[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Rules and Regulations]
[Pages 33888-33902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1354]


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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), Department of 
Transportation (DOT).

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to four petitions for reconsideration 
of FRA's final rule which was published on February 13, 2008. The rule 
mandated certain changes to a railroad's program of operational tests 
and inspections and mandated new requirements for the handling of 
equipment, switches, and fixed derails.

DATES: This regulation is effective on June 16, 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
II. Major Issues Raised by Petitions
    A. Implementation Dates
    B. Shove Lights
    C. Individual Liability and Enforcement
    D. Good Faith Challenge
    E. The Point Protection Technology Standard for Remote Control 
Zones
III. Section-by-Section Analysis
IV. 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
    H. Public Proceedings
    I. Privacy Act

I. Background

    On May 18, 2005, the FRA's Railroad Safety Advisory Committee 
(RSAC) accepted a task statement and agreed to establish the Railroad 
Operating Rules Working Group (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. 
After consideration of the Working Group's recommendations, FRA 
published a Notice of Proposed Rulemaking (NPRM) on October 12, 2006 to 
establish 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. See 71 FR 60372. FRA received 
written comment on the NPRM as well as advice from its Working Group in 
preparing a final rule, which was published on February 13, 2008. See 
73 FR 8442.
    Following publication of the final rule, parties filed petitions 
seeking FRA's reconsideration of the rule's requirements. These 
petitions principally related to the following subject areas: the 
implementation dates; shove lights; the need for individual liability 
and enforcement; good faith challenge procedures; the point protection 
technology standard for remote control locomotive operations; and FRA's 
rulemaking authority.
    This document responds to all the issues raised in the petitions 
for reconsideration except the issue pertaining to FRA's rulemaking 
authority which is being addressed in a separate letter to that 
specific petitioner. FRA will make that response part of the public 
docket related to this proceeding. The amendments contained in this 
document in response to the petitions for reconsideration generally 
clarify the requirements currently contained in the final rule or allow 
for greater flexibility in complying with the rule, and are within the 
scope of the issues and

[[Page 33889]]

options discussed, considered, or raised in the NPRM.
    The specific issues and recommendations raised by the petitioners, 
and FRA's response to those petitions, are discussed below. The 
discussion will aid the regulated community in understanding the 
requirements of the rule.

II. Major Issues Raised by Petitions

A. Implementation Dates

Petitioner Concern: Dates Do Not Provide Sufficient Time To Comply
    The Association of American Railroads (AAR) and the American Public 
Transportation Association (APTA) each submitted a petition for 
reconsideration requesting delays for the implementation of training 
and program deadlines found in 49 CFR 217.9 and 218.95. AAR is a trade 
association whose membership includes freight railroads that operate 72 
percent of the line-haul mileage, employ 92 percent of the workers, and 
account for 95 percent of the freight revenue of all railroads in the 
United States. AAR's membership also includes passenger railroads that 
operate intercity passenger trains and provide commuter rail service. 
APTA's members include commuter railroads. The National Railroad 
Passenger Corporation (Amtrak) is a member of both AAR and APTA.
    AAR and APTA raised similar concerns and requested the same action. 
Both associations requested that each implementation date contained in 
49 CFR 217.9 and 218.95 be extended by six months.
    Both petitions for reconsideration explained that railroads will 
need to overcome certain obstacles to establish a program of 
operational tests and inspections under 49 CFR 217.9. For example, AAR 
stated that the recent amendments to this section require each railroad 
to conduct specific types of periodic reviews and that some railroads 
have not been using any formal periodic reviews. In addition, those 
railroads implementing periodic reviews for the first time will need 
time to craft and implement a carefully thought out and worthwhile 
program. AAR also pointed out that oversight of the program will 
require a recordkeeping system that will aid in implementation and 
tracking compliance and that it is unaware of any railroad having such 
a recordkeeping system currently in place. Similarly, APTA stated that 
four months is not enough time for passenger railroads to review 
accident/incident records, determine which operating rules require 
particular emphasis in the testing and inspection program, develop the 
additional testing and inspection procedures, and qualify railroad 
testing officers on how to properly conduct the tests and inspections. 
APTA emphasized that passenger railroads are requesting additional time 
to do the job right rather than just quickly.
    Both associations raised concerns with the requirements in Sec.  
217.9(b) that pertain to qualifying railroad testing officers and 
keeping written records documenting each railroad testing officer's 
qualification. APTA pointed out that the requirements pertaining to 
railroad testing officers are new, and implied that each railroad would 
need to expend additional resources to confirm that each railroad 
testing officer is qualified and to maintain records supporting each 
qualification decision. AAR stated that the July 1, 2008 deadline for 
implementing paragraph (b) is unrealistic because it does not provide a 
railroad with sufficient time to qualify supervisors on the new 
requirements. AAR also suggested that many railroads will want to 
maintain an electronic recordkeeping system for tracking the 
qualifications of supervisors; and the applicability deadline of July 
1, 2008 does not provide sufficient time to establish a new 
recordkeeping system. AAR also disliked FRA's suggestion 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.'' 73 FR 8457. 
AAR asserts that if training took place before the establishment of a 
recordkeeping system, FRA and a railroad could be reliant on oral 
testimony, which could well result in controversial enforcement 
citations. Implied in AAR's concern is that some railroad testing 
officers may believe they know how to conduct certain tests or 
inspections, but the officer's ability to conduct a particular test or 
inspection has not been confirmed by the railroad. Consequently, AAR is 
concerned that a railroad testing officer that exaggerates his or her 
abilities could potentially subject a railroad to liability if the 
officer were to conduct an improper test. See Sec.  217.9(b)(1).
    Both AAR and APTA are members of RSAC and were told by FRA that the 
agency's goal was to publish the final rule by the fall of 2007. APTA 
states that had FRA published the rule in the fall of 2007, its members 
could have complied with the training in the 2008 training cycle. AAR 
and APTA both requested that FRA consider that a consequence of 
publishing the final rule in the first quarter of 2008 was that the 
vast majority of railroads that typically conduct the bulk of training 
during the first quarter of the year are now thwarted from doing so. 
Both associations argued that it would be too difficult to alter 
training programs by July 1, 2008 pursuant to Sec.  218.95(a) because 
new training course material is usually developed in the second half of 
the year. Railroads primarily allocate the first quarter of each year 
to training employees, but often that training continues into the 
second quarter. The trainers are typically the same people employed to 
revise the training programs in the second half of the year. Thus, it 
would be difficult for the railroads to finish the training already 
planned for 2008 while revising the training required by the final 
rule. AAR and APTA also argued that it would be difficult and costly to 
qualify employees in accordance with 49 CFR part 218, subpart F, by 
January 1, 2009 because employees are not as available as they are 
during the first quarter of the year due to personal and business 
obligations.
FRA's Response
    When FRA published the final rule, the agency did not fully 
appreciate the difficulties most railroads would face in trying to 
comply with the implementation dates. FRA was under the impression that 
it was providing a sufficient amount of time for a railroad to comply 
and that the implementation dates would not be controversial. FRA 
understood that by publishing the rule in mid-February, each railroad 
would need to qualify its employees and supervisors, as well as 
implement the new and revised programs outside of the railroads regular 
schedule for such actions. FRA perceived the actions needed for 
compliance to be not that much different than existing railroad 
programs relating to operating rules.
    Now that FRA has reviewed AAR and APTA's petitions for 
reconsideration, we agree with the associations that delayed 
implementation is warranted for the reasons expressed in the petitions. 
It is important that each railroad effectively qualify its railroad 
testing officers and implement a meaningful program of tests and 
inspections under 49 CFR 217.9. The associations are certainly correct 
that

[[Page 33890]]

ensuring railroad testing officers are qualified is an important aspect 
of the revised section and that keeping accurate records of the 
qualifications of each railroad testing officer is an integral 
component of that requirement. Thus, FRA is granting AAR and APTA's 
requests to amend the applicability dates in 49 CFR 217.9, the 
logistics of which are described in the section-by-section analysis for 
that section.
    FRA also agrees with AAR and APTA's requests to amend the 
applicability dates in 49 CFR 218.95. The associations' petitions for 
reconsideration helped FRA understand the full extent of the burden the 
final rule will place on each railroad. FRA certainly prefers providing 
each railroad with the additional time it needs to fully implement 49 
CFR part 218, subpart F than have a situation where many railroad 
programs are put together so quickly that the programs contain mistakes 
or fall short in some way, or training is rushed to the extent that 
employees do not fully understand the operating rules and the 
importance of them. Thus, FRA is granting AAR and APTA's requests to 
amend the applicability dates in 49 CFR 218.95, the logistics of which 
are described in the section-by-section analysis for that section.

