 
railroads permit a maintenance-of-way employee to operate a hand-
operated main track switch in non-signaled territory, typically for 
purposes of servicing the switch, without contacting the dispatcher or 
the crewmembers of any potentially on-coming trains. The concerns 
regarding this practice centered on whether appropriate protection was 
being afforded to on-coming trains that potentially could be diverted 
from the main track if the employee servicing the switch was unable to 
restore the switch to the normal position prior to the train's arrival. 
BMWED questioned whether it made sense to require strict communication 
requirements to verify the position of switches prior to the expiration 
of exclusive track occupancy authority but not require any 
communication under this other circumstance. FRA views these situations 
as completely different as the former applies to job briefings among a 
roadway worker group, not a communication with a dispatcher or control 
operator as BMWED is arguing for in the latter. BMWED was also 
concerned with the liability the rule would have for the employee who 
failed to restore a switch being serviced if a train came along. With 
regard to the liability issue, FRA has not added any regulatory 
requirement for such an employee servicing a switch and thus the 
employee's liability is unaffected by this rule.
    FRA's decision not to require an employee servicing a switch to 
communicate with the dispatcher or control operator is based on several 
factors. One of the biggest factors is that FRA learned of this 
practice through discussions with the RSAC working group but could not 
find any data to support that this practice has been a problem or cause 
of accidents/incidents. It is FRA's understanding that this is a 
practice mainly on the western railroads where employees can often see 
on-coming trains great distances away. In the situations where 
employees may not be able to easily view an on-coming train, it is a 
common practice for a maintenance-of-way employee to contact a 
dispatcher or control operator in order to obtain a sense of when the 
next train is likely to come along. An employee working under such 
conditions would likely maintain a high level of situational awareness 
to on-coming trains as the employee understands that he or she is 
providing his or her own protection, and the information obtained is 
not always accurate. FRA is concerned with promulgating a requirement 
that the employee contact the dispatcher or control operator in every 
instance as the formality of making that communication mandatory could 
lead maintenance-of-way employees to develop a false sense of safety 
when true block protection is not being provided.
    Unless a switch is broken, it should take seconds, not minutes, to 
operate a switch back to normal if a train is known to be approaching. 
FRA assumes that a maintenance-of-way employee who realizes that a 
switch is broken, as opposed to needing some oil or routine 
maintenance, would immediately contact a dispatcher or control operator 
in order to obtain the authority to set up working limits or other 
adequate protection that would allow the employee the time to repair 
the switch. Certainly, FRA would not expect railroads to permit the 
servicing of a switch when heavy train traffic is expected. FRA would 
also expect railroads to coordinate such work when train schedules are 
available and adequate time for such service can be planned. Although 
FRA is not implementing any regulations on this issue, we recommend 
that railroads implement procedures to safeguard employees and trains 
when a switch requires servicing.
    Proposed Sec.  218.103(c)(2) has been redesignated as Sec.  
218.105(d). This paragraph requires that in non-signaled territory, 
before an employee releases the limits of a main track authority and a 
hand-operated switch is used to clear the main track, and, prior to 
departing the switch's location, certain conditions be met. An employee 
is prohibited from releasing the limits after departing the switch's 
location so that the employee who has any question about the condition 
of the switch has access to verifying its condition. This requirement 
is intended to prevent an employee from releasing the limits while 
located in the yard office or while traveling away from the switch's 
location in a taxi.
    In paragraph (d)(1), the first proposed condition that must be met 
is that the employee releasing the limits, after conducting a job 
briefing in accordance with this subpart, must report to the train 
dispatcher that the hand-operated main track switch has been restored 
to its normal position and locked, unless the train dispatcher directs 
that the hand-operated main track switch be left lined and locked in 
the reverse position. The reference to another paragraph in this 
section is intended to remind the employee releasing the limits that 
before a train, train crew, or maintenance-of-way employee leaves the 
location where any hand-operated main track switch was operated, all 
crewmembers and maintenance-of-way employees shall have a verbal 
communication to confirm the position of the switch. Soon after this 
job briefing, it is time to call the dispatcher and confirm the same 
information that should have been included in the train crew or 
maintenance-of-way employees' job briefing. If the train dispatcher 
wants the employee to leave the switch in the reverse position, this 
communication is the train dispatcher's opportunity to inform the 
employee of such a request. It is required that the employee and 
dispatcher confirm with each other the switch position and that the 
switch is locked so that there is little chance that any trespasser 
with a key or bolt cutters could tamper with the switch. As in 
paragraph (b)(1), a train dispatcher who directs that the switch be 
left in the reverse position must provide the protection necessary to 
ensure that the subsequent train crew or operator of on-track equipment 
that will approach the switch has a track warrant informing them of the 
switch's reverse position. Again, such ``necessary protection'' entails 
that the dispatcher take steps to ensure that the next train crew or 
operator of on-track equipment approaching the switch has a track 
warrant informing that the switch has been left reversed. In some 
instances, the dispatcher will need to make a note in a log of train 
movements or other similar document to ensure that subsequent 
dispatchers have access to the reversed switch information.
    Paragraphs (d)(2) and (3) detail two more conditions that must be 
met when main track authority limits are being prepared for release. 
The second condition is that if the employee's report of the switch 
position is correct, i.e., matches the operating rule or dispatcher's 
direction, the train dispatcher shall repeat the reported switch 
position information to the employee releasing the limits and ask 
whether the repeated information is correct. Typically, railroad 
procedures require the train dispatcher to ask whether ``that is 
correct'' with regard to confirming this type of information, so the 
regulation is intended to reflect those commonly used procedures. The 
third condition is that the employee releasing the limits then confirm 
that

[[Page 8487]]

this information is correct with the train dispatcher. Railroads and 
employees who currently release such limits should recognize that these 
requirements follow the traditional rules of such release. The purpose 
of the dispatcher and employee repeating the switch's condition is so 
that both employees can confirm that the other is repeating the correct 
information regarding the position of the switch and that it is locked.
    The rule retains the requirement in EO 24 that an employee 
releasing the limits of a main track authority in non-signaled 
territory communicate with the train dispatcher that all hand-operated 
main track switches operated have been restored to their normal 
position, unless the train dispatcher directs otherwise, but only to 
the extent that the switches are at the location where the limits are 
being released. With the elimination of a SPAF, it would be difficult 
for an employee to recall the condition of any particular hand-operated 
main track switch operated and there would likely be a reaction for an 
employee to believe he or she left all such switches in proper 
position--without much opportunity to double-check the condition of 
those faraway switches at that time. As mentioned previously, accidents 
often occur where the limits are being released and that is why the 
rule has placed emphasis on addressing the problem at those locations. 
The switches located at the point of release of the limits should be 
readily accessible for any employee who is unsure of the condition the 
switch was last left in. The rule also adds the requirement that the 
employee report that the switch has been locked; locking of the main 
track switch should prevent easy access to unauthorized users.
    The requirements in paragraph (d) carry over certain employee/
dispatcher communication requirements from EO 24 that provide 
additional checks to ensure that hand-operated main track switches are 
left properly lined and locked. The requirement is carefully tailored 
to address the switches at the location being released because FRA has 
determined that many of the accidents are occurring at that location. 
As several comments were received in response to EO 24 regarding an 
equivalent requirement carried over in paragraph (d), it should be 
helpful to describe what FRA means by the term ``releasing the limits 
of a main track authority.'' The term means releasing all or a portion 
of the limits (i.e., rolling up the limits) of an existing main track 
authority.
Section 218.107 Additional Operational Requirements for Hand-Operated 
Crossover Switches
    As explained in the section-by-section analysis to Sec.  218.103, 
FRA has broken up proposed Sec.  218.103 into several sections so that 
the requirements will be easier to follow and be in a more logical 
order. The requirements found in this section were derived from 
proposed Sec.  218.103.
    The requirement proposed in paragraph (a) has been revised, but the 
reasons behind the requirement remain the same. The reasons behind this 
paragraph are to ensure that (1) each railroad adopt and comply with an 
operating rule which complies with the requirements of this section; 
and (2) when any person including, but not limited to, each railroad, 
railroad officer, supervisor, and employee violates any requirement of 
an operating rule which complies with the requirements of this section, 
that person be considered to have violated the requirements of this 
section. The NPRM was not intended to mean, but could possibly have 
read, that each person was only to uphold and comply with the 
railroad's operating rule and not the regulation itself. The purpose 
for requiring that each railroad, railroad officer, supervisor, and 
employee shall be considered in violation of this section when a 
railroad operating rule that complies with this section is violated is 
so that FRA has the authority to enforce this regulation as opposed to 
merely requiring that each railroad maintain and have in effect such a 
rule.
    Paragraph (b) was formerly proposed Sec.  218.103(g)(1). This 
paragraph sets forth the general rule that both hand-operated switches 
of a crossover shall be properly lined before equipment begins a 
crossover movement. Properly lined means that switches at both ends of 
the crossover are lined for the crossover movement. As train crews 
expect crossover switches to be properly lined, i.e., in correspondence 
(see definition of ``correspondence of crossover switches''), an 
accident can easily occur when crossover switches are out of 
correspondence. A related concern that is addressed by this paragraph 
is what to do when equipment is traversing a crossover; the rule 
requires that all equipment be clear of both ends of the crossover 
before restoring the switches to the normal position. If employees 
apply a railroad operating rule that incorporates this rule, the 
requirement should prevent the unintentional running through of 
crossover switches or unintentional movements onto another track that 
could potentially strike other rolling equipment.
    Paragraph (c) was formerly proposed Sec.  218.103(g)(2). This 
paragraph identifies four exceptions to the general rule that hand-
operated crossover switches should be in correspondence. The reason for 
the exceptions is that each operation is safe or safer with the 
crossover switches out of correspondence than in correspondence. That 
is, each exception identifies a situation in which employees on the 
track are protected by diverting trains and equipment without slowing 
down operations.
    FRA is aware that some configurations of crossover switches are 
quite complicated, typically due to the location of adjacent or 
adjoining tracks and other attendant switches. Railroads should address 
these complicated configurations of crossover switches when employees 
are instructed on the physical characteristics of the territory. 
Without proper instruction on how to apply a railroad's operating rule 
for correspondence of crossover switches, it will be difficult to hold 
employees accountable. However, railroads can be held accountable if 
employees do not properly apply such an operating rule and lack of 
instruction is one of the causes. Of course, if a railroad provided 
instruction but a violation was committed due to the complexities of 
the crossover configuration, FRA will exercise discretion regarding 
whether any enforcement action is necessary.
    Paragraph (c)(1)(i) was formerly proposed Sec.  
218.103(g)(2)(i)(A). This paragraph permits mechanical department 
workers to line one end of a crossover away from the track under blue 
signal protection to allow workers on, under, or between rolling 
equipment. See 49 CFR 218.27. Similarly, paragraph (c)(1)(ii), formerly 
proposed Sec.  218.103(g)(2)(i)(B), permits providing track protection 
for roadway workers on track that is considered ``inaccessible'' under 
Sec.  214.327 of this chapter. Paragraph (c)(1)(iii), formerly proposed 
Sec.  218.103(g)(2)(i)(C), permits those railroads that have the 
technology, in traffic control system (TCS) territory to allow a signal 
maintainer to perform maintenance, testing or inspection of the switch 
at only one end of a crossover while continuing to operate trains over 
the other crossover switch. FRA does not have any evidence to suggest 
this exception is an unsafe practice. Finally, the fourth exception, 
found in paragraph (c)(1)(iv), which was formerly proposed at the end 
of proposed paragraph (g)(1), recognizes that a safe operation is 
probable during continuous switching operations where

