[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Proposed Rules]
[Pages 60372-60412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8568]



[[Page 60371]]

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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 217 and 218



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

Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / 
Proposed Rules

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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 Derails

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Human factors are the leading cause of train accidents, 
accounting for 38 percent of the total in 2005. Human factors also 
contribute to employee injuries. The proposed rule would 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. Furthermore, this rulemaking is 
intended to supplant the need for Emergency Order 24, which requires 
special handling, instruction and testing of railroad operating rules 
pertaining to hand-operated main track switches in non-signaled 
territory.

DATES: Written comments must be received by December 11, 2006. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to November 13, 2006, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA 2006-25267, may 
be submitted by any of the following methods:
    <bullet> Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    <bullet> Fax: 202-493-2251.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    <bullet> Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 
see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of 
this document for Privacy Act information related to any submitted 
comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1120 Vermont Avenue, NW., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler, 
Senior Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont 
Avenue, NW., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background and Authority
II. Proceedings to Date
    A. Increase in Human Factor Caused Accidents and Non-compliance
    B. Accident at Graniteville, SC and Safety Advisory 2005-01
    C. Emergency Order No. 24
    D. FRA's Action Plan For Addressing Critical Railroad Safety 
Issues
    E. Railroad Safety Advisory Committee (RSAC) Overview
    F. Establishment of Railroad Operating Rules Working Group
    G. Development of the NPRM
III. Remote Control Operations
    A. Background
    B. Situational Awareness
    C. Technology Aided Point Protection
IV. Section-by-Section Analysis
V. 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. Privacy Act
VI. List of Subjects

I. Background and Authority

    The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 
20103, provides that, ``[t]he Secretary of Transportation, as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety supplementing laws and regulations in effect on 
October 16, 1970''. The Secretary's responsibility under this provision 
and the balance of the railroad safety laws have been delegated to the 
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of 
operating rules and practices, FRA has traditionally pursued a very 
conservative course of regulation, relying upon the industry to 
implement suitable railroad operating rules and mandating in the 
broadest of ways that employees be ``instructed'' in their requirements 
and that railroads create and administer programs of operational tests 
and inspections to verify rules compliance. This approach was based on 
several factors, including a recognition of the strong interest the 
railroads have in avoiding costly accidents and personal injuries, the 
limited resources available to FRA to directly enforce railroad 
operating rules, and the apparent success of management and employees 
in accomplishing most work in a safe manner.
    Over the years, however, it became necessary to ``Federalize'' 
certain requirements, either to remedy perceived shortcomings in the 
railroads' rules or to emphasize the importance of compliance and to 
provide FRA a more direct means of promoting compliance. These actions, 
which in most cases were preceded or followed by statutory mandates, 
included adoption of rules governing--
    <bullet> Blue Signal Protection for employees working on, under or 
between railroad rolling stock (49 CFR part 218, subpart B);
    <bullet> Railroad Communications (49 CFR part 220);
    <bullet> Prohibition of Tampering with Safety Devices (49 CFR part 
218, subpart D); and
    <bullet> Control of Alcohol and Drug Use in Railroad Operations (49 
CFR part 219); In addition, FRA has adopted requirements for 
Qualification and Certification of Locomotive Engineers (49 CFR part 
240) that directly prohibit contravention of certain specified 
operating rules and practices.

[[Page 60373]]

    FRA believes these programs of regulation contribute positively to 
railroad safety, in part because they contribute significantly to good 
discipline among affected employees.
    FRA is not specifically required by statute to issue a regulation 
on the subjects covered by this proposed rule. However, FRA believes 
that establishing greater accountability for implementation of sound 
operating rules is necessary for safety. FRA is initiating this 
rulemaking because it has recognized that human factor train accidents 
comprise the largest single category of train accident causes and 
because existing regulations have proven inadequate to achieve a 
significant further reduction in their numbers or severity. Moreover, 
the current situation in the railroad industry, which is characterized 
by strong market demand, extensive hiring of new employees, and rapid 
attrition of older employees now becoming eligible for retirement, 
demands a more substantial framework of regulations to help ensure that 
operational necessity will not overwhelm systems of safeguards relied 
upon to maintain good discipline.
    The theme of this proposed rule is accountability. It embodies both 
a broad strategy intended to promote better administration of railroad 
programs, on the one hand, and a highly targeted strategy designed to 
improve compliance with railroad operating rules addressing three 
critical subject matters, on the other. Within this framework, FRA 
would take responsibility to set out certain requirements heretofore 
left to private action and for monitoring compliance with those 
requirements through appropriate inspections and audits. Railroad 
management would be more accountable for putting in place appropriate 
rules, instructions, and programs of operational tests. Railroad 
supervisors would be accountable for doing their part to administer 
operational tests and establish appropriate expectations with respect 
to rules compliance. Railroad employees would be accountable for 
complying with specified operating rules, and they would enjoy a right 
of challenge should they be instructed to take actions that, in good 
faith, they believe would violate the rules. It is intended that this 
framework of accountability promote good discipline, prevent train 
accidents, and reduce serious injuries to railroad employees.
    In this SUPPLEMENTARY INFORMATION section, FRA provides a detailed 
explanation of the growing number of accidents, the severity of some of 
those accidents, the agency's prior actions, the approach proposed and 
some discussion of alternatives. In certain instances, FRA specifically 
requests commenters to offer suggestions or provide information for 
FRA's consideration prior to a final rule. Of course, FRA would 
appreciate comments on any aspect of this proposed rule.

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Non-compliance

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

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

    Although the increasing number of human factor caused accidents 
impacted the railroad industry and its employees, a catastrophic 
accident that occurred at Graniteville, South Carolina on January 6, 
2005, catapulted the issue into the national spotlight. As the National 
Transportation Safety Board (NTSB) described in its report NTSB/RAR-05/
04, PB2005-916304 (Nov. 29, 2005), that accident occurred when Norfolk 
Southern Railway Company

[[Page 60374]]

(NS) freight train 192, while traveling in non-signaled territory at 
about 47 miles per hour (mph), encountered an improperly lined switch 
that diverted the train from the main track onto an industry track, 
where it struck an unoccupied, parked train (NS train P22). The 
collision derailed both locomotives and 16 of the 42 freight cars of 
train 192, as well as the locomotive and 1 of the 2 cars of train P22. 
Among the derailed cars from train 192 were three tank cars containing 
chlorine, one of which was breached, releasing chlorine gas. The train 
engineer and eight other people died as a result of chlorine gas 
inhalation. About 554 people complaining of respiratory difficulties 
were taken to local hospitals. Of these, 75 were admitted for 
treatment. Because of the chlorine release, about 5,400 people within a 
1-mile radius of the derailment site were evacuated for several days. 
Total property damages exceeded $6.9 million. The total monetized 
damages were much higher than that, with one estimate ranging as high 
as $125 million. NTSB determined that the probable cause of the 
collision was the failure of the crew of NS train P22 to return a main 
track switch to the normal position after the crew completed work at an 
industry.
    The crew's failure violated railroad operating rules but did not 
violate any Federal requirement. NS Operating Rule 104, in effect at 
the time, placed primary responsibility with the employee handling the 
switch and other crewmembers were secondarily responsible if they were 
in place to observe the switch's position. NTSB/RAR-05/04 at 8. In 
addition, NTSB concluded that NS rules required a job briefing which 
``would likely have included a discussion of the switches and 
specifically who was responsible for ensuring that they were properly 
positioned [and that] [h]ad such a briefing taken place, the relining 
of the switch might not have been overlooked.'' Id. at 44. FRA concurs 
that the lack of intra-crew communication regarding the switch's 
position was particularly significant at the time the crew was 
preparing to leave the site. Id. at 8-9.
    Four days after the Graniteville accident (and coincidentally, two 
days after a similar accident at Bieber, California with serious, but 
not catastrophic consequences), FRA responded by issuing Safety 
Advisory 2005-01, ``Position of Switches in Non-Signaled Territory.'' 
70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an 
opportunity for the agency to inform the industry and the general 
public regarding a safety issue, to articulate agency policy, and to 
make recommendations. FRA explained in the safety advisory that ``[a] 
review of FRA's accident/incident data shows that, overall, the safety 
of rail transportation continues to improve. However, FRA has 
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of 
railroad employees to return manual (hand-operated) main track switches 
to their normal position, i.e., usually lined for the main track, after 
use. As a result, rather than continuing their intended movement on the 
main track, trains approaching these switches in a facing-point 
direction were unexpectedly diverted from the main track onto the 
diverging route, and consequently derailed.''
    Safety Advisory 2005-1 strongly urged all railroads to immediately 
adopt and comply with five recommendations that were intended to 
strengthen, clarify and re-emphasize railroad operating rules so as to 
ensure that all main track switches are returned to their normal 
position after use. The recommendations emphasized communication both 
with the dispatcher and other crewmembers. FRA recommended that 
crewmembers complete and sign a railroad-created Switch Position 
Awareness Form (SPAF). Proper completion of a SPAF was expected to 
trigger specific communication relevant to critical elements of the 
tasks to be performed. Additional training and railroad oversight were 
also recommended.

C. Emergency Order No. 24

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

[[Page 60375]]

employees affected. Minor clarifying amendments were made to EO 24 in a 
second notice, but the overarching requirements remained unchanged from 
the first notice. 70 FR 71183 (Nov. 25, 2005).

D. FRA's Action Plan for Addressing Critical Railroad Safety Issues

    Prior to the Graniteville accident, FRA had developed and 
implemented procedures to focus agency resources on critical railroad 
safety issues. Such procedures were appropriate even though the 
industry's overall safety record had improved over the last decade and 
most safety trends were moving in the right direction. FRA recognizes 
that significant train accidents continue to occur, and the train 
accident rate has not shown substantive improvement in recent years. 
Several months after the Graniteville accident, an action plan was 
published. FRA acknowledged in the plan that ``recent train accidents 
have highlighted specific issues that need prompt government and 
industry attention''. Action Plan at 1 (published on FRA's Web site at 
http://www.fra.dot.gov/).
    In the plan, FRA introduced its basic principles to address 
critical railroad safety issues. One basic principle is that FRA's 
safety program is increasingly guided by careful analysis of accident, 
inspection, and other safety data. Another basic principle is that FRA 
attempts to direct both its regulatory and compliance efforts toward 
those areas involving the highest safety risks. The plan is intended to 
be proactive in that it will target the most frequent, highest risk 
causes of accidents.
    FRA identified ``reducing human factor accidents'' as one of the 
major areas in which the agency planned initiatives. In fact, the plan 
discusses this issue first because it constitutes the largest category 
of train accidents, accounting for 38 percent of all train accidents 
over the last five years, and human factor accidents are growing in 
number. Furthermore, FRA's plan takes aim at reducing human factor 
accidents because in recent years most of the serious events involving 
train collisions or derailments resulting in release of hazardous 
materials, or harm to rail passengers, have been caused by human 
factors or track problems.
    FRA's analysis of train accident data has revealed that a small 
number of particular kinds of human errors are accounting for an 
inordinate number of human factor accidents. For example, the eight 
human factor causes involving mishandling equipment, switches and 
derails that FRA is addressing in this proposed rule accounted for 
nearly 48 percent of all human factor accidents in 2004; these eight 
causes, which resulted in accidents causing over $113 million in 
damages to railroad property from 2001-2005, can be grouped into three 
basic areas of railroad operations: (1) Operating switches and derails; 
(2) leaving equipment out to foul; and, (3) the failure to protect 
shoving or pushing movements. In addition, FRA allows any railroad to 
identify the cause of an accident in general terms when the railroad is 
unsure of exactly which of the more specific human factor cause codes 
apply. Without in-depth analysis of each accident that was reported by 
railroads using these generic human factor cause codes, it is 
impossible to know how many of these accidents should be attributable 
to mistakes involving the operation of switches and derails, leaving 
equipment out to foul, or the failure to protect shoving or pushing 
movements; it is likely, however, that some portion of this additional 
2.5 percent of all human factor accidents in 2004 are attributable to 
mistakes involving these three basic areas of railroad operations. 
Thus, this proposal is geared to address approximately half of all 
human factor caused accidents on all classes of track.
    Of the 118 human factor causes that are tracked, the leading cause 
was improperly lined switches, which alone accounted for more than 16 
percent of human factor accidents in 2004. The next two leading causes 
were shoving cars without a person on the front of the movement to 
monitor conditions ahead, i.e., lack of point protection, and shoving 
cars with point protection but still resulting in a failure to control 
the movement; these two shoving-related causes together accounted for 
17.6 percent of human factor accidents in 2004. The remaining five 
causes addressed in this proposed rule account for nearly 14 percent of 
the total number of accident causes; these causes involve leaving cars 
in a position that fouls an adjacent track, operating over a switch 
previously run through, a failure to apply or remove a derail, a 
failure to latch or lock a switch, and a failure to determine before 
shoving, that the track is clear ahead of the movement. The two catch-
all general causes that might be cited when a railroad believes one or 
more related causes may apply or is unsure of the exact cause are: (1) 
other general switching rules and; (2) other train operation/human 
factors.
    The human factor causes that FRA is attempting to address with this 
proposal are of a type that involve non-compliance with established 
railroad operating rules related to fundamental railroad operations. In 
each case, compliance can be objectively and conclusively determined. 
For example, it can be definitively determined whether switches are 
properly lined, locked, latched or had been previously run through. It 
can be determined whether a shoving movement was made without point 
protection or without the signals or instructions necessary to control 
the movement. Similarly, it can be determined whether a car is left 
fouling a track such that it is causing an unsafe operating condition, 
or whether the track is clear ahead for a shoving movement. Finally, it 
can also be determined with certainty whether there has been a failure 
to apply or remove a derail.
    The top human factor causes that FRA is choosing not to address 
with this proposal are already regulated, to some extent, or would be 
significantly more difficult to regulate. For example, several human 
factor causes relate to the failure to apply a sufficient number of 
hand brakes; that issue is already covered by regulation at 49 CFR 
232.103(n). Speeding issues, including restricted speed, are regulated 
to discourage clearly excessive speeding by imposing revocation periods 
or civil penalties for locomotive engineer violators. 49 CFR 
240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for 
regulating a train handling issue, such as a locomotive engineer's 
improper use of an independent brake or air brakes to prevent excess 
buff or slack action, can pose difficulties as train handling is an 
area where locomotive engineers exercise discretion. 58 FR 18982, 18992 
(Apr. 9, 1993) (describing in section-by-section analysis why FRA 
amended the qualification and certification of locomotive engineer's 
rule to require revocation only when there is a failure to conduct 
certain brake tests as opposed to the more general, original 
requirement to revoke for ``failure to adhere to procedures for the 
safe use of train or engine brakes''. 56 FR 28228, 28259 (June 19, 
1991)). Likewise, the operating conditions related to improper coupling 
are too numerous to easily address through regulation, and 
determination of responsibility related to train handling and train 
make-up involves often complex technical issues that are still subject 
to study. (See Safe Placement of Train Cars, Report to the Senate 
Committee on Science, Commerce and Transportation and the House 
Committee on Transportation and Infrastructure, June 2005), published 
at http://www.fra.dot.gov).
    Developing close call data. As part of its mission to improve 
railroad safety,

[[Page 60376]]

FRA is sponsoring the Confidential Close Call Reporting System 
Demonstration Project to demonstrate the effectiveness of a 
confidential close call reporting system for the railroad industry. 
``Close calls'' in this context are unsafe events that do not result in 
a reportable accident but very well could have. In other industries 
such as aviation, implementation of close call reporting systems that 
shield the reporting employee from discipline (and the employer from 
punitive sanctions levied by the regulator) have contributed to major 
reductions in accidents. In March of 2005, FRA completed an overarching 
memorandum of understanding with railroad labor organizations and 
management to develop pilot programs to document close calls. 
Participating railroads will be expected to develop corrective actions 
to address the problems that may be revealed. The aggregate data may 
prove useful in FRA's decision-making concerning regulatory and other 
options to promote a reduction in human factor caused accidents. 
However, the project has not yet produced sufficient data to consider 
in this proposed rule.

E. Railroad Safety Advisory Committee (RSAC) Overview

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major customer groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of member groups follows:

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

    *Indicates associate, non-voting membership.
    Effective May 2006, the following additional members have been 
added to the Committee:

Transportation Security Administration;
American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.

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

F. Establishment of Railroad Operating Rules Working Group

    On April 14, 2005, FRA held a Human Factors Workshop which convened 
members of RSAC for the purpose of developing a task statement to be 
presented at the next RSAC meeting. FRA explained that current 
regulations do not address compliance with the relevant operating rules 
that cause the preponderance of human factor accidents. The agency 
expressed a desire to standardize and adopt these rules as Federal 
requirements with greater accountability being the goal. It was also 
raised that training and qualification programs should be included as 
part of the task because employee compliance is certainly directly 
related to how well employees are instructed and tested. FRA suggested 
that one area of consideration was to improve its regulations (49 CFR 
part 217) which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
Many participants expressed a preference for non-regulatory action.
    On May 18, 2005, the RSAC accepted a task statement and agreed to 
establish the Railroad Operating Rules Working Group whose overall 
purpose was to recommend to the full committee how to reduce the number 
of human factor caused train accidents/incidents and related employee 
injuries. The working group held eight two-day conferences, one per 
month from July 2005 through February 2006. The vast majority of the

[[Page 60377]]

time at these meetings involved review of an FRA document suggesting 
language that could form the basis of proposed regulatory text. This 
exercise was extremely beneficial as participants were able to fully 
strengthen the proposal.
    FRA clearly benefitted from the participation of the working group 
in detailed review of railroad operating rules and practices; 
unfortunately, the RSAC participants were unable to reach a consensus 
for making formal recommendations. Typically, FRA gives great deference 
to RSAC's recommendations when proposing a rule, although the agency is 
not bound to adopt such recommendations. Here, where RSAC was unable to 
make formal recommendations, FRA is, of course, not bound by FRA's 
proposal within the RSAC working group process. However, FRA has sought 
to carry forward the elements of the discussion draft that had 
benefitted from thoughtful comment by Working Group members. FRA 
developed a greater appreciation for the nuances of each of the 
railroad operating rules and practices discussed; and, armed with that 
additional insight, FRA has sought to put forth a reasonable proposal 
that reflects real world railroading.