B. Shove Lights

AAR Petition
    AAR's petition requested reconsideration of FRA's decision to 
exclude shove lights as an acceptable technological alternative to 
visually protecting the point pursuant to the requirements in 49 CFR 
218.99(b)(3)(i) unless 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. 
73 FR 8478. Shove lights are lights that are sequentially circuited on 
the ends of departure tracks in classification yards to indicate a 
shoving movement's approach to the opposite end of a track. There are a 
variety of different shove light arrangements, some using a single 
aspect/light and others using multiple aspects that have the ability to 
provide greater information regarding how much room is left in the 
circuited portion of the track. At some locations, radio messages are 
generated, instead of lights, to indicate when the cars being shoved 
have reached the bonded or circuited section of track.
    AAR acknowledges that ``since shove lights or radios technically 
provide protection only for the length of the bonded track, not the 
entire length of the departure track, they arguably do not provide the 
equivalent of direct visual observation.'' Despite this acknowledgment, 
AAR's petition requests that FRA reconsider the shove light issue as a 
permitted operational exception under Sec.  218.99(e). AAR makes two 
arguments in support of permitting shove lights and radio signal 
arrangements. One argument is that there is no evidence that the use of 
shove lights has caused accidents or injuries despite having been used 
for over thirty years. A second argument is that a prohibition on shove 
lights and radio arrangements creates an increased risk of injuries and 
thus does not justify the prohibition. AAR attributes the potential for 
an increase in injuries to the risks employees would need to take to 
visually determine the departure track is clear. For example, an 
employee who undertakes the riding of a long shove move or chooses to 
walk along the track would be at risk of a slip and fall injury due to 
the need to mount and dismount equipment or the need to walk 
carefully--especially in inclement weather. Another added risk to 
riding the shove move or walking the track is the danger posed by the 
close proximity to other tracks, i.e., close clearances. An employee 
riding a shove move where there are close clearances is at risk of 
being struck by equipment on an adjacent track.
Joint Labor Petition Response Opposing AAR's Petition
    A joint response to AAR's petition was filed by the presidents of 
six labor organizations (Joint Labor Petition): the American Train 
Dispatchers Association (ATDA); the Brotherhood of Locomotive Engineers 
and Trainmen, a division of the Rail Conference of the International 
Brotherhood of Teamsters (BLET); the Brotherhood of Maintenance of Way 
Employes Division of the Rail Conference of the International 
Brotherhood of Teamsters (BMWED); the Brotherhood of Railway Carmen 
Division of the Transportation Communications International Union 
(BRC); the Brotherhood of Railroad Signalmen (BRS); and the United 
Transportation Union (UTU). These labor organizations represent over 
140,000 railroad workers engaged in train and engine service, train 
dispatching operations, equipment inspection, maintenance and repair, 
roadway worker activities, and signal construction, maintenance and 
repair. The Transportation Trades Department, AFL-CIO (TTD) filed a 
separate comment in support of the Joint Labor Petition.
    The Joint Labor Petition opposes AAR's request for reconsideration 
of the shove light exception. This opposition is based on the fact that 
the track, unless completely circuited, will not be determined to be 
clear. The Joint Labor Petition points out that the final rule permits 
technology to substitute for a direct visual determination and thus one 
option is for a railroad to add additional indicator circuits. FRA 
notes that the Joint Labor Petition did not respond to AAR's assertions 
that there is no evidence that the use of shove lights has caused 
accidents or injuries despite having been used for over thirty years 
and that a prohibition on shove lights and radio arrangements creates 
an increased risk of injuries that does not justify the prohibition. 
The Joint Labor Petition argues that AAR seeks to institutionalize a 
practice that is dangerous and will lead to an increase in accidents, 
incidents, and injuries, but the response does not elaborate on this 
conclusion.
FRA's Response
    In response to AAR's petition, and after considering the Joint 
Labor Petition's comments, FRA has decided to grant AAR's petition for 
reconsideration in part and deny it in part. FRA agrees to add an 
operational exception under Sec.  218.99(e)(5) for shoving or pushing 
movements made in the direction of the circuited end of a designated 
departure track equipped with a shove light system under certain 
specified conditions. The operational exception and the specified 
conditions are described in the section-by-section analysis. Many 
railroads with existing shove light systems should find that few 
changes, if any, will be necessary to comply with the requirements for 
the exception in new paragraph (e)(5).
    After publication of the final rule, FRA received feedback that 
some railroads were disappointed with FRA's position on shove lights. 
As the issue did not initiate much discussion during the Working Group 
meetings, FRA had not compiled much information on it. In anticipation 
that a petition for reconsideration on the shove light issue might be 
filed, FRA conducted a review of shove light systems utilized by the 
major railroads.
    Between February 25 and March 21, 2008, FRA reviewed procedures and 
observed operations on departure tracks with shove light systems 
throughout the country. FRA surveyed the major railroads to find out 
where shove lights were used and received information that five of the 
seven major railroads used shove light systems at thirty-four major 
classification yards in seventeen states.

[[Page 33891]]

FRA confirmed through inspections that the railroads did not utilize 
shove light systems at any other major yard. The thirty-four yards 
contained a total of 356 departure tracks equipped with shove lights. 
Only seven of the thirty-four yards were found to provide point 
protection by having the departure tracks entirely circuited or by 
using cameras to determine that the track is clear. Thus, FRA focused 
its attention on whether the remaining twenty-seven yards that did not 
already meet FRA's new requirement for point protection under Sec.  
218.99(b)(3) were safe operations nonetheless.
    For instance, FRA conducted a review of accident/incident data that 
supports AAR's position that departure tracks that use shove light 
systems are reasonably safe operations. FRA reviewed data for the 
twenty-seven departure yard operations that utilize shove lights for 
the twenty-six month period from January 2006 through February 2008. 
The total number of tracks available for use as departure tracks at 
these twenty-seven yards is 291. FRA's review included railroad records 
of all reportable and accountable rail equipment accidents/incidents, 
and thus FRA's review included minor incidents that would not have met 
FRA's reportable threshold for an accident/incident. See 49 CFR 225.5 
(defining ``accident/incident'' and ``accountable rail equipment 
accident/incident''); 225.19 (defining the three groups of railroad 
accidents/incidents that are reportable); and 225.21(i) (requiring that 
a record of initial rail equipment accidents/incidents be completed and 
maintained). If FRA's review had included only reportable accidents/
incidents, and not accountable rail equipment accidents/incidents, the 
scope of the review would have been significantly more limited and 
would not have included derailments and collisions that caused minor 
damage to track or on-track equipment.
    The records revealed that eighteen of the twenty-seven departure 
yard operations, i.e., 67 percent of the yards, did not have any human 
factor caused reportable or accountable rail equipment accidents/
incidents during the twenty-six month period, and only one yard had 
recorded more than two accidents/incidents. Nine departure yard 
operations recorded a total of nineteen human factor caused reportable 
or accountable rail equipment accidents/incidents during the review 
period. Although FRA did not conduct investigations to determine 
whether the primary cause listed by each railroad is accurate, the 
records suggest that five of these nineteen accidents/incidents would 
not have been prevented through compliance with the point protection 
requirement of Sec.  218.99(b)(3) or any of the requirements in 49 CFR 
part 218, subpart F; i.e., four accidents/incidents were caused by some 
form of train handling error and one accident/incident was caused by a 
remote control operator's failure to hear a radio transmission to stop 
the movement. In addition, five accidents/incidents were caused by 
either improperly lining, locking, or latching switches, which are 
concerns addressed by requirements found in subpart F. Thus, FRA finds 
that, during the twenty-six month review period, only nine human factor 
caused reportable or accountable rail equipment accidents/incidents 
might have been prevented through compliance with point protection 
requirements rather than relying on shove light systems and attendant 
procedures.
    FRA found fair to good illumination throughout the departure yard 
tracks, particularly at the entry and departure ends of each track. The 
circuited portion of the departure tracks ranged from 150 feet to a 
little over 500 feet, with an average of 360 feet.
    At all twenty-seven yards, non-visual procedures were in place that 
provided yardmasters with a high degree of confidence with respect to 
the status of any of the departure tracks. One procedure common to all 
twenty-seven yards included a ``turn-over'' report, i.e., a job 
briefing, given verbally from one yardmaster to the next, based on the 
information logged on a written turn-over sheet. In addition to the 
turnover report, at many yards, the yardmaster had access to a computer 
generated inventory allowing the yardmaster to monitor each car from 
the moment it arrived onto the receiving yard tracks. Many of these 
yardmasters were also able to track by computer the movements of each 
car through the yard complex. Some yardmasters also received 
information about each transfer job that brought cars from the 
classification yard to the departure yard. At some yards, railroads 
instituted standard instructions that required any car cut-off a 
departing train to be left on the circuited section of the track on 
which it was to be placed. Thus, if a car was left on the circuited 
section of track, a person observing the shove light would know that 
some equipment was left there and would be required to take appropriate 
action to determine what was left on the departure track prior to 
initiating a shoving or pushing movement. Meanwhile, other yards 
maintained similar instructions that any car to be cut-off a departing 
train must be left as close as possible to the end of the track 
opposite the circuited end of the departure track without fouling 
another track. This instruction permitted the person directing the 
movement to readily observe that the track was not clear and to take 
appropriate action to protect the shoving or pushing movement.
    The descriptions of these different non-visual procedures is not 
intended to be an exhaustive list of all the types of procedures that 
have been or could be implemented. FRA is describing these types of 
procedures because our recent review suggests that having these types 
of procedures help establish a reliable means of determining track 
occupancy. As each departure yard may have its own set of safety 
concerns and already established procedures, FRA is not requiring that 
all railroads adopt a particular set of non-visual procedures. However, 
as these types of procedures contribute to the overall safety record of 
departure tracks utilizing shove lights, the final rule contains a 
requirement that the types of procedures which provide for a reliable 
means of determining track occupancy prior to commencing a shoving or 
pushing movement must be adopted in writing so that yardmasters and 
other employees can fully understand the operation. See Sec.  
218.99(e)(5)(iii).
    FRA's observations revealed that shove light systems can maintain 
an acceptable degree of safety. Our review suggests that, in addition 
to the establishment of non-visual procedures, several factors 
collectively promote a safe operation. For instance, there is a 
relatively small number of moves onto and off of the departure tracks. 
Compared to other yard operations, there is typically less danger on 
departure tracks with shove light systems in that fewer switches are 
operated in the departure yard and there are no free rolling cars. 
Furthermore, FRA noticed that each of the twenty-seven departure yards 
were well supervised by either a yardmaster or other qualified 
employee.
    FRA's observations at the twenty-seven departure yards with shove 
light systems also revealed that some of the departure tracks evaluated 
have close clearances that could potentially pose a risk of an accident 
or injury to a rail employee attempting to make a visual determination 
that the departure track is clear. FRA found five of the departure 
yards had at least some tracks with close clearances that pose a 
significant potential risk of an injury to an employee protecting the 
point. While some departure yards had tracks with