[[Page 8488]]

only one crew is using both tracks connected by the crossover.
    FRA has eliminated the stated requirement in proposed Sec.  
218.103(g)(2)(ii) that crossover switches shall be immediately restored 
to correspondence after the protection afforded by one of the four 
exceptions in paragraph (c) is no longer required. After further 
consideration, FRA concluded that this requirement is implicit and it 
would be redundant to state it. If one of the paragraph (c) exceptions 
no longer applies, the general rule in paragraph (b) must be complied 
with--meaning that both hand-operated switches of a crossover shall be 
properly lined before rolling and on-track maintenance-of-way equipment 
begins a crossover movement.
Section 218.109 Hand-Operated Fixed Derails
    As explained in the section-by-section analysis to Sec.  218.103, 
FRA has broken up proposed Sec.  218.103 into several sections so that 
the requirements will be easier to follow and be in a more logical 
order. The requirements found in this section were derived from 
proposed Sec.  218.103.
    FRA has also clarified in the title to this subpart, the purpose 
and scope section, and in Sec.  218.109, that this subpart applies to 
``fixed'' derails. In the NPRM, FRA did not distinguish between the two 
general types of derails, i.e., fixed and portable. FRA is using the 
term ``fixed derails'' to contrast it with derails that are portable. 
Portable, or temporary, derails can easily be transported and applied 
at different locations throughout the day in order to protect workers 
and equipment as needed. Fixed, or permanent, derails cannot be easily 
transported because they are typically affixed to the track structure 
in some manner. Fixed derails are normally found prior to entering a 
locomotive servicing area or car shop repair area, where they are used 
to protect workers in those areas from encroachment by unauthorized 
movements of rolling equipment, and on most industry tracks at or near 
the switch connecting with the main track. By clarifying that this 
subpart and section applies to fixed derails, FRA is providing up front 
notification that this subpart does not apply to the operation of 
portable derails.
    During the nearly four and a half year period from January 2003 
through May 2007, 154 accidents/incidents were reported by railroads to 
have been caused, either primarily or secondarily, by a person's 
failure to apply or remove a derail. Only 3 of these 154 accidents were 
reported as caused by a failure to apply or remove a portable derail 
and thus 98% of the reportable accidents/incidents were caused by the 
misapplication of the railroad's operating rules for fixed derails. As 
the primary reason for issuing this rule is to reduce accidents/
incidents attributed to human factor causes, this rule's focus on 
reducing accidents/incidents attributed to mishandling fixed derails is 
appropriately targeted.
    The requirement proposed in paragraph (a)(1) has been revised, but 
the reasons behind the requirement remains the same. The reasons behind 
this paragraph are to ensure that (1) each railroad adopt and comply 
with an operating rule which complies with the requirements of this 
section; and (2) when any person including, but not limited to, each 
railroad, railroad officer, supervisor, and employee violates any 
requirement of an operating rule which complies with the requirements 
of this section, that person be considered to have violated the 
requirements of this section. The NPRM was not intended to mean, but 
could possibly have read, that each person was only to uphold and 
comply with the railroad's operating rule and not the regulation 
itself. The purpose for requiring that each railroad, railroad officer, 
supervisor, and employee shall be considered in violation of this 
section when a railroad operating rule that complies with this section 
is violated is so that FRA has the authority to enforce this regulation 
as opposed to merely requiring that each railroad maintain and have in 
effect such a rule.
    Paragraph (a)(2) carries over the proposed requirement from Sec.  
218.103 that each railroad specify minimum requirements for an adequate 
job briefing concerning hand-operated fixed derails. The requirement is 
for each railroad to have its own rules and procedures governing the 
minimum requirements for a satisfactory job briefing, which to FRA's 
knowledge, nearly all railroads already do. It is essential that 
employees working together know exactly what each person's role is in 
the operation, what the methods of operation and protection will be, 
and the order in which segments of the job are to be accomplished. With 
such knowledge, one employee could recognize the mistakes of another 
and correct them before any operating rule violation or serious 
accident occurred.
    Paragraph (b) derives from proposed Sec.  218.103(h). This 
paragraph sets forth the general rules for hand-operated fixed derails. 
Paragraph (b)(1) requires that the normal position of fixed derails is 
in the derailing position; but, a railroad may specify in its operating 
rules or special instructions that the normal position of a fixed 
derail is in the non-derailing position. Paragraph (b)(2) requires that 
fixed derails shall be kept in the derailing position whether or not 
any rolling or on-track maintenance-of-way equipment is on the tracks 
they protect, except as provided in paragraph (b)(1) or when changed to 
permit movement. Thus, the general rule requires that the fixed derails 
be returned to the derailing position once the movement is complete 
while the rule still allows for the flexibility of a railroad to 
designate otherwise or an exception in paragraph (b)(1) to apply in 
less common circumstances. If fixed derails are being used for 
protection of workers using blue signals, these rules would not be 
applicable as FRA already has other regulations governing derails in 
that circumstance. See 49 CFR part 218, subpart B.
    The entire purpose of a derail, whether fixed or portable, is to 
protect something or someone. Derails are typically used to prevent 
equipment from rolling out onto main tracks in front of trains. They 
are also used to protect workers who are on a track to repair track or 
equipment. Derails may be placed in addition to warnings provided by 
signs, flags, gates, and notices in timetables and special 
instructions; thus, derails protect employees when other employees 
operating equipment or a train fail to heed these other warnings, or 
unattended equipment rolls freely. Although a properly applied derail 
that stops equipment or a train has served its purpose, FRA prohibits 
movements over a fixed derail in the derailing position under paragraph 
(b)(3). Paragraph (b)(3) will permit FRA to take enforcement action 
when a railroad or person causes a movement to be made over a derail in 
the derailing position. As the typical situation involving movement 
over a derail occurs at low speeds and does not result in serious 
injuries or excessive damage to railroad property, the industry has 
accepted, in FRA's view, too much tolerance for this type of incident. 
Consequently, while FRA plans to use its enforcement discretion, the 
purpose of this requirement is to reverse the permissive culture of the 
railroad industry that has accepted operating over a derail.
    Paragraph (c) derives from Sec.  218.103(b) and (h)(3). This 
paragraph addresses the same type of list of requirements that FRA is 
requiring for hand-operated switches, but applies them to hand-operated 
fixed derails. For instance, paragraph (c)(1) requires that

[[Page 8489]]

employees operating or verifying the position of a fixed derail shall 
conduct job briefings before work is begun, each time a work plan is 
changed, and at completion of the work. It is essential that employees 
performing these tasks communicate with one another at key intervals to 
prevent error free operations over derails. Paragraph (c)(2) requires 
that employees operating or verifying the position of a fixed derail 
shall be qualified on the railroad's operating rules relating to the 
operation of the derail. In FRA's view, it seems intuitive that a 
railroad cannot expect an employee to know how to properly operate or 
verify the position of a hand-operated fixed derail without qualifying 
the employee. Once qualified, an employee will be held individually 
responsible for the position of the derail in use; for the purpose of 
paragraphs (c)(3) and (c)(6), a fixed derail is considered ``in use'' 
if a movement is either operating over the derail, or continuously or 
intermittently operating over the derail while it is in the non-
derailing position. Paragraph (c)(6) addresses that employees operating 
or verifying the position of a fixed derail shall ensure that when not 
in use, derails are locked, hooked, or latched in the normal position 
if so equipped. As FRA mentioned in the analysis to Sec.  218.103, 
FRA's rule does not require switch or derail targets, latches, locks or 
hooks; however, if a switch or derail is equipped with any of these 
devices, FRA requires that the employees check that these devices are 
properly placed or correspond as intended. If the derail is so 
equipped, it shall be locked in the normal position regardless of 
whether the normal position is designated by the railroad as in the 
derailing position or non-derailing position.

Appendix D to Part 218--Requirements and Considerations for 
Implementing Technology Aided Point Protection

    In the preamble to the NPRM, FRA restated its policy on using 
technology, such as cameras and monitors, to assist crews in providing 
point protection during shoving or pushing movements. The NPRM was the 
first proposed regulatory provision on this subject, and, in addition 
to the preamble discussion, the issue was also directly raised by 
proposed Sec.  218.99(b)(2)(i). FRA received some comments on this 
policy and it was discussed with the RSAC working group. Generally 
speaking, the railroads wanted to continue using such technology 
without seeing any need for further regulation; meanwhile, the labor 
organizations were concerned that without adequate safeguards, i.e., 
regulations, the use of such technology posed too many questions 
related to adequate functionality and reliability. After further 
consideration, FRA has concluded that implementing the policy as 
mandatory requirements is necessary to assure Federal, State and local 
governments, that adequate safeguards are in place to protect the 
general public.
    The first section of appendix D addresses the general requirements 
and considerations for all point protection aided by technology. One of 
the big concerns with not having a qualified employee protecting the 
point is determining that the technology, and the procedures for its 
use, provide an equivalent level of protection to that of a direct 
visual determination by a crewmember or other qualified employee 
properly positioned to make the observation. To do that, a person must 
be properly qualified. FRA has addressed the qualifications issue by 
carrying over from the proposed rule, in Sec.  218.95(a)(2), the 
requirement that each railroad must qualify employees ``in any 
technology (and related procedures) necessary to accomplish work 
subject to the particular requirements, actions required by the 
employee to enable and use the system, means to detect malfunctioning 
of equipment or deviations from proper procedures, actions to be taken 
when malfunctions or deviations are detected, and information needed to 
prevent unintentional interference with the proper functioning of such 
technology.'' In summary, the rule requires employees to be qualified 
on proper use of the technology and what to do when the technology does 
not work as intended. Most malfunctions of the technology should be 
detectable, and result in abandoning the use of the technology for 
determining point protection until the malfunction can be corrected.
    Although each railroad will retain some flexibility in implementing 
technological aids to provide point protection, the stated requirements 
and considerations will provide FRA with the ability to more quickly 
and directly enforce a change if a railroad attempts to implement a 
setup that does not adequately address all of the factual circumstances 
noted for consideration. For instance, a railroad shall not permit a 
camera/monitor setup that utilizes a black and white monitor that does 
not allow the person viewing the monitor to adequately determine a 
signal indication for the shoving or pushing movement. Similarly, FRA 
could take enforcement action against a railroad or individual for 
using a camera/monitor setup during severe weather conditions that did 
not permit adequate camera views of whether a crossing's gates were 
down or the track is, in fact, clear of equipment. Another 
consideration before implementing technology aided point protection is 
who will be allowed to view the monitor and assist the crew; thus, FRA 
will consider enforcement action if employees do not conduct adequate 
job briefings or maintain adequate lines of communication between the 
employee controlling the movement and the employee viewing the monitor.
    It is also worth mentioning that each railroad shall ensure that 
the technology provides ``real time coverage,'' i.e., a view without 
any delay that could impact the safety of the operation and provide 
less protection than that of a direct visual determination. With that 
regard, we are concerned with internet or web-based monitoring systems 
that do not provide a direct feed to the monitor and could potentially 
be delayed by routing through a third party server or other internet 
portal. Although FRA is not prohibiting such web-based monitoring 
systems, additional safeguards would need to be employed in order to 
ensure that real time coverage can be obtained and the setup relied 
upon.
    The second section of appendix D specifies additional requirements 
for the scenario in which remote control locomotive operations will be 
using technology aided point protection at highway-rail grade 
crossings, pedestrian crossings, and yard access crossings. All of the 
general requirements and considerations of the first section are also 
applicable to these remote control operations over grade crossings 
except that there should be less of a chance of a communication problem 
as FRA is instituting a new requirement that the remote control 
operator controlling the movement shall be the only person permitted to 
view the monitor during such operations. As the appendix explains, the 
purpose of this new requirement is to protect the general public, which 
is at greater risk of being struck by equipment at the crossings 
specified than employees qualified to operate in a yard environment. If 
the remote control operator controlling the movement is viewing the 
monitor, that operator should be able to react more quickly if a 
vehicle or pedestrian enters the crossing being viewed than if the 
information first had to be relayed by another person. Shaving a few 
precious seconds off the reaction time by eliminating the need for the 
relaying of information may be enough to mitigate the severity of an 
accident. FRA realizes