G. Development of the NPRM

    EO 24 illuminated the problems associated with mishandling of hand-
operated main track switches in non-signaled territory. While there may 
be more than one cause that contributes to non-compliance with the 
operating rules, accidents could be prevented by strict employee 
compliance with those rules. Accidents involving this type of switch 
often occur when the employee operating the switch loses focus on the 
task at hand. In an effort to refocus the attention of employees who 
operate switches, EO 24's seven sections can be boiled down to three 
major components: (1) Instruction, (2) communication and (3) 
verification through testing. FRA's proposed rule incorporates these 
three major components but with a broader application.
    Instruction. It is fundamental that an employee cannot be expected 
to properly abide by operating rules without proper instruction, 
especially when those operating rules have been amended. To that end, 
EO 24 provides an outline for essential initial instruction and 
periodic instruction. Likewise, FRA proposes enhanced instruction, 
training and examination, i.e., qualification, for employees on the 
relevant operating rules, pertaining to handling equipment, switches 
and derails.
    Communication. FRA agrees with the general principle that mistakes 
can be prevented or corrected by proper communication. Communication 
prevents non-compliance and accidents because it generally is how 
people working together know what each of them is doing. For example, 
EO 24 stressed the importance of communication by requiring job 
briefings at certain crucial intervals: Before work is begun, each time 
a work plan is changed, and at completion of the work. Such regular job 
briefings ensure that employees working together understand the task 
they are intending to perform and exactly what role is expected of them 
and their colleagues. Through proper job briefings, employees can 
prevent some mishaps and contain others from worsening a bad situation. 
For these reasons, FRA proposes a job briefing component to this 
rulemaking.
    In the background section of EO 24, FRA described a recurrent 
scenario of non-compliance where a train crew's mistake in leaving a 
main track switch lined for movement to an auxiliary track was the last 
act or omission that resulted in an accident; and yet these types of 
accidents are preventable through reliable communication of the actual 
switch position. This scenario ``occurs when a train crew has exclusive 
authority to occupy a specific track segment until they release it for 
other movements and [yet] that train crew goes off duty without lining 
and locking a hand-operated main track switch in its normal position''. 
70 FR at 61497. It is unfortunate that FRA has to clarify that the 
communication be reliable and accurately reflect the switch position, 
but some accident investigations have revealed employees whose actions 
implied more of an interest in quitting work for the day than taking 
the safe route to verify a switch's position and whether it was 
properly locked. FRA's proposal retains EO 24's emphasis on intra-crew 
communication or intra-roadway worker group communication. See 70 FR at 
61499-50 and Sec.  218.103.
    Perhaps the most controversial aspect of EO 24 is the requirement 
that employees operating hand-operated main track switches in non-
signaled territory complete a Switch Position Awareness Form (SPAF). 
The SPAF requirement is controversial because it creates a paperwork 
burden for employees and railroads. Switches may be lined and locked 
properly, but a violation of EO 24 may occur for merely failing to fill 
out a single component on the form. Critics of the form may not 
appreciate that FRA's intention for requiring a SPAF is to create a 
contemporaneous communication that reminds the employee of the 
importance of properly lining and locking such main track switches.
    In the case of a train crew, the contemporaneous communication 
created by the SPAF is twofold: (1) The SPAF itself is a written 
communication that reminds the employee operating the switch to keep 
track of the switch's position and (2) another crewmember, typically 
the locomotive engineer, serves as a secondary reminder to the employee 
operating the switch because that other crewmember is also required to 
request information as to the switch's alignment. As FRA clarified in 
EO 24's second notice, it is immaterial how crewmembers communicate, 
e.g., whether in-person, by radio, by hand signals, or other effective 
means, as long as the communication takes place. 70 FR 71186 and 71188. 
By requiring both the SPAF and the intra-crew communication, FRA is 
requiring some redundancy, i.e., two communication reminders to 
properly line and lock such switches in the case of a train.
    For purposes of EO 24, the paperwork burden and the redundancy in 
communication created by the introduction of the SPAF was acceptable. 
The very sharp increase in collisions, deaths and injuries resulting 
from improperly lined main track switches required FRA to take decisive 
action. Prior to EO 24, many railroads had already adopted the use of a 
SPAF voluntarily as a best practice suggested in Safety Advisory 2005-
1. However, the inclusion of a SPAF in EO 24 does not bind the agency 
to forever require it; and the proposed rulemaking suggests an 
alternative approach that does not include it.
    FRA decided not to propose requiring a SPAF in this proposed rule 
because the comprehensive communication requirements contained in 
proposed Sec.  218.103, titled ``Hand-operated Switches and Derails'', 
creates a direct enforcement mechanism that makes enforcement through a 
SPAF redundant. For example, the proposal includes a requirement that 
all crewmembers verbally confirm the position of a hand-operated main 
track switch that was operated by any crewmember of that train before 
it leaves the location of the switch. See Sec.  218.103(i)(3)(i). 
Likewise, the proposed rule would require that upon the expiration of 
exclusive track occupancy authority for roadway workers, roadway 
workers who operate hand-operated main track switches report the 
position of any such switches operated to the roadway worker in charge. 
See Sec.  218.103(i)(3)(ii).
    NTSB also ``does not believe that * * * the use of forms [such as a 
SPAF]

[[Page 60378]]

is sufficient to prevent recurrences of accidents such as the one at 
Graniteville.'' NTSB/RAR-05/04 at 45. In support of this position, NTSB 
cites to the example of railroads that require train crews to record 
signal indications as they are encountered en route in order to lessen 
the chance that a traffic control signal will be missed or 
misinterpreted by a crew. Meanwhile, NTSB states that it ``has 
investigated a number of accidents in which such forms, although 
required and used, did not prevent crews from missing signals and 
causing accidents.'' Id.
    Although NTSB does not support the use of a SPAF, it did express 
agreement with the emergency order in two respects. That is, NTSB 
supported EO 24's requirements directing that job briefings be held at 
the completion of work and that a train crewmember who repositions a 
hand-operated main track switch in non-signaled territory communicate 
with the engineer regarding the switch position. In support of this 
position, NTSB explains that ``a comprehensive safety briefing was not 
held before the work at Graniteville [and] [h]ad such a briefing been 
held before and, more importantly, after the work (as required by the 
FRA emergency order), the accident might have been avoided.'' Id. at 
46. As stated previously, FRA proposes to retain these two aspects from 
the emergency order in its rule.
    The EO 24 requirements for employees releasing the limits of a main 
track authority in non-signaled territory to communicate with the train 
dispatcher have, for the most part, carried over to this proposed rule 
and been strengthened. The proposed rule retains the requirement in EO 
24 that an employee releasing the limits of a main track authority in 
non-signaled territory communicate with the train dispatcher that all 
hand-operated main track switches operated have been restored to their 
normal position, unless the train dispatcher directs otherwise, but 
only to the extent that the switches are at the location where the 
limits are being released. 70 FR at 61499 and Sec.  218.103(c)(2). With 
the proposed elimination of a SPAF, it would be difficult for an 
employee to recall the condition of any particular hand-operated main 
track switch operated and there would likely be a reaction for an 
employee to believe he or she left all such switches in proper 
position--without much opportunity to double-check the condition of 
those faraway switches at that time. As mentioned previously, accidents 
often occur where the limits are being released and that is why the 
proposed rule has placed emphasis on addressing the problem prior to 
departing the train's location. The switches located at the point of 
release of the limits should be readily accessible for any employee who 
is unsure of the condition the switch was last left in. The proposed 
rule also adds the requirement that the employee report that the switch 
has been locked; locking of the main track switch should prevent easy 
access to unauthorized users.
    Hand-in-hand with the EO 24 requirement that the employee contact 
the dispatcher to release main track authority in non-signaled 
territory is the corresponding requirement in EO 24 for train 
dispatchers; that is, EO 24 requires that the train dispatcher must 
also confirm the switch positions with the employee releasing the 
limits before clearing the limits of the authority and confirm that the 
SPAF was initialed as required. The proposed rule also requires the 
train dispatcher to verify the switch position information with the 
employee and the requirement for the dispatcher to confirm that the 
switch is locked in the intended position by repeating to the employee 
releasing the limits the report of the switch position and asking 
whether that is correct. The proposed rule also strengthens the current 
requirement in EO 24 by requiring that the employee then confirm this 
information with the train dispatcher.
    FRA would appreciate comments that include descriptions of ``close 
calls'' in which the additional employee/dispatcher communications 
required in EO 24 prevented hand-operated main track switches from 
being left improperly lined or unlocked. Any other comments regarding 
such required communication between employees and dispatchers would be 
appreciated.
    Verification through testing. The third major component of EO 24's 
requirements involves the verification of compliance through testing. 
FRA's regulations, at 49 CFR part 217, require each railroad to 
instruct its employees on the meaning and application of its code of 
operating rules, and to periodically test its employees to determine 
their level of compliance. Compliance with railroad operating rules is 
critical, especially when technology does not provide a fail safe 
option.
    Most railroads have excellent written programs of operational tests 
and inspections, but FRA has identified weaknesses in the oversight and 
implementation of nearly all of these programs. For example, some 
railroad testing officers lack the competency to perform operational 
tests and inspections. Likewise, some railroads do not perform 
operational tests that address the root cause of human factor 
accidents, while others view the requirement as a numbers-generating 
exercise, and consequently conduct relatively few meaningful tests. 
That is, while it may be important that employees come to work with the 
proper equipment (and FRA considers that a basic requirement which, of 
course, must be satisfied), FRA's concern is that not enough 
verification testing is occurring on the operating rules most likely to 
cause accidents, including but not limited to rules addressing handling 
of switches.
    FRA's verification through testing and inspection requirements in 
EO 24 are narrowly focused on those operating rules involving the 
operation of hand-operated main track switches in non-signaled 
territory. The purpose of this narrow focus was to create a special 
obligation for only those types of rules violations that were causing 
the emergency situation. FRA still believes compliance with these types 
of rules should be verified. The proposed rule would replace EO 24's 
requirements and add requirements for verification of testing on a 
broader number of operating rules directly related to the root cause of 
human factor accidents; that is, the proposed rule would require 
testing of all the rules related to proposed part 218, subpart F, not 
just those rules related to hand-operated main track switches in non-
signaled territory.
    The proposed rule would also amend sections 217.4 and 217.9 to 
require competency of railroad testing officers. In FRA's view, it is 
unfathomable that railroad testing officers would be allowed to conduct 
tests and inspections without proper instruction, on-the-job training, 
and some kind of written examination or observation to determine that 
the person is qualified to do the testing; however, Federal regulations 
currently do not require that railroad testing officers be qualified in 
such a manner. Railroads should already be shouldering this burden 
without Federal requirements so we do not view this as a substantial 
burden; instead, we view the qualification of railroad testing officers 
as a necessary expense of operating a railroad.
    Furthermore, railroad officers that test for non-compliance are 
typically the same officers who are in charge of operations. In that 
regard, a railroad officer, who is knowledgeable of Federal 
requirements and the government's enforcement authority over individual 
officers, should be discouraged from ordering an employee to violate 
any operating rule inconsistent with

[[Page 60379]]

proposed part 218, subpart F. In other words, if all railroad testing 
officers on a particular railroad are properly qualified, it will be 
more difficult for railroad officers to accept inconsistency in the 
application of operating rules.
    FRA proposes amending Sec.  217.9 to require railroads to focus 
programs of operational tests and inspections ``on those operating 
rules that cause or are likely to cause the most accidents or 
incidents''. See Sec.  217.9(c)(1). Except for the smallest freight 
railroads, FRA proposes that each railroad conduct one or more reviews 
of operational tests and inspections that should help guide each 
railroad in its implementation of its program. The monthly, quarterly, 
and six-month reviews for freight railroads, as well as the reviews for 
passenger railroads, in proposed Sec.  217.9(e) would formalize a best 
practice from some of the largest and safest railroads nation-wide. The 
proposed reviews are intended to ensure that each railroad is 
conducting tests and inspections directed at the causes of human factor 
train accidents and employee casualties. Each program would be 
specifically required to include appropriate tests and inspections 
addressing the rules dealing with handling of switches, leaving 
equipment in the clear, and protecting the point of the shove. 
Structured tests or observations permit railroads to find employees 
that need additional training or who may benefit from a reminder that 
it is not acceptable to take shortcuts that violate the operating 
rules.
    Furthermore, the proposal to amend the program of operational tests 
and inspections, by emphasizing its purpose to focus on operating rules 
violations that cause accidents, should cut down on the disparity 
between the few instances of non-compliance found by many railroads 
with the many instances of non-compliance found through FRA inspections 
on the same railroads (see discussion in ``Increase In Human Factor 
Caused Accidents and Non-compliance''). While railroads have 
universally done an acceptable job of taking corrective action 
following an accident, railroads have not done as well in consistently 
testing for the variety of operating rules, at a variety of locations, 
and at different times of the day, in order to meet FRA's expectations 
for an effective testing and inspection program. Accidents and 
incidents of non-compliance should be prevented by the proposed 
formalization of the process of verification through testing and FRA's 
proposed ability to inspect each railroad's program of operational 
tests and inspections, as well as its records.
    Finally, FRA emphasizes that it intends to retain an enforcement 
mechanism, as it did in EO 24, because prior reliance on the railroad 
to ensure employee compliance with railroad operating rules without a 
Federal enforcement mechanism has repeatedly proven to be inadequate to 
protect the public and employee safety. Under current regulations, FRA 
has been able to effectively intervene in railroad operating rules 
compliance issues (apart from those already codified as obligations 
under existing regulations) only indirectly, through use of substantial 
resources, and in the case of exceptionally pervasive non-compliance. 
The system of accountability provided for in this proposed rule will, 
by contrast, encourage railroad management to prevent a lessening of 
oversight or decline in compliance by reviewing safety performance in 
detail, assisting individual employees to acquire habits of work that 
are consistent with safety by permitting them to challenge directions 
that could cause them to cut corners, and permitting individual FRA 
inspectors to more persuasively seek corrective action early in the 
process of deteriorating rules compliance.
    While FRA intends to retain an enforcement mechanism, there may be 
instances where an employee realizes that he or she violated an 
operating rule but is afraid of the consequences of reporting the 
error--even when such reporting would have the potential to prevent an 
accident or injury to other workers or innocent bystanders. NTSB 
addressed this point in its report on the Graniteville accident when it 
stated that a ``significant civil penalty may have an unintended impact 
on safety under some circumstances. That is, an employee who, after 
leaving a work site, realizes that a switch has been left improperly 
lined may be made more reluctant than in the past to immediately report 
the error to train dispatchers. The threat of the severe fine may 
prompt the employee to attempt a remedy (such as returning later to 
reline the switch) before the mistake can become known. As happened in 
the September 2005 fatal collision in Shepherd, Texas, such action on 
the part of the employee could contribute to an accident that might 
otherwise have been avoidable.'' NTSB/RAR-05/04 at 46. As FRA would 
certainly not want a regulation to discourage an employee from 
reporting or correcting a potentially hazardous situation, we would 
appreciate any suggestions for processes which could avoid a 
disincentive to report unsafe conditions. One concept FRA is 
considering for the final rule is to require each railroad to have a 
reporting program whereby FRA would agree not to use reports submitted 
to the railroad under the safety self-reporting program (or information 
derived therefrom) in any enforcement action except information 
concerning accidents or criminal offenses which are wholly excluded 
from the program. This concept is in use by the Federal Aviation 
Administration (FAA) for providing relief from penalties for pilots who 
report unsafe actions or conditions through the Aviation Safety Action 
Program, described in Advisory Circular 120-66B, and the Aviation 
Safety Reporting Program described in Advisory Circular 00-46D--
Aviation Safety Reporting Program and referred to in 14 CFR 91.25. FRA 
would like comment on whether programs similar to the two FAA programs 
could be adopted by FRA to avoid adverse incentives.

III. Remote Control Operations

A. Background

    Remote control devices have been used to operate locomotives at 
various locations in the United States for many years, primarily within 
certain industrial sites. Railroads in Canada have made extensive use 
of remote control locomotives for more than a decade. FRA began 
investigating remote control operations in 1994 and held its first 
public hearing on the subject in February 1995 to gather information 
and examine the safety issues relating to this new technology. On July 
19, 2000, FRA held a technical conference in which all interested 
parties, including rail unions, remote control systems suppliers, and 
railroad industry representatives, shared their views and described 
their experiences with remote control operations. This meeting was 
extremely beneficial to FRA in developing its subsequent Safety 
Advisory.
    On February 14, 2001, the FRA published recommended guidelines for 
conducting remote control locomotive operations. See 66 FR 10340, 
Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing 
these recommendations, FRA sought to identify a set of ``best 
practices'' to guide the rail industry when implementing this 
technology. As this is an emerging technology, FRA believes this 
approach serves the railroad industry by providing flexibility to both 
manufacturers designing the equipment and to railroads in their 
different operations, while reinforcing the importance of complying 
with all existing railroad safety regulations. All

[[Page 60380]]

of the major railroads have adopted these recommendations, with only 
slight modifications to suit their individual requirements.
    Regarding the enforcement of Federal regulations as they apply to 
remote control locomotive operations, the Safety Advisory explains 
that: ``although compliance with this Safety Advisory is voluntary, 
nothing in this Safety Advisory is meant to relieve a railroad from 
compliance with all existing railroad safety regulations [and] 
[t]herefore, when procedures required by regulation are cited in this 
Safety Advisory, compliance is mandatory''. Id. at 10343. For example, 
the Safety Advisory clearly states that ``each person operating an RCL 
[remote control locomotive] must be certified and qualified in 
accordance with 49 CFR part 240 [FRA's locomotive engineer rule] if 
conventional operation of a locomotive under the same circumstances 
would require certification under that regulation''. Id. at 10344.
    In November 2001, all six major railroads submitted to FRA their 
training programs for remote control operators as required by part 240. 
Since that initial filing, several railroads have made changes to their 
remote control training programs at FRA's request. FRA is closely 
monitoring this training and making additional suggestions for 
improvement on individual railroads as they become necessary. These 
training programs currently require a minimum of two weeks classroom 
and hands-on training for railroad workers who were previously 
qualified on the railroad's operating and safety rules. Federal 
regulations require that locomotive engineers be trained and certified 
to perform the most demanding type of service they will be called upon 
to perform. Thus, a remote control operator who will only be called 
upon to perform switching duties using a remote control locomotive 
would not need to be trained to operate a locomotive on main track from 
the control stand of the cab.
    In addition to the required training, the regulations require 
railroads to conduct skills performance testing of remote control 
operators that is comparable to the testing required of any other 
locomotive engineer performing the same type of work. Federal 
regulations also hold remote control operators responsible for 
compliance with the same types of railroad operating rules and 
practices that other locomotive engineers are required to comply with 
in order to retain certification. See 49 CFR 240.117. Any alleged non-
compliance triggers an investigation and review process. If a violation 
is found, the remote control operator will be prohibited from operating 
a locomotive on any railroad in the United States for a minimum of 15 
days to a maximum of three years. The length of the prohibition (or 
revocation of the certificate) depends on whether the person was found 
to have committed other violations within the previous three years and 
whether the railroad, using its discretion, determined that the person 
had completed any necessary remedial training.
    Furthermore, FRA addressed the current Federal locomotive 
inspection requirements and the application of those requirements to 
remote control locomotive technology. For example, the Safety Advisory 
states that the remote control locomotive ``system must be included as 
part of the calendar day inspection required by 49 CFR 229.21, since 
this equipment becomes an appurtenance to the locomotive''. Id. at 
10344 (emphasis added). Another example of a mandatory requirement 
mentioned in the Safety Advisory is that the remote control locomotive 
``system components that interface with the mechanical devices of the 
locomotive, e.g., air pressure monitoring devices, pressure switches, 
speed sensors, etc., should be inspected and calibrated as often as 
necessary, but not less than the locomotive's periodic (92-day) 
inspection''. Id. (emphasis added); see 49 CFR 229.23. Thus, the Safety 
Advisory reiterated that existing Federal regulations require 
inspection of the remote control locomotive equipment.
    Although some aspects of this proposed rule pertains to main track 
operations where remote control locomotive operations rarely occur, 
most of the problems this proposal is intended to address are found 
equally in conventional and remote control locomotive yard switching 
operations. As FRA reported to Congress earlier this year, ``RCL [i.e., 
remote control locomotive] and conventional train accident rates were 
virtually identical for those major railroads that made extensive use 
of both types of operations''. ``Final Report--Safety of Remote Control 
Locomotive Operations'' (``Final Report'') (March 2006) (published on 
FRA's Web site at http://www.fra.dot.gov/). The current remote control 
locomotive technology is best used for yard switching operations and is 
primarily used for that purpose. See Final Report at 15-17.
    The proposed rule would continue FRA's policy of implementing 
minimum requirements for safe remote control locomotive operations 
within the confines of railroad operating rules having broad 
applicability. As previously explained, FRA has found existing rules 
adequate to accommodate safe remote control locomotive operations 
without the need to draft a rule narrowly focused on remote control 
locomotive operations. See Docket No. FRA-2000-8422 (found at http://dms.dot.gov/) ( denying a request for initiation of a rulemaking to 
solely address remote control locomotive issues). That said, after 
identifying certain characteristics of remote control locomotive 
shoving or pushing operations, FRA is proposing one requirement that 
pertains to remote control locomotive operations; that requirement 
addresses the problem of lack of situational awareness. See Sec.  
218.99(c). FRA also recognizes the relatively new use of permanently 
installed cameras in yards or at grade crossings which permit an 
employee to provide point protection without being physically present. 
Although it is possible for this technology to be used in conventional 
operations, e.g., by a yardmaster for a train crew, we believe it is 
more often used for remote control locomotive operations. See Sec.  
218.99(b)(2). The following background on these two issues should 
illuminate them further.