[[Page 33892]]

very good clearances, most tracks were found to have normal 
clearances--which could still pose injury hazards due to the amount of 
clearance. Furthermore, it could be difficult for an employee riding 
the point of the move to see that a derail is applied and that employee 
could be seriously injured if the movement were to operate over the 
derail. In addition, FRA noted that departure tracks were generally 
long yard tracks. The length of the departure tracks is a factor in 
deciding whether to allow shove light systems to be used in lieu of 
point protection because employees would probably walk or ride the side 
of a car to provide point protection and lengthy departure tracks would 
expose employees to injury risk for a longer period than if the tracks 
were shorter. In conclusion, FRA's observations corroborated AAR's 
assertion that if employees were required to provide point protection 
by riding the side of a car or walking along the departure tracks, 
there would be an increased risk of injuries.
    FRA is granting AAR's petition for reconsideration in part, and 
will allow a shove light system under certain conditions to substitute 
for point protection, because the recent accident/incident histories at 
eighteen out of the twenty-seven major railroad departure yards have 
been excellent. FRA's decision is not based on AAR's concern that 
employees need to be protected from the dangers posed by protecting the 
point where there are close clearances. FRA believes that the risks of 
employees suffering injuries could be avoided greatly if more departure 
tracks equipped with shove light systems were either completely 
circuited or had cameras added that could be remotely viewed to 
determine the track is clear. In fact, FRA found five major railroad 
departure yards that maintain such cameras and two major railroad 
departure yards that maintain shove light systems with completely 
circuited departure tracks. Although FRA is promulgating an operational 
exception for shove light systems, we encourage each railroad to 
consider installing cameras or fully circuiting the departure tracks--
especially in departure yards where non-compliance with yard procedures 
adopted under Sec.  218.99(e)(5)(iii) are found on a regular basis. 
Meanwhile, FRA has concluded that under certain conditions, a shove 
light system is a safe operation. Therefore, a railroad may utilize a 
shove light system, under the conditions specified in Sec.  
218.99(e)(5), as an alternative to having a qualified employee make a 
visual determination that the departure track is clear.
    FRA is, however, denying that portion of AAR's petition that 
requests the inclusion of shove warning systems that rely solely on 
radio signal warnings because radio signals offer a lower level of 
safety to that of a shove light system. One of the essential conditions 
considered in partially granting AAR's petition allowing shove light 
systems to substitute for a qualified employee visually determining the 
track is clear, is that the shove light system must be demonstrated to 
be failsafe. Shove warning systems that rely solely on radio signal 
warnings are not considered failsafe and FRA is skeptical that a system 
based on radio signals alone can ever be made failsafe.
    Radio signal based shove systems are designed to send radio signal 
warnings when the movement is occupying the circuited track. The radio 
warning typically states how much room is left in the departure track 
for the shoving or pushing movement by indicating a number of car 
lengths. If the shoving or pushing movement has not reached the 
circuited end of the departure track, the system will be silent. Thus, 
the train crewmember or other qualified employee listening to the radio 
and directing the move will interpret silence to mean the track is 
clear to continue the shoving or pushing movement. Silence may not 
always mean that the movement is not occupying the circuited end of the 
track. For example, the radio may be silent because it is 
malfunctioning. A radio may be silent if its battery is expired. Also, 
a person listening to a radio may not hear a radio warning for a 
variety of reasons including, but not limited to, a weak transmission 
signal; static; the radio's volume is too low; or, a radio signal is 
blocked by a competing transmission because it is not broadcast on a 
dedicated channel. Finally, unlike shove light systems which remain 
continuously illuminated until the circuited section of track is 
occupied, FRA observed that the radio signal based shove system does 
not continuously send radio warnings that help monitor the departure 
end of the track once the movement has completely occupied the 
circuited section of track.
    FRA might be willing to reconsider this decision or grant a waiver 
for a shove warning system that relies solely on radio signal warnings 
if it can be demonstrated to be failsafe. However, given the logistical 
hurdles of arranging such a system, it would probably be easier to 
switch to a shove light system or add some kind of light component to 
the existing radio signal based shove system. As FRA found only one 
major railroad departure yard that solely used radio signals as a shove 
system, FRA does not anticipate that this denial decision will have any 
significant impact on that railroad or on the industry.

C. Individual Liability and Enforcement

1. Petitioner Concern: Accident Data Does Not Support Individual Civil 
Penalties
    The Joint Labor Petition requested reconsideration of the willful 
civil penalties published in the penalty schedule at 49 CFR part 218, 
app. A and the need for individual liability for willful violations; 
TTD's comment supported the Joint Labor Petition. The Joint Labor 
Petition analyzed the accident data showing that there has been a 
reduction in both the raw number of accidents/incidents and the 
corresponding rates for the period 2005 through 2007 that exceeded the 
increase for the period 2000 through 2004. Based on the analysis of 
that data, the Joint Labor Petition concludes that ``[w]hile 
Petitioners concur that discipline--on the part of both our members and 
their supervisors--is an essential element in rule compliance, our 
analysis of FRA's data establishes beyond question that the spikes in 
the number of human factor accidents/incidents and the frequency with 
which they occurred were not due to any industry-wide breakdown in 
rules compliance discipline.'' Thus, on this first issue, the petition 
contends that the empirical basis no longer exists for FRA's decision 
to include individual liability for civil penalties in the final rule.
FRA's Response
    The labor filing is a model of railroad safety scholarship, 
describing in broad strokes the major changes in the industry that, in 
the view of the writers, may have influenced safety trends. The 
resulting explanations attempt to fit safety data within a multi-factor 
analysis and lay the foundation for the requested relief. The history 
of a major industry is complex; and this proceeding is not the proper 
venue to agree or disagree about such theorems, however interesting 
that discussion might be.
    Rather, it is necessary to state that the central premise of the 
joint labor filing is incorrect, because it is not FRA actions that 
invoke the potential for civil penalty sanctions. Rather, civil penalty 
sanctions are a statutorily-imposed consequence of regulatory non-
compliance. 49 U.S.C. 21301. Labor