[[Page 8490]]

that the few railroads using this technology prior to implementation of 
this rule will each likely need to amend any relevant operating rules 
or procedures. As many of these operations involve two crewmembers who 
have the ability to control the movement, complying with this 
requirement should not be significantly burdensome. In fact, this 
requirement may cut down on the odd practice of having one remote 
control operator/crewmember controlling the movement when a second, 
equally capable operator/crewmember is in the best possible position to 
view the equipment ahead of the movement.
    FRA has converted the policy statement published in the NPRM into a 
list of mandatory requirements for remote control locomotive operations 
utilizing camera/monitor setups at the types of crossings specified. 
The list has been altered slightly to rephrase each item as a mandatory 
requirement. The first requirement, to have a Crossing Diagnostic Team 
evaluate the crossing, is arguably the most important. Each railroad 
cannot be permitted to setup remote cameras at crossings for use by 
remote control operators without consulting FRA, and relevant State and 
local government officials. All types of information related to the 
safety of the crossing would need evaluation prior to deciding whether 
technology could be used safely at that crossing and determining 
exactly what modifications are necessary to ensure the operation is 
safe. Because we are requiring the expertise of a diagnostic team, FRA 
is permitting the diagnostic team to conclude that some or all of 
requirements 2, 4, 5, and 6 do not need to be complied with when a 
crossing is equipped with supplemental safety devices that prevent 
motorists from driving around lowered gates; however, the diagnostic 
team cannot waive the requirement that the remote control operator 
controlling the movement be the person viewing the monitor (requirement 
number 3), nor the requirement that the railroad notify the Associate 
Administrator for Safety in writing when this type of protection has 
been installed and activated at a crossing (requirement number 7). This 
latter requirement to contact FRA in writing has been added to ensure 
that FRA grade crossing specialists and signal inspectors can be made 
aware of when these setups have been activated and, thus, may begin 
monitoring the safety of such operations.
    If a railroad implemented a remote camera setup to be used by a 
remote control operation at a highway-rail grade crossing, pedestrian 
crossing, or yard access crossing prior to April 14, 2008, i.e., the 
effective date of this final rule, the railroad may continue to use 
that setup without a new crossing diagnostic team evaluation as long as 
a diagnostic team was previously used to make the necessary 
determinations. However, even if a diagnostic team was used prior to 
that date, compliance is required with the other requirements unless 
specified by a diagnostic team.
    As FRA explains in its conclusion, we expect that technology will 
develop and improve over time. The use of new technology is typically 
driven by efficiencies achieved, of which safety may only be one 
component. Meanwhile, FRA cannot always keep up with the latest 
technologies without notification and we have a duty to determine 
whether a new technology to aid point protection provides an equivalent 
level of protection to that of a direct visual determination. Thus, FRA 
is requiring that railroads wishing to utilize the latest technologies 
contact the Associate Administrator for Safety in writing prior to 
implementation.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this final 
rule. Document inspection and copying facilities are available at the 
Docket Management Facility: U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., West Building Ground Floor, Room W12-140, 
Washington, DC 20590-0001. Access to the docket may also be obtained 
electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590; please refer to Docket No. FRA-2005-23080.
    FRA analyzed the foregoing final rule and found that there will be 
relatively little change in the burden upon railroads, however, the FRA 
believes that much greater compliance with rules which are almost 
identical to what the railroads have promulgated as their own operating 
rules will likely result in a reduction in human factor accidents, 
especially those human factors causes most directly targeted by the 
rulemaking. FRA believes that most railroads can achieve average 
reductions of 35% in these accidents, because there is one Class I 
railroad with better than average compliance with its own operating 
rules which routinely has human factor accident rates 35% below the 
industry average. The costs of the foregoing are minimal, because most 
of the procedures mandated are already incorporated in the railroads' 
own operating rules. The biggest costs will be related to publication 
of changed language, and management of the operating rules programs. 
The rule would have even less impact on small entities, as they are 
excused from most of the burdens which regulate management of their 
operating rules testing programs. The final rule would generate twenty-
year discounted benefits of $191,189,965, and twenty-year discounted 
costs of $20,756,051, for a twenty-year discounted net benefit of 
$170,433,914, if the assumptions in this analysis are correct.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Analysis of Impact on Small Entities (AISE) that assesses the 
small entity impact of this final rule. Document inspection and copying 
facilities are available at the Docket Management Facility: U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., West 
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. Access 
to the docket may also be obtained electronically through the Federal 
eRulemaking Portal at http://www.regulations.gov. Photocopies may also 
be obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. 
FRA-2005-23080.
    FRA notes that the impact on small entities have been considered 
throughout the development of this final rule both internally and 
through consultation within the RSAC forum, as described in Section II 
of this preamble. After the Railroad Operating Rules Working Group 
failed to reach a consensus recommendation, FRA reported the Working 
Group's unofficial areas of agreement and disagreement to the RSAC.

[[Page 8491]]

    The AISE developed in connection with this final rule concludes 
that this proposal would not have a significant economic impact on a 
substantial number of small entities. Thus, FRA certifies that this 
final rule is not expected to have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act or Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Average time per        Total annual      Total annual
          CFR Section--49 CFR              Respondent universe     Total annual responses           response            burden hours       burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.7--Operating Rules; Filing and
 Recordkeeping:
    --Filing rules, timetables, and     1 New Railroad..........  1 submission............  1 hour..................                 1               $43
     special instructions.
    --Amendments to operating rules,    55 Railroads............  165 amendments..........  20 minutes..............                55             2,365
     timetables, and timetable special
     instructions by Class I, Class
     II, Amtrak, and Commuter
     Railroads.
    --Class III and Other Railroads:    20 New Railroads........  20 submissions..........  55 minutes..............                18               774
     Copy of Current Operating Rules,
     Timetables, and Special
     Instructions.
    --Class III Railroads: Amendments   632 Railroads...........  1,896 amendment.........  15 minutes..............               474            20,382
     to operating rules.
217.9--Program of Operational Tests:
    --Railroad and railroad officer     687 Railroads...........  4,732 training sessions.  8 hours.................            37,856         1,892,800
     testing responsibilities: Field
     Training.
    --Written records of officer        687 Railroads...........  4,732 records...........  2 minutes...............               158             \1\ 0
     testing qualifications.
    --Written program of operational    20 New Railroads........  20 programs.............  9.92 hours..............               198             8,514
     tests/inspections.
    --Amendments to operational tests/  55 Railroads............  165 amendments..........  1.92 hours..............               317            13,631
     insp. programs.
    --Records of individual tests/      687 Railroads...........  9,180,000 rcds..........  5 minutes...............           765,000        38,250,000
     inspections.
    --Review of tests/inspections/      687 Railroads...........  37 reviews..............  1 hour..................                37             \1\ 0
     adjustments to the program of
     operational tests--Quarterly
     reviews.
    --Officer designations & Six Month  687 Railroads...........  37 designations + 74      5 seconds + 1 hour......                74             \1\ 0
     reviews.                                                      reviews.
    --Passenger Railroads: Officer      20 Railroads............  20 designations + 34      5 seconds + 1 hour......                34             \1\ 0
     designations & Six-Month reviews.                             reviews.
    --Records retention: Periodic       687 Railroads...........  589 review rcds.........  1 minute................                10             \1\ 0
     reviews.

[[Page 8492]]

 
    --Annual summary on operational     37 Railroads............  37 summary rcds.........  61 minutes..............                38             1,634
     tests/inspections.
217.11--Program of Instruction on
 Operating Rules:
    --Railroads instruction of          687 Railroads...........  130,000 instr. employees  8 hours.................         1,040,000        52,000,000
     employees.
    --Current copy of employee          20 New Railroads........  20 programs.............  8 hours.................               160             6,880
     periodic instruction prog.
    --Amendments to current employee    687 Railroads...........  220 amendments..........  .92 hour................               202             8,686
     instruction prog.
218.95--Instruction, Training, and
 Examination:
    --Records of instruction,           687 Railroads...........  98,000 empl. rcds.......  5 minutes...............             8,167           351,181
     training, examination.
    --FRA disapproval of program:       687 Railroads...........  50 submissions..........  1 hour..................                50             2,150
     Railroad responses.
    --Amended programs................  687 Railroads...........  20 amended docs.........  30 minutes..............                10               730
218.97--Good Faith Challenge            687 Railroads...........  687 procedures..........  2 hours.................             1,374             \1\ 0
 Procedures.
    --Copies to employees of good       687 Railroads...........  130,000 copies..........  6 minutes...............            13,000             \1\ 0
     faith procedures.
    --Copies of amendments to good      687 Railroads...........  130,000 copies..........  3 minutes...............             6,500             \1\ 0
     faith procedures.
    --Good faith challenges to          98,000 Employees........  15 challenges...........  10 minutes..............                 3             \1\ 0
     railroad directives.
    --Resolution of challenges........  687 Railroads...........  15 responses............  5 minutes...............                 1             \1\ 0
    --Direct order to proceed           687 Railroads...........  5 reviews...............  15 minutes..............                 1             \1\ 0
     procedures: Immediate review by
     railroad testing officer/employer.
    --Documentation of employee         687 Railroads...........  10 protest docs.........  15 minutes..............                 3             \1\ 0
     protests to direct order.
    --Copies of protest documentation.  687 Railroads...........  20 copies...............  1 minute................               .33             \1\ 0
    --Further review by designated      687 Railroads...........  3 reviews...............  15 minutes..............                 1             \1\ 0
     railroad officer.
    --Employee requested written        687 Railroads...........  10 written decisions....  10 minutes..............                 2                88
     verification decisions.
    --Recordkeeping/Retention--Copies   687 Railroads...........  760 copies..............  5 minutes...............                63             2,709
     of written procedures.
    --Copies of good faith challenge    687 Railroads...........  20 copies...............  5 minutes...............                 2                86
     verification decisions.
218.97--Good Faith Challenge            687 Railroads...........  687 procedures..........  2 hours.................             1,374             \1\ 0
 Procedures
    --Copies to employees of good       687 Railroads...........  130,000 copies..........  6 minutes...............            13,000             \1\ 0
     faith procedures.

[[Page 8493]]

 
    --Copies of amendments to good      687 Railroads...........  130,000 copies..........  3 minutes...............             6,500             \1\ 0
     faith procedures.
    --Good faith challenges to          98,000 Employees........  15 challenges...........  10 minutes..............                 3             \1\ 0
     railroad directives.
    --Resolution of challenges........  687 Railroads...........  15 responses............  5 minutes...............                 1             \1\ 0
    --Direct order to proceed           687 Railroads...........  5 reviews...............  15 minutes..............                 1             \1\ 0
     procedures: Immediate review by
     railroad testing officer/employer.
218.99--Shoving or Pushing Movements:
    --Required operating rule           687 Railroads...........  687 rule modific........  1 hour..................               687             \1\ 0
     compliant with this section.
    --General Movement Requirements:    100,000 RR employees....  60,000 briefings........  1 minute................             1,000            50,000
     Job briefings.
    --Point Protection: Visual          100,000 RR employees....  87,600,000 deter/         1 minute................         2,920,000       128,480,000
     determination of clear track and                              instructions +
     corresponding signals or                                      87,600,000 signals.
     instructions.
    --Remote Control Movements:         100,000 RR employees....  876,000 confirm.........  1 minute................            14,600           642,400
     Confirmations by Crew.
    --Remote Control zone, exceptions   100,000 RR employees....  876,000 deter/            1 minute................            14,600           642,400
     to point protection:                                          communications.
     Determination/Communication track
     is clear.
    --Operational exceptions:           6,000 RR Dispatchers....  30,000 verified/          1 minute................               500            22,000
     Dispatcher permitted movements                                permitted movements.
     that are verified.
218.101--Leaving Rolling and On-Track
 Maintenance-of-Way Equipment in the
 Clear:
    --Operating Rule that Complies      687 Railroads...........  687 amended op. rules 3.  30 minutes..............               344             \1\ 0
     with this section.
218.103--Hand-Operated Switches and
 Derails:
    --Operating Rule that Complies      687 Railroads...........  687 amended op. rules...  60 minutes..............               687             \1\ 0
     with this section.
    --Minimum requirements for          632 Railroads...........  632 modif rules.........  60 minutes..............               632             \1\ 0
     adequate job briefing.
    --Actual job briefings conducted    632 Railroads...........  1,125,000 brfngs........  1 minute................            18,750           825,000
     by employees operating hand-
     operated main track switches.