B. Situational Awareness

    In FRA's recent report to Congress, the agency identified the 
potential for a reduction in a remote control operator's situational 
awareness as one of four human factor issues that warrant close 
attention as remote control locomotive technology continues to evolve. 
See Final Report at 24-26. A locomotive engineer, including a remote 
control operator, who is located in the cab of a controlling locomotive 
has a greater situational awareness than a remote control operator 
located on the ground. A remote control operator located on the ground 
may also be more easily distracted by conflicting movements or other 
physical dangers caused by continuously moving about the yard than a 
person located in a locomotive cab. Also, a remote control operator on 
the ground may forget, or may not know, the locomotive orientation 
(i.e., the particular direction the remote control locomotive is 
heading) due to his or her location away from the remote control 
locomotive, and thus may initiate a movement in the wrong direction. 
Similarly, a defective or misaligned switch could cause a movement to 
diverge onto a connecting track unintentionally and go unnoticed if the 
remote control crewmembers are not observing the direction of

[[Page 60381]]

movement. Apparently, the latter is what happened on December 7, 2003, 
on the Union Pacific Railroad in San Antonio, Texas, when a remote 
control locomotive operator, while switching, was struck and killed by 
his locomotive at the west end of UP's East yard. The employee had 
reversed one end of a crossover switch and was walking toward the other 
end of the crossover switch to line it when he was struck from behind 
by the remote control locomotive. The employee had started the remote 
control locomotive moving as he was walking toward the other end of the 
crossover. See Final Report at 90. This move was initiated after the 
employee pushed a button to realign a power-assisted switch, but likely 
did not wait at the switch machine to confirm visually that the points 
had moved to the correct position. NTSB/RAB-06/02 at 9. In addition to 
lack of adequate railroad oversight of the misaligned power-assisted 
switch, NTSB concluded that the probable cause of this accident was the 
employee's ``inattentiveness to the location of the locomotives and the 
switch position''. NTSB/RAB-06/02 at 11. Certainly, this 
inattentiveness is another way to describe a lack of situational 
awareness.
    As many railroads were not eager to invest in remote control 
technology until after FRA issued its Safety Advisory 2001-01, there is 
limited data and few studies completed detailing the safety 
implications of remote control operations; however, among the few 
studies that have been completed, situational awareness has arisen as a 
recurring theme. For example, in a study funded by FRA, an 
independently conducted root cause analysis of six remote control 
locomotive-involved accidents/incidents that occurred in 2006, found 
that the loss of situational awareness was a major factor in five of 
the accidents/incidents analyzed. Human Factors Root Cause Analysis of 
Accidents/Incidents Involving Remote Control Locomotive Operations (May 
2006) (DOT/FRA/ORD-06/05) (published on FRA's Web site at http://www.fra.dot.gov/downloads/Research/ord0605.pdf). Further analysis 
suggests that remote control locomotive technology facilitated this 
loss of awareness in four of these five accidents/incidents by enabling 
remote control operators to control their cuts of cars away (i.e., 
remotely) from the point of movement. Additionally, four probable 
contributing factors were related to one or more remote control 
operator's control of a movement from a physical location away from the 
remote control locomotive and/or cut of cars. Consequently, the 
independent contractor who performed the root cause analysis identified 
the loss of remote control operator situational awareness as one of 
only four critical safety issues identified. See Final Report at 85-90.
    FRA also sponsored the same independent contractor to undertake a 
study based on focus group sessions with remote control operators. 
These sessions provided a forum to gather information about operator 
experiences with remote control locomotive operations, to identify 
safety issues, lessons learned, and best practices from those who are 
most familiar with remote control locomotive operations and equipment. 
Focus groups also provided a means to solicit suggestions on how to 
improve remote control locomotive operations. One of the themes 
identified was that situational awareness can be lost when the remote 
control operator is not in the immediate vicinity of the remote control 
locomotive. Among the recommended practices from the focus groups were 
the suggestions to standardize operating practices and to require 
remote control operators to protect the point at all times. See Final 
Report at 79-85.
    The Brotherhood of Locomotive Engineers and Trainmen (BLET) 
sponsored a study by Dr. Frederick C. Gamst, a private consultant 
specializing in railroading, and Mr. George A. Gavalla, a private 
consultant and former FRA Associate Administrator for Safety. ``Hazard 
Survey of Remote Control Locomotive Operations on the General System of 
Railroads in the United States'' (``BLET Study'') (The BLET Study is 
available in the docket for this NPRM). The BLET Study is based on 
anecdotal information supplied by railroad workers and officers who 
voluntarily self-reported their thoughts and experiences concerning 
their interactions with remote control operations. All of the self-
reporting was done in writing and mainly via the Internet in its 
various forms of communication (i.e., e-mails, bulletin-boards, weblog, 
etc.). The study catalogues the myriad experiences, complaints, and 
ideas that were recorded by Dr. Gamst over three years beginning in 
January 2002. The anecdotal information collected by Dr. Gamst reflects 
the same general themes identified in the focus group study sponsored 
by FRA and described in the preceding paragraph. As in FRA's sponsored 
focus group study, the information Dr. Gamst collected is not 
statistically sampled to be representative of all remote control 
operators in the U.S. or Canada. While the main drawback to these types 
of studies is that the researchers do not attempt to validate any 
statements made by employees, as participation is often premised on the 
condition that employees remain anonymous, the collection of individual 
opinions and perceptions taken as a whole are useful in identifying 
problems associated with remote control operations. Like the FRA's 
sponsored studies, the BLET's sponsored study also identified perceived 
problems associated with a remote control crew not observing the 
direction of movement. Specifically, the BLET study raised the issue as 
the reason why a remote control operator might keep shoving or pulling 
after a movement derailed or collided with an obstruction. Id. at 60-
62.

C. Technology Aided Point Protection

    Although railroading is now one of the nation's older forms of 
mechanized transportation, equipment, components and operations all 
have evolved through new and improved technologies. Installing cameras 
in yards so that a location could be remotely monitored from somewhere 
else has become a railroading reality as cameras have become smaller, 
less expensive, and have increased resolution. It is possible to set up 
these cameras and monitors so that they provide at least an equivalent 
level of safety to that of an employee protecting the point. The 
proposed rule would permit such an operation to substitute for an 
employee's direct visual determination where the technology provides an 
equivalent level of protection to that of a direct visual 
determination. See Sec.  218.99(b)(2)(i).
    The substitution of such technology for a direct visual 
determination is dependent on many factors. Each particular situation 
will have its own particular factual circumstances that must be 
considered in determining whether an equivalent level of safety can be 
met. For instance, with regard to the basic camera set-up, a railroad 
will need to consider whether an operator must see in color (largely a 
necessity if viewing signals), the width of the angle of view, the size 
and location of the monitor, whether the technology is for day-time use 
only, and whether its use should be limited to fair weather conditions. 
However, under all circumstances, the monitor must display sufficient 
information to enable the viewer to make a determination that the track 
ahead of the move is clear and properly lined.
    There is also the consideration of whether the person viewing the 
monitor is the locomotive engineer, remote control operator, other 
crewmember or

[[Page 60382]]

other person, such as a yardmaster. If the monitor is not being viewed 
by the operator who is controlling the movement, then, there must be a 
clear understanding and channel of communication between the operator 
and the employee who is viewing the monitor--as the latter would be 
protecting the movement. Providing an equivalent level of protection to 
that of a direct visual determination requires a thorough job briefing 
in which there is an understanding of who is observing the movement, 
what is the observer's range of vision, at what locomotive speed can 
the observation be made and how information will be conveyed to the 
operator/engineer, if that person is not the one viewing the monitor. 
These camera/monitor set-ups will require railroads to implement 
attendant procedures and qualify each employee who will be utilizing 
the technology. These issues are further developed in the section-by-
section analysis for Sec.  218.99(b)(2)(i).
    The issue of reliance on non-crewmembers to carry out some remote 
control locomotive operator crew functions was raised in the focus 
group study sponsored by FRA and summarized in the Final Report. The 
remote control operators that made up the focus groups had indicated 
that there were occasions in which a non-crewmember, generally a 
yardmaster, would provide point protection, line switches, or check the 
status of a derail for a remote control crew. When this was allowed, 
several potential problems could result. First, there is great 
potential for an error in communication or a misunderstanding between 
the non-crewmember and the crewmembers regarding the activity or status 
of equipment. Further, a yardmaster who is occupied with his or her 
other responsibilities might not give the task the attention it 
deserves, or could be distracted and give an incorrect answer to a 
question by a remote control crewmember (e.g., ``is the move lined?''). 
The result could be that the task does not get completed or there is an 
error in task execution. Further, the remote control crew might not 
have any alternative way of determining that there is a problem with 
the point protection provided by the non-crewmember until it is too 
late. See Final Report at 82. Similar issues were raised in the BLET 
Study. BLET Study at 44.
    In FRA's Final Report, the agency addressed the issue of utilizing 
remote cameras for remote control locomotive operations to protect the 
point at highway-rail grade crossings in lieu of direct visual 
determinations. See Final Report at 13-15. Railroad operating rules 
currently permit a movement to travel over a crossing without the 
physical presence of a crewmember if a crossing is equipped with gates, 
if it can be determined that the gates are in the fully lowered 
position, and if the crossing is clear of vehicles and pedestrians. One 
major railroad has begun using a remote camera system at several 
crossings to make the required determinations. The railroad believes 
that crossing protection rules can be observed using this system. The 
conditions FRA presented in its report to Congress are repeated here as 
FRA would appreciate comments addressing whether these conditions 
should remain permissive or should be made mandatory.
    FRA believes the use of remote camera protection at highway-rail 
grade crossings offers an equivalent means of safety provided the 
following recommendations are adopted:
    1. Before camera-assisted remote control locomotive operations are 
permitted at highway-rail grade crossings, a Crossing Diagnostic Team 
should evaluate the crossing. The diagnostic team should have 
representatives from the railroad, FRA, the State department of 
transportation (or another State agency having jurisdiction over the 
highway-rail grade crossing), and local government authorities. The 
diagnostic team should evaluate the suitability of each crossing for 
remote camera operations. Among the factors it should consider are the 
following: the average daily traffic counts; the number of highway 
lanes; highway speed limits; the number of railroad tracks; the volume 
of school bus, transit bus, emergency vehicle, large truck, and 
hazardous materials traffic over the crossing; the minimum remote 
control locomotive operator sight distances of roadway approaches to 
the crossing; and other relevant factors that could affect the safety 
of the crossing. The diagnostic team should also consider the 
appropriate number of cameras and appropriate camera angles needed to 
provide for the remote operation of remote control locomotives over the 
crossing.
    2. Remote cameras should only be used at crossings equipped with 
warning lights, gates, and constant warning and motion sensor devices.
    3. The cameras should be arranged to give the remote control 
locomotive operator a view of the rail approaches to the crossing from 
each direction to accurately judge the locomotive's proximity to the 
crossing.
    4. The cameras should be arranged to give the remote control 
locomotive operator a clear view to determine the speed and driver 
behavior (e.g., driving erratically) of any approaching motor vehicles.
    5. Either the camera resolution should be sufficient to determine 
whether the flashing lights and gates are working as intended or the 
crossing should be equipped with a remote health monitoring system that 
is capable of notifying the remote control locomotive operators 
immediately if the flashing lights and gates are not working as 
intended.
    6. The railroad should notify local FRA offices when this type of 
protection has been installed and activated at a crossing to ensure 
that FRA grade crossing specialists and signal inspectors can monitor 
these operations.
Final Report at 14-15
    It is possible that not all of the above recommendations would be 
necessary at highway-rail grade crossings equipped with supplemental 
safety devices that prevent motorists from driving around lowered 
gates. A diagnostic team, however, should make such determinations. FRA 
also recognizes that camera-assisted remote operation of remote control 
locomotives may not be a viable alternative at all highway-rail grade 
crossings.

IV. Section-by-Section Analysis

PART 217--[AMENDED]

Section 217.2 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. Exceptions would be rare. In general, 49 U.S.C. 
20106 will preempt any State law--whether statutory or common law--and 
any State regulation, rule, or order, that concerns the same subject 
matter as the regulations in this rule.
Section 217.4 Definitions
    FRA proposes to add a definition of Associate Administrator for 
Safety to this section that is consistent with other definitions of 
this term in this chapter.

[[Page 60383]]

The purpose of including this definition is to identify a proposed 
official who would have the authority to require amendments to programs 
of operational tests and inspections.
    FRA proposes to add a definition of qualified to this section. The 
need for this definition arose from the proposed new requirements for 
railroad testing officers in Sec.  217.9. As further explained in the 
analysis for that section, it is not acceptable for a railroad testing 
officer to be monitoring or instructing employees without being 
instructed, trained and examined, i.e., qualified, on the railroad's 
operating rules and the tests the officer is expected to perform; thus, 
FRA proposes to require such qualification. It is proposed that a 
person cannot be qualified unless he or she has successfully completed 
all ``instruction, training and examination'' programs required by both 
the railroad and this part.
    The definition is modeled after the definition used in Sec.  240.7 
in this chapter and should have the same meaning despite some slight 
differences. The phrase ``training and testing'' has been replaced by 
``instruction, training and examination'' to more thoroughly reflect 
the educational aspects of the requirements for a qualified person. The 
proposed definition does not contain the word ``appropriate'' prior to 
the educational aspects so as to emphasize that the educational aspects 
of qualifying a person are mandatory, not discretionary. A word choice 
was made to substitute the term ``successfully completed'' for the word 
``passed''. The definition proposed for part 217 is the same definition 
proposed for part 218, subpart F.
Section 217.9 Program of Operational Tests and Inspections; 
Recordkeeping
    FRA is amending and adding paragraphs to this section. Although not 
every existing paragraph is being amended, FRA is reprinting the entire 
section to make it easier for readers to follow.
    FRA is proposing an amendment to paragraph (a) which would clarify 
that the requirement to conduct operational tests and inspections 
specifically include tests and inspections sufficient to verify 
compliance with the requirements of subpart F of part 218 of this 
chapter. In this NPRM, FRA has identified certain operating rules with 
which non-compliance has led to an increase in human factor caused 
accidents. Proposed subpart F of part 218 requires that each railroad 
have in effect certain operating rules and that each railroad officer, 
supervisor and employee uphold and comply with those rules. As the 
operating rules identified in proposed subpart F of part 218 are 
designed to address the most frequently caused human factor accidents, 
FRA's proposed amendment to paragraph (a) addresses that railroads will 
specifically need to test and inspect for these proposed requirements 
in order to be in compliance with this section. The program's increased 
focus on human factor caused accident prevention should direct 
awareness to the related operating rules and correlate with a decrease 
in such accidents.
    Paragraph (b) would be added to this section to establish new 
responsibilities for both railroads and those officers on the railroads 
who conduct operational tests and inspections, i.e., railroad testing 
officers. FRA inspections and investigations have revealed railroad 
testing officers who lack the fundamental knowledge to perform adequate 
tests and inspections. In order for these officers to be able to do a 
proper job, they must know the railroad's operating rules, how the 
tests they will conduct fit into the railroad's testing program, and 
how to conduct a proper test. Experience helps and field training can 
substitute for the lack of experience if needed to achieve proficiency. 
Of course, not every railroad testing officer has experience conducting 
every type of test, or needs to; however, a railroad testing officer 
should not be conducting a test on a rule the officer is unfamiliar 
with or without having been trained on how to conduct a proper test for 
the rule to be tested. A test that is incompetently executed should not 
count towards compliance with a railroad's program of operational tests 
and inspections. Finally, this paragraph requires written records 
documenting that each railroad testing officer was properly qualified 
and that such records be made available to FRA upon request.
    FRA proposes to move current paragraph (b) to (c), add two new 
requirements and make a few minor amendments to remove obsolete dates. 
Regarding the two new requirements, FRA proposes a scheme that will 
require each railroad, to which this part applies, to amend the 
existing program of operational tests and inspections with the intended 
purpose of requiring railroads to do a better job of focusing their 
tests and inspections on those types of operating rules that either 
cause the most human factor caused accidents nation-wide or are 
identified as problematic on the particular railroad's division or 
system. At a minimum, FRA expects railroads to test and inspect for 
those operating rules identified as problematic in the quarterly or six 
month reviews, i.e., those operating rules violations that have 
recently caused accidents or incidents on the division or system-wide. 
We also expect railroads to regularly spot-check for compliance with 
those operating rules that lead to accidents and incidents nation-wide, 
even if the railroad has not specifically encountered any recent 
incidents. As mentioned in the SUPPLEMENTARY INFORMATION section under 
``Development of the NPRM'', the verification through testing process 
does not always work well because during some periods of disruption 
related to organizational or personnel changes, some railroads do not 
perform operational tests that address the root cause of human factor 
accidents. At worst, administration of the program may be reduced to a 
numbers-generating exercise, and consequently on portions of the 
railroad officers may conduct relatively few meaningful tests. Clearly, 
FRA intends for the program of operational tests and inspections to be 
meaningful and the proposed amendments are intended to forcefully move 
lagging railroads to produce more meaningful tests and inspections.
    Proposed paragraph (c)(1) would require that not only shall 
railroads ``provide for operational testing and inspection under the 
various operating conditions on the railroad'', as is currently 
required, but that such tests and inspections place ``particular 
emphasis on those operating rules that cause or are likely to cause the 
most accidents or incidents, such as those accidents or incidents 
identified in the quarterly reviews, six month reviews, and the annual 
summaries as required under paragraphs (e) and (f), as applicable''. 
Thus, if the proposal were finalized, FRA would expect that each 
railroad would conduct a significant number of tests and inspections 
directed at addressing localized problems with compliance, such as 
those identified on a division, problems identified on a system-wide 
basis, and leading causes of human factor caused accidents nation-wide, 
such as those identified through this proposed rule.
    In order to gain some specificity in each railroad's program, 
paragraph (c)(1) also proposes ``a minimum number of tests per year 
that cover the requirements of part 218, subpart F of this chapter''. 
FRA is reluctant to state a percentage or specific number per number of 
employee work hours as each railroad may have particular operating 
rules it wishes to emphasize to a greater degree than the next; 
however, the objective in including this language is to encourage 
sufficient testing in these critical areas to verify good compliance