[[Page 33893]]

organizations have been among the more strenuous advocates of strong 
civil penalties as an answer to non-compliance by railroads and rail 
contractors, and even if FRA were at liberty to provide blanket 
immunity from statutory sanctions, there is nothing in the filing to 
support the conclusion that such sanctions would be less successful in 
influencing the intentional actions of individual employees than the 
unintentional or intentional actions of railroads and rail contractors. 
Indeed, individual employees are already accountable for personal 
compliance with a significant number of FRA regulations; and FRA is 
satisfied that the deterrent effect associated with the availability of 
a monetary sanction is helpful in preventing accidents that might occur 
through sloth or knowing reckless behavior. FRA has seldom found it 
necessary to invoke these sanctions against individuals, and in many 
cases where such action has been taken the targets have been railroad 
officers, rather than rank and file employees.
    Whether or not one subscribes to the proposition that penalties are 
necessary, giving the subject rules the status of Federal law should 
without question promote awareness among officers and employees 
regarding their responsibilities to one another and to the public. The 
labor filing (at page 5) acknowledges that ``a more substantial 
framework of regulations'' (FRA's phrase) should be helpful in 
maintaining discipline during the current period of change in the 
railroad industry. The potential for civil penalties follows 
automatically, based on congressional action.
    Although FRA agrees with the Joint Labor Petition that the number 
of human factor incidents has declined over the past few years, we do 
not agree that this trend diminishes the need for a regulation 
containing the potential to demand payment of civil money penalties 
from individuals for willful violations. There are a variety of reasons 
for the recent downward trend including, but not limited to, FRA's 
focus on the increase in human factor caused accidents/incidents from 
2000 through 2004 in the RSAC and Working Group meetings. By bringing 
this issue to the railroad industry's attention, railroads have placed 
increased emphasis on compliance with the operating rules FRA expressed 
an intention to consider regulating. Focused compliance reviews by FRA 
and aggressive, direct contacts with responsible railroad operating 
officers have no doubt contributed to this good result. Historically, 
FRA has noted previous positive trends after raising a safety concern 
with the industry, but prior to promulgation of a regulation. These 
trend lines do not always continue positively, and, without a 
regulation, FRA would be left with fewer options if accidents/incidents 
were to suddenly increase. Further, it would be fundamentally wrong to 
assume that major additional advances in the safety of railroad 
operations are not achievable. Rules compliance requires clear and 
unambiguous rules and procedures, common expectations for compliance 
that are modeled by line supervisors, excellent training, and regular 
verification that rules and procedures are being followed. This is the 
foundation for acceptable safety performance, and on that foundation 
can be built truly outstanding safety performance if the culture of the 
organization and the processes in place support open and productive 
communication to identify hazards, enhance crew performance, and refine 
work processes. FRA appreciates that this regulation cannot construct 
the entire edifice, but it can and must provide the foundation.
    As FRA has statutory authority to issue penalties against 
individuals for willful violations, FRA would retain this authority 
even if it deleted the willful penalties in the schedule of civil 
penalties (which section 49 U.S.C. 21301(a)(2) directs us to provide). 
As FRA explained in its ``Statement of Agency Policy Concerning 
Enforcement of the Federal Railroad Safety Laws'' found at 49 CFR part 
209, app. A, the Rail Safety Improvement Act of 1988 (see 49 U.S.C 
21304) made individuals liable for willful violations of the Federal 
railroad safety statutes that FRA enforces under delegation from the 
Secretary of Transportation. See 49 CFR 1.49(c), (d), (f), (g), and 
(m). In that published policy statement, FRA explains how the agency 
intends to decide if an individual has acted willfully and how it will 
consider whether enforcement action is warranted against an individual. 
In the preamble to the final rule, FRA also explained that it did not 
single this regulation out for individual liability enforcement, but 
that ``[e]ach of FRA's rail safety regulations permit enforcement 
against any person who violates a regulatory requirement or causes the 
violation of any requirement.'' 73 FR 8452-53. The publishing of the 
schedule amounts are merely meant to provide guidance as to FRA's 
policy in predictable situations, not to bind FRA from using the full 
range of penalty authority where extraordinary circumstances warrant 
it. FRA will continue to exercise appropriate discretion with regard to 
individual liability enforcement matters as it does in all civil 
penalty matters cited against railroads.
2. Petitioner Concern: Individual Liability Produces a Chilling Effect 
on Safety
    The Joint Labor Petition's second request in this area was that FRA 
should eliminate the willful civil penalties published in the penalty 
schedule at 49 CFR part 218, app. A and FRA should not seek civil 
penalty enforcement against individuals under 49 CFR part 218. The 
petitioner contends that individual liability produces a chilling 
effect that will diminish, rather than enhance, safety. The Joint Labor 
Petition disagreed with FRA's position that an employee would have an 
incentive to self-report noncompliance because such self-reporting 
would likely be considered a reason for FRA to exercise its enforcement 
discretion not to take enforcement action against the individual. 
Instead, the Joint Labor Petition focused on FRA's statement that 
``[s]elf-reporting is not * * * a defense to a potential individual 
liability action, and self-reporting does not absolutely preclude FRA 
from taking enforcement action against an individual.'' 73 FR 8453. The 
Joint Labor Petition concludes that an employee has a disincentive to 
self-report as the employee is likely to face a railroad disciplinary 
sanction and an FRA civil penalty.
FRA's Response
    In FRA's view, the Joint Labor Petition did not acknowledge FRA's 
caveat that ``FRA would consider self-reporting a strong reason for 
mitigation of the civil penalty, disqualification order, or other 
enforcement remedy.'' 73 FR 8453. The flip side of that argument is 
also true in that FRA would consider the failure to self-report non-
compliance immediately after the non-compliance is discovered to be an 
aggravating factor justifying a higher penalty or longer period of 
disqualification. In the preamble, FRA emphasized that when each 
railroad instructs its employees on its operating rules, it should 
emphasize this incentive to self-report. FRA continues to encourage 
each railroad to reconsider its own discipline policy so that it does 
not discourage self-reporting of inadvertent noncompliance. For 
example, FRA continues to fund and promote the Confidential Close Call 
Reporting System Demonstration Project, which permits participating 
employees to self-report certain types of

[[Page 33894]]

non-compliance without fear of railroad discipline or FRA enforcement. 
FRA believes that by encouraging self-reporting, an analysis of the 
data may reveal the identification of accident precursors or suggest 
ways to reduce the likelihood of future non-complying incidents that 
have the potential to cause accidents/incidents.
    FRA also expects that most individuals would self-report because it 
is the safe course of action. An individual who chooses not to self-
report after realizing he or she failed to comply with an important 
operating rule is likely to be putting him or her self, or colleagues, 
at risk of serious injury or death. Thus, FRA would expect that 
individuals who discover their own non-compliance would find the risks 
associated with choosing not to self-report far worse than the 
potential of being disciplined or fined for failing to comply, 
especially if the risk of a more severe disciplinary action or greater 
penalty is likely for a violation discovered and not immediately 
reported.
    The Joint Labor Petition also raised the issue that an innocent 
employee could be held liable for a civil penalty under the final rule 
if the employee was the last person recorded as handling a switch that 
was later found misaligned. The petition explained that it might be 
possible, on some railroads, for a roadway worker to manipulate main 
track switches in non-signaled territory without track authority or 
permission from the train dispatcher or control operator. The petition 
stated that FRA could end up enforcing a civil penalty against the 
wrong individual, and thus FRA should not cite individuals for civil 
penalties. FRA's response is that this issue raises an evidentiary 
proof matter and a concern FRA will need to address on a case-by-case 
basis. However, FRA does not view this issue as a reason to completely 
forgo the agency's statutory authority to cite individuals for civil 
penalties.
    In the conclusion section of the Joint Labor Petition, the petition 
suggests that FRA forgo the agency's statutory authority to cite 
individuals for civil penalties in favor of FRA's disqualification 
procedures. See 49 CFR part 209, subpart D. The petition argued that 
disqualifying an individual from performing safety sensitive service is 
a ``more than sufficient means available to enforce [part 218,] subpart 
F'' and that ``there is neither a sound basis, nor a public interest, 
in the creation of individual liability for civil penalties.'' We 
disagree. These are two different enforcement mechanisms and there may 
be instances where a disqualification is not warranted, and the less 
drastic response of a reasonable civil penalty is more appropriate. For 
instance, there may be instances where a person has a long work history 
of complying with operating rules but is found to have committed a 
willful violation one time. In these instances, it is likely more 
appropriate to demand a one-time civil penalty and allow the person to 
continue working in safety sensitive service than to initiate 
disqualification proceedings. In other circumstances, a person with or 
without a good history of compliance may be found to have committed a 
willful violation but there are aggravating circumstances that suggest 
the more extreme penalty of disqualification is unwarranted. Thus, in 
order to permit FRA to consider the appropriate enforcement mechanism 
and to provide maximum flexibility in its enforcement actions, FRA is 
denying the Joint Labor Petition's requests to eliminate the willful 
civil penalties published in the penalty schedule at 49 CFR part 218, 
app. A and for FRA to pledge not to seek civil penalty enforcement 
against individuals under 49 CFR part 218, subpart F.