[[Page 8494]]

 
218.105--Additional Job Briefings for   687 Railroads...........  60,000 briefings........  1 minute................             1,000             \1\ 0
 hand-operated main track switches.
    --Exclusive track occupancy:        687 Railroads...........  100,000 reports +         1 minute................             3,334             \1\ 0
     Report of position of main track                              100,000 convey.
     switches and conveyance of switch
     position.
    --Releasing authority limits:       6,000 RR Dispatchers....  60,000 reports + 60,000   30 sec. + 5 sec.........               583             \1\ 0
     Acknowledgments and verbal                                    confirm.
     confirmations of hand-operated
     main track switches.
218.109--Hand-operated fixed derails--  687 Railroads...........  562,500 brfngs..........  30 seconds..............             4,688           234,400
 Job briefings.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Incl. RIA.

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292 or Gina Christodoulou at 
202-493-6139, or via e-mail at [email protected] or 
[email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. Any comments should 
be sent to: The Office of Management and Budget, 725 17th Street, NW., 
Washington, DC 20503, att: FRA Desk Officer. Comments may also be sent 
via e-mail to OMB at the following address: [email protected].
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with Federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the proposed regulation. Where a regulation 
has Federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This is a rule with preemptive effect. Subject to a limited 
exception for essentially local safety hazards, its requirements will 
establish a uniform Federal safety standard that must be met, and State 
requirements covering the same subject are displaced, whether those 
standards are in the form of State statutes, regulations, local 
ordinances, or other forms of state law, including State common law. 
Preemption is addressed in Sec. Sec.  217.2 and 218.4, both titled 
``Preemptive effect.'' As stated in the corresponding preamble language 
for Sec. Sec.  217.2 and 218.4, section 20106 of Title 49 of the United 
States Code provides that all regulations prescribed by the Secretary 
related to railroad safety preempt any State law, regulation, or order 
covering the same subject matter, except a provision necessary to 
eliminate or reduce an essentially local safety or security hazard that 
is not incompatible with a Federal law, regulation, or order and that 
does not unreasonably burden interstate commerce. This is consistent 
with past practice at FRA, and within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. FRA notes that the 
above factors have been considered throughout the development of this 
NPRM both internally and through consultation within the RSAC forum, as 
described in Section II of this preamble. After the Railroad Operating 
Rules Working Group failed to reach a consensus recommendation, FRA 
reported the Working Group's unofficial areas of agreement and 
disagreement to the RSAC. The RSAC has as permanent voting members two 
organizations representing State and local interests: AASHTO and ASRSM. 
The RSAC regularly provides recommendations to the FRA Administrator 
for solutions to

[[Page 8495]]

regulatory issues that reflect significant input from its State 
members. To date, FRA has received no indication of concerns about the 
Federalism implications of this rulemaking from these representatives 
or from any other representative. States and other governments were 
afforded opportunity to consult by virtue of the NPRM and comment 
period.
    It should be noted that on April 27, 2005, FRA received from the 
State of California a petition for rulemaking on the subject of remote 
control operations referred to in the Supplementary Information section 
as ``Technology Aided Point Protection.'' The petition requested that 
FRA initiate a rulemaking ``to formally approve and establish rules 
affecting RCL [i.e., remote control locomotive] operations by railroads 
over public highway-rail at-grade crossings.'' California's petition 
did not raise an issue regarding preemption. On October 27, 2005, FRA 
denied California's rulemaking petition because it was procedurally 
deficient and it did not include sufficient information upon which to 
base a rulemaking proceeding. See Docket No. FRA-2005-21094 (found at 
http://dms.dot.gov/). Nevertheless, this final rule contains specific 
provisions of the kind requested in the California petition.
    For the foregoing reasons, FRA believes that this final rule is in 
accordance with the principles and criteria contained in Executive 
Order 13132.

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of 
FRA's Procedures, the agency has further concluded that no 
extraordinary circumstances exist with respect to this regulation that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this final rule is not a major Federal action 
significantly affecting the quality of the human environment.

F. Unfunded Mandates Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) currently $128,100,000 in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. The final rule would not result in 
the expenditure, in the aggregate, of $128,100,000 or more in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) that is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

List of Subjects

49 CFR Part 217

    Penalties, Railroad safety, and Reporting and recordkeeping 
requirements.

49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees, 
Railroad safety, and Reporting and recordkeeping requirements.

The Final Rule

0
For the reasons discussed in the preamble, FRA amends parts 217 and 218 
of Title 49, Code of Federal Regulations as follows:

PART 217--[AMENDED]

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

0
2. Section 217.2 is added to read as follows:


Sec.  217.2  Preemptive effect.

    Normal State negligence standards apply where there is no Federal 
action covering the subject matter. Under 49 U.S.C. 20106 (section 
20106), issuance of the regulations in this part preempts any State 
law, regulation, or order covering the same subject matter, except an 
additional or more stringent law, regulation, or order that is 
necessary to eliminate or reduce an essentially local railroad safety 
or railroad security hazard; that is not incompatible with a law, 
regulation, or order of the United States Government; and that does not 
unreasonably burden interstate commerce. Section 20106 permits State 
tort actions arising from events or activities occurring on or after 
January 18, 2002, for the following: violation of the Federal standard 
of care established by regulation or order issued by the Secretary of 
Transportation (with respect to railroad safety, such as these 
regulations) or the Secretary of Homeland Security (with respect to 
railroad security); a party's violation of, or failure to comply with, 
its own plan, rule, or standard that it created pursuant to a 
regulation or order issued by either of the two Secretaries; and a 
party's violation of a State standard that is necessary to eliminate or 
reduce an essentially local safety or security hazard, is not 
incompatible with a law, regulation, or order of the United States 
Government, and does not unreasonably burden interstate commerce. 
Nothing in section 20106 creates a Federal cause of action on behalf of 
an injured party or

[[Page 8496]]

confers Federal question jurisdiction for such State law causes of 
action.

0
3. Section 217.4 is amended by adding the following definitions of 
Associate Administrator for Safety, FRA, and Qualified in alphabetical 
order to read as follows:


Sec.  217.4  Definitions.

* * * * *
    Associate Administrator for Safety means the Associate 
Administrator for Safety of the Federal Railroad Administration or that 
person's delegate as designated in writing.
* * * * *
    FRA means the Federal Railroad Administration.
    Qualified means that a person has successfully completed all 
instruction, training, and examination programs required by the 
railroad and this part and that the person, therefore, has actual 
knowledge or may reasonably be expected to have knowledge of the 
subject on which the person is expected to be competent.
* * * * *

0
4. Section 217.9 is revised to read as follows:


Sec.  217.9  Program of operational tests and inspections; 
recordkeeping.

    (a) Requirement to conduct operational tests and inspections. Each 
railroad to which this part applies shall periodically conduct 
operational tests and inspections to determine the extent of compliance 
with its code of operating rules, timetables, and timetable special 
instructions, specifically including tests and inspections sufficient 
to verify compliance with the requirements of subpart F of part 218 of 
this chapter, in accordance with a written program as required by 
paragraph (c) of this section.
    (b) Railroad and railroad testing officer responsibilities. The 
requirements of this paragraph are applicable on or after July 1, 2008.
    (1) Each railroad officer who conducts operational tests and 
inspections (railroad testing officer) shall:
    (i) Be qualified on the railroad's operating rules in accordance 
with Sec.  217.11 of this part;
    (ii) Be qualified on the operational testing and inspection program 
requirements and procedures relevant to the testing and inspections the 
officer will conduct;
    (iii) Receive appropriate field training, as necessary to achieve 
proficiency, on each operational test or inspection that the officer is 
authorized to conduct; and
    (iv) Conduct operational tests and inspections in accordance with 
the railroad's program of operational tests and inspections.
    (2) Written records documenting qualification of each railroad 
testing officer shall be retained at the railroad's system headquarters 
and at the division headquarters for each division where the officer is 
assigned and shall be made available to representatives of the FRA for 
inspection and copying during normal business hours.
    (c) Written program of operational tests and inspections. Every 
railroad shall have a written program of operational tests and 
inspections in effect. New railroads shall have such a program within 
30 days of commencing rail operations. The program shall--
    (1) Provide for operational testing and inspection under the 
various operating conditions on the railroad. As of July 1, 2008, the 
program must address with particular emphasis those operating rules 
that cause or are likely to cause the most accidents or incidents, such 
as those accidents or incidents identified in the quarterly reviews, 
six month reviews, and the annual summaries as required under 
paragraphs (e) and (f) of this section, as applicable;
    (2) Require a minimum number of tests and inspections per year 
covering the requirements of part 218, subpart F of this chapter;
    (3) Describe each type of operational test and inspection required, 
including the means and procedures used to carry it out;
    (4) State the purpose of each type of operational test and 
inspection;
    (5) State, according to operating divisions where applicable, the 
frequency with which each type of operational test and inspection is to 
be conducted;
    (6) As of July 1, 2008, identify the officer(s) by name, job title, 
and, division or system, who shall be responsible for ensuring that the 
program of operational tests and inspections is properly implemented. 
The responsibilities of such officers shall include, but not be limited 
to, ensuring that the railroad's testing officers are directing their 
efforts in an appropriate manner to reduce accidents/incidents and that 
all required reviews and summaries are completed. A railroad with 
divisions shall identify at least one officer at the system 
headquarters who is responsible for overseeing the entire program and 
the implementation by each division.
    (7) Include a schedule for making the program fully operative 
within 210 days after it begins.
    (d) Records. (1) Each railroad to which this part applies shall 
keep a record of the date, time, place, and result of each operational 
test and inspection that was performed in accordance with its program. 
Each record shall specify the officer administering the test and 
inspection and each employee tested. These records shall be retained at 
the system headquarters and at each division headquarters where the 
tests and inspections are conducted for one calendar year after the end 
of the calendar year to which they relate. These records shall be made 
available to representatives of the FRA for inspection and copying 
during normal business hours.
    (2) Each railroad shall retain one copy of its current program for 
periodic performance of the operational tests and inspections required 
by paragraph (a) of this section and one copy of each subsequent 
amendment to such program. These records shall be retained at the 
system headquarters and at each division headquarters where the tests 
and inspections are conducted for three calendar years after the end of 
the calendar year to which they relate. These records shall be made 
available to representatives of the FRA for inspection and copying 
during normal business hours.
    (e) Reviews of tests and inspections and adjustments to the program 
of operational tests. This paragraph (e) shall apply to each Class I 
railroad and the National Railroad Passenger Corporation effective July 
1, 2008 and to all other railroads subject to this paragraph effective 
January 1, 2009.
    (1) Reviews by railroads other than passenger railroads. Each 
railroad to which this part applies shall conduct periodic reviews and 
analyses as provided in this paragraph and shall retain, at each 
division headquarters, where applicable, and at its system 
headquarters, one copy of the following written reviews, provided 
however that this requirement does not apply to either a railroad with 
less than 400,000 total employee work hours annually or a passenger 
railroad subject to paragraph (e)(2) of this section.
    (i) Quarterly review. The designated officer of each division 
headquarters, or system headquarters, if no division headquarters 
exists, shall conduct a written quarterly review of the accident/
incident data, the results of prior operational tests and inspections, 
and other pertinent safety data for that division or system to identify 
the relevant operating rules related to those accidents/incidents that 
occurred during the quarter. The review shall also include the name of 
each railroad testing officer, the number of tests and inspections 
conducted by each officer, and whether the officer conducted the 
minimum number of each type of test or