[[Page 60384]]

by railroad operating employees and to help establish the expectation 
that there will be compliance with those rules. FRA would be critical 
of a program that placed the majority of its emphasis on enforcing 
operating rules that are not leading causes of accidents/incidents. The 
proposed requirement for a specific minimum number of such tests per 
year follows from such a requirement imposed in EO 24, albeit EO 24 
covered a smaller subset of the operating rules FRA is proposing to 
cover in part 218, subpart F.
    Paragraph (c)(5) proposes a new requirement that the program show 
the railroad's designation of an officer to manage the program at each 
level of responsibility (division or system, as applicable). The 
officer may be designated either by name or job title, as long as the 
designation clearly identifies a responsible person that FRA can 
contact in case FRA wishes to audit the program. It is proposed that 
the officer should also have oversight responsibility to ensure that 
the program is being implemented properly across each division and 
system-wide. FRA's expectation is that this officer will at least 
manage the program to ensure that the overall direction of the program 
is sound. This designated officer would be expected to take an active 
role in ensuring that divisions and the entire system are meeting 
program requirements and ordering changes when expectations are not 
met. To the degree that a system-level officer can identify a division 
or a specific railroad testing officer that is failing to appropriately 
direct efforts, the designated officer would be expected to take 
corrective action. The designated officer should be making adjustments 
to the implementation of the program based on any reviews that might be 
required in proposed paragraph (e), as well as the annual summary 
produced in accordance with current paragraph (d), which is now 
proposed paragraph (f).
    Additionally, current paragraph (b), which is proposed paragraph 
(c), would be amended by removing all references to ``[o]n or after 
November 21, 1994'' as this date is now obsolete. Current paragraph 
(b)(6) would be moved to proposed paragraph (c)(7) without any 
amendments. Current paragraph (c) would be moved to paragraph (d) but 
without any revisions to the text.
    Proposed paragraph (e) would add requirements for periodic reviews 
for any railroad with at least 400,000 total employee work hours 
annually. FRA has decided to exclude freight railroads that have less 
than 400,000 total employee work hours annually because only 135 
smaller railroads that meet this criterion reported any human factor 
caused rail accidents, and of those 135 that reported such accidents, 
only 20 railroads reported five (5) or more human factor caused rail 
accidents during the years 2002 through 2005. During this four year 
period, these 135 smaller railroads experienced 334 human factor caused 
rail accidents amounting to 7 percent of all human factor caused rail 
accidents. It should also be considered that there are almost 600 
smaller railroads that fit this criterion and yet only 135 reported any 
human factor caused rail accidents at all. On that basis, FRA proposes 
excepting the smallest railroads, based on the less than 400,000 
employee work hours threshold, from the monthly and quarterly reviews. 
Of course, if FRA accumulates evidence to suggest that railroads with 
less than 400,000 employee work hours are experiencing a significant 
number of human factor caused accidents, FRA will reconsider its 
position.
    Similarly, Amtrak and the railroads providing commuter service in a 
metropolitan or suburban area also experience a relatively low number 
of human factor caused rail accidents compared to the freight railroads 
with greater than 400,000 employee work hours annually. During the 
years 2002-2004, Amtrak and the commuter railroads experienced a total 
of 270 accidents attributed to human factor causes. At a meeting held 
with members of the American Public Transportation Association (APTA) 
on April 27, 2006, (notes of this meeting are in the docket of this 
proceeding) APTA explained that many of its member railroads do not 
keep accident/incident data and/or operational testing data 
electronically and, thus, conducting periodic reviews greater than 
annually would create a substantial burden for those railroads that 
couldn't simply run a report from a computer. In addition, APTA members 
reminded FRA that a commuter railroad's budget is dependant on the 
generosity of local and State governments, which may not want to 
upgrade computers and software which would permit quicker and more 
efficient accident/incident reviews. Passenger railroads are generally 
more stable in their organizations and experience greater continuity 
with respect to staffing at the line officer level (where many problems 
often develop).
    With regard to six month reviews, however, there is a definite 
benefit for Amtrak and the commuter railroads to conduct a thorough 
system level review to achieve some degree of accountability. 
Meaningful reviews should help drive proper implementation of the 
program of operational tests and inspections--thus driving down the 
number of accidents/incidents attributable to human factors. However, 
we would appreciate comments directed toward perceived weaknesses in 
this proposed rule and any alternatives for achieving similar 
accountability. The APTA delegation also raised the issue of time 
required for implementation; and FRA requests comment on that issue in 
light of the consolidated six month review proposed. FRA is not 
inclined to except even the smallest commuter railroads from the 
requirement that reviews be conducted, because in FRA's experience no 
railroad is free from the risk that good discipline will erode over 
time, and the consequences of a passenger train accident can be very 
serious indeed.
    For the major freight railroads, the proposed monthly review and 
quarterly review would be developed and conducted at the division level 
unless no division headquarters, or its equivalent, exists. Most larger 
railroads have created division headquarters (see existing definition 
in Sec.  217.4 of this part) to manage portions of the railroad and, 
certainly, railroads that have divisions do so because it is more 
efficient. That is, it is easier for an officer at a division 
headquarters to know what safety issues are problematic in his or her 
division than an officer of a large railroad at the system level.
    In paragraph (e)(1)(i), a monthly review is proposed for each 
division or system depending on whether the freight railroad is large 
enough to maintain divisions. The proposed monthly review is not 
expected to be an onerous task. It is merely a quick written tally of 
the number of tests performed by each railroad testing officer, 
including the railroad operating rules tested for, and a determination 
made whether the monthly tally shows adherence to the written program 
of operational tests and inspections. When monthly reviews reveal non-
compliance with the program, FRA expects railroads to take corrective 
action to regain compliance. The designated railroad officer in 
paragraph (c)(5) may or may not be the officer who performs the monthly 
review, but this designated railroad officer would be required to 
ensure that the monthly review is properly completed.
    The quarterly review proposed for freight railroads in paragraph 
(e)(1)(ii) is expected to be considerably more comprehensive than the 
proposed monthly review. It should include all the information 
collected in the

[[Page 60385]]

monthly reviews as well as the types of information specified in the 
paragraph, i.e., ``review of the [railroad's] accident/incident data, 
the results of prior operational tests and inspections, and other 
pertinent safety data for that division or system to identify the 
relevant operating rules related to those accidents/incidents that 
occurred during the quarter''. The focus of the quarterly review is to 
identify those operating rules which pose the greatest risk of being 
violated--which should then be targeted for regular tests and 
inspections. That is why FRA proposes that based upon the results of 
the quarterly review, the designated officer shall make any necessary 
adjustments to the tests and inspections required of railroad officers 
for the subsequent period. The proposed quarterly review must be in 
writing and include the data upon which any conclusions are based.
    FRA expects that in order to conduct a meaningful quarterly review, 
each railroad will review accident/incident data, operational test 
data, and other pertinent data. For example, a railroad should identify 
the relevant facts for each category of data. The relevant facts are 
usually covered if a railroad can answer the questions signifying who, 
what, where, when, why, and how often. For accident/incident data, 
these questions would involve identifying all the employees involved in 
the accident/incident, a description of the accident/incident, the 
location where it occurred, the time it occurred, the root cause and 
any secondary causes, and whether the division or system has suffered 
this type of accident/incident often, sometimes or never. For 
operational test data, the issues include identifying the railroad 
testing officer(s) responsible for the particular location, whether the 
testing officers are testing for the operating rules responsible for 
any recent accidents/incidents, whether the testing officers conducted 
any tests where any recent accidents/incidents occurred, whether the 
testing officers are testing during the hours of highest incident 
rates, whether any railroad officers are briefing the employees as to 
the root or secondary causes and the fact that the railroad will be 
testing for compliance, and how often the officers are conducting any 
follow-up testing and job briefings.
    FRA believes there are at least five other types of pertinent 
safety data that should be included in a proper quarterly review. One, 
if FRA has conducted any recent inspections, the railroad should check 
whether its officers' tests reflect FRA's findings. Two, if an employee 
is involved in an accident/incident, the employee's safety record may 
provide insight. Three, the railroad should determine if there is any 
correlation between the training or experience of the local railroad 
testing officers and the locations where accidents/incidents have 
occurred. Four, a railroad should similarly consider the extent to 
which employee experience plays a part in any given accident/incident. 
Fifth, a railroad's review should consider whether any operational 
conditions have recently changed that increased the likelihood of 
either non-compliance with the operating rules or accidents/incidents. 
Special attention to all these details in the quarterly or six month 
review, as applicable, should lead a railroad to meaningful application 
of its written program of operational tests and inspections with a 
greater potential for driving down the frequency and severity of 
accidents/incidents.
    Although it would be best if quarterly reviews were completed 
immediately following the end of each quarter, FRA proposes that 30 
days should be a sufficient period in which to require its completion. 
FRA originally considered requiring the quarterly review in half that 
time but railroads participating at a Railroad Operating Rules Working 
Group meeting suggested that additional time would be needed for those 
railroads that do not maintain their safety data electronically. For 
those railroads that keep records electronically, FRA expects quarterly 
reviews to take place contemporaneously with the conclusion of the 
quarter--although the proposed requirement will be a generous 30 days 
post-quarter. Regardless of how long it takes to complete the quarterly 
review, each division or system should be prepared to redirect its 
railroad testing officers in order to appropriately react to any 
accidents/incidents of non-compliance during the previous quarter. Even 
where a division or system has had a particularly safe quarter, 
railroad testing officers should be instructed to adjust the way in 
which they are conducting their tests so that employees cannot easily 
anticipate the types of tests to be conducted, nor the dates and 
locations of such tests.
    In proposed paragraph (e)(1)(iii) and (e)(2), six month reviews are 
only proposed for each Class I railroad, the National Railroad 
Passenger Corporation (commonly known as ``Amtrak''), and each railroad 
providing commuter service in a metropolitan or suburban area. The 
basis for the proposal is that the identified freight railroads are so 
large that each would benefit from an officer, likely at the system 
headquarters, who is identifiable by name or job title, who will 
oversee whether each division, line or segment is complying with the 
program of operational tests and inspections. It is expected that such 
an officer would have the authority to intervene in division, line or 
segment operations to the extent that this officer could order changes 
to the way divisions are implementing the program. The purpose for such 
intervention would be to require certain types of operational tests or 
inspections based on observations made system-wide that may not be 
apparent to each designated division officer armed only with data from 
his or her own division.
    In the case of Amtrak and the commuter railroads, the requirements 
in paragraph (e)(2), demand reviews equivalent to those for the freight 
railroads in paragraph (e)(1), but require all the reviews to take 
place at least every six months. Of course, these are proposed minimum 
requirements and passenger railroads are free to initiate more frequent 
reviews. For example, proposed paragraph (e)(2)(i) describes a review 
that is equivalent to the proposed review for freight railroads on a 
monthly basis and certainly passenger railroads may perform that review 
on a monthly basis as well. Proposed paragraph (e)(2)(ii) describes a 
review that is equivalent to the proposed review for freight railroads 
on a quarterly basis, yet, again, passenger railroads would be required 
to perform that review at least every six months. Proposed paragraph 
(e)(2)(iii) describes a review that is to be completed at least once 
every six months and is the equivalent of the six month review proposed 
for freight railroads. As it is proposed that the passenger railroads 
conduct the same reviews as the freight railroad with the exception of 
the timing of those reviews, the prior section-by-section analysis 
description for each review is applicable here.
    Because FRA needs to be assured that each railroad is complying 
with any required reviews, the proposal requires that the reviews be 
retained for one year after the end of the calendar year to which they 
relate and shall be made available to FRA upon request. FRA's proposal 
also encourages railroads to store these records electronically as long 
as they can be produced upon request.
    FRA questions whether current paragraph (d), which we propose to 
move to paragraph (f), would add any additional benefit given the 
proposed new requirements. That is, FRA would expect that the quarterly 
and six month reviews proposed in paragraph (e) would require greater 
analysis than the current data collection exercise that is described by 
the paragraph requiring the

[[Page 60386]]

annual summary. Thus, FRA is considering whether to incorporate the 
data collection requirements from the annual summary into the six month 
report and do away with the annual summary as a separate exercise 
altogether. FRA would appreciate comments on this issue.
    Current paragraph (d) is proposed to move to paragraph (f) and 
contains two amendments. One amendment is merely to change the term 
``manhours'' to ``employee work hours'' as the latter is gender 
neutral. The second amendment would clarify that this requirement does 
not apply to ``a railroad with less than 400,000 total'' employee work 
hours annually, as the current rule accidentally fails to include the 
qualification of the time period.
    Current paragraph (e) is proposed to move to paragraph (g) with one 
amendment. The current rule specifies that the railroad maintain a 
``desk-top'' computer upon which the railroad can retrieve data. As 
laptop and notebook computers have become more common, and their 
computing abilities now rival desk-top models, there is no reason to 
restrict railroads from using any computer to retrieve records for FRA 
under this section.
    Proposed paragraph (h) would clarify that railroads and individuals 
can be liable for falsifying or deliberately mutilating records 
required by this section. FRA would have civil penalty authority, and 
the Federal government could prosecute these types of acts under 
criminal statutes, whether or not this paragraph is included in a final 
rule. See, e.g., 49 U.S.C. 21311. However, at this juncture, FRA has 
decided to include this paragraph as a reminder to railroads and 
individuals, and as a placeholder for the addition of penalties in 
Appendix A to part 217--Schedule of Civil Penalties.
    Paragraph (i) proposes that FRA have some specific oversight 
mechanism for disapproving a railroad's program of operational tests 
and inspections. It also proposes minimum procedures and structure for 
the review process. The proposal would require that the Associate 
Administrator for Safety only disapprove programs required by this 
section for cause stated. As the disapproval decision is made for 
cause, it is significant for the railroad to understand exactly why FRA 
is disapproving the program; thus, FRA proposes that its notification 
of such disapproval be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program, it is proposed that the railroad be provided 
an opportunity of not less than 30 days to respond and to provide 
written and/or oral submissions in support of the program. It will be 
up to the Associate Administrator for Safety to grant additional time 
to respond in the rare instances that the railroad requests more than 
30 days. The Associate Administrator for Safety shall render a final 
decision in writing and the railroad shall be provided not less than 30 
days to amend the program in accordance with the Associate 
Administrator for Safety's decision. Again, on a case-by-case basis, it 
is proposed that the Associate Administrator for Safety may provide a 
railroad with additional time to correct a disapproved program. 
Although enforcement action is always discretionary, FRA believes that 
enforcement action is warranted when a railroad fails to appropriately 
and timely amend its program.
    The approach in proposed paragraph (i) recognizes that FRA will 
want to review such written programs during audits or investigations 
and that FRA should have the authority to request changes to the 
program if it does not meet the minimum requirements of this rule. The 
oversight authority vests with the Associate Administrator for Safety. 
Although FRA would have authority to review in detail each railroad's 
program, FRA does not intend to have each railroad submit its program 
for review and explicit approval. Rather, FRA intends to review the 
programs of the major railroads over a multi-year cycle to determine if 
they are effective. Please note that the proposal is for the Associate 
Administrator for Safety to render a final decision in writing. FRA 
solicits comments regarding the need for further appeals within FRA.
    Although not contained in this proposal, FRA solicits comments as 
to whether the final rule should require each railroad to instruct its 
employees on operating rules at least once every three years. FRA has 
decided to propose a requirement that only requires such periodic 
instruction as it applies to those operating rules that would be 
required by part 218, subpart F instead of all railroad operating 
rules. See Sec.  218.95(a)(5). As periodic training of operating rules 
is already occurring on the vast majority of railroads, FRA's proposal 
in part 218, subpart F is focused on those operating rules that cause 
the most accidents. Adding a more general requirement would likely 
improve safety for railroads which conduct few operating rules classes 
and we would appreciate comments regarding the costs and benefits of 
such a minimum requirement.

PART 218--[AMENDED]

Section 218.4 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. Exceptions would be rare. In general, 49 U.S.C. 
20106 will preempt any State law--whether statutory or common law--and 
any State regulation, rule, or order, that concerns the same subject 
matter as the regulations in this rule.
Section 218.5 Definitions
    FRA is proposing an amendment to the definition of flagman's 
signals in order to eliminate a reference to ``torpedoes''. Torpedoes 
are antiquated signaling devices which have fallen into disuse in the 
industry. Likewise, we are proposing amendments to Sec.  218.37 which 
refers to this definition and the placing of torpedoes when providing 
flag protection.
Section 218.37 Flag Protection
    FRA is proposing to eliminate references to ``torpedoes'' as these 
are antiquated signaling devices which have fallen into disuse in the 
industry. The current rule requires each railroad to have in effect an 
operating rule which complies with this section, and thus contains 
references to the use of torpedoes, even though the railroad could meet 
other flagging requirements without ever needing to carry or use 
torpedoes. In this section, there are two paragraphs that reference 
torpedoes. Paragraph (a)(1)(iii) currently states, in part, that 
``[w]hen a train stops on main track, flag protection against following 
trains on the same track must be provided as follows: A crew member 
with flagman's signals must immediately go back at least the distance 
prescribed by timetable or other instructions for the territory, place 
at least two torpedoes on the rail at least 100 feet apart and display 
one lighted fusee''. The language in italics is proposed for deletion. 
Paragraph (a)(1)(iv) currently states that ``[w]hen required by the 
railroad's operating

[[Page 60387]]

rules, a forward crew member with flagman's signals must protect the 
front of his train against opposing movements by immediately going 
forward at least the distance prescribed by timetable or other 
instructions for the territory placing at least two torpedoes on the 
rail at least 100 feet apart, displaying one lighted fusee, and 
remaining at that location until recalled''. Again, the language in 
italics is proposed for deletion. Elimination of the references to 
torpedoes does not eliminate the requirement that each railroad have in 
effect an operating rule that complies with the requirements in this 
section.
Subpart F--Handling Equipment, Switches and Derails
Section 218.91 Purpose and Scope
    As previously explained in the SUPPLEMENTARY INFORMATION, FRA has 
identified that non-compliance with a small number of railroad 
operating rules has caused an inordinate percentage of total human 
factor caused accidents. FRA's purpose is first to establish clear and 
unambiguous procedures that will provide for the safety of railroad 
employees and the public. In the RSAC Working Group discussions that 
preceded the preparation of this proposed rule, FRA noted significant 
variation in basic safety procedures followed on participating 
railroads. Although some variation is necessary to address local 
conditions, the presence of extensive joint operations in the railroad 
industry makes it essential that certain common procedures apply. Joint 
operations are not new to the railroad industry, as evidenced by the 
historic role of terminal companies. However, the practice has more 
recently expanded through mergers and consequent awards of trackage 
rights and through the creation of hundreds of small railroads that are 
often provided access to larger railroad's facilities to facilitate 
efficient interchange of cars.
    In order to support compliance with operating rules, it is 
essential that they be consistent, commonly understood, and applied in 
a predictable manner. Further, it must be understood that the rules may 
not be circumvented at the whim of a supervisor or employee to hasten 
completion of the work. The rules in this proposed subpart are intended 
to support these purposes.
    In addition, making these rules mandatory from a Federal standpoint 
implies an enforcement mechanism to discourage non-compliance.
    FRA proposes to standardize this small number of railroad operating 
rules by establishing minimum requirements. The minimum requirements 
proposed are based on accepted best practices and rules currently in 
use. Of course, railroads may choose to prescribe additional or more 
stringent requirements.
Section 218.93 Definitions
    The definitions proposed in this section only have applicability to 
this subpart so it should be easier for the reader to locate each 
definition in this section rather than in subpart A--General, Sec.  
218.5.
    FRA proposes several definitions that are consistent with other 
definitions of these terms in this chapter. These terms are Associate 
Administrator for Safety, controlled siding, employee, highway-rail 
grade crossing, locomotive, pedestrian crossing, qualified, and roadway 
worker. In an effort to be as clear as possible, FRA is including 
definitions of these terms in this subpart for the benefit of anyone 
unfamiliar with these terms.
    FRA proposes adding a definition for clearance point because this 
term is necessary to describe an important concept that is used several 
times in this subpart. The definition of ``clearance point'' means the 
location near a turnout beyond which it is unsafe for passage by 
equipment or a person riding the side of a car on an adjacent track. 
While clearance points may be identified by marks on the rail, signs, 
or other visible identifiers, these points are often referring to an 
approximate location that will need to be deduced by an employee. FRA 
proposes that railroads implement procedures for identifying such 
approximate locations and for waiting to line hand-operated switches 
away until equipment that has entered the track has passed this point. 
See Sec. Sec.  218.101(c) and 218.103(e). Without a definition of 
clearance point, it would be difficult to define what is meant by 
``foul or fouling a track''. Through the proper identification of 
clearance points, employees can avoid collisions and personal injury to 
other employees riding the sides of cars.
    FRA proposes a definition for correspondence of crossover switches 
that should be familiar to people working in the railroad industry. 
When straight tracks are connected so that rolling equipment may travel 
or ``cross over'' from one straight track to another, the equipment 
must pass over switches that control movement into the crossover track; 
these are the crossover switches. When both crossover switches are 
lined for the crossover, the crossover switches are in correspondence 
because the rolling equipment may cross over from one parallel track to 
another without running through either of the crossover switches. 
However, if one crossover switch is lined for the crossover and the 
other is lined for the straight track, the latter switch is lined 
against a train movement exiting the crossover track and thus is deemed 
out of correspondence. Similarly, if both crossover switches are lined 
for the straight track, the switches are considered in correspondence 
because no trains on the straight tracks should be diverted through a 
misaligned switch and potentially into another train or other rolling 
equipment.
    FRA proposes adding a definition for foul or fouling a track 
because this term is necessary to describe an important concept that is 
used several times in this subpart. Foul or fouling a track means 
rolling equipment or on-track maintenance-of-way equipment is located 
such that any part of the equipment is between the clearance point and 
the switch point leading to the track on which the equipment is 
standing. In other words, when equipment is left standing on a track in 
such a manner that a movement on an adjacent track would collide with 
it, i.e., ``fouling a track,'' the potential for an accident is great. 
Equipment, or a person riding a side of a car, on adjacent track could 
strike the fouling equipment. This type of accident is usually a side-
swipe type accident and the severity of the accident depends on the 
factors involved; e.g., the factors determining severity include, but 
are not limited to, the speed of the moving equipment, the type of 
equipment struck, the contents of the cars struck, whether a person was 
riding a car and whether an occupied locomotive struck the equipment. 
The issue of foul or fouling a track is addressed in Sec.  218.101, 
where it is proposed that certain scenarios of fouling are avoidable 
and thus should be prohibited.
    FRA proposes a broad definition for hand-operated switch to 
identify any type of switch when operated by manual manipulation, 
including when operated by a push button or radio control, when such 
switch is not protected by distant switch indicators, switch point 
indicators or other visual or audio verification that the switch points 
are lined for the intended route and fit properly. The definition 
includes all switches which are normally operated by manual 
manipulation of the switch lever. In this proposed rule, FRA has used 
the term ``hand-operated'' to characterize the types of switches 
normally operated by conductors, brakemen and switchmen whether or not 
there is some electronic aspect to the operation of the switch. 
Maintenance-of-way and mechanical