D. Good Faith Challenge

1. Request To Eliminate Provision
    AAR's petition for reconsideration requests that FRA reconsider the 
need for any good faith challenge regulation. See 49 CFR 218.97. 
According to AAR, employees have statutory protection under 49 U.S.C. 
20109 against retaliation for refusing to comply with a directive to 
violate a Federal regulation and thus it is puzzling why FRA is 
promulgating a regulation which has the potential to interfere 
significantly with railroad operations. In addition, AAR objects to a 
good faith challenge regulation because the final rule did not 
adequately create a record for suspecting that employees have been, or 
will be, asked to engage in tasks that violate Federal regulations or 
these types of railroad operating rules. The Joint Labor Petition and 
TTD's comment disagreed with AAR's position on this issue.
FRA's Position
    FRA disagrees with AAR and finds that there is a need for the good 
faith challenge regulation. The driving force for much of the final 
rule was the data showing significant increases in human factor caused 
accidents, and the high number of violations FRA found when it 
conducted inspections and investigations related to certain human 
factor cause codes. Prior to the effective date of the final rule, each 
railroad maintained similar operating rules governing the safe 
operation of shoving or pushing movements, leaving cars out to foul, 
and handling switches and fixed derails; meanwhile, over the first five 
years of this decade, human factor caused accidents accounted for 38 
percent of all train accidents, and, in 2004, violations of the 
operating rules required in 49 CFR part 218, subpart F accounted for 
nearly 48 percent of all human factor accidents. Considering the 
mandatory nature of these railroad operating rules, it seems that there 
has been a high disregard for them either intentionally or 
unintentionally. Although we agree that FRA did not cite to specific 
examples of intentional non-compliance with railroad operating rules, 
FRA is aware of the pressure to occasionally shortcut an operating rule 
in order to maintain or increase production. FRA's awareness is derived 
from inspections and investigations, as well as shared experiences from 
FRA personnel who have previously worked for one or more railroads. The 
good faith challenge procedures are intended to empower employees who 
choose to abide by the railroad's operating rules but are either 
intentionally or unintentionally given a non-complying directive. The 
procedures are necessary to ensure that employees may challenge 
potentially non-complying directives immediately while the statutory 
protections in 49 U.S.C. 20109 primarily protect an employee from 
retaliation for refusing to comply with non-complying directives. Thus, 
the good faith challenge regulation has a different purpose than the 
statutory protections.
2. Request To Amend Provision
    In the alternative, AAR's petition for reconsideration requests 
that FRA amend the good faith challenge procedures required by 49 CFR 
218.97 so that they more closely resemble the roadway worker good faith 
challenge provisions. AAR states that FRA has departed from past 
precedent by issuing good faith challenge procedures that are different 
from those required for roadway workers. In AAR's view, the roadway 
worker regulations are clear and easily implemented, while the 
procedures in Sec.  218.97 are complex and could result in delaying 
railroad operations. For example, AAR states that there may be 
situations when a supervisor and employee cannot resolve a challenge, 
and a suitable railroad officer is not available to provide for 
immediate review under paragraph (d)(1). (It appears that AAR might 
also be asking FRA to reconsider or make an exception to the immediate 
review required in paragraph (d)(1) for any

[[Page 33895]]

railroad regardless of size.) The Joint Labor Petition disagreed with 
AAR's position on this issue.
FRA's Response
    FRA acknowledges that when it first began discussing this issue 
with the RSAC Working Group, FRA suggested that good faith challenge 
procedures similar to those promulgated for roadway workers might be 
appropriate. Discussions within the Working Group, especially with 
members representing labor organizations, revealed that roadway workers 
generally share a more cooperative working relationship with their 
supervisors than operating employees do with yardmasters, trainmasters 
and their other railroad officer supervisors. A supervisor of roadway 
workers is likely to be out at the work site and may share in the 
danger if the work gang is not adequately protected because the group 
failed to comply with a rule. A railroad officer supervising operating 
employees will likely not be at risk of injury to himself/herself 
through the issuance of a non-complying order but may be putting the 
operating employees executing the order, or other employees in the 
vicinity of the operation, in peril. For these reasons, a different 
approach, permitting a good faith challenge, is necessary.
    With regard to the request that FRA should eliminate the 
requirement for immediate review under Sec.  218.97(d)(1), FRA is 
denying the request. Any railroad with 400,000 or more total employee 
work hours annually should employ at least one railroad officer who can 
be on call in case a challenge requires immediate review. Each railroad 
should consider whether to address in its program the issues of who can 
be contacted and what protocol should be followed if the person issuing 
the challenged directive has difficulty finding an officer suitable for 
immediate review. FRA suggests that AAR ask its members to voluntarily 
keep track of problems associated with implementing the good faith 
challenge procedures so that it can be raised as a future task for the 
RSAC or in a future petition for rulemaking.
3. Implementation in Joint Operations
    After publication of the final rule, FRA met with labor 
organizations and railroad associations to discuss issues related to 
implementation. During those meetings, several parties raised the fact 
that the rule does not address how the good faith challenge is required 
to be implemented in joint operations territory. For example, FRA has 
been asked what happens if employees from Railroad 1 are 
directed to perform a shoving or pushing movement in a yard on Railroad 
2 and the employees believe they are being asked to violate a 
rule because the point is not being properly protected. FRA has been 
asked which railroad's good faith challenge procedures apply, and if 
Railroad 2's procedures apply, then are Railroad 1's 
employees required to be trained on Railroad 2's procedures.
FRA's Response
    FRA acknowledges that the rule is silent on these issues. 
Generally, we would expect that the host railroad, i.e., Railroad 
2 in the example, would want to maintain control of challenges 
made on its property and would therefore provide all reviews required. 
Although we expect quite a bit of uniformity among railroads, railroads 
who operate in joint operations will need to ensure that its employees 
know which railroad's procedures apply and what those procedures 
require. Meanwhile, as the rule is silent on this issue, we would not 
object to railroads engaged in joint operations making other 
arrangements as long as those arrangements are explained to its 
employees during the required training and provided for in its 
procedures. In conclusion, unless otherwise specified in a railroad's 
procedures, the host railroad's procedures will apply and it will be 
the host railroad's obligation to provide review of the alleged non-
complying order and to maintain a record when necessary.