[[Page 8497]]

inspection required by the railroad's program. Based upon the results 
of that review, the designated officer shall make any necessary 
adjustments to the tests and inspections required of railroad officers 
for the subsequent period(s). Quarterly reviews and adjustments shall 
be completed no later than 30 days after the quarter has ended.
    (ii) Six month review. The designated officer of each system 
headquarters office responsible for development and administration of 
the program of operational tests and inspections shall conduct a review 
of the program of operational tests and inspections on a six month 
basis to ensure that it is being utilized as intended, that the 
quarterly reviews provided for in this paragraph have been properly 
completed, that appropriate adjustments have been made to the 
distribution of tests and inspections required, and that the railroad 
testing officers are appropriately directing their efforts. Six month 
reviews shall be completed no later than 60 days after the review 
period has ended.
    (2) Reviews by passenger railroads. Not less than once every six 
months, the designated officer(s) of the National Railroad Passenger 
Corporation and of each railroad providing commuter service in a 
metropolitan or suburban area shall conduct periodic reviews and 
analyses as provided in this paragraph and shall retain, at each 
division headquarters, where applicable, and at its system 
headquarters, one copy of the reviews. Each such review shall be 
completed within 30 days of the close of the period. The designated 
officer(s) shall conduct a written review of:
    (i) The operational testing and inspection data for each division, 
if any, or the system to determine compliance by the railroad testing 
officers with its program of operational tests and inspections required 
by paragraph (c) of this section. At a minimum, this review shall 
include the name of each railroad testing officer, the number of tests 
and inspections conducted by each officer, and whether the officer 
conducted the minimum number of each type of test or inspection 
required by the railroad's program;
    (ii) Accident/incident data, the results of prior operational tests 
and inspections, and other pertinent safety data for each division, if 
any, or the system to identify the relevant operating rules related to 
those accidents/incidents that occurred during the period. Based upon 
the results of that review, the designated officer(s) shall make any 
necessary adjustments to the tests and inspections required of railroad 
officers for the subsequent period(s); and
    (iii) Implementation of the program of operational tests and 
inspections from a system perspective, to ensure that it is being 
utilized as intended, that the other reviews provided for in this 
paragraph have been properly completed, that appropriate adjustments 
have been made to the distribution of tests and inspections required, 
and that the railroad testing officers are appropriately directing 
their efforts.
    (3) Records retention. The records of periodic reviews required in 
paragraphs (e)(1) and (e)(2) of this section shall be retained for a 
period of one year after the end of the calendar year to which they 
relate and shall be made available to representatives of FRA for 
inspection and copying during normal business hours.
    (f) Annual summary of operational tests and inspections. Before 
March 1 of each calendar year, each railroad to which this part 
applies, except for a railroad with less than 400,000 total employee 
work hours annually, shall retain, at each of its division headquarters 
and at the system headquarters of the railroad, one copy of a written 
summary of the following with respect to its previous calendar year 
activities: The number, type, and result of each operational test and 
inspection, stated according to operating divisions where applicable, 
that was conducted as required by paragraphs (a) and (c) of this 
section. These records shall be retained for three calendar years after 
the end of the calendar year to which they relate and shall be made 
available to representatives of the FRA for inspection and copying 
during normal business hours.
    (g) Electronic recordkeeping. Each railroad to which this part 
applies is authorized to retain by electronic recordkeeping the 
information prescribed in this section, provided that all of the 
following conditions are met:
    (1) The railroad adequately limits and controls accessibility to 
such information retained in its electronic database system and 
identifies those individuals who have such access;
    (2) The railroad has a terminal at the system headquarters and at 
each division headquarters;
    (3) Each such terminal has a computer (i.e., monitor, central 
processing unit, and keyboard) and either a facsimile machine or a 
printer connected to the computer to retrieve and produce information 
in a usable format for immediate review by FRA representatives;
    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as 
true and accurate copies of the electronically kept records; and
    (5) The railroad provides representatives of the FRA with immediate 
access to these records for inspection and copying during normal 
business hours and provides printouts of such records upon request.
    (h) Upon review of the program of operational tests and inspections 
required by this section, the Associate Administrator for Safety may, 
for cause stated, disapprove the program. Notification of such 
disapproval shall be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program,
    (1) The railroad has 35 days from the date of the written 
notification of such disapproval to:
    (i) Amend its program and submit it to the Associate Administrator 
for Safety for approval; or
    (ii) Provide a written response in support of the program to the 
Associate Administrator for Safety, who informs the railroad of FRA's 
final decision in writing; and
    (2) A failure to submit the program with the necessary revisions to 
the Associate Administrator for Safety in accordance with this 
paragraph will be considered a failure to implement a program under 
this part.

0
5. Section 217.11(c) is revised to read as follows:


Sec.  217.11  Program of instruction on operating rules; recordkeeping; 
electronic recordkeeping.

* * * * *
    (c) Each railroad to which this part applies is authorized to 
retain by electronic recordkeeping its program for periodic instruction 
of its employees on operating rules provided that the requirements 
stated in Sec.  217.9(g)(1) through (5) of this part are satisfied.

0
6. Appendix A to part 217 is amended by revising the entry for Sec.  
217.9 to read as follows:

[[Page 8498]]



           Appendix A to Part 217--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                             Willful
               Section                    Violation         violation
------------------------------------------------------------------------
 
                              * * * * * * *
217.9 Operational tests and
 inspections:
    (a) Failure to implement a           $9,500-12,500    $13,000-16,000
     program........................
    (b) Railroad and railroad
     testing officer
     responsibilities:
        (1) Failure to provide                   9,500            13,000
         instruction, examination,
         or field training, or
         failure to conduct tests in
         accordance with program....
        (2) Records.................             7,500            11,000
    (c) Record of program; program        7,500-12,500     11,000-16,000
     incomplete.....................
    (d) Records of individual tests              7,500  ................
     and inspections................
    (e) Failure to retain copy of or
     conduct:
        (1)(i) Quarterly review.....             9,500            13,000
        (1)(ii) and (2) Six month                9,500            13,000
         review.....................
        (3) Records.................             7,500            11,000
    (f) Annual summary..............             7,500            11,000
    (h) Failure to timely or              9,500-12,500     13,000-16,000
     appropriately amend program
     after disapproval..............
 
                              * * * * * * *
------------------------------------------------------------------------

PART 218--[AMENDED]

0
7. The authority citation for part 218 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

0
8. Section 218.4 is added to read as follows:


Sec.  218.4  Preemptive effect.

    Normal State negligence standards apply where there is no Federal 
action covering the subject matter. Under 49 U.S.C. 20106 (section 
20106), issuance of the regulations in this part preempts any State 
law, regulation, or order covering the same subject matter, except an 
additional or more stringent law, regulation, or order that is 
necessary to eliminate or reduce an essentially local railroad safety 
or railroad security hazard; that is not incompatible with a law, 
regulation, or order of the United States Government; and that does not 
unreasonably burden interstate commerce. Section 20106 permits State 
tort actions arising from events or activities occurring on or after 
January 18, 2002, for the following: Violation of the Federal standard 
of care established by regulation or order issued the Secretary of 
Transportation (with respect to railroad safety, such as these 
regulations) or the Secretary of Homeland Security (with respect to 
railroad security); a party's violation of, or failure to comply with, 
its own plan, rule, or standard that it created pursuant to a 
regulation or order issued by either of the two Secretaries; and a 
party's violation of a State standard that is necessary to eliminate or 
reduce an essentially local safety or security hazard, is not 
incompatible with a law, regulation, or order of the United States 
Government, and does not unreasonably burden interstate commerce. 
Nothing in section 20106 creates a Federal cause of action on behalf of 
an injured party or confers Federal question jurisdiction for such 
State law causes of action.

0
9. Section 218.5 is amended by revising the definitions of Flagman's 
signals and Locomotive to read as follows:


Sec.  218.5  Definitions.

* * * * *
    Flagman's signals means a red flag by day and a white light at 
night, and fusees as prescribed in the railroad's operating rules.
* * * * *
    Locomotive means, except for purposes of subpart F of this part, a 
self-propelled unit of equipment designed for moving other railroad 
rolling equipment in revenue service including a self-propelled unit 
designed to carry freight or passenger traffic, or both, and may 
consist of one or more units operated from a single control.
* * * * *

0
10. Section 218.37 is amended by revising paragraphs (a)(1)(iii) and 
(a)(1)(iv) to read as follows:


Sec.  218.37  Flag protection.

    (a) * * *
    (1) * * *
    (iii) When a train stops on main track, flag protection against 
following trains on the same track must be provided as follows: A crew 
member with flagman's signals must immediately go back at least the 
distance prescribed by timetable or other instructions for the 
territory and display one lighted fusee. The crew member may then 
return one-half of the distance to the crew member's train where the 
crew member must remain until the crew member has stopped the 
approaching train or is recalled. When recalled, the crew member must 
leave one lighted fusee and while returning to the crew member's train, 
the crew member must also place single lighted fusees at intervals that 
do not exceed the burning time of the fusee. When the train departs, a 
crew member must leave one lighted fusee and until the train resumes 
speed not less than one-half the maximum authorized speed (including 
slow order limits) in that territory, the crew member must drop off 
single lighted fusees at intervals that do not exceed the burning time 
of the fusee.
    (iv) When required by the railroad's operating rules, a forward 
crew member with flagman's signals must protect the front of the crew 
member's train against opposing movements by immediately going forward 
at least the distance prescribed by timetable or other instructions for 
the territory, displaying one lighted fusee, and remaining at that 
location until recalled.
* * * * *

0
11. Add new subpart F to part 218 to read as follows:
Subpart F--Handling Equipment, Switches, and Fixed Derails
Sec.
218.91 Purpose and scope.
218.93 Definitions.
218.95 Instruction, training, and examination.
218.97 Good faith challenge procedures.
218.99 Shoving or pushing movements.
218.101 Leaving rolling and on-track maintenance-of-way equipment in 
the clear.
218.103 Hand-operated switches, including crossover switches.
218.105 Additional operational requirements for hand-operated main 
track switches.
218.107 Additional operational requirements for hand-operated 
crossover switches.
218.109 Hand-operated fixed derails.

[[Page 8499]]

Subpart F--Handling Equipment, Switches, and Fixed Derails


Sec.  218.91  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties that can result from the mishandling of equipment, switches, 
and fixed derails.
    (b) This subpart prescribes minimum operating rule requirements for 
the handling of equipment, switches, and fixed derails. Each railroad 
may prescribe additional or more stringent requirements in its 
operating rules, timetables, timetable special instructions, and other 
instructions.


Sec.  218.93  Definitions.