[[Page 60388]]

employees also have occasion to operate these switches. For lack of 
better terminology, we are characterizing these other types of switches 
as ``hand-operated'' even though a push button or radio control may be 
used to throw the switch; for these types of switches, the ``manual 
manipulation'' aspect is that the employee is required to throw the 
switch and the electronic aspect of the switch manipulation is 
primarily an option for avoiding personal injuries due to the throwing 
of a switch lever. FRA reserves the right to include provisions in the 
final rule to address these and related issues concerning power-
assisted switches. FRA does not intend to address issues related to 
power-assisted switches operated from central consoles, whether within 
or outside of signaled territory, when so operated. Finally, the 
proposed requirements set forth for hand-operated switches in Sec.  
218.103 are unnecessary when an employee can verify that the switch 
points are lined for the intended route and fit properly, which can be 
accomplished without observing the switch points in the case where the 
switch is protected by distant switch indicators, switch point 
indicators or other visual or audio verification. For example, the two 
types of indicators provide a visual indication of the switch alignment 
and other electronic advancements are capable of sending a message to a 
receiver indicating the switch's alignment such that a visual check by 
an employee to determine that the switch is properly aligned would be 
redundant after receiving an electronic message that has already served 
that purpose.
    FRA proposes adding a definition of qualified which is identical to 
the definition proposed for 49 CFR 217.4 in this notice. It is proposed 
that a person cannot be qualified unless he or she has successfully 
completed all ``instruction, training and examination'' programs 
required by both the railroad and this subpart. Where FRA specifies 
that a qualified employee is to do the work, it is because we want some 
assurance that the person either has actual knowledge, or may 
reasonably be expected to have knowledge, such that there is no 
question the person should be able to do the work in accordance with 
the railroad's operating rules. It is imperative that only employees 
who have been qualified should do such work that the proposed rule 
restricts to qualified employees because a railroad that allows 
unqualified employees to do such work is increasing the likelihood of 
an accident/incident.
    FRA proposes a definition for remote control operator merely to aid 
in the clarification of shoving or pushing movement requirements 
involving remote control operations versus the requirements for 
conventional operations. Remote control operators are ``locomotive 
engineers'' per FRA's regulations found at 49 CFR part 240. Traditional 
engineers, i.e., those persons qualified to operate conventional 
locomotives, may be trained on remote control equipment--and are thus 
qualified for remote control operations; in that situation, the term 
remote control operator applies to the conventional engineer. Hence, 
the term ``remote control operator'' is not limited to those persons 
who only are certified to operate remote control locomotives but to 
anyone certified to operate such locomotives. The industry uses the 
shorthanded term ``remote control operator'' to refer to ``remote 
control locomotive operators;'' unless FRA receives comments to the 
contrary, we trust that no one is confused by the dropping of the 
reference to ``locomotives'' in the terminology.
    FRA proposes a definition for remote control zone in order to 
permit a shoving or pushing operation that is safe and yet protected 
differently from conventional shoving or pushing operations. This zone 
is a term adopted by railroads that designate one or more segments of 
track, typically in a yard, where remote control operations can safely 
switch cars without point protection. Point protection is unnecessary 
because other safeguards are put in place. Although the location for a 
remote control zone may be permanent, the proposed regulation would 
require certain conditions to be met each time a zone is used for its 
intended purpose of allowing an operation without an employee assigned 
to protect the leading end in the direction of movement, i.e., the 
pull-out end, of the remote control movement. See Sec.  218.99(d).
    FRA has noticed some confusion over the ``remote control zone'' 
terminology, and that it might help to distinguish it from a ``remote 
control area.'' A ``zone'' is an integral part of remote control 
operations, whereas an ``area'' describes for informational purposes 
only a location within which remote control operations occur and does 
not directly affect such operations. The ``area'' is usually created by 
putting up signs to warn employees working in the vicinity that moving 
locomotives may be unmanned. The ``area'' is typically larger than the 
``zone'' as it covers anywhere the remote control operation could take 
place. It is important to create these areas so that employees are 
warned to use care in moving around the yard with the knowledge that 
using hand signals to convey a message to a moving locomotive may be in 
vain as there may not be an engineer in the cab to see them. Thus, 
these terms do not mean the same thing and should not be used 
interchangeably.
    FRA proposes a definition for roadway maintenance activity to 
distinguish between those duties prescribed for roadway workers, 
including movement of on-track maintenance-of-way equipment other than 
locomotives, and other types of duties that a roadway worker may 
perform which are not so limited. In other words, a person designated a 
``roadway worker'' may engage in an activity that is not a ``roadway 
maintenance activity.'' This term is used to describe an exception to 
the general shoving and pushing requirements. Incidentally, FRA 
proposes using the term ``on-track maintenance-of-way equipment'' to 
distinguish between other types of maintenance-of-way equipment that 
may be left adjacent to a track--as opposed to ``on-track.''
    FRA proposes a definition for roadway worker in charge in order to 
provide a generic title to the roadway worker who is in charge of a 
roadway work group. The designation of such a worker enables FRA to 
propose leaving main track switches in such a person's charge as well 
as being the conduit for switch alignment information when other 
workers in the group have operated switches. The communication among 
group members is similar in importance to the communication that is 
required between train crewmembers. FRA intends this term to have the 
same general usage as in subpart C of 49 CFR part 214.
    FRA proposes a definition for switchtender because a few railroads 
still utilize a worker with responsibilities for lining specific 
switches for trains and a person with this position is not a 
crewmember. FRA proposes a definition for this term because we want to 
acknowledge that this type of worker may be qualified to operate 
switches, so switches can be safely left in a switchtender's charge. 
FRA has not defined ``switchtender'' in order to suggest that railroads 
create such positions or that there is any sort of requirement to 
employ switchtenders.
    FRA proposes a definition for the term track is clear to describe a 
checklist of conditions which must be visually determined before a 
shoving or pushing movement may be initiated or continue. The visual 
determination must be made by a qualified employee who is typically a 
crewmember. If the four conditions for determining that the

[[Page 60389]]

track is clear are met, then if an accident occurs, it is unlikely to 
be the fault of the person making the determination. That is, when the 
portion of the track to be used is clear there should not be any 
rolling equipment, on-track maintenance-of-way equipment or conflicting 
movements that could collide with the shoving or pushing movement; 
there should be no intervening motor-vehicles or pedestrians to strike 
as all highway-rail grade crossings should be protected; there should 
be no intervening switches or derails to run through or over as they 
should all be properly lined for the intended movement; and, the 
shoving or pushing movement should not accidentally place cars on a 
connecting track if the portion of the track has sufficient room to 
contain the equipment being shoved or pushed.
    Within the definition of track is clear are the proposed conditions 
for determining that intervening highway-rail grade crossings and 
pedestrian crossings are protected. As shoving or pushing movements 
typically occur without a locomotive engineer in a locomotive leading 
the movement, it is vital to protect crossings to prevent easily 
avoidable accidents. The proposed rule considers the crossing protected 
if a crossing has working crossing gates and the gates are in the fully 
lowered position. Whether or not there are working gates, a crossing 
may be protected by stationing a designated and qualified employee at 
the crossing who has the ability to communicate with trains. A third 
proposed option for protecting a crossing would only be available when 
crossings are equipped only with flashing lights or passive warning 
devices; in that situation, it is proposed that the crossing would be 
considered protected when it is clearly seen that no traffic is 
approaching or stopped at the crossing and the leading end of the 
movement over the crossing does not exceed 15 miles per hour.
Section 218.95 Instruction, Training and Examination
    In paragraph (a), FRA proposes that each railroad maintain a 
written program that will qualify its employees for compliance with 
operating rules implementing the requirements of this subpart to the 
extent these requirements are pertinent to the employee's duties. Thus, 
the pool of employees that would need to be covered by the proposed 
program are those employees involved in shoving or pushing operations, 
remote control operations, and any operation where equipment might be 
left fouling a connecting track--as well as any employee that may be 
required to operate hand-operated switches and derails. The written 
program may be a stand-alone program or consolidated with the program 
of instruction required under Sec.  217.11 of this chapter. FRA 
anticipates that most railroads would choose to consolidate this 
program with the part 217 requirement. Although FRA encourages the 
efficiencies consolidation is sure to bring, FRA's expectation is that, 
if the proposed rule is implemented, the consolidated written program 
will sufficiently stress the requirements of this subpart.
    Proposed paragraphs (a)(1) and (a)(2) provide more details 
regarding what should be included in the written program. Paragraph 
(a)(1) would require that the program include instruction on 
consequences of non-compliance, i.e., that FRA can take enforcement 
action through civil penalties or disqualification from safety 
sensitive service. See 49 CFR part 209, subpart D--Disqualification 
Procedures. Paragraph (a)(2) proposes that the written program address 
the need to qualify employees on all aspects of the technology the 
employees will be utilizing when complying with the operating rules 
that would be required by this subpart. For example, employees may be 
expected to operate a variety of hand-operated switches and must be 
taught how to properly operate them as well as what to do if a 
malfunction or deviation is detected.
    Paragraphs (a)(3) and (a)(4) address the implementation schedule 
for this subpart. Paragraph (a)(3) states that after 12 months from the 
publication date of the final rule, employees performing duties subject 
to these requirements shall be qualified per the minimum requirements 
in this subpart. However, it is further proposed under paragraph (a)(3) 
that employees who are hired during the 12 months following the 
publication date of the final rule would not be provided such a grace 
period; instead, it would be expected that new hires would receive the 
proper qualification training before being allowed to perform duties 
subject to the requirements of this subpart. Furthermore, under 
proposed paragraph (a)(4), after 12 months from the publication date of 
the final rule, FRA proposes no further grace period and that employees 
receive recurrence training at least every three years; FRA proposes 
this three year window because it is a standard industry practice to 
re-qualify employees on operating rules at least every three years. 
Finally, pursuant to paragraph (a)(5), FRA proposes that the record for 
each employee shall document qualification of employees under this 
subpart by including any records of required instruction, examination 
and training.
    This section does not make specific reference to qualification of 
employees on the territory where they will be working, but it is 
implicit that this must be done where necessary to provide the 
knowledge required to comply with the subject rules. During the RSAC 
discussions, labor representatives asked for a more explicit 
recognition of this requirement. However, it was not immediately 
obvious to FRA personnel how this concept should be applied in the 
subpart F context. Unfortunately, time available to develop this issue 
in the RSAC Working Group was limited. Accordingly, FRA requests any 
further comment that is appropriate to develop this issue and reserves 
the right to include appropriate language in the final rule.
    In paragraph (b), FRA proposes that qualification records required 
by this subpart be retained at a railroad's system headquarters and at 
the division headquarters, if any, where the employee is assigned. This 
will enable FRA to quickly obtain such qualification records upon 
request. FRA has not proposed a retention schedule for these records as 
we believe the proposed section mandates that at a minimum: (1) Records 
must be kept for each employee qualified and (2) when an employee is 
requalified, there is no longer a need for a railroad to retain the old 
record as it has been superceded by the new one.
    Proposed paragraph (c) provides a mechanism for FRA to review and 
disapprove of a railroad's written program required under paragraph 
(a). It also proposes minimum procedures and structure to the review 
process. The proposal would require that the Associate Administrator 
for Safety only disapprove programs of instruction, training and 
examination required by this section for cause stated. As the 
disapproval decision is made for cause, it is significant for the 
railroad to understand exactly why FRA is disapproving the program; 
thus, FRA proposes that its notification of such disapproval be made in 
writing and specify the basis for the disapproval decision. If the 
Associate Administrator for Safety disapproves the program, it is 
proposed that the railroad be provided an opportunity of not less than 
30 days to respond and to provide written and/or oral submissions in 
support of the program. It will be up to the Associate Administrator 
for Safety to grant additional time to respond in the rare instances 
that the railroad requests more than 30 days. The Associate 
Administrator for Safety shall render a

[[Page 60390]]

final decision in writing and the railroad shall be provided not less 
than 30 days to amend the program in accordance with the Associate 
Administrator for Safety's decision. Again, on a case-by-case basis, it 
is proposed that the Associate Administrator for Safety may provide a 
railroad with additional time to correct a disapproved program. 
Although enforcement action is always discretionary, FRA believes that 
enforcement action is warranted when a railroad fails to appropriately 
and timely amend its program.
    The approach in proposed paragraph (c) recognizes that FRA will 
want to review such written programs during audits or investigations 
and that FRA should have the authority to request changes to the 
program if it does not meet the minimum requirements of this rule. The 
oversight authority vests with the Associate Administrator for Safety. 
Although FRA would have authority to review in detail each railroad's 
program, FRA does not intend to have each railroad submit its program 
for review and explicit approval. Rather, FRA intends to review the 
qualification programs of the major railroads over a multi-year cycle, 
in connection with review of the overall program of operating rules, to 
determine if they are effective. Among the factors that would be 
considered would be the extent to which the program was founded on 
appropriate task analysis, the completeness of the curriculum, the 
types of instructional methods, appropriateness of written and other 
tests, criteria for successful completion, and--most importantly--the 
ability of employees said to be qualified to apply the rules in 
practical situations.
    The proposal is for the Associate Administrator for Safety to 
render a final decision in writing. FRA solicits comments regarding the 
need for further appeals within FRA. Finally, FRA solicits comments 
regarding whether proposed paragraph (c) should instead be moved to 
Sec.  217.11 of this chapter in order to give the Associate 
Administrator for Safety explicit review over a railroad's entire 
program of instruction on operating rules.
Section 218.97 Good Faith Challenge Procedures
    The main purpose of requiring that each railroad establish 
operating rules containing certain minimum requirements under this 
subpart is to ensure safe handling requirements of certain operations 
by employees where human factor caused accidents have historically 
occurred. Codifying these requirements will enable FRA to take 
enforcement action when necessary, and will therefore discourage non-
compliance with these important safety rules. FRA is convinced that 
human factor caused accident rates and incidents of non-compliance 
would be significantly lower if each railroad were properly qualifying 
employees and consistently enforcing its own operating rules. FRA's 
perception is that on occasion some railroad officers are permissive in 
allowing occasional violations of operating rules in order to achieve 
short-term perceived efficiencies. For example, a railroad officer may 
order an employee to shove blind, i.e., without ensuring that the track 
is clear for the movement, in an effort to finish a job quickly and get 
a train out of the yard. If the move originated from a direct order by 
a railroad official, the employee might fear challenging the railroad 
official on the order or might have complied with so many similar 
orders in the past as to not perceive the danger in occasionally 
violating an operating rule. Another example could occur when an 
employee is told he or she may leave work early as soon as a particular 
assignment is complete. Rather than taking the longer but safer route 
to determine that a switch was left properly lined, the employee 
assumes the switch was left properly lined, even though some time has 
passed since the employee last observed it. This proposed rule is 
intended to check emergence of the culture that sometimes accepts some 
degree of non-compliance with a railroad's operating rules.
    One essential aspect of changing this undesirable culture of 
complacency with some non-compliance is to establish better lines of 
communication between employees and railroad officers. An employee who 
is well trained and qualified to do the work, as FRA is proposing by 
requiring railroads to have a written program in section 218.95, should 
readily recognize when a railroad officer has given the employee an 
order that does not comply with the railroad's own operating rules. In 
order to address this issue, FRA is proposing good faith challenge 
procedures.
    The good faith challenge procedures are about establishing 
dialogues between employees and railroad officials. A good faith 
challenge is initiated by an employee who believes that if he or she 
obeys a particular order issued by a railroad official, the employee 
would violate one or more of the operating rules required by this 
proposed subpart. At its core, the good faith challenge and its 
attendant procedures should force a railroad official to listen to an 
employee's concern regarding such an order and to reconsider the 
validity of the order. FRA has created a mechanism for appealing the 
first official's order to a second official in the situation where 
dialogue and compromise do not resolve the discrepancy. FRA refers to 
the challenge as the ``good faith'' challenge because we do not intend 
for employees to abuse it. For example, if several experienced 
employees in a particular yard were all to initiate separate challenges 
where no real dispute could be articulated, this concerted effort to 
create a work stoppage or slowdown would be in bad faith and would not 
shield the employees from the proposed protections required in each 
railroad's written procedures. Meanwhile, we expect bad faith 
challenges to never or rarely occur and for the challenge to provide, 
in part, for a dialogue between employee and supervisor that railroads 
should be permitting and encouraging without being prompted by 
regulation. Of course, if the good faith challenge is implemented and 
found to be regularly abused, FRA would consider amending or abolishing 
the challenge.
    FRA's proposal to institute minimum good faith challenge procedures 
is not without precedent. FRA's current regulations require employers 
of roadway workers to ``have in place a written procedure to achieve 
prompt and equitable resolution of challenges''. 49 CFR 214.311 and 
214.313. In FRA's experience, and in anecdotal information received by 
union representatives, the roadway worker good faith challenge has been 
a great success. To FRA's knowledge, all challenges by roadway workers 
have been immediately resolved between the roadway worker and the 
railroad official who issued the order. FRA originally considered a 
proposal that would mirror the roadway worker good faith challenge 
approach, and we certainly encourage interested parties to comment on 
whether that approach should be applied here.
    FRA has proposed good faith challenge procedures that are more 
detailed than those established for roadway workers because the 
officer/employee relationship dynamic is different for roadway work 
versus operations work. That is, the strict chain of command is more 
prevalent in operations than roadway work. Thus, a supervisor of 
roadway work may be more accepting of a challenge than an operations 
supervisor, e.g., a yardmaster.
    Paragraph (a) proposes general procedures for implementing a good 
faith challenge specific to the requirements of this subpart; railroads