E. The Point Protection Technology Standard for Remote Control Zones

Requests for Clarification
    AAR's petition explains that Sec.  218.99(c)(2) provides that if 
technology is relied on to provide pull-out protection by preventing 
the movement from exceeding the limits of a remote control zone, the 
technology must be demonstrated to be failsafe or provide suitable 
redundancy. AAR does not object to the regulatory text. Instead, AAR's 
petition for reconsideration raises the question of whether a 
particular discussion in the preamble regarding the point protection 
technology standard for remote control zones is intended to be a 
requirement.
    AAR is concerned that the preamble language will be read as a 
requirement. The preamble states that ``[w]hen 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.'' 73 FR 8479. AAR requests confirmation 
that the preamble reference to the safety analysis principles is meant 
to illustrate one way of determining if a technology is acceptable and 
the citation to part 236 is not meant to be a requirement. (Presumably, 
if FRA disagrees with AAR's understanding, AAR's petition is meant to 
request an amendment to this section as AAR implies that it objects to 
this reference if it is a requirement.).
    The Joint Labor Petition responded to AAR's petition. First, the 
Joint Labor Petition points out that the final rule preamble contained 
an error when it stated that no comments were received in response to 
the NPRM concerning this issue. BLET specifically responded to FRA's 
request for comments by recommending that (1) the technologies used to 
``fence'' remote control zones should be at least fail-safe and (2) to 
the extent that any of these technologies are not currently in use, 
they should be required to meet the criteria for processor-based signal 
and train control systems found in 49 CFR part 236, subpart H. The 
Joint Labor Petition reiterated BLET's recommendations and stated that 
remote control zone pull-out protection technology is, by definition, a 
train control system.
FRA's Response
    FRA agrees with AAR that the preamble language reference to 49 CFR 
part 236, subpart H is intended to illustrate one way of determining if 
a technology is acceptable and the citation to part 236 is not meant to 
be a requirement.
    In response to the Joint Labor Petition, FRA offers the following 
clarification. First, FRA wishes to thank BLET for reminding FRA that 
BLET had commented on the NPRM preamble language. Second, although FRA 
has provided that remote control zone pull-out protection technology 
must be demonstrated to be failsafe or provide suitable redundancy to 
prevent unsafe failure, a result consistent with the general approach 
of 49 CFR part 236, subpart H, FRA does not believe that this is the 
appropriate forum within which to determine the formal applicability of 
part 236. Although pullout protection arrangements are provided to 
restrict the movement of rolling equipment, they are not employed to 
authorize to control train movements; accordingly, using traditional 
interpretations they would not fall within the concept of a train 
control system. Nor do they resemble in function block signal systems. 
FRA is

[[Page 33896]]

aware of views of some that a variety of innovative technologies that 
perform functions analogous to traditional signal and train control 
systems should be regulated under part 236; however, FRA strongly 
believes that such issues should not be addressed piecemeal. 
Accordingly, FRA declines in this forum to assert the applicability of 
part 236 to systems used to prevent shoving movements from exceeding 
the intended boundaries.
    Based on the discussion contained above, FRA is not amending the 
regulatory text as suggested in either AAR's petition or the Joint 
Labor Petition.

III. Section-by-Section Analysis

Part 217--[AMENDED]

Section 217.9 Program of Operational Tests and Inspections; 
Recordkeeping
    FRA is amending four paragraphs of this section to delay certain 
applicability dates. In the preamble section titled ``Implementation 
Dates,'' FRA explains the basis for amending each of these compliance 
deadlines. In summary, FRA considered the petitions which suggested 
that, due to the routine most railroads use to schedule training during 
the first quarter of each calendar year, many railroads might have 
rushed through implementation merely to meet the deadline without 
regard for the program's likely effectiveness. FRA is amending the 
applicability dates in this section because we would prefer to provide 
each railroad with a reasonable opportunity to come into compliance 
with an effective amended program of operational tests and inspections, 
rather than to have compliance that is technically timely but 
ineffective.
    The introductory text of paragraph (b) is amended to make the 
requirements contained in this paragraph (b) applicable beginning 
January 1, 2009. As the applicability date was previously July 1, 2008, 
the amendment extends the deadline for compliance by six months.
    Paragraph (c)(1) requires the program to provide for operational 
testing and inspection under the various operating conditions on the 
railroad. The applicability date of this paragraph has been amended, so 
that on or after January 1, 2009, each railroad shall be required to 
amend its program to ``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.'' 
As the applicability date was previously July 1, 2008, the amendment 
extends the deadline for compliance by six months.
    Paragraph (c)(6) requires 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 applicability 
date of this paragraph has been amended, so that compliance with it is 
not required until January 1, 2009. As the applicability date was 
previously July 1, 2008, the amendment extends the deadline for 
compliance by six months.
    Paragraph (e) requires each railroad to do reviews of its program 
of operational tests and inspections at certain specified periodic 
intervals. There are two applicability dates in introductory paragraph 
(e) and both dates have been amended to provide railroads with 
additional time to comply. Introductory paragraph (e) is amended so 
that the requirements in paragraph (e) apply to each Class I railroad 
and the National Railroad Passenger Corporation beginning April 1, 
2009, and to all other railroads subject to this paragraph beginning 
July 1, 2009. Thus, each Class I railroad and the National Railroad 
Passenger Corporation are being provided an additional ten months to 
comply with the requirements in paragraph (e) and all other railroads 
subject to this paragraph are being provided an additional six months 
to comply.

Part 218--[AMENDED]

Section 218.93 Definitions
    A definition of departure track is added to this section because 
this term is used in added paragraph (e)(5) to Sec.  218.99. A 
departure track is a track located in a classification yard where 
rolling equipment is placed and made ready for an outgoing train 
movement. Thus, a departure track is typically the last type of track 
that cars will be on in the yard before the cars are completely 
assembled as a train and are ready to leave the confines of the 
classification yard. The ``classification yard'' is a term used to 
describe the greater yard area that contains, but is not limited to, 
run-through tracks, van yard tracks that are used for trailers on flat 
cars or containers on flat cars (tofc/cofc), car repair tracks, 
locomotive servicing tracks, repair-in-place (rip) tracks, receiving 
tracks, bowl or classification tracks, and departure tracks. Some 
railroads have added shove light systems to departure tracks to aid 
train crews shoving or pushing large cuts of cars onto departure 
tracks; i.e., a person observing the shove light will be notified when 
the circuited end of the track is occupied without actually viewing the 
circuited end of the track.
Section 218.95 Instruction, Training, and Examination
    Paragraph (a) 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. FRA is amending 
this paragraph to require establishment and continued maintenance of 
the program beginning no later than January 1, 2009. As the 
applicability date was previously July 1, 2008, the amendment extends 
the deadline for compliance by six months.
    Paragraphs (a)(3) and (a)(4) are also being amended to provide 
additional time to implement this subpart. Paragraph (a)(3) is amended 
to require that each employee performing duties subject to the 
requirements in this subpart shall be initially qualified prior to July 
1, 2009. As the applicability date for paragraph (a)(3) was previously 
January 1, 2009, the amendment extends the deadline for compliance by 
six months. Paragraph (a)(3) is also amended by eliminating the 
requirement that ``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.'' The 
elimination of this requirement follows from the decision to delay 
implementation of the program in paragraph (a) to January 1, 2009. The 
program implementation date is being delayed so that railroads will 
have time to adequately prepare a written program of training. As FRA 
has accepted AAR and APTA's reasons for delaying implementation of the 
program, it seems logical to provide railroads additional time to train 
both the employees hired prior to the effective date of the rule as 
well as the newly hired employees.
    Similarly, the applicability date in paragraph (a)(4) is amended to 
require that, beginning July 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. As the applicability date for paragraph (a)(4) 
was previously January 1, 2009, the amendment extends the deadline for 
compliance by six months. Thus, as of July 1, 2009, each employee 
performing work subject to this subpart is required

[[Page 33897]]