    As used in this subpart--
    Associate Administrator for Safety means the Associate 
Administrator for Safety of the Federal Railroad Administration or that 
person's delegate as designated in writing.
    Clearance point means the location near a turnout beyond which it 
is unsafe for passage on an adjacent track(s). Where a person is 
permitted by a railroad's operating rules to ride the side of a car, a 
clearance point shall accommodate a person riding the side of a car.
    Correspondence of crossover switches means both crossover switches 
are lined for the crossover or both are lined for the straight tracks.
    Crossover means, for purposes of this subpart only, a track 
connection between two adjacent, but not necessarily parallel, tracks, 
consisting of two switches, which is intended to be used primarily for 
the purpose of crossing over from one track to another.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this subpart.
    Foul or fouling a track means rolling equipment or on-track 
maintenance-of-way equipment is located such that the end of the 
equipment is between the clearance point and the switch points leading 
to the track on which the equipment is standing.
    FRA means the Federal Railroad Administration.
    Hand-operated switch means any type of switch when operated by 
manual manipulation. For purposes of this subpart, a hand-operated 
switch does not include switches operated by push button or radio 
control when such switch is protected by distant switch indicators, 
switch point indicators, or other visual or audio verification that the 
switch points are lined for the intended route and fit properly.
    Highway-rail grade crossing means, for purposes of this subpart 
only, an at-grade crossing where a public highway, road, street, or 
private roadway, including associated sidewalks and pathways, crosses 
one or more railroad tracks at grade, and is identified by a U.S. DOT 
National Highway-Rail Grade Crossing Inventory Number, or is marked by 
crossbucks, stop signs, or other appropriate signage indicating the 
presence of an at-grade crossing.
    Industry track means a switching track, or series of tracks, 
serving the needs of a commercial industry other than a railroad.
    Lite locomotive consist means two or more locomotive units coupled 
without cars attached, regardless of whether the locomotive units are 
connected so that they may be operated from a single control stand.
    Locomotive means, for purposes of this subpart only, a piece of on-
track equipment (other than specialized roadway maintenance equipment 
or a dual purpose vehicle operating in accordance with Sec.  
240.104(a)(2) of this chapter):
    (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.
    Pedestrian crossing means a separate designated sidewalk or pathway 
where pedestrians, but not vehicles, cross railroad tracks. Sidewalk 
crossings contiguous with, or separate but adjacent to, highway-rail 
grade crossings, are presumed to be part of the highway-rail grade 
crossings and are not considered pedestrian crossings.
    Qualified means that a person has successfully completed all 
instruction, training, and examination programs required by the 
railroad and this subpart and that the person, therefore, has actual 
knowledge or may reasonably be expected to have knowledge of the 
subject on which the person is expected to be competent.
    Remote control operator means a locomotive engineer, as defined in 
Sec.  240.7 of this chapter, certified by a railroad to operate remote 
control locomotives pursuant to Sec.  240.107 of this chapter.
    Remote control zone means one or more tracks within defined limits 
designated in the timetable special instructions, or other railroad 
publication, within which remote control locomotives, under certain 
circumstances specified in this part, may be operated without an 
employee assigned to protect the pull-out end of the remote control 
movement, i.e., the end on which the locomotive is located.
    Roadway maintenance activity means any work limited to the duties 
prescribed for a roadway worker by definition in this section, 
including movement of on-track maintenance-of-way equipment other than 
locomotives.
    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 as defined in Sec.  
214.7 of this chapter.
    Roadway worker in charge means a roadway worker who is qualified in 
accordance with Sec.  214.353 of this chapter for the purpose of 
establishing on-track safety for roadway work groups.
    Siding means an auxiliary track, adjacent and connected to a main 
track, used for meeting or passing trains.
    Signaled siding means a siding within traffic control system (TCS) 
territory or within interlocking limits where a signal indication 
authorizes the siding's use.
    Switchtender means a qualified employee assigned to handle switches 
at a specific location.
    Track is clear means:
    (1) The portion of the track to be used for the intended movement 
is unoccupied by rolling equipment, on-track maintenance-of-way 
equipment, and conflicting on-track movements;
    (2) Intervening public highway-rail grade crossings, private 
highway-rail grade crossings outside the physical confines of a 
railroad yard, pedestrian crossings outside of the physical confines of 
a railroad yard, and yard access crossings are protected as follows:
    (i) Crossing gates are in the fully lowered position, and are not 
known to be malfunctioning; or
    (ii) A designated and qualified employee is stationed at the 
crossing and has the ability to communicate with trains; or
    (iii) At crossings equipped only with flashing lights or passive 
warning devices, when it is clearly seen that no traffic is approaching 
or stopped at the crossing and the leading end of the movement over the 
crossing does not exceed 15 miles per hour;
    (3) Intervening switches and fixed derails are properly lined for 
the intended movement; and

[[Page 8500]]

    (4) The portion of the track to be used for the intended movement 
has sufficient room to contain the rolling equipment being shoved or 
pushed.
    Yard access crossing means a private highway-rail grade crossing 
that is located within the physical confines of a railroad yard and is 
either:
    (1) Open to unrestricted public access; or
    (2) Open to persons other than railroad employees going about their 
normal duties, e.g., business guests or family members.


Sec.  218.95  Instruction, training, and examination.

    (a) Program. Effective July 1, 2008, each railroad shall maintain a 
written program of instruction, training, and examination of employees 
for compliance with operating rules implementing the requirements of 
this subpart to the extent these requirements are pertinent to the 
employee's duties. If all requirements of this subpart are satisfied, a 
railroad may consolidate any portion of the instruction, training or 
examination required by this subpart with the program of instruction 
required under Sec.  217.11 of this chapter. An employee who 
successfully completes all instruction, training, and examination 
required by this written program shall be considered qualified.
    (1) The written program of instruction, training, and examination 
shall address the requirements of this subpart, as well as consequences 
of noncompliance.
    (2) The written program of instruction, training, and examination 
shall include procedures addressing how the railroad qualifies 
employees in any technology necessary to accomplish work subject to the 
requirements of this subpart. Such procedures shall include, but are 
not limited to, those which explain:
    (i) The purpose for using the technology;
    (ii) How an employee will be expected to use the technology;
    (iii) How to detect malfunctioning equipment or deviations from 
proper procedures;
    (iv) How to respond when equipment malfunctions or deviations from 
proper procedures are detected; and
    (v) How to prevent unintentional interference with the proper 
functioning of the technology.
    (3) Implementation schedule for employees, generally. Each employee 
performing duties subject to the requirements in this subpart shall be 
initially qualified prior to January 1, 2009. Employees hired between 
April 14, 2008 and January 1, 2009, and all employees thereafter 
required to perform duties subject to the requirements in this subpart 
shall be qualified before performing duties subject to the requirements 
in this subpart.
    (4) After January 1, 2009, no employee shall perform work requiring 
compliance with the operating rules implementing the requirements of 
this subpart unless qualified on these rules within the previous three 
years.
    (5) The records of successful completion of instruction, 
examination and training required by this section shall document 
qualification of employees under this subpart.
    (b) Written records documenting successful completion of 
instruction, training, and examination of each employee required by 
this subpart shall be retained at its system headquarters and at the 
division headquarters for each division where the employee is assigned 
for three calendar years after the end of the calendar year to which 
they relate and made available to representatives of the FRA for 
inspection and copying during normal business hours. Each railroad to 
which this part applies is authorized to retain a program, or any 
records maintained to prove compliance with such a program, by 
electronic recordkeeping in accordance with Sec. Sec.  217.9(g) and 
217.11(c) of this chapter.
    (c) Upon review of the program of instruction, training, and 
examination required by this section, the Associate Administrator for 
Safety may, for cause stated, disapprove the program. Notification of 
such disapproval shall be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program,
    (1) The railroad has 35 days from the date of the written 
notification of such disapproval to:
    (i) Amend its program and submit it to the Associate Administrator 
for Safety for approval; or
    (ii) Provide a written response in support of the program to the 
Associate Administrator for Safety, who informs the railroad of FRA's 
final decision in writing; and
    (2) A failure to submit the program with the necessary revisions to 
the Associate Administrator for Safety in accordance with this 
paragraph will be considered a failure to implement a program under 
this part.


Sec.  218.97  Good faith challenge procedures.

    (a) Employee Responsibility. An employee shall inform the railroad 
or employer whenever the employee makes a good faith determination that 
the employee has been directed to either take actions that would 
violate FRA regulations regarding the handling of equipment, switches, 
and fixed derails as required by this subpart, or to take actions that 
would violate the railroad's operating rules implementing the 
requirements of this subpart.
    (b) General procedures. Each railroad or employer is responsible 
for the training of and compliance by its employees with the 
requirements of this subpart.
    (1) Each railroad or employer shall adopt and implement written 
procedures which guarantee each employee the right to challenge in good 
faith whether the procedures that will be used to accomplish a specific 
task comply with the requirements of this subpart or any operating rule 
relied upon to fulfill the requirements of this subpart. Each railroad 
or employer's written procedures shall provide for prompt and equitable 
resolution of challenges made in accordance with this subpart.
    (2) The written procedures required by this section shall indicate 
that the good faith challenge described in paragraph (b)(1) of this 
section is not intended to abridge any rights or remedies available to 
the employee under a collective bargaining agreement, or any Federal 
law including, but not limited to, 29 U.S.C. 651 et seq., 6 U.S.C. 
1142, or 49 U.S.C. 20109.
    (3) Each affected employee shall be instructed on the written 
procedures required by this paragraph as part of the training 
prescribed by Sec.  217.11 of this chapter.
    (4) A copy of the current written procedures shall be provided to 
each affected employee and made available for inspection and copying by 
representatives of the FRA during normal business hours.
    (c) The written procedures shall--
    (1) Grant each employee the right to challenge any directive which, 
based on the employee's good faith determination, would cause the 
employee to violate any requirement of this subpart or any operating 
rule relied upon to fulfill the requirements of this subpart;
    (2) Provide that the railroad or employer shall not require the 
challenging employee to comply with the directive until the challenge 
resulting from the good faith determination is resolved;
    (3) Provide that the railroad or employer may require the 
challenging employee to perform tasks unrelated to the challenge until 
the challenge is resolved;

[[Page 8501]]

    (4) Provide that the railroad or employer may direct an employee, 
other than the challenging employee, to perform the challenged task 
prior to the challenge being resolved as long as this other employee is 
informed of the challenge and does not also make a good faith 
determination that the challenged task would violate FRA regulations 
regarding the handling of equipment, switches, and fixed derails as 
required in this subpart, or a railroad's operating rules implementing 
the requirements of this subpart;
    (5) Provide that a challenge may be resolved by:
    (i) A railroad or employer officer's acceptance of the employee's 
request;
    (ii) An employee's acceptance of the directive;
    (iii) An employee's agreement to a compromise solution acceptable 
to the person issuing the directive; or
    (iv) As further determined under paragraph (d) of this section.
    (d) In the event that the challenge cannot be resolved because the 
person issuing the directive determines that the employee's challenge 
has not been made in good faith or there is no reasonable alternative 
to the direct order, the written procedures shall:
    (1) Provide for immediate review by at least one officer of the 
railroad or employer, except for each railroad with less than 400,000 
total employee work hours annually. This immediate review shall:
    (i) Not be conducted by the person issuing the challenged 
directive, or that person's subordinate; and
    (ii) Provide that a challenge may be resolved by using the same 
options available for resolving the challenge as the initial officer as 
well as the option described in paragraph (d)(2) of this section, 
except that the reviewing officer's decision shall not be subject to 
further immediate review, unless provided for in the railroad's or 
employer's written procedures;
    (2) Provide that if the officer making the railroad's or employer's 
final decision concludes that the challenged directive would not cause 
the employee to violate any requirement of this subpart or the 
railroad's or employer's operating rule relied upon to fulfill the 
requirements of this subpart and directs the employee to perform the 
challenged directive, the officer shall further explain to the employee 
that Federal law may protect the employee from retaliation if the 
employee refuses to do the work and if the employee's refusal is a 
lawful, good faith act;
    (3) Provide that the employee be afforded an opportunity to 
document electronically or in writing any protest to the railroad or 
employer's final decision before the tour of duty is complete. The 
employee shall be afforded the opportunity to retain a copy of the 
protest;
    (4) Provide that the employee, upon written request, has a right to 
further review by a designated railroad or employer officer, within 30 
days after the expiration of the month during which the challenge 
occurred, for the purpose of verifying the proper application of the 
regulation, law, procedure or rule in question. The verification 
decision shall be made in writing to the employee.
    (e) Recordkeeping and record retention. (1) A copy of the written 
procedures required by this section shall be retained at the employer 
or railroad's system headquarters and at each division headquarters, 
and made available to representatives of the FRA for inspection and 
copying during normal business hours.
    (2) A copy of any written good faith challenge verification 
decision, made in accordance with paragraph (d)(4) of this section, 
shall be retained at the employer or railroad's system headquarters and 
at the division headquarters to which the employee was working when the 
challenge was initiated, and made available to representatives of the 
FRA for inspection and copying during normal business hours for at 
least one calendar year after expiration of the year during which the 
decision was issued.
    (3) Each employer or railroad to which this subpart applies is 
authorized to retain by electronic recordkeeping the information 
prescribed in this subpart in accordance with the electronic 
recordkeeping standards set forth in Sec.  217.9(g)(1) through (5) of 
this chapter.


Sec.  218.99  Shoving or pushing movements.