[[Page 60391]]

or employers of railroad employees subject to this subpart, of course, 
are free to implement a good faith challenge in areas not subject to 
this subpart. Paragraph (a) proposes that each employer be responsible 
for the training and compliance by its employees with the requirements 
of this subpart. Obviously, railroads will have to instruct employees 
on all aspects of the good faith challenge or it will have no effect. 
FRA intends to take enforcement action where a railroad fails to 
properly instruct employees or a railroad's officers fail to comply 
with implementation of the good faith challenge procedures.
    Paragraph (a)(1) proposes that each employer guarantee each 
employee the right to challenge in good faith as to whether the 
procedures that will be applied to accomplish a specific task comply 
with the requirements of this subpart or any operating rule relied upon 
to fulfill the requirements of this subpart. Thus, the proposal's 
applicability would only be for a challenge to any order that violates 
a requirement in proposed subpart F. Paragraph (a)(1) of the proposed 
rule would require a railroad to adopt and implement written procedures 
as the mechanism for instituting the good faith challenge. Such written 
procedures should not lead to protracted arguments that are unusually 
disruptive to operations as FRA proposes that each railroad's 
procedures provide for ``prompt'' challenges. FRA's expectations are 
that such challenges should be resolved in a matter of minutes, 
certainly not an hour or more. It is within this context that FRA also 
specified the concept that a railroad's written procedures provide for 
``equitable resolution of challenges;'' by proposing this requirement, 
FRA meant for a railroad officer to give deference to an employee's 
challenge if the employee has suggested a safe way to do the work that 
is in compliance with the relevant operating rules. Follow-up to 
clarify the correct application of the rule leading to the challenge 
can be done at a later time or date so that a definitive answer may be 
provided by the railroad to the railroad officer and employee involved; 
e.g., a railroad's manager of operating rules may want to issue a 
bulletin generically outlining the challenge and the proper application 
of the rule. As a good practice, a railroad should take this extra step 
to clarify a definitive answer even if the employee does not request 
such a review, as provided for in proposed paragraph (c)(4), as it may 
be used as a learning experience for other employees.
    Proposed paragraph (a)(2) requires that a railroad's good faith 
procedures indicate that the challenge is not intended to supplant any 
rights or remedies available to the employee under a collective 
bargaining agreement or under the statute providing for employee 
protections found at 49 U.S.C. 20109. The statutory provision permits 
an employee to file a complaint and testify against a railroad, as well 
as refuse to work because of hazardous conditions, without fear that a 
railroad will discriminate, discharge or otherwise take retribution 
against the employee. Additionally, the statute provides a mechanism 
for dispute resolution under the Railway Labor Act if the employee 
wishes to file a dispute, grievance or claim arising under the 
statutory protection provisions. In other words, an employee who makes 
a good faith challenge, but is ordered to do the work pursuant to 
proposed paragraph (c), may still refuse to work because of hazardous 
conditions and seek the protection prescribed in 49 U.S.C. 20109. While 
it is proposed that railroads indicate that the good faith written 
procedures are not intended to abridge these other rights and remedies, 
the proposed rule does not require that railroads must educate their 
employees on these other protections, because those protections are 
generally applicable to all aspects of railroad operations--not merely 
to the three areas of concern addressed by the subpart. Employees may 
want to take this opportunity to self-educate or unions may want to 
take this opportunity to remind their members of the other employee 
protections available that are separate from this rule.
    Paragraph (a)(3) proposes that a railroad instruct affected 
employees on the good faith challenge procedures contemporaneously with 
the training railroads are required to provide under 49 CFR 217.11. The 
idea is that an employee's chance of understanding the proper 
application of the good faith challenge should be greatest at the time 
the employee is receiving instruction on the relevant operating 
rule(s). Of course, FRA does not expect a railroad to instruct an 
employee whose duties do not involve handling equipment, switches and 
derails. If an employee's duties change to include these activities, 
the railroad will have to provide the instruction prior to assigning 
the new duties.
    The good faith challenge procedures are a critical component of 
FRA's proposal, which is narrowly tailored with the intention to drive 
down the number of accidents caused by human factors. Employees learn 
in the classroom but there are often so many topics covered in an 
operating rules class that it could be difficult for an employee to 
retain everything taught. To compensate, railroads traditionally 
provide operating rule books not only to put employees on notice that 
compliance with these rules is expected, but also, as a reference so 
that each employee can check the rules and be reminded of their 
requirements. In similar fashion, FRA proposes a requirement in 
paragraph (a)(4) that each railroad provide a copy of its written good 
faith procedures to each affected employee, as well as any amendments 
to its written procedures prior to the effective date of the 
amendments. Also, like any other record FRA requires, a railroad would 
need to make the written procedures available for inspection by FRA.
    Paragraph (b) proposes additional procedures for each railroad to 
include in its written good faith procedures. Each of these more 
specific requirements lays the framework for what FRA envisions as a 
respectful dialogue between two individuals with differences of opinion 
on an operations issue with a safety component; the two individuals 
are, of course, an employee and a railroad officer.
    Paragraph (b)(1) proposes granting each employee the right to 
challenge any directive which, based on the employee's good faith 
determination, would cause the employee to violate any requirement of 
this subpart or any operating rule relied upon to fulfill the 
requirements of this subpart. The good faith challenge procedures 
should eliminate any stigma employees have regarding challenging 
railroad officers on safety issues pertaining to handling equipment, 
switches and derails. Likewise, standardization of the challenge should 
cause railroad officers to truly reflect on the orders issued and 
whether any aspect of an order would result in non-compliance with the 
relevant railroad operating rules.
    Paragraph (b)(2) specifies a proposed requirement that each 
railroad's good faith challenge procedures shall include a provision 
stating that the railroad will not seek retribution against an employee 
who makes a challenge in good faith. A properly instructed employee, 
exercising the right as specified in paragraph (b)(1), should feel 
confident that he or she will not be discharged, demoted, or otherwise 
discriminated against for making a legitimate challenge. Employees 
should be aware that this process will not protect the employee if the 
employee is proven to abuse the challenge. Meanwhile, merely being 
proven wrong regarding the

[[Page 60392]]

application of an operating rule does not prove abuse of the challenge. 
A challenge may be made in ``good faith'' if the employee is unsure of 
the correct application of the rule and seeks clarification. Similarly, 
if the employee misunderstands the rule or its application, that does 
not equate with raising a challenge in bad faith. If FRA's roadway 
worker good faith challenge is any indication of future compliance, we 
look forward to all challenges being made in good faith.
    Paragraph (b)(3) proposes a requirement that the good faith written 
procedures state ``that no work is to be performed with respect to the 
challenged task until the challenge is resolved.'' This is similar to 
the roadway worker requirement that the employer's procedures allow the 
challenging employee ``to remain clear of the track until the challenge 
is resolved.'' 49 CFR 214.311(b). However, while this requirement has 
posed no problems for employers of roadway workers, FRA has added 
additional clarification and procedures to the proposal to make 
absolutely certain that we are not advocating a work stoppage or 
slowdown. As previously stated, the procedures are to be drafted so 
that they provide for a ``prompt'' resolution of challenges as provided 
in paragraph (a)(1).
    The proposed regulation identifies four ways that a challenge may 
be ``resolved.'' One, we expect that some railroad officers when 
challenged will realize they made a mistake and will defer to the 
employee's suggested alternative method of operation that should be in 
compliance with the operating rules. Two, after making a challenge and 
receiving an explanation or recitation of the rule from the officer, an 
employee may likewise realize his or her mistake and quickly defer to 
the officer's directive. Three, in some situations, the challenge may 
lead to a discussion of options on how the task can be performed in 
compliance with the operating rules. That discussion may lead to a 
realization either that both persons were only partially correct or 
there is another option not previously asserted. Under those 
circumstances, an amicable resolution would be the advancement of a 
third option that was reached through communication and compromise, and 
is therefore satisfactory to both parties. The fourth way a challenge 
may be ``resolved'' is with a direct order to proceed with the work as 
initially ordered. A direct order should be a last resort and FRA 
requests comments regarding whether the rule should require that the 
written program indicate a preference that railroad officers always 
attempt to resolve good faith challenges amicably before seeking 
further review by a second railroad officer as proposed in paragraph 
(c).
    For the direct order to proceed with the work as initially ordered, 
FRA proposes additional requirements for each railroad's written 
procedures that are intended to encourage a rational approach to the 
disputed issue. The written procedures shall provide for further review 
any time a challenge is resolved by issuing a direct order that is 
unacceptable to the challenging employee. FRA intends this further 
review be made by a railroad officer who cannot be unduly influenced by 
the officer who issued the initial order; we hope to accomplish that by 
requiring that the reviewing officer be a different officer who is not 
a subordinate of the officer who issued the initial order. As this 
review is envisioned as just a quick check with another officer, the 
employee shall not be required to do the work as ordered until the 
second, reviewing officer has made a decision. FRA requests comments 
regarding whether some smaller railroads may have difficulty complying 
with this proposed requirement and, if so, suggestions regarding 
alternative options for providing fair review would be appreciated. FRA 
also requests comments regarding whether the review should always be 
made directly to officers in the railroad's operating rules department, 
as improved communications has made the final railroad decision-makers 
more easily accessible for providing on-the-spot interpretative 
guidance.
    The proposed written procedures shall also provide the employee 
with the right to document any protest and provide that the employee be 
advised that completing the work under protest and as ordered will not 
subject the employee to Federal civil penalties. These additional 
requirements are not just prudent but reflect existing statutory 
requirements. 49 U.S.C. 21304. These procedures do not supercede the 
statutory requirements nor do they exceed them. Thus, the time needed 
to document a protest should not pose a new burden on railroads.
    The direct order procedures shall also provide the employee with 
the right to one more review by a railroad officer designated by name 
or title in the written procedures who will make the final 
interpretation of the applicable operating rule. It is not expected 
that this review be immediate but that the written procedures will 
specify a reasonable period after the incident in which the railroad 
will get back to the employee with a formal interpretation of the issue 
in question. This review can be as simple as a call from a railroad's 
manager of operating rules to the employee with an explanation. 
However, a call will not be sufficient if the employee requests that 
verification decision in writing.
    During the RSAC Railroad Operating Rules Working Group meetings, 
AAR and APTA voiced opposition to the idea of the promulgation of a 
good faith challenge. Both associations were concerned that 
implementation of such a challenge would pose numerous logistical 
difficulties as well as a perceived high potential for abuse by 
employees. One concern raised was that on-time performance could easily 
be compromised if an employee raised a challenge and a quick compromise 
solution could not be reached. FRA does not believe it needs to address 
this issue as it is one that would need to be addressed by each 
individual railroad by setting up effective protocols for supervisors 
to follow when issuing direct orders to proceed; i.e., each yardmaster 
or other supervisor who may need to issue a direct order to proceed 
should know who to contact in the event that an immediate review is 
requested. For example, a railroad may wish to provide contact lists to 
each supervisor of other supervisors so that each supervisor has 
multiple people to contact in the event a challenge needs immediate 
review. FRA welcomes suggestions on how to address this issue on 
smaller railroads with few supervisors available to conduct such 
immediate reviews.
    Another perceived concern that arose from an FRA draft proposal 
before the RSAC's Railroad Operating Rules Working Group was that train 
delays could result from finding a second officer to provide the 
immediate review prior to execution of a direct order. Additional time 
delays would result if an employee had the right to immediately 
document the challenge before returning to work. FRA has addressed this 
issue by proposing in paragraph (c)(2) that the employee be afforded an 
opportunity to document the protest electronically (e.g., by radio 
transmission to be recorded) or in writing any time ``before the tour 
of duty is complete.''
    AAR also asserted that FRA did not have the authority to promulgate 
such a challenge as a statutory provision vested employee protections 
under the Railway Labor Act. See 49 U.S.C. 20109(c). FRA respectfully 
disagrees. The statutory provision provides that ``a dispute, 
grievance, or claim arising under this section [Sec.  20109] is subject 
to resolution under section 3 of the Railway Labor

[[Page 60393]]

Act (45 U.S.C. 153)'' but does not preclude FRA from promulgating other 
employee protections when the underlying basis is to promote safer 
railroading. AAR also points to the legislative history in which the 
House of Representatives Committee on Interstate and Foreign Commerce 
commented that ``[t]he Committee intends * * * [the Railway Labor Act] 
to be the exclusive means for enforcing this section [and] * * * does 
not intend for FRA to be involved in this area.'' H.R. Rep. No. 96-
1025, at 16 (1980). FRA agrees that it does not have any authority to 
resolve employee protection disputes under Sec.  20109 and we have no 
intent to do so. FRA's proposal to institute good faith challenge 
procedures is not an attempt to vest FRA with the authority to resolve 
labor disputes but instead is an attempt to provide employees with a 
formal process by which they may, in good faith, challenge orders that 
they believe will require them to violate certain railroad operating 
rules. The good faith procedures do not amount to a refusal to work and 
do not supplant or supercede the statutory protections. Instead, FRA 
proposes to instill compliance with the good faith procedures through 
its well-defined enforcement policy (see 49 CFR part 209, app. A) and 
not by usurping the National Railroad Adjustment Board's authority to 
resolve labor disputes, grievances or claims.
Section 218.99 Shoving or Pushing Movements
    Generally, in conventional operations, shoving or pushing movements 
occur when the controlling locomotive is not leading the movement 
because the locomotive engineer is not in a position to have an 
unobstructed view of the track in the direction of the shoving 
movement. However, in remote control operations, there may be an issue 
with respect to point protection in either direction of movement. The 
terms ``shoving'' and ``pushing'' have the same meaning but FRA uses 
both terms because our nation's railroads have split in the usage of 
each term. Proposed paragraph (a) would require that each railroad have 
in effect an operating rule that complies with the requirements in 
paragraphs (b) through (d) and that each railroad officer, supervisor, 
and employee shall uphold and comply with that rule. The purpose for 
proposing that each railroad officer, supervisor, and employee shall 
uphold and comply with that rule is so that all effected employees will 
be required to follow the operating rules FRA proposes that each 
railroad maintain as opposed to merely requiring that each railroad 
have in effect such a rule.
    As specified in paragraphs (b) through (d), shoving or pushing 
movements can be made safely if precautions are taken. This proposed 
section states those minimum precautions and requires that each 
railroad have in effect specific operating rules incorporating the 
precautions. The precautions proposed take direct aim at those human 
factor causes that have been identified as causing the increasing trend 
of non-compliance and accidents. As specified in paragraph (e), there 
are other movements that could be considered shoving or pushing 
movements but FRA believes these other movements can be treated 
differently as they are safe if certain operating conditions are met.
    Paragraph (b)(1) proposes that prior to rolling equipment being 
shoved or pushed, the locomotive engineer and the employee directing 
the move should be required to participate in a job briefing which will 
cover the means of communication to be used and how protection will be 
provided. The job briefing requirement in this proposed paragraph would 
require that the engineer (conventional or remote control operator) 
shall have a job briefing detailing the method of communication used to 
relay information, e.g., radio, hand signals, or pitch and catch. If 
the employee providing protection is not part of the crew, the job 
briefing shall include how that qualified employee will provide that 
protection; for example, if a yardmaster is the qualified employee, the 
conductor directing the move would explain in the briefing that the 
yardmaster intends to provide point protection by viewing a monitor 
that provides a real-time image of the track from a camera set up in 
the yard. Under this scenario, the yardmaster would be performing 
covered service under the hours of service laws.
    Paragraph (b)(2) proposes requirements for establishing point 
protection during shoving or pushing movements. The proposal would 
require that only a crewmember or other qualified employee shall 
provide point protection. In this context, crewmembers or qualified 
employees include remote control operators working together, members of 
other train crews, and other employees, regardless of job title, who 
are qualified to perform the job (see definitions of ``employee'' and 
``qualified'' in this proposed subpart). The requirements of this 
proposed section mandate work that is ``covered service'' under the 
hours of service laws. 49 U.S.C. 21101, et seq. Thus, to be a qualified 
employee, the employee will need to receive instruction and testing, be 
subject to Federal regulations controlling alcohol and drug use and 
hours of service recordkeeping provided for, respectively, in parts 
217, 219 and 228 of this chapter. The purpose of requiring a qualified 
employee, as opposed to any employee, is to prevent persons that may 
not be qualified (e.g., taxi drivers, crane operators, or clerks) from 
making safety sensitive operating decisions without the proper 
instruction and safeguards in place. Incidently, if an unqualified 
person were to perform this work in violation of the proposed rule, the 
person would still have to be accounted for under the hours of service 
laws or the railroad would incur additional liability.
    Paragraph (b)(2)(i) proposes a requirement that the employee 
providing point protection visually determine, for the duration of the 
shoving or pushing movement, that the track is clear within the range 
of vision or for the complete distance to be shoved or pushed. Shoving 
accidents often occur because a train crew makes a shoving movement 
without determining that the track is clear in the direction of 
movement. This proposed paragraph would address this problem by 
requiring an operating rule that keeps a qualified employee observing 
the track to make sure it is clear and remains clear. A definition of 
``track is clear'' is proposed in Sec.  218.93. Each railroad will need 
to incorporate this definition in its operating rules so that operating 
employees will be instructed on the proper way of making the 
determination that the track is clear. If the requirements for track is 
clear are met, there should be a drastic reduction in the number of 
shoving movement accidents.
    Paragraph (b)(2)(i) proposes that a crewmember or other qualified 
employee shall visually determine, for the duration of the shoving or 
pushing movement, that the track is clear, either within the range of 
vision or for the complete distance to be shoved or pushed. This means 
that if the crewmember or other qualified employee responsible for 
controlling the shoving or pushing movement can directly and 
continuously observe the track for the entire movement to be shoved or 
pushed, the employee may initiate and continue the movement for the 
full distance of the movement. For example, if a shoving movement of 
less than 100 car lengths is to be made onto track that is capable of 
holding 100 cars and a crewmember or other qualified employee observes 
that the track is clear for the entire length of the track, the