to be qualified regardless of when the employee was hired.
Section 218.99 Shoving or Pushing Movements
    Paragraph (e)(5) is added to permit each railroad the option of 
using a shove light system in lieu of point protection under 49 CFR 
218.99(b)(3), as long as certain specified conditions are met. In 
section II. B. of the preamble, titled ``Shove Lights,'' FRA explains 
why it is permitting railroads to choose this option. In summary, FRA 
reviewed initial rail equipment accident/incident records over a recent 
twenty-six month period that suggested railroads have safely conducted 
shoving or pushing movements on departure tracks that utilize shove 
light systems without a point protection requirement. FRA conducted 
observations of 34 locations where shove light or radio systems were in 
operation and found that certain best practices increased the 
likelihood that the operation could be conducted safely. FRA has 
promulgated the best practices into requirements that allow a railroad 
to exercise this operational exception. In addition, FRA has determined 
that systems based on radio signals alone are not as safe as those that 
contain a visual display. Consequently, the operational exception uses 
the term ``shove light system'' which is intended to descriptively 
exclude the use of a radio system that does not utilize a light.
    Paragraph (e)(5)(i) requires that the shove light system is 
demonstrated to be failsafe. 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 rail employees. Fortunately, most shove light 
arrangements appear to utilize traditional signal circuits which by 
design fail safe. (For analogous requirements applicable to track 
circuits and occupancy display in block signal territory see, e.g., 49 
CFR 236.5, 236.51.) Although the present rule in no way dictates the 
technology employed, it does require that it be failsafe in operation. 
(For principles pertinent to evaluating innovative detection 
technologies, see Appendix C to part 236.) In order to demonstrate that 
the system is failsafe, FRA would expect that when the system is not 
working properly, it would produce the least favorable aspect--
indicating that the movement should immediately be stopped or, if not 
yet begun, not started.
    Paragraph (e)(5)(ii) requires that the shove light system be 
arranged to display a less favorable aspect when the circuited section 
of the track is occupied. If the shove light system has only a single 
light, the light will turn off, i.e., go dark, when the circuited 
section of the track is occupied. If the shove light system has 
multiple lights or a single light with the ability to display multiple 
aspects or colors, the light will turn from a favorable aspect to a 
less favorable aspect when the circuit is first occupied, and later 
turn to a more restrictive aspect as the circuited track reaches full 
occupancy. Of course, shove light systems with multiple lights may 
simply go from a favorable aspect, e.g., green, to a less favorable 
aspect, e.g., red, in order to meet the requirement of this paragraph.
    Paragraph (e)(5)(iii) requires that written procedures be adopted 
and complied with that provide for a reliable means of determining 
track occupancy prior to commencing a shoving or pushing movement. The 
preamble section titled ``Shove Lights'' contains a description of 
various procedures many railroads have already established for 
departure tracks within departure yards equipped with shove light 
systems. The establishment of procedures is a way to create a uniform 
method of leaving a car or cut of cars on a departure track safely, 
thus permitting the yardmaster or next crew entering to know that the 
entire length of a particular departure track is not clear. Some 
railroads may choose to institute procedures that aid in tracking cars, 
either in writing, computer inventory, GPS tracking, or other 
electronic tracking. FRA is not requiring that all railroads must adopt 
and comply with a particular set of procedures. However, FRA believes 
these types of procedures contribute to the overall safety record of 
departure tracks utilizing shove lights and that such procedures must 
be established in writing so that all employees working in the 
departure yard can be expected to fully understand the operation. When 
FRA conducts inspections of these departure yards, we intend to review 
these procedures to ensure that any particular procedure, or lack 
thereof, does not create an undue safety risk and that the departure 
yard operation utilizing the shove light system is managed in a safe 
manner.
    Paragraph (e)(5)(iv) requires that the departure track be 
designated in writing. This is an important requirement because it is 
an exception to providing point protection and it is therefore 
imperative that employees know specifically on which tracks the 
exception applies. FRA is promulgating this requirement even though we 
are unaware of shove light systems being installed on other than 
designated departure tracks. The requirement in this paragraph is 
intended to prevent a railroad from installing shove lights on yard 
tracks that are not departure tracks and attempting to circumvent the 
point protection requirements under paragraph (b)(3) of this section.
    Paragraph (e)(5)(v) requires that the track be under the exclusive 
and continuous control of a yardmaster or other qualified employee. 
FRA's recent observations of departure tracks at major railroad 
classification yards, described above, found that a universal best 
practice is to have an employee, typically a yardmaster, who controls 
all movements in and out of the departure tracks. Without such an 
employee, there would likely not be any person who would be tracking 
movements into or out of the departure tracks, and there would not be 
anyone who could reliably relay information to train crewmembers who 
need to know the status of a particular departure track.
    The operational exception in paragraph (e)(5) differs from the 
other numbered exceptions in paragraph (e) because, although 
introductory paragraph (e) states that ``[a] railroad does not need to 
comply with paragraphs (b) through (d) of this section in the following 
circumstances,'' the rule excepting shove lights does include some 
requirements within paragraphs (b) through (d). For instance, paragraph 
(e)(5)(vi) requires that ``[t]he train crewmember or other qualified 
employee directing the shoving or pushing movement complies with the 
general movement requirements contained in paragraphs (b)(1) and(b)(2) 
of this section.'' Thus, even though a shove light system may be used, 
this paragraph requires that employees conduct a proper job briefing 
under paragraph (b)(1) and that the employee directing the movement not 
engage in any task unrelated to the oversight of the shoving or pushing 
movement under paragraph (b)(2). Similarly, paragraph (e)(5)(vii) 
requires that ``[a]ll remote control shoving or pushing movements 
comply with the requirements contained in paragraph (c)(1) of this 
section.'' Hence, remote control operations utilizing shove lights are 
not excused from the requirement that either the remote control 
operator or a crewmember visually determine the direction the equipment 
moves, and, in the case of a crewmember making the observation, that 
the operator is promptly informed before continuing the movement.
    Paragraph (e)(5)(viii) requires that the shove light system be 
continuously illuminated when the circuited section of the track is 
unoccupied. FRA is including this requirement to ensure

[[Page 33898]]

that the employee observing the shove light is always viewing a lit 
aspect when the circuited section of the track is unoccupied. To allow 
otherwise would mean that a shove light system with a single aspect 
shove light could remain dark until it lit up when the circuited 
section of the track is occupied. Such an arrangement would not be 
failsafe if the light bulb failed. In arranging a failsafe system, 
railroads that utilize a multiple aspect shove light system will need 
to address each possible scenario for one or more light bulb or aspect 
failures. If the system has multiple aspects and a bulb or aspect 
failed, an employee viewing the shove light should be able to tell that 
the system is not continuously illuminating a proper aspect. If the 
system fails to continuously illuminate, the operational exception 
under paragraph (e)(5) would no longer be available and the movement 
would be required to stop immediately. Thus, the safest course of 
action is required when there is a technological failure such as the 
system fails to continuously illuminate.

IV. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This action 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). The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are 
not considered significant because they generally clarify requirements 
currently contained in the final rule or allow for greater flexibility 
in complying with the rule. These amendments, additions, and 
clarifications will have a minimal net effect on FRA's original 
analysis of the costs and benefits associated with the final rule.

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 certifies that this action 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. Because the amendments contained in this document 
generally clarify requirements currently contained in the final rule or 
allow for greater flexibility in complying with the rule, FRA has 
concluded that there are no substantial economic impacts on small units 
of government, businesses, or other organizations resulting from this 
action.

C. Paperwork Reduction Act

    The information collection requirements in the agency's response to 
petitions of reconsideration of 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:

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

[[Page 33899]]

 
    --Annual summary on             37 Railroads.........  37 summary rcds......  61 minutes...........  38...................  1,634
     operational rests/
     inspections--Summary records.
    --FRA disapproval of            687 Railroads........  20 responses.........  1 hour...............  20...................  1,460
     operational testing/insp.
     program: Railroad response to
     disapproval.
    --Amended programs as a result  687 Railroads........  20 amended...........  30...................  10...................  730
     of FRA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.11--Program of Instructions on
 Operating Rules
    --Railroads instructions of     687 Railroads........  130,000 instr.         8....................  1,040,000............  52,000,000
     employees.                                             employees.
    --Current copy of employee      20 New Railroads.....  20 programs..........  8....................  160..................  6,880
     periodic instruction prog.
    --Amendments to current         687 Railroads........  220 amendments.......  .92 hour.............  202..................  8,686
     employee instruction prog.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.95--Instruction, Training, and
 Examination:
    --Records of instruction,       687 Railroads........  98,000 records.......  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................  0 (Incl. RIA)
 Procedure:
    --Copies to employees of good   687 Railroads........  130,000 copies.......  6 minutes............  13,000...............  0 (Incl. RIA)
     faith procedures.
    --Copies of amendments to good  687 Railroads........  130,000 copies.......  3 minutes............  6,500................  0 (Incl. RIA)
     faith procedures.
    --Good faith challenges to      98,000 employees.....  15 challenges........  10 minutes...........  3....................  0 (RIA)
     railroad directives.
    --Resolution of challenges....  687 Railroads........  15 responses.........  5 minutes............  1....................  0 (RIA)
    --Direct order to proceed       687 Railroads........  5 reviews............  15 minutes...........  1....................  0 (RIA)
     procedures: Immediate review
     by railroad testing officer/
     employer.
    --Documentation of employee     687 Railroads........  10 protest docs......  15 minutes...........  3....................  0 (RIA)
     protests to direct order.
    --Copies of protest             687 Railroads........  20 copies............  1 minute.............  .33..................  0 (RIA)
     documentation.
    --Further review by designated  687 Railroads........  3 reviews............  15 minutes...........  1....................  0 (RIA)
     railroad officer.
    --Employee requested written    687 Railroads........  10 decisions.........  10 minutes...........  2....................  88
     verification decisions.
    --Recordkeeping/Retention--     687 Railroads........  760 copies...........  5 minutes............  63...................  2,709
     Copies of written procedures.
    --Copies of good faith          687 Railroads........  20 copies............  5 minutes............  2....................  86
     challenge verification
     decisions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.99--Shoving or Pushing
 Movements:
    --Required operating rule       687 Railroads........  687 rule modific.....  1 hour...............  687..................  0 (Incl. RIA)
     compliant with this section.
    --General Movement              100,000 RR employees.  60,000 briefings.....  1 minute.............  1,000................  50,000
     Requirements: 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                           instructions +
     and 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,          100,000 RR employees.  876,000 deter/         1 minute.............  14,600...............  642,400
     exceptions to point                                    communication.
     protection: Determination/
     Communication track is clear.
--Operational exceptions:
    --Dispatcher permitted          6,000 RR Dispatchers.  30,000 permitted       1 minute.............  500..................  22,000
     movements that are verified.                           movements.
[NEW REQUIREMENTS]