    (a)(1) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (2) The following requirements for shoving or pushing movements do 
not apply to rolling equipment intentionally shoved or pushed to permit 
the rolling equipment to roll without power attached, i.e., free 
rolling equipment, during switching activities known as kicking, 
humping, or dropping cars.
    (b) General movement requirements.--(1) Job briefing. Rolling 
equipment shall not be shoved or pushed until the locomotive engineer 
participating in the move has been briefed by the employee who will 
direct the move. The job briefing shall include the means of 
communication to be used between the locomotive engineer and the 
employee directing the move and how point protection will be provided.
    (2) No unrelated tasks. During the shoving or pushing movement, the 
employee directing the movement shall not engage in any task unrelated 
to the oversight of the shoving or pushing movement.
    (3) Point protection. When rolling equipment or a lite locomotive 
consist is shoved or pushed, point protection shall be provided by a 
crewmember or other qualified employee by:
    (i) Visually determining that the track is clear. The determination 
that the track is clear may be made with the aid of monitored cameras 
or other technological means, provided that it and the procedures for 
use provide an equivalent level of protection to that of a direct 
visual determination by a crewmember or other qualified employee 
properly positioned to make the observation as prescribed in this 
section and appendix D to this part; and
    (ii) Giving signals or instructions necessary to control the 
movement.
    (c) Additional requirements for remote control movements. All 
remote control movements are considered shoving or pushing movements, 
except when the remote control operator controlling the movement is 
riding the leading end of the leading locomotive in a position to 
visually determine conditions in the direction of movement. In addition 
to the other requirements of this section,
    (1) When initiating a remote control shoving or pushing movement:
    (i) The remote control operator shall visually determine the 
direction the equipment moves; or
    (ii) A member of the crew shall visually determine the direction 
the equipment moves and confirm the direction with the remote control 
operator. If no confirmation is received, the movement shall be 
immediately stopped; and
    (2) If technology is relied upon, whether primarily or as a 
safeguard, to provide pull-out protection by preventing the movement 
from exceeding the limits of a remote control zone, the technology 
shall be demonstrated
    (i) To be failsafe; or
    (ii) To provide suitable redundancy to prevent unsafe failure.
    (d) Remote control zone, exception to track is clear requirements. 
After an

[[Page 8502]]

initial track is clear determination has been made in an activated 
remote control zone, it is not necessary to make a new determination 
prior to each subsequent shoving or pushing movement provided that:
    (1) The controlling locomotive of the remote control movement is on 
the leading end in the direction of movement, i.e., the movement occurs 
on the pull-out end;
    (2) The remote control zone is not jointly occupied; and
    (3) The initial determination was made by a crewmember of either:
    (i) The remote control crew;
    (ii) A relieved remote control crew who has transferred the remote 
control zone directly to the relieving crew; or
    (iii) The last jointly occupying crew who directly communicates, 
i.e., not through a third party, to a remote control crewmember that 
the remote control zone is no longer jointly occupied and meets the 
requirements for track is clear.
    (e) Operational exceptions. A railroad does not need to comply with 
paragraphs (b) through (d) of this section in the following 
circumstances:
    (1) Push-pull operations when operated from the leading end in the 
direction of movement, i.e., push mode;
    (2) Shoving or pushing operations with manned helper locomotives or 
distributed power locomotives assisting a train when the train is being 
operated from the leading end in the direction of movement;
    (3) During the performance of roadway maintenance activity under 
the direct control of a roadway worker performing work in accordance 
with railroad operating rules specific to roadway workers; or
    (4) When the leading end of a shoving movement is on a main track 
or signaled siding, under the following conditions:
    (i) The train dispatcher gives authority or permission to make the 
movement and verifies that:
    (A) Another movement or work authority is not in effect within the 
same or overlapping limits unless conflicting movements are protected; 
and
    (B) A main track is not removed from service by a work authority 
within the same or overlapping limits;
    (ii) Movement is limited to the train's authority;
    (iii) Movement shall not be made into or within yard limits, 
restricted limits, drawbridges, or work authority limits;
    (iv) Movement shall not enter or foul a highway-rail grade crossing 
or pedestrian crossing except when:
    (A) Crossing gates are in the fully lowered position; or
    (B) A designated and qualified employee is stationed at the 
crossing and has the ability to communicate with trains; or
    (C) At crossings equipped only with flashing lights or passive 
warning devices, when it is clearly seen that no traffic is approaching 
or stopped at the crossing and the leading end of the movement over the 
crossing does not exceed 15 miles per hour; and
    (v) Movement shall not be made into or within interlocking limits 
or controlled point limits unless the following conditions are met:
    (A) The signal governing movement is more favorable than 
restricting aspect;
    (B) Each signal governing movement into and through interlocking 
limits or controlled point limits shall be continuously observed by a 
member of that crew who is in a position to determine that the train's 
movement has occupied the circuit controlling that signal as evidenced 
by that signal assuming its most restrictive aspect; and
    (C) The movement does not exceed the train's length.


Sec.  218.101  Leaving rolling and on-track maintenance-of-way 
equipment in the clear.

    (a) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (b) Rolling and on-track maintenance-of-way equipment shall not be 
left where it will foul a connecting track unless:
    (1) The equipment is standing on a main track and a siding track 
switch that the equipment is fouling is lined for the main track on 
which the equipment is standing; or
    (2) The equipment is standing on a siding and a main track switch 
that the equipment is fouling is lined for the siding on which the 
equipment is standing; or
    (3) The equipment is standing on a yard switching lead track, and 
the yard track switch that the equipment is fouling is lined for the 
yard switching lead track on which the equipment is standing; or
    (4) The equipment is on an industry track beyond the clearance 
point of the switch leading to the industry.
    (c) Each railroad shall implement procedures that enable employees 
to identify clearance points and a means to identify locations where 
clearance points will not permit a person to safely ride on the side of 
a car.


Sec.  218.103  Hand-operated switches, including crossover switches.

    (a)(1) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (2) Each railroad shall specify minimum requirements necessary for 
an adequate job briefing.
    (b) General. Employees operating or verifying the position of a 
hand-operated switch shall:
    (1) Conduct job briefings, before work is begun, each time a work 
plan is changed, and at completion of the work;
    (2) Be qualified on the railroad's operating rules relating to the 
operation of the switch;
    (3) Be individually responsible for the position of the switch in 
use;
    (4) Visually determine that switches are properly lined for the 
intended route and that no equipment is fouling the switches;
    (5) Visually determine that the points fit properly and the target, 
if so equipped, corresponds with the switch's position;
    (6) After operating a switch and before making movements in either 
direction over the switch, ensure that the switch is secured from 
unintentional movement of the switch points;
    (7) Ensure that a switch is not operated while rolling and on-track 
maintenance-of-way equipment is fouling the switch, or standing or 
moving over the switch; and
    (8) After operating a switch, ensure that when not in use, each 
switch is locked, hooked, or latched, if so equipped.
    (c) Rolling and on-track maintenance-of-way equipment shall not 
foul a track until all hand-operated switches connected with the 
movement are properly lined, or in the case of hand-operated switches 
designed and permitted to be trailed through, until the intended route 
is seen to be clear or the train has been granted movement authority. 
When a conflicting movement is approaching a hand-operated switch, the 
track shall not be fouled or the switch operated.
    (d) When rolling and on-track maintenance-of-way equipment has 
entered a track, the hand-operated switch to that track shall not be 
lined

[[Page 8503]]

away from the track until the equipment has passed the clearance point 
of the track.


Sec.  218.105  Additional operational requirements for hand-operated 
main track switches.

    (a) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (b) Designating switch position. The normal position of a hand-
operated main track switch shall be designated by the railroad in 
writing and the switch shall be lined and locked in that position when 
not in use except when:
    (1) The train dispatcher directs otherwise with respect to the 
position of a hand-operated main track switch and the necessary 
protection is provided; or
    (2) The hand-operated switch is left in the charge of a crewmember 
of another train, a switchtender, or a roadway worker in charge.
    (c) Additional job briefing requirements for hand-operated main 
track switches.
    (1) Before a train or a train crew leaves the location where any 
hand-operated main track switch was operated, all crewmembers shall 
have verbal communication to confirm the position of the switch.
    (2) In the case of exclusive track occupancy authority established 
under Sec.  214.321, foul time under Sec.  214.323, or train 
coordination under Sec.  214.325, when a roadway worker qualified to 
operate hand-operated main track switches is granted permission by the 
roadway worker in charge to occupy or otherwise use the limits of the 
exclusive track occupancy, such employee receiving permission to occupy 
the working limits shall report the position of any such switches 
operated upon expiration of the authority limits to the roadway worker 
in charge or to a designated intermediary employee who shall convey the 
switch position to the roadway worker in charge.
    (d) Releasing Authority Limits. In non-signaled territory, before 
an employee releases the limits of a main track authority and a hand-
operated switch is used to clear the main track, and, prior to 
departing the switch's location, the following conditions are required:
    (1) The employee releasing the limits, after conducting a job 
briefing in accordance with this subpart, shall report to the train 
dispatcher that the hand-operated main track switch has been restored 
to its normal position and locked, unless the train dispatcher directs 
that the hand-operated main track switch be left lined and locked in 
the reverse position and the necessary protection is provided;
    (2) If the report of the switch position is correct, the train 
dispatcher shall repeat the reported switch position information to the 
employee releasing the limits and ask whether that is correct; and
    (3) The employee releasing the limits shall then confirm to the 
train dispatcher that this information is correct.


Sec.  218.107  Additional operational requirements for hand-operated 
crossover switches.

    (a) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (b) Hand-operated crossover switches, generally. Both hand-operated 
switches of a crossover shall be properly lined before rolling and on-
track maintenance-of-way equipment begins a crossover movement. A 
crossover movement shall be completed before either hand-operated 
crossover switch is restored to normal position.
    (c) Correspondence of hand-operated crossover switches. Hand-
operated crossover switches shall be left in corresponding position 
except when:
    (1) Used to provide blue signal protection under Sec.  218.27 of 
this part; or
    (2) Used for inaccessible track protection under Sec.  214.327 of 
this chapter; or
    (3) Performing maintenance, testing or inspection of crossover 
switches in traffic control system (TCS) territory; or
    (4) One crew is using both tracks connected by the crossover during 
continuous switching operations.


Sec.  218.109  Hand-operated fixed derails.

    (a)(1) Each railroad shall adopt and comply with an operating rule 
which complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of an operating rule 
which complies with the requirements of this section, that person shall 
be considered to have violated the requirements of this section.
    (2) Each railroad shall specify minimum requirements necessary for 
an adequate job briefing.
    (b) General. (1) The normal position of fixed derails is in the 
derailing position except as provided in part 218, subpart B of this 
chapter, or the railroad's operating rules or special instructions.
    (2) Fixed derails shall be kept in the derailing position whether 
or not any rolling and on-track maintenance-of-way equipment is on the 
tracks they protect, except as provided in paragraph (b)(1) of this 
section or when changed to permit movement.
    (3) Movement must not be made over a fixed derail in the derailing 
position.
    (c) Employees operating or verifying the position of a fixed derail 
shall:
    (1) Conduct job briefings, before work is begun, each time a work 
plan is changed, and at completion of the work;
    (2) Be qualified on the railroad's operating rules relating to the 
operation of the derail;
    (3) Be individually responsible for the position of the derail in 
use;
    (4) Determine that the target, if so equipped, corresponds with the 
derail's position;
    (5) Determine that the derail is secured by:
    (i) Placing the throw lever in the latch stand, if so equipped;
    (ii) Placing the lock or hook in the hasp, if so equipped; and
    (iii) Testing such latches, locks or hooks; and
    (6) Ensure that when not in use, derails are locked, hooked, or 
latched in the normal position if so equipped.