[[Page 60394]]

employee may initiate movement onto or down the track; as the shoving 
movement continues, the employee will provide updates to the locomotive 
engineer, as necessary, until the entire movement is complete. 
Meanwhile, if the employee providing the visual determination can only 
see part of the way down the track to be shoved or pushed, the employee 
will only be permitted to initiate movement for the distance that the 
employee can directly and continuously observe. In this second example, 
the facts are the same except that there is curvature in the track that 
does not allow the observing employee to see more than 20 car lengths 
at a time; in this situation, the employee may initiate movement onto 
or down the track but must have either continuous visual contact with 
the engineer or be in radio communication with the engineer, so as to 
provide distance instruction on how far the engineer may safely shove, 
until the shoving or pushing movement is complete.
    FRA notes that, inherent to the success of this procedure is 
compliance with restricted speed requirements, which limit movements 
within yard limits and on yard tracks to a speed that permits stopping 
within one-half the range of vision but not more than a stated speed 
(normally 15 or 20 miles per hour). Compliance with restricted speed is 
mandatory under subpart C of Part 218 for main track operations within 
yard limits, but the rule is silent with respect to yard and industry 
tracks. Commenters are asked to address whether, in order to 
effectively implement the protection for shoving moves embodied in this 
proposal, FRA should expressly incorporate restricted speed 
requirements.
    FRA intended to provide railroads and qualified employees with the 
option of making the visual determination required in proposed 
paragraph (b)(2)(i) with the aid of monitored cameras or other 
technological means, provided that the technological means and 
attendant procedures provide an equivalent level of protection to that 
of a direct visual determination. Some concerns are that any monitored 
camera must have sufficient resolution and real time coverage to 
provide protection equal to direct visual determination. Concerning 
attendant procedures, one such procedure may be for an employee viewing 
a monitor to communicate updates to the locomotive engineer or 
controlling crewmember at appropriate intervals. Another attendant 
procedure may be the need to limit the monitoring employee so that 
ancillary duties would not greatly distract from the employee's ability 
to provide continuous visual determinations and communication. Other 
technological means may include, but are not limited to, real-time 
satellite imaging of sufficient resolution, a completely circuited 
track indicating track occupancy, and electronic switch position 
indicators.
    The requirements listed in paragraph (b)(2)(ii) propose that a 
crewmember or other qualified employee give signals or instructions 
necessary to control the movement. Such signals or instructions may be 
made verbally, i.e., either via face-to-face or radio communication. 
However, any effective method of communication is acceptable. For 
example, some acceptable forms of communication include, but are not 
limited to, hand signals, whistle signals, and electronic signals 
utilizing remote control technology.
    In paragraph (c), FRA proposes to treat all remote control 
movements as shoving or pushing movements, except when the remote 
control operation is being conducted like a conventional pulling 
operation such that the operator controlling the movement is riding the 
leading locomotive in a position to observe conditions ahead in the 
direction of movement. FRA suggests that this treatment is necessary 
because the safe application of remote control operations warrants it. 
Those who are familiar with remote control switching operations should 
find these proposed requirements compatible with most current operating 
rules. Thus, FRA's intention is to require those rules which reflect 
best practices.
    Paragraph (c) also proposes an additional requirement for remote 
control operations during shoving or pushing movements. This additional 
requirement is necessary so that the remote control operator, either 
directly or indirectly, can confirm that the movement is observed 
moving in the direction intended. If the remote control operator does 
not confirm or receive confirmation that the equipment is traveling in 
the intended direction, the operator must immediately stop the 
movement. Accident reports indicate that remote control operators who 
have forgotten which way the controlling locomotive is headed may 
unintentionally make a reverse movement when a forward movement was 
intended, or vice versa; had these operators been abiding by this 
proposed rule, the accidents would have been avoidable. FRA previously 
elaborated on this issue in the SUPPLEMENTARY INFORMATION section 
titled ``Situational Awareness.''
    In paragraph (d), FRA recognizes that many railroads utilizing 
remote control technology will create a designated area of track, 
controlled by a remote control operator, that can make a remote control 
operation more efficient; this area is called a remote control zone and 
it is defined in this subpart. When a remote control zone is activated, 
a designated remote control operator has the authority to deny other 
movements entry into the tracks designated as within the zone. However, 
it is not until the remote control crewmembers determine that a 
particular segment meets the definition of ``track is clear'' that the 
operation may shove, push, or pull cars into the cleared track segment 
of the zone without providing point protection as proposed in paragraph 
(b)(2). The act of determining that the segment of track is clear is 
commonly referred to as ``conditioning the track'' or ``a conditioning 
run.''
    Paragraph (d) proposes that the point protection required by 
proposed paragraph (b)(2) may be avoided for a remote control operation 
that is shoving within an activated remote control zone, as long as the 
movement will take place on the pull-out end, the track is clear for 
the movement, and the zone is not jointly occupied and has not been 
jointly occupied since the last determination that the track is clear. 
If conditions change, such that the track is no longer clear, point 
protection must either be provided or a new conditioning run conducted 
by the remote control operator(s). For example, each time that a remote 
control operator allows equipment, unrelated to the operator's remote 
control movements, to enter the activated zone, i.e., the zone has been 
jointly occupied, the remote control crewmembers cannot be certain that 
the track segment into which a shove is planned is clear until another 
conditioning run is completed. FRA does not believe it is sufficient to 
rely on a communication from a member of another train crew in 
determining the track is clear as this situation has led to previous 
accidents.
    Paragraph (d)(1) specifies that the remote control zone exception 
to the point protection requirements in paragraph (b)(2) are proposed 
only for remote control movements that are operated from a controlling 
locomotive on the leading end in the direction of movement. This 
describes a movement that is typically referred to as a remote control 
movement occurring on the pull-out end. When the controlling remote 
control locomotive is not located on the leading end in the direction 
of movement, it is proposed that the operation shall establish point 
protection as prescribed in paragraph (b)(2) regardless of whether the

[[Page 60395]]

operation is to take place within the remote control zone.
    In paragraph (d)(2), FRA proposes to provide an acceptable method 
for one remote control crew to pass onto a relieving remote control 
crew an activated zone that meets the definition of track is clear. 
Some railroads currently allow for this transfer for efficiency 
purposes; otherwise, any relieving crew would need to do its own 
conditioning run prior to making shoving moves on the pull-out end of a 
remote control zone without point protection. As remote control crews 
must take their own safety into account when conditioning a zone and 
making sure the track remains clear, the transferring of a zone is 
likely to continue to be a safe practice. If FRA develops any accident 
data to suggest that this is an unsafe practice, we will reconsider 
this allowance and likely require that the relieving crew conduct its 
own conditioning run.
    Paragraph (d)(3) proposes a determination that the zone may not be 
jointly occupied and has not been jointly occupied since the last 
determination that the track is clear. The second condition of that 
determination is arguably redundant given the first condition that the 
track is clear. However, FRA is rephrasing this extremely important 
requirement because we do not want railroads or employees to believe 
that it is acceptable to establish a zone, allow a train into the zone, 
and fail to recondition the track based on previous determinations. 
Even if another crew jointly occupied the zone and communicated to the 
remote control crew the position of each relevant switch and that the 
track in the zone is clear, this second-hand information has proven 
less reliable than information conveyed by remote control crews--so an 
exception is not justified here.
    As specified in paragraph (e), shoving or pushing movements are 
safe under certain operating conditions and, thus, FRA proposes to 
exempt these listed operations from the requirements in paragraphs (b) 
through (d) under the specified conditions. One, proposed paragraph 
(e)(1) is a recommendation to exempt push-pull operations when operated 
from the leading end in the direction of movement because, if a cab 
control car is on the leading end of a movement and a locomotive 
engineer is operating the cab control car from the leading end, the 
operation is as safe as a conventional locomotive operation that does 
not involve shoving or pushing. Two, paragraph (e)(2) also describes a 
situation where a locomotive engineer is operating from the leading, 
controlling locomotive and it is only manned helper locomotives or 
distributed power, i.e., unmanned locomotives, that are shoving or 
pushing.
    Pursuant to proposed paragraph (e)(3), the third operational 
exception to the proposed shoving or pushing minimum requirements set 
out in paragraphs (b) through (d) of this section is the allowance of 
the performance of roadway maintenance activity under the direct 
control of a roadway worker performing work in accordance with railroad 
operating rules specific to roadway workers. In other words, a 
crewmember or qualified employee is not required when a train crew is 
working under the direct control of a roadway worker and that roadway 
worker can provide adequate point protection. For example, if a ballast 
or work train is operated by a train crew, a roadway worker may direct 
the ballast or work train crew to move the train in order to perform 
the maintenance activity. To the contrary, this proposed exception 
would not permit a railroad to have an operating rule allowing a 
roadway worker to direct a train crew on logistical or revenue moves 
and such action would violate proposed paragraph (c) of this section.
    Proposed paragraph (e)(4) permits an exception from the proposed 
shoving and pushing rules because few of the shoving or pushing 
accidents have occurred on main track. From 2002 through 2005, only 
about 5 percent of shoving or pushing accidents occurred on main track. 
However, in order to make this exemption work, a long list of 
conditions apply that would provide an equivalent level of safety to 
that of the proposed requirements found in paragraphs (b) through (d) 
of this section. The requirements should look familiar to the industry 
as the requirements follow commonly used railroad operating rules. See 
General Code of Operating Rules (GCOR) 5th Edition (effective Apr. 3, 
2005), GCOR 6.5, 6.6, and 6.32 and, Northeast Operating Rules Advisory 
Committee (NORAC) 138c. The following clarification is provided for a 
few of the requirements that may not be quite as evident as the others. 
Paragraph (e)(4)(i)(A) proposes that if another movement or work 
authority is in effect within the same or overlapping limits, the 
shoving or pushing movement shall not be initiated until the leading 
end of the movement is protected by a qualified employee. Paragraph 
(e)(4)(ii) proposes that movement is limited to the train's authority 
because the danger of an accident increases substantially when a train 
shoves beyond the limits of its current authority. The proposed 
requirement in paragraph (e)(4)(iv) is met by meeting either (A), (B) 
or (C), as meeting any one of these three requirements should ensure 
safe movement into and over a highway-rail grade crossing or pedestrian 
crossing as those terms are defined in the definitions section of this 
subpart. To meet the requirement of proposed paragraph (e)(4)(iv)(B), a 
designated and qualified ``employee,'' as defined in this subpart, must 
be stationed at the crossing and have the capability to communicate 
with trains in sufficient time to inform the train of the condition of 
the crossing; the proposed rule does not specify the method of 
communication as the key issue is that the communication be effective. 
In paragraph (e)(4)(v), FRA uses the undefined terms ``interlocking 
limits'' or ``controlled point limits'' although FRA does refer to 
these terms elsewhere in this chapter; FRA did not define these terms 
because we believe the railroad industry is familiar with what we mean 
by these terms. They are commonly understood terms of art. See 49 CFR 
236.753. In paragraph (e)(4)(v)(C), a crewmember is in a position to 
determine that the train's movement has occupied the circuit 
controlling a signal such that the crewmember has the ability to 
determine that it is the leading wheels of his or her own movement that 
has activated the signal circuit.
    FRA is concerned that technology used to contain remote control 
operations within zones, where remote control operators cannot directly 
observe the far end of the pull-out movement, be sufficiently secure to 
prevent incursions into other rail operations. Although the rule text 
does not contain language on this point, FRA requests comment on 
whether such technology should be required to fail safe in design or at 
least include redundant safeguards. Should such technology be made 
subject to 49 CFR part 236, subpart H (the ``processor-based rule'')? 
FRA reserves the right to include appropriate restrictions on such 
technology in the final rule.
Section 218.101 Leaving Equipment in the Clear
    In paragraph (a), FRA proposes that each railroad shall have in 
effect an operating rule which establishes minimum requirements for 
preventing equipment from fouling connecting tracks unsafely, and that 
each railroad implement procedures that will enable employees to 
identify when the equipment is fouling. In addition, each railroad 
officer, supervisor and employee shall uphold and comply with

[[Page 60396]]

that rule. The purpose for proposing that each railroad officer, 
supervisor, and employee shall uphold and comply with that rule is so 
that all effected employees will be required to follow the operating 
rules FRA proposes that each railroad maintain as opposed to merely 
requiring that each railroad have in effect such a rule. In order to 
fully understand FRA's intent, one must consider FRA's definitions of 
``clearance point'' and ``foul or fouling a track'' in proposed section 
218.93.
    In paragraph (b), FRA proposes the general rule that equipment 
shall not be left where it will foul a connecting track or adjacent 
track but raises two exceptions. The exceptions are necessary because 
railroad operations would be nearly impossible without them. Safe 
operations permit some fouling of track under the conditions described 
in paragraphs (b)(1) and (b)(2). These exceptions are proposed 
considering that basic railroad operating rules and safety procedures, 
if properly applied, should be sufficient to prevent accidents under 
the two exceptions.
    Paragraph (b)(1) proposes that it is permissible for equipment on a 
main track or siding to foul the main track or siding switch as long as 
the switch is lined for the track upon which the equipment is standing. 
For example, it is permissible under the proposal for a train on the 
main track to be stopped at an absolute signal with the rear of the 
train fouling a siding switch lined for the main track upon which the 
train is standing. Additionally, this would prohibit the switch that is 
being fouled from being thrown underneath the train while it is fouling 
the switch. Signal systems and main track authority rules should 
protect such movements from approaching trains.
    Paragraph (b)(2) proposes that it is permissible for equipment that 
is standing on a yard or industry lead track (commonly referred to as a 
lead track, switching lead, or ladder track) to foul a yard or industry 
track if the switch is lined for the yard or industry track upon which 
the equipment is standing. Conversely, it is not permissible for 
equipment to be standing on a yard or industry track and foul the lead 
track, irregardless of the position of the switch on which the 
equipment is standing (fouling). Paragraph (b)(2) applies to industry 
sidings while paragraph (b)(1) does not. In simple terms, it is 
permissible to occupy a lead track and foul a track connected to it, 
but it is not permissible to occupy the connected track in a manner 
that fouls the lead track.
    Paragraph (c) proposes that each railroad, whether at the system, 
division, or terminal level, shall implement procedures for instructing 
employees who handle equipment so that the employees can identify 
clearance points and avoid leaving equipment out to foul. One way to 
implement such procedures is to show employees that there are readily 
observable clearance points on or near the track, e.g., marks on the 
rails or ties indicating a clearance point. When clearance points are 
not identified on or near the track, railroads must institute 
procedures for instructing employees on how to calculate clearance 
points; e.g., a railroad may choose to implement a procedure requiring 
employees to stand next to the rail and extend an arm to simulate the 
width of equipment. Great care should be used in instituting procedures 
for determining clearance points so that the margin of error is 
appropriate where employees are permitted to ride the side of a car and 
as the clearance point would be bigger for employees with bigger or 
longer bodies than the average person. This proposed section is not 
intended to apply to close clearance as it relates to buildings, 
loading docks, or doorways, although a railroad may choose to provide 
procedures for implementing safe operations under such circumstances.
Section 218.103 Hand-Operated Switches and Derails
    Paragraph (a) proposes that each railroad shall have in effect an 
operating rule which meets the minimum requirements set forth in this 
section. In addition, each railroad officer, supervisor and employee 
shall uphold and comply with that rule. The proposal contains some 
provisions that apply to all hand-operated switches and derails, some 
that apply only to hand-operated main track switches, some that apply 
only to hand-operated crossover switches and some that apply only to 
hand-operated derails. This represents a departure from FRA's current 
enforcement scheme which is limited to hand-operated switches in non-
signaled territory as specified in EO 24.
    Paragraph (b) proposes certain general rules for employees who 
operate or verify the position of a hand-operated switch or derail. For 
instance, paragraph (b)(1) proposes a fundamental requirement that an 
employee operating or verifying a hand-operated switch or derail's 
position shall be ``qualified,'' as that term is defined in this 
subpart; conversely, it would be easy for an unqualified person to make 
a mistake in switch alignment or fail to recognize a defective switch 
or derail because, unlike a qualified employee, the unqualified person 
is not trained on proper switch and derail operation or on how to 
detect a defective switch or derail. It is exactly these types of 
defective conditions that cause accidents and may be preventable by 
promulgating this proposed rule.
    Paragraph (b)(2) proposes a requirement that each railroad have an 
operating rule warning employees that each person who operates or 
verifies the position of a hand-operated switch or derail is 
individually responsible for the position of the switch or derail in 
use. The purpose of this paragraph is to remind an employee that FRA 
may take enforcement action against the employee personally for a 
willful violation. FRA hopes that the personal liability aspect of this 
rule will reinforce among employees the critical importance of ensuring 
that hand-operated switches and derails are left properly lined before 
leaving a work site.
    Paragraphs (b)(3) and (b)(4) contain proposals that would require 
employees to make certain observations. The requirements to ``visually 
ensure'' that hand-operated switches and derails are properly lined for 
the intended route and that the points fit properly and the target, if 
so equipped, corresponds with the switch's position specifies the need 
for the operating/verifying employee to take a good hard look at the 
switch or derail. For example, a proper observation would deduce 
whether the switch points fit properly against the stock rail, i.e. no 
gaps. The operating/verifying employee should certainly not be relying 
on second-hand knowledge of the switch or derail's position in 
verifying its position.
    Paragraphs (b)(5) through (b)(8) propose that the operating/
verifying employee make certain other firsthand assurances that are 
fundamental to safe railroading. These additional assurances require 
observation and physical testing to ensure the hand-operated switch or 
derail is properly secured. Paragraph (b)(5) proposes a requirement 
that if the switch or derail is equipped with a lock, hook or latch, it 
must be in the hasp, before making movements in either direction over 
the switch; this requirement should reduce accidental misalignments of 
hand-operated switches after initiating a movement and also permit the 
switch points from moving under the equipment. Proposed paragraph 
(b)(6) refers to physically testing a hand-operated switch or derail's 
lock to ensure it is secured; thus, the testing may be, but not limited 
to, pulling on the lock to ensure it is properly secured, ensuring the 
hook or latch securely fits into the hasp, and

[[Page 60397]]

that the switch or derail will not move unintentionally. This 
regulation does not require switches to be equipped with locks, hooks 
or latches. Paragraph (b)(7) proposes a requirement for an operating/
verifying employee to ensure that switches are not operated while 
equipment is standing or moving over a switch. Operating a switch under 
a moving train or while equipment is standing over it is an obvious 
recipe for disaster but apparently occurs with enough frequency that we 
propose it be included in each railroad's operating rules. Under 
paragraph (b)(8), it would be a violation of this proposed rule for an 
employee to fail to lock, hook, or latch a switch, if so equipped, 
after the employee is finished using the switch. This means that if the 
switch is equipped with a latch or hook, it must be applied and 
secured. For locks, this means the lock is in the hasp, and the lock is 
locked. If it is a latch or hook, the latch or hook must be in the 
hasp. For purposes of this section, ``not in use'' means that there is 
either no crew or equipment in the vicinity of the switch or there is a 
crew in the vicinity of the switch but the crew has no intention of 
using the switch. Therefore, it must be locked, hooked, or latched, if 
so equipped.
    Paragraph (c)(1) would provide regulatory authority over the hand-
operated main track switches so that FRA regulates the positioning of 
all such switches; in contrast, FRA only prescribes requirements for 
hand-operated main track switches in non-signaled territory in EO 24. 
It is proposed that each railroad will retain discretion regarding the 
normal position of a hand-operated main track switch. Generally, 
railroad operating rules pertaining to the operation of switches 
provide that the normal position for a main track switch is lined and 
locked for movement on the main track when not in use; the purpose of 
this rule is so that trains traveling on main track will not be 
inadvertently diverted onto another track. (Of course, this can be 
avoided if all trains were required to approach all main track switches 
prepared to stop, but that requirement would impose a substantial 
burden on railroads under most circumstances and would also introduce 
other safety concerns.) FRA proposes to permit railroads to designate a 
different position as normal, as some operations may be more efficient 
with a hand-operated main track switch's ``normal'' position designated 
in what would otherwise be referred to as the ``reverse'' position. No 
matter what position a railroad designates as the normal position of 
each hand-operated main track switch, the proposal is for such 
designations to be made in writing. The railroad may designate the 
normal position of the switch in its operating rules, system special 
instructions, timetables, general orders, or any other written 
documentation that will provide adequate notice to employees operating 
and verifying hand-operated main track switches.
    FRA is unaware of any railroads that do not require locking of main 
track switches as a safeguard against unauthorized use. Paragraph 
(c)(1) proposes that employees operating and verifying hand-operated 
main track switches should pay careful attention to ensure that these 
switches, when not in use, are lined and locked in that position except 
under two circumstances. The first circumstance under which it is 
proposed that the employee does not need to return the switch to the 
designated normal position is when the train dispatcher directs 
otherwise; thus, the train dispatcher, with movement control over that 
main track segment, directs the crew using the switch to leave the 
switch in other than the normal position. The dispatcher would then be 
responsible for the switch and must follow railroad operating 
procedures for the necessary protection of the switch. Such ``necessary 
protection'' entails that the dispatcher take steps to ensure that the 
next train crew approaching the switch has a track warrant informing 
that the switch has been left reversed. In some instances, the 
dispatcher will need to make a note in a log of train movements or 
other similar document to ensure that subsequent dispatchers have 
access to the reversed switch information. The second circumstance 
under which it is proposed that the employee does not need to return 
the switch to the designated normal position is when the switch is left 
in the charge of a crewmember of another train, a switchtender, or a 
roadway worker in charge. The reason this proposal should be an 
alternative safe procedure is because these other employees will 
likewise be individually responsible for the safe and proper operation 
of that hand-operated main track switch; the employees performing these 
jobs shall be qualified on operating switches and verifying switch 
position according to this proposal, so there should be no inherent 
problems with the transfer of responsibility for the switch. Regardless 
of the position of the switch when the train dispatcher directs 
otherwise or the switch is left in the charge of another qualified 
employee, it must still be locked, hooked or latched, if so equipped, 
when not in use, per proposed paragraph (b)(5).
    Proposed paragraph (c)(2) requires that in non-signaled territory, 
before a train or engine service employee releases the limits of a main 
track authority and a hand-operated switch is used to clear the main 
track, and, prior to departing the train's location, certain conditions 
are required. This introductory sentence in proposed paragraph (c)(2) 
makes clear that it does not apply to maintenance-of-way employees who 
may be releasing the limits of a main track authority. It also proposes 
certain conditions on the employee releasing the limits prior to 
departing the train's location such that the employee should not be 
releasing the limits at another location; this proposed requirement is 
intended to prevent an employee from releasing the limits while located 
in the yard office or while traveling away from the train's location in 
a taxi. The purpose of requiring the employee releasing the limits to 
be located near the train is so that an employee who has any question 
about the condition of the switch has access to verifying its 
condition.
    In paragraph (c)(2)(i), the first proposed condition that must be 
met is that the employee releasing the limits, after conducting a job 
briefing in accordance with paragraph (i)(3)(i) of this section, report 
to the train dispatcher that the hand-operated main track switch has 
been restored to its normal position and locked, unless the train 
dispatcher directs that the hand-operated main track switch be left 
lined and locked in the reverse position. The reference to another 
proposed paragraph in this section is intended to remind the employee 
releasing the limits that before a train or a train crew leaves the 
location where any hand-operated main track switch was operated, all 
crewmembers have a verbal communication to confirm the position of the 
switch. Soon after this job briefing, it is time to call the dispatcher 
and confirm the same information that should have been included in the 
train crew's job briefing. If the train dispatcher wants the employee 
to leave the switch in the reverse position, this communication is the 
train dispatcher's opportunity to inform the employee of such a 
request. It is proposed that the employee and dispatcher confirm with 
each other the switch position and that the switch is locked so that 
there is little chance that any trespasser without a key or bolt 
cutters could misalign the switch. As in proposed paragraph (c)(1)(i), 
a train dispatcher who directs that the switch be left in the reverse