[[Page 33900]]

 
    --Written procedures that are   687 Railroads........  41 procedures........  30 minutes...........  42...................  903
     adopted/complied with to
     determinutee track occupancy
     prior to shoving/pushing
     movement.
    --The track is designated in    687 Railroads........  41 designated track    30 minutes...........  42...................  903
     writing.                                               locations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.101--Leaving Equipment in the
 Clear:
    --Operating Rule that Complies  687 Railroads........  687 amended op. rules  30 minutes...........  344..................  0 (Incl. RIA)
     with this section.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.103--Hand-Operated Switches
 and Derails:
    --Operating Rule that Complies  687 Railroads........  687 amended op. rules  60 minutes...........  687..................  0 (Incl. RIA)
     with this section.
    --Minimum requirements for      632 Railroads........  632 modif rules......  60 minutes...........  632..................  0 (RIA)
     adequate job briefing.
    --Actual job briefings          632 Railroads........  1,125,000 brfngs.....  1 minute.............  18,750...............  825,000
     conducted by employees
     operating hand-operated main
     track switches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.105--Additional Job Briefings   687 Railroads........  60,000 briefings.....  1 minute.............  1,000................  0 (Incl. RIA)
 for hand-operated main track
 switches:
    --Exclusive track occupancy:    687 Railroads........  100,000 reports +      1 minute.............  3,334................  0 (RIA)
     Report of position of main                             100,000 convey.
     track switches and conveyance
     of switch position.
    --Releasing authority limits:   6,000 RR Dispatchers.  60,000 reports +       30 sec. + 5 sec......  583..................  0 (Incl. RIA)
     Acknowledgments and verbal                             60,000 confirm.
     confirmations of hand-
     operated main track switches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.109--Hand-operated fixed        687 Railroads........  562,500 brfngs.......  30 seconds...........  4,688................  234,400
 derails--Job.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 Ms. Nakia Poston at 
202-493-6073, 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 an action 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 in the original final rule, section 
20106 of Title 49 of the United States Code provides that all

[[Page 33901]]

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 action 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 
rulemaking both internally and through consultation within the RSAC 
forum, as described in Section I of this preamble. After the Railroad 
Operating Rules Working Group failed to reach a consensus 
recommendation on the NPRM, FRA reported the Working Group's unofficial 
areas of agreement and disagreement to the RSAC. After publication of 
the NPRM, FRA permitted the Working Group to meet and discuss the 
comments received; some consensus on the comments was derived and 
forwarded to the RSAC where it was ratified as a recommendation to the 
FRA. 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 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, and the agency's procedures permitting petitions 
for reconsideration.
    For the foregoing reasons, FRA believes that this action is in 
accordance with the principles and criteria contained in Executive 
Order 13132.

E. Environmental Impact

    FRA has evaluated this action 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 action 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. This action 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 action in accordance with Executive 
Order 13211. FRA has determined that this action 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.

H. Public Proceedings

    FRA has not provided additional notice and request for public 
comment prior to making the amendments contained in this rule. FRA 
concluded that such notice and comment were impractical, unnecessary 
and contrary to the public interest since FRA is, for the most part, 
only making minor technical changes in response to requests for 
reconsideration of issues that were previously the subject of detailed 
notice and extensive comment in the development of the initial final 
rule in this proceeding.
    Certain of the amendments are so critical to the effective 
implementation of this rule that the delay that a notice and comment 
period would cause would clearly be contrary to the public interest in 
railroad safety. For example, the amendments delaying certain 
implementation of the rule need to go into effect immediately or some 
of the implementation dates in the initial final rule would go into 
effect before the amendments would. If the amendments were not allowed 
to go into effect immediately, many railroads would be rushing to 
develop and implement training and testing programs, and the quality of 
the programs and the training would suffer. In addition, an exemption 
or relief from a restriction is provided by allowing railroads to 
utilize existing shove light systems without establishing point 
protection. If this exemption is not immediately placed in effect, some 
railroads may require an employee to ride the side of a car or walk 
along a departure track equipped with shove lights, thereby increasing 
the employee's risk of an injury. Under these circumstances, FRA has 
concluded that the rule may be made effective immediately. 5 U.S.C. 
553(d).

I. Privacy Act

    Anyone is able to search the electronic form of all comments or 
petitions for reconsideration received into any of FRA's dockets by the 
name of the individual submitting the comment or petition for 
reconsideration (or signing the comment or petition for

[[Page 33902]]

reconsideration, if submitted on behalf of an association, business, 
labor union, etc.). You may review DOT's complete Privacy Act Statement 
in the Federal Register published on April 11, 2000 (65 FR 19477-78), 
or you may visit http://DocketsInfo.dot.gov.

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 217.9 is amended by revising the introductory text of 
paragraph (b), paragraphs (c)(1), (c)(6), and the introductory text of 
paragraph (e) to read as follows:


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

* * * * *
    (b) Railroad and railroad testing officer responsibilities. The 
requirements of this paragraph (b) are applicable beginning January 1, 
2009.
* * * * *
    (c) * * *
    (1) Provide for operational testing and inspection under the 
various operating conditions on the railroad. As of January 1, 2009, 
the program shall 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;
* * * * *
    (6) As of January 1, 2009, 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 officer(s) 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.
* * * * *
    (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 beginning 
April 1, 2009 and to all other railroads subject to this paragraph 
beginning July 1, 2009.
* * * * *

PART 218--[AMENDED]

0
3. 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
4. Section 218.93 is amended by adding a definition of ``departure 
track'' in alphabetical order to read as follows:


Sec.  218.93  Definitions.

* * * * *
    Departure track means a track located in a classification yard 
where rolling equipment is placed and made ready for an outgoing train 
movement.
* * * * *

0
5. Section 218.95 is amended by revising the introductory text of 
paragraph (a), and paragraphs (a)(3) and (a)(4) to read as follows:


Sec.  218.95  Instruction, training, and examination.

    (a) Program. Beginning January 1, 2009, 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.
* * * * *
    (3) Implementation schedule for employees, generally. Each employee 
performing duties subject to the requirements in this subpart shall be 
initially qualified prior to July 1, 2009.
    (4) Beginning July 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.
* * * * *

0
6. Section 218.99 is amended by adding a new paragraph (e)(5) to read 
as follows:


Sec.  218.99  Shoving or pushing movements.

* * * * *
    (e) * * *
    (5) Shoving or pushing movements made in the direction of the 
circuited end of a designated departure track equipped with a shove 
light system, if all of the following conditions are met:
    (i) The shove light system is demonstrated to be failsafe;
    (ii) The shove light system is arranged to display a less favorable 
aspect when the circuited section of the track is occupied;
    (iii) Written procedures are adopted and complied with that provide 
for a reliable means of determining track occupancy prior to commencing 
a shoving or pushing movement;
    (iv) The track is designated in writing;
    (v) The track is under the exclusive and continuous control of a 
yardmaster or other qualified employee;
    (vi) The train crewmember or other qualified employee directing the 
shoving or pushing movement complies with the general movement 
requirements contained in paragraphs (b)(1) and (b)(2) of this section;
    (vii) All remote control shoving or pushing movements comply with 
the requirements contained in paragraph (c)(1) of this section; and
    (viii) The shove light system is continuously illuminated when the 
circuited section of the track is unoccupied.

    Issued in Washington, DC on June 10, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. 08-1354 Filed 6-11-08; 11:24 am]
BILLING CODE 4910-06-P