0
12. Appendix A to part 218 is amended by adding entries for subpart F, 
consisting of Sec. Sec.  218.95, 218.97, 218.99, 218.101, 218.103, 
218.105, 218.107 and 218.109, to read as follows:

[[Page 8504]]



           Appendix A to Part 218--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                             Willful
               Section                    Violation         violation
------------------------------------------------------------------------
 
                              * * * * * * *
Subpart F--Handling Equipment,
 Switches and Derails: 218.95
 Instruction, Training, and
 Examination:
    (a) Program.....................      9,500-12,500     13,000-16,000
    (b) Records.....................             7,500            11,000
    (c) Failure to timely or              9,500-12,500     13,000-16,000
     appropriately amend program
     after disapproval..............
218.97 Good Faith Challenge
 Procedures:
    (a) Employee Responsibility       ................             5,000
     Failure........................
    (b) through (d) Failure to adopt             7,500  ................
     or implement procedures........
218.99 Shoving or Pushing Movements:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) Failure to conduct job             7,500-9,500     11,000-13,000
     briefing, use a qualified
     employee, or establish proper
     protection.....................
    (c) Failure to observe equipment             9,500            13,000
     direction......................
    (d) Failure to properly                      9,500            13,000
     establish point protection
     within a remote control zone...
    (e) Failure to abide by                      9,500            13,000
     operational exception
     requirements...................
218.101 Leaving Equipment in the
 Clear:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) Equipment left improperly                9,500            13,000
     fouling........................
    (c) Failure to implement                     9,500            13,000
     procedures for identifying
     clearance points...............
218.103 Hand-operated switches,
 including crossover switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) through (d) Railroad and                 7,500  ................
     employee failures..............
218.105 Additional operational
 requirements for hand-operated main
 track switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
    (d) Failure to properly release             12,500  ................
     authority limits...............
218.107 Additional operational
 requirements for hand-operated
 crossover switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
218.109 Hand-operated fixed derails:
    (a) Failure to implement                     9,500            13,000
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
------------------------------------------------------------------------


0
13. Appendix D to Part 218 is added to read as follows:

Appendix D to Part 218--Requirements and Considerations for 
Implementing Technology Aided Point Protection

Introduction

    This appendix provides further explanation and requirements for 
exercising the option to provide point protection with the aid of 
technology as permitted in Sec.  218.99(b)(3)(i). The regulation 
permits the visual determination necessary to provide point 
protection, i.e., a determination that the track is clear, for a 
shoving or pushing movement to ``be made with the aid of monitored 
cameras or other technological means, provided that it and the 
procedures for use provide an equivalent level of protection to that 
of a direct visual determination by a crewmember or other qualified 
employee properly positioned to make the observation as prescribed 
in this section and appendix D to this part.'' This appendix 
addresses the general requirements and considerations for all 
technology aided point protection as well as specific additional 
requirements for those operations involving remote control 
operations at public highway-rail grade crossings, private highway-
rail grade crossings outside the physical confines of a railroad 
yard, pedestrian crossings outside the physical confines of a 
railroad yard, and yard Access Crossings.

I. General Requirements and Considerations

    A. Although railroading is now one of the nation's older forms 
of mechanized transportation, equipment, components and operations 
all have evolved through new and improved technologies. Installing 
cameras in yards so that a location could be remotely monitored from 
somewhere else has become a railroading reality as cameras have 
become smaller, less expensive, and have increased resolution. It is 
possible to set up these cameras and monitors so that they provide 
at least an equivalent level of safety to that of an employee 
protecting the point. Part 218, subpart F permits such an operation 
to substitute for an employee's direct visual determination where 
the technology provides an equivalent level of protection to that of 
a direct visual determination. See Sec.  218.99(b)(3)(i). Of course, 
to provide an equivalent level of protection, an employee needs to 
be properly qualified (see Sec.  218.95(a)(2)) and the technology 
must work as intended. Most malfunctions of the technology should be 
detectable, and result in abandoning the use of the technology for 
determining point protection until the malfunction can be corrected.
    B. The substitution of such technology for a direct visual 
determination is dependent on many factors. Each situation will have 
its own particular factual circumstances that shall require 
consideration in determining whether an equivalent level of safety 
can be achieved. For instance, with regard to the basic camera 
setup, a railroad shall consider whether an operator must see in 
color (largely a necessity if viewing signals), the width of the 
angle of view, the size and location of the monitor, whether the 
technology is for day-time use only, and whether its use should be 
limited to fair weather conditions. However, under all 
circumstances, the monitor shall display sufficient information to 
enable the viewer to make a determination that the track ahead of 
the shoving or pushing move is clear pursuant to the definition of 
``track is clear'' in Sec.  218.93.
    C. Each railroad that chooses to implement such camera/monitor 
setups shall implement attendant procedures and qualify each 
employee who will be utilizing the technology. Railroads shall 
ensure that any monitored camera has sufficient resolution and real 
time coverage to provide protection equal to a direct visual 
determination. See Sec.  218.99(b)(3)(i). Concerning attendant 
procedures, one such procedure may be for an employee viewing a 
monitor to communicate updates to the locomotive engineer or 
controlling crewmember at appropriate intervals. FRA equates the 
employee monitoring the camera to the employee controlling the 
movement who must not engage in any task unrelated to the oversight 
of the movement; thus, each railroad utilizing such cameras shall 
implement attendant procedures limiting any of the monitoring 
employee's ancillary duties that might distract from the employee's 
ability to visually determine that the track is clear and provide 
continuous communication to the employee controlling the movement.
    D. There is also the consideration of whether the person viewing 
the monitor is

[[Page 8505]]

the locomotive engineer, remote control operator, other crewmember 
or other qualified person, such as a yardmaster. If the monitor is 
not being viewed by the operator who is controlling the movement, 
then, there shall be a clear understanding and channel of 
communication between the operator and the employee who is viewing 
the monitor--as the latter would be protecting the movement. 
Providing an equivalent level of protection to that of a direct 
visual determination requires a thorough job briefing in which there 
is an understanding of who is observing the movement, what is the 
observer's range of vision, at what locomotive speed can the 
observation be made and how information will be conveyed to the 
operator/engineer, if that person is not the one viewing the 
monitor.
    E. There may be occasions when a railroad finds it advantageous 
to use a non-crewmember, e.g., a yardmaster, to provide point 
protection, line switches, or check the status of a derail for a 
remote control crew; however, several potential problems may result 
when non-crewmembers are used to carry out some crewmember 
functions. Of foremost concern is the great potential for an error 
in communication or a misunderstanding between the non-crewmember 
and the crewmembers regarding the activity or status of equipment. A 
yardmaster who is occupied with his or her other responsibilities 
might not give the task the attention it deserves, or could be 
distracted and give an incorrect answer to a question by a 
crewmember (e.g., ``is the move lined?''). The result could be that 
the task does not get completed or there is an error in task 
execution. Further, the crewmembers might not have any alternative 
way of determining that there is a problem with the point protection 
provided by the non-crewmember until it is too late. Consequently, 
to the extent they will be called upon to perform these duties, each 
railroad shall include yardmasters and other non-crewmembers in any 
operating rule promulgated in accordance with Sec.  218.99(b)(2).

II. Additional Requirements for Remote Control Locomotive Operations at 
Highway-Rail Grade Crossings, Pedestrian Crossings, and Yard Access 
Crossings

    A. In addition to the general requirements and considerations 
for all technology aided point protection in lieu of direct visual 
determinations, additional requirements are necessary to address 
concerns specific to the use of camera/monitor setups for remote 
control locomotive operations to protect the point at highway-rail 
grade crossings, pedestrian crossings, and yard access crossings. 
Railroad operating rules currently permit a movement to travel over 
a crossing without the physical presence of a crewmember if a 
crossing is equipped with gates, if it can be determined that the 
gates are in the fully lowered position, and if the crossing is 
clear of vehicles and pedestrians. Remote control movements at 
highway-rail grade crossings, pedestrian crossings, and yard access 
crossings that utilize camera/monitor setups pose a greater direct 
risk to members of the general public than yard movements utilizing 
camera/monitor setups to check whether a track is clear. In 
addition, such setups can rapidly develop problems with motor 
vehicles and pedestrians unaccustomed to railroad operating rules 
and procedures. For these reasons, additional safeguards are 
necessary.
    B. In consideration of the dangers posed by the use of camera/
monitor setups for remote control locomotive operations at highway-
rail grade crossings, pedestrian crossings, and yard access 
crossings, the following procedures shall be complied with in order 
to establish an equivalent means of safety in accordance with Sec.  
218.99(b)(3)(i):
    1. Before camera-assisted remote control locomotive operations 
are permitted at highway-rail grade crossings, pedestrian crossings, 
and yard access crossings, a Crossing Diagnostic Team shall evaluate 
the crossing. The diagnostic team shall have representatives from 
the railroad, FRA, the State department of transportation (or 
another State agency having jurisdiction over the highway-rail grade 
crossing, pedestrian crossing, or yard access crossing), and local 
government authorities. The diagnostic team shall evaluate the 
suitability of each crossing for remote camera operations. Among the 
factors it shall consider are the following: the average annual 
daily traffic counts; the number of highway lanes; highway speed 
limits; the presence of adjacent signalized highway intersections; 
the number of railroad tracks; the angle of the roadway 
intersection; the volume of school bus, transit bus, emergency 
vehicle, commercial motor vehicle, and hazardous materials traffic 
over the crossing; the minimum remote control locomotive operator 
sight distances of roadway approaches to the crossing; and other 
relevant factors that could affect the safety of the crossing. The 
diagnostic team shall also consider the appropriate number of 
cameras and appropriate camera angles needed to provide for the 
remote operation of remote control locomotives over the crossing. 
The diagnostic team shall agree to a written diagnostic evaluation 
summary of the factors considered and shall provide the railroad 
with agreed upon parameters by which the camera-assisted remote 
control operation may continue in operation if the factors required 
for suitability change; thus, any change in the factors considered 
by the diagnostic team outside of the acceptable parameters shall 
require the railroad to receive a revised evaluation approval from a 
diagnostic team before continuing any such operation. In addition, 
any of the Federal, State, or local governmental authorities may 
trigger review of a prior evaluation approval at any time there is a 
question of the suitability of the operation. It is possible that, 
of the requirements listed below, requirements numbered 2, 4, 5, and 
6 would be unnecessary at highway-rail grade crossings or yard 
access crossings equipped with approved supplemental safety devices 
(see 49 CFR part 222, app. A) that prevent motorists from driving 
around lowered gates; under such circumstances, the diagnostic team 
shall make such determinations. If a Crossing Diagnostic Team, as 
described in this paragraph, evaluated a crossing for the factors 
described herein, prior to April 14, 2008, another diagnostic team 
evaluation is not required to comply with this rule; however, the 
requirements listed below shall still apply to any such remotely 
controlled movements over that crossing.
    2. Camera-assisted remote control locomotive operations shall 
only be permitted at crossings equipped with flashing lights, gates, 
and constant warning time train detection systems where appropriate, 
based on train speeds.
    3. A crewmember or other qualified employee shall not view the 
monitor in place of the remote control operator, as is permitted for 
other shoving or pushing movements. See Sec.  218.99(b)(3). For 
purposes of remote control locomotive operations with camera/monitor 
setups to protect the point at highway-rail grade crossings, 
pedestrian crossings, and yard access crossings, the remote control 
operator controlling the movement shall view the monitor during such 
operations.
    4. The cameras shall be arranged to give the remote control 
locomotive operator controlling the movement a view of the rail 
approaches to the crossing from each direction so that the operator 
can accurately judge the end of the movement's proximity to the 
crossing.
    5. The cameras shall be arranged to give the remote control 
locomotive operator a clear view to determine the speed and driver 
behavior (e.g., driving erratically) of any approaching motor 
vehicles.
    6. Either the camera resolution shall be sufficient to determine 
whether the flashing lights and gates are working as intended or the 
crossing shall be equipped with a remote health monitoring system 
that is capable of notifying the remote control locomotive operator 
immediately if the flashing lights and gates are not working as 
intended.
    7. The railroad shall notify the Associate Administrator for 
Safety in writing when this type of protection has been installed 
and activated at a crossing.

III. Conclusion

    The technology used to aid point protection will undoubtedly 
develop and improve over time. FRA encourages the use and 
development of this technology as is evidenced by the option in this 
rule to utilize such technology. Meanwhile, as a regulating body, 
FRA cannot determine whether a new technology to aid point 
protection provides an equivalent level of protection to that of a 
direct visual determination unless we are made aware of the new 
technology. Consequently, aside from the camera/monitor setups 
described in this appendix, each railroad that intends to implement 
a technology used to aid point protection shall notify the Associate 
Administrator for Safety in writing of the technology to be used 
prior to implementation.

    Issued in Washington, DC, on January 29, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-1933 Filed 2-12-08; 8:45 am]
BILLING CODE 4910-06-P