[[Page 60398]]

position must take the protection necessary to ensure that the 
subsequent train crew that will approach the switch has a track warrant 
informing them of the switch's reverse position. Again, such 
``necessary protection'' entails that the dispatcher take steps to 
ensure that the next train crew approaching the switch has a track 
warrant informing that the switch has been left reversed. In some 
instances, the dispatcher will need to make a note in a log of train 
movements or other similar document to ensure that subsequent 
dispatchers have access to the reversed switch information.
    Paragraph (c)(2)(ii) and (iii) detail two more proposed conditions 
that must be met when main track authority limits are being prepared 
for release. The second proposed condition is that if the train 
crewmember's report of the switch position is correct, i.e., matches 
the operating rule or dispatchers direction, the train dispatcher shall 
repeat the reported switch position information to the employee 
releasing the limits and ask whether the repeated information is 
correct. Typically, railroad procedures require the train dispatcher to 
ask whether ``that is correct'' with regard to confirming this type of 
information, so the proposed regulation is intended to reflect those 
commonly used procedures. The third proposed condition is that the 
employee releasing the limits then confirm that this information is 
correct with the train dispatcher. Railroads and employees who 
currently release such limits should recognize that these requirements 
follow the traditional rules of such release. The purpose of the 
dispatcher and employee repeating the switch's condition is so that 
both employees can confirm that the other is repeating the correct 
information regarding the position of the switch and that it is locked.
    The proposed rule retains the requirement in EO 24 that an employee 
releasing the limits of a main track authority in non-signaled 
territory communicate with the train dispatcher that all hand-operated 
main track switches operated have been restored to their normal 
position, unless the train dispatcher directs otherwise, but only to 
the extent that the switches are at the location where the limits are 
being released. With the proposed elimination of a SPAF, it would be 
difficult for an employee to recall the condition of any particular 
hand-operated main track switch operated and there would likely be a 
reaction for an employee to believe he or she left all such switches in 
proper position--without much opportunity to double-check the condition 
of those faraway switches at that time. As mentioned previously, 
accidents often occur where the limits are being released and that is 
why the proposed rule has placed emphasis on addressing the problem at 
those locations. The switches located at the point of release of the 
limits should be readily accessible for any employee who is unsure of 
the condition the switch was last left in. The proposed rule also adds 
the requirement that the employee report that the switch has been 
locked; locking of the main track switch should prevent easy access to 
unauthorized users.
    The proposed requirements in paragraph (c)(2) carry over certain 
employee/dispatcher communication requirements from EO 24 that provide 
additional checks to ensure that hand-operated main track switches are 
left properly lined and locked. The proposed requirement is carefully 
tailored to address the switches at the location being released because 
FRA has determined that many of the accidents are occurring at that 
location. As several comments were received in response to EO 24 
regarding an equivalent requirement carried over in proposed paragraph 
(c)(2), it should be helpful to describe what FRA means by the term 
``releasing the limits of a main track authority.'' The term means 
releasing all or a portion of the limits (i.e., rolling up the limits) 
of an existing main track authority.
    Paragraph (d) proposes that when rolling or on-track maintenance-
of-way equipment is approaching a hand-operated switch or derail not 
lined for its intended movement, it shall not foul a track (see 
definition of ``foul or fouling a track'' in this subpart) until the 
switch or derail is properly lined for the intended movement. If the 
switch is intended to be trailed through, such as with a spring switch, 
or a yard type switch commonly referred to as a ``rubber switch'' or a 
``run-through switch,'' movement shall not trail through the switch 
until the route is seen to be clear or the equipment has been granted 
movement authority by the employee in charge of that track segment or 
switch. Additionally, if a train, rolling equipment or on-track 
maintenance-of-way equipment is closely approaching a switch and an 
employee observes a conflicting movement also closely approaching the 
switch, the track with the approaching conflicting movement shall not 
be fouled.
    In paragraph (e), FRA proposes a requirement that when equipment 
enters a track, the hand-operated switch to that track shall not be 
lined away from the track until that equipment has passed the 
``clearance point'' (as defined in this subpart) of that track. If 
complied with, this proposed requirement will prevent an employee from 
operating a switch while equipment is fouling it, directly on it, or in 
close proximity to it. The purpose of this proposed requirement is to 
prevent injuries and accidents caused by improper operation of 
switches. Injuries should be reduced by this requirement because when 
switches are operated with equipment fouling a switch, or directly on a 
switch, a switch can be hard to operate or may be put under tension 
such that when an employee begins to operate the switch handle, it may 
move unexpectedly; thus, back injuries and other muscle strains may be 
reduced. In addition, accidents may be reduced as employees will not be 
allowed to operate switches under tension, i.e., when cars are on a 
switch.
    Paragraph (f) also attempts to prevent accidents and injuries due 
to last minute misalignments of switches. Generally, after an employee 
lines a hand-operated switch to or from the main track, the safest 
position for the employee is away from the switch until the movement is 
complete. Some railroads specify a distance, e.g., that the employee 
shall stand at least 20 feet from that switch; FRA has proposed the 20 
feet away requirement but requests comments on whether a distance 
should be specified. The key here is that each employee operating such 
a switch is far enough away that the employee could not operate the 
switch at the last moment, or even underneath the movement, if the 
employee remains a safe distance from the switch until the movement is 
complete. This rule does not apply during continuous switching 
operations and thus, this proposed requirement is not meant to apply to 
an employee who is switching a cut of cars into classification tracks.
    Paragraph (g)(1) proposes the general rule that both hand-operated 
switches of a crossover shall be properly lined before equipment begins 
a crossover movement. Properly lined means that switches at both ends 
of the crossover are lined either for the crossover movement or both 
are lined for straight track. As train crews expect crossover switches 
to be properly lined, i.e., in correspondence (see definition of 
``correspondence of crossover switches''), an accident can easily occur 
when crossover switches are out of correspondence. A related concern 
that is addressed in the proposal is what to do when equipment is 
traversing a crossover; the proposal would require that all equipment 
be clear of both ends

[[Page 60399]]

of the crossover before restoring the switches to the normal position. 
If employees apply a railroad operating rule that matches this 
proposal, the requirement should prevent the unintentional running 
through of crossover switches or unintentional movements onto another 
track that could potentially strike other rolling equipment. FRA 
recognizes that a safe operation is probable during continuous 
switching operations where only one crew is using both tracks connected 
by the crossover, so FRA has proposed an exception for that situation.
    Paragraph (g)(2) identifies three exceptions to the general rule 
that hand-operated crossover switches should be in correspondence. The 
reason for the exceptions is that each operation is safe or safer with 
the crossover switches out of correspondence than in correspondence. 
That is, each exception identifies a situation in which employees on 
the track are protected by diverting trains and equipment without 
slowing down operations.
    FRA is aware that some configurations of crossover switches are 
quite complicated, typically due to the location of adjacent or 
adjoining track and other attendant switches. Railroads should address 
these complicated configurations of crossover switches when employees 
are trained on the physical characteristics of the territory. Without 
proper training on how to apply a railroad's operating rule for 
correspondence of crossover switches, it will be difficult to hold 
employees accountable. However, railroads can be held accountable if 
employees do not properly apply such an operating rule and lack of 
training is one of the causes. Of course, if a railroad provided 
training but a violation was committed due to the complexities of the 
crossover configuration, FRA will exercise discretion regarding whether 
any enforcement action is necessary.
    Paragraph (g)(2)(i)(A) proposes allowing mechanical department 
workers to line one end of a crossover away from the track under blue 
signal protection to allow workers on, under, or between rolling 
equipment on main track. See 49 CFR 218.27. Similarly, paragraph 
(g)(2)(i)(B) proposes allowing providing track protection for roadway 
workers on track that is considered ``inaccessible'' under Sec.  
214.327 of this chapter. FRA proposes paragraph (g)(2)(i)(C) to permit 
those railroads that have the technology, in centralized traffic 
control (CTC) territory to allow a signal maintainer to perform 
maintenance, testing or inspection of the switch at only one end of a 
crossover while continuing to operate trains over the other crossover 
switch. FRA does not have any evidence to suggest this exception is an 
unsafe practice. Finally, proposed paragraph (g)(2)(ii) states the 
obvious need for immediate restoration of the crossover switches to 
correspondence after the protection afforded by paragraph (g)(2)(i)(A), 
(B) or (C) is no longer necessary.
    Paragraph (h) proposes the general rules for hand-operated derails. 
Paragraph (h)(1) proposes that the normal position of fixed derails is 
in the derailing position; but, a railroad may specify in its operating 
rules or special instructions that the normal position of a fixed 
derail is in the non-derailing position. Furthermore, fixed derails 
must remain in the derailing position until changed to allow movement 
onto the protected track; consequently, the proposed rule requires that 
the fixed derails shall be returned to the normal position once the 
movement is complete. If fixed derails are being used for protection of 
workers using blue signals, these proposed rules would not be 
applicable as FRA already has other regulations governing derails in 
that circumstance. See 49 CFR part 218, subpart B.
    The entire purpose of a derail, whether fixed or portable, is to 
protect something or someone. Derails are typically used to prevent 
unauthorized equipment from rolling out onto main tracks in front of 
trains. They are also used to protect workers who are on a track to 
repair track or equipment. Derails may be placed in addition to 
warnings provided by signs, flags, gates, and notices in timetables and 
special instructions; thus, derails protect employees when other 
employees operating equipment or a train fail to heed these other 
warnings, or unattended equipment rolls freely. Although a properly 
applied derail that stops equipment or a train has done its job, FRA 
proposes in paragraph (h)(2) that enforcement action may be necessary 
when a railroad or person causes a movement to be made over a derail in 
the derailing position. As the typical situation involving movement 
over a derail occurs at low speeds and does not result in serious 
injuries or excessive damage to railroad property, the industry has 
accepted, in FRA's view, too much tolerance for this type of incident. 
Consequently, while FRA plans to use its enforcement discretion, the 
purpose of proposing this requirement is to reverse the permissive 
culture of the railroad industry that has accepted running over a 
derail. This proposed requirement is not intended to discourage the use 
of derails in protecting workers; thus, to the extent that railroads 
may try to mandate that employees stop using derails, to avoid the 
potential liability of FRA enforcement action, FRA would need to 
consider additional regulatory measures to mandate the use of derails. 
We are doubtful that such further regulatory measures would become 
necessary as the potential liability for employees injured when derails 
could have been used is probably enough of a deterrent to arbitrary 
elimination of operating rules pertaining to derail protection.
    Paragraph (h)(3) proposes that if a hand-operated derail is 
equipped with a lock, when the derail is not in use, the lock must be 
in the hasp and secured. For the purpose of this section, not in use 
means that no crew is either operating over the derail or continuously 
or intermittently operating over the derail. If no crew or equipment is 
in the vicinity of the derail or there is no intent to use the derail, 
then it must be locked, if so equipped, in the designated normal 
position.
    As previously mentioned in the SUPPLEMENTARY INFORMATION section 
titled ``Accident at Graniteville, SC and Safety Advisory 2005-01,'' 
NTSB found that catastrophic accidents, such as the one at 
Graniteville, SC, could be prevented by adequate job briefings. The 
proposal found in paragraph (i) would require each railroad to have its 
own rules and procedures governing the minimum requirements for a 
satisfactory job briefing, which to FRA's knowledge, nearly all 
railroads already do. It is essential that employees working together 
know exactly what each person's role is in the operation, what the 
methods of operation and protection will be, and the order in which 
segments of the job are to be accomplished. With such knowledge, one 
employee could recognize the mistakes of another and correct them 
before any operating rule violation or serious accident occurred.
    Paragraph (i)(2) proposes frequent job briefings at important 
junctures. It is critical that employees know what is expected of them 
before they start working, know what is expected to happen if the work 
plan changes after work is initiated but before the work is completed, 
and to confirm whether all the work was completed to everyone's 
satisfaction and according to the operating rules. For experienced 
employees, each job briefing should not be a particularly long meeting; 
in fact, FRA expects that some job briefings may last less than one 
minute, but the length of an adequate briefing will most likely depend 
on the complexity of the job.

[[Page 60400]]

    Just in case there is any confusion that the operation of a hand-
operated main track switch is a job requiring briefings, FRA proposes 
requirements in paragraph (i)(3) for such briefings where employees 
should be engaging in meaningful communication. Thus, in paragraph 
(i)(3)(i), FRA specifically proposes that before a train leaves the 
location where any hand-operated main track switch was operated, all 
crewmembers shall have verbal communication to confirm the position of 
the switch. Similarly, paragraph (i)(3)(ii) addresses that 
communication amongst employees is vital when roadway workers are 
working within the same work limits and operate hand-operated main 
track switches. Thus, when any roadway work group is working under the 
protections of the specified form of working limits, FRA proposes that 
any employee who operates a hand-operated main track switch within such 
limits shall do so under the direction of the roadway worker in charge. 
Further, it is proposed that the employee operating the hand-operated 
main track switch shall report to the roadway worker in charge the 
position of all hand-operated main track switches the employee has 
operated to the roadway worker in charge prior to the expiration of the 
authority limits.
    In some roadway work group situations, a roadway worker may be 
instructed during a job briefing to convey switch position information 
to an employee who is not the roadway worker in charge. In this 
alternative situation, the contact person is acting as an intermediary 
between the employee operating the switch and the roadway worker in 
charge. This intermediary person is commonly referred to as an 
``employee in charge.'' FRA proposes that it shall be acceptable for 
the employee in charge to pass on the switch position information from 
the employee operating the switch to the roadway worker in charge 
without firsthand verification of the switch position. The important 
aspect of this requirement is that the work group members are 
communicating the switch position and not who conveys the information. 
FRA would appreciate comments on this aspect of the proposal although 
the allowance of this option should reflect the reality of current 
operations.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this proposed 
rule. Document inspection and copying facilities are available at the 
Department of Transportation Central Docket Management Facility located 
in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC 20590. Access to the docket may also be 
obtained electronically through the Web site for the DOT Docket 
Management System at http://dms.dot.gov. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. 
FRA-2005-23080. FRA invites comments on this regulatory evaluation.
    FRA analyzed the foregoing NPRM and found that there will be 
relatively little change in the burden upon railroads, however, the FRA 
believes that much greater compliance with rules which are almost 
identical to what the railroads have promulgated as their own operating 
rules will likely result in a reduction in human factor accidents, 
especially those human factors causes most directly targeted by the 
rulemaking. FRA believes that most railroads can achieve average 
reductions of 35% in these accidents, because there is a large railroad 
with better than average compliance with its own operating rules which 
routinely has human factor accident rates 35% below the industry 
average. The costs of the foregoing are minimal, because most of the 
procedures mandated are already incorporated in the railroads' own 
operating rules. The biggest costs will be related to publication of 
changed language, and management of the operating rules programs. The 
rule would have even less impact on small entities, as they are excused 
from most of the burdens which regulate management of their operating 
rules testing programs. The NPRM would generate twenty-year discounted 
benefits of $191,189,965, and twenty-year discounted costs of 
$20,756,051, for a twenty-year discounted net benefit of $170,433,914, 
if the assumptions in this analysis are correct.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Analysis of Impact on Small Entities (AISE) that assesses the 
small entity impact of this proposal. Document inspection and copying 
facilities are available at the DOT's Central Docket Management 
Facility located in Room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC 20590. Docket 
material is also available for inspection on the Internet at http://dms.dot.gov. Photocopies may also be obtained by submitting a written 
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590; please refer to Docket No. FRA-2006-25267.
    FRA notes that the impact on small entities have been considered 
throughout the development of this NPRM both internally and through 
consultation within the RSAC forum, as described in Section II of this 
preamble. After the Railroad Operating Rules Working Group failed to 
reach a consensus recommendation, FRA reported the Working Group's 
unofficial areas of agreement and disagreement to the RSAC.
    The AISE developed in connection with this NPRM concludes that this 
proposal would not have a significant economic impact on a substantial 
number of small entities. Thus, FRA certifies that this proposed rule 
is not expected to have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act or 
Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this proposed 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:
BILLING CODE 4910-06-P

[[Page 60401]]

[GRAPHIC] [TIFF OMITTED] TP12OC06.010


[[Page 60402]]


[GRAPHIC] [TIFF OMITTED] TP12OC06.011


[[Page 60403]]


[GRAPHIC] [TIFF OMITTED] TP12OC06.012

BILLING CODE 4910-06-C

[[Page 60404]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 17, Washington, DC 20590. Comments may also be submitted via e-
mail to Mr. Brogan at the following address: <a href="/cdn-cgi/l/email-protection#f7859895928583d9958598909699b7918596d9939883d9909881"><span class="__cf_email__" data-cfemail="c8baa7aaadbabce6aabaa7afa9a688aebaa9e6aca7bce6afa7be">[email protected]</span></a>. 

    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    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 a final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the proposed regulation. Where a regulation 
has federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This is a rule with preemptive effect. Subject to a limited 
exception for essentially local safety hazards, its requirements will 
establish a uniform Federal safety standard that must be met, and State 
requirements covering the same subject are displaced, whether those 
standards are in the form of State statutes, regulations, local 
ordinances, or other forms of State law, including State common law. 
Preemption is addressed in Sec. Sec.  217.2 and 218.4, both titled 
``Preemptive effect.'' As stated in the corresponding preamble language 
for Sec. Sec.  217.2 and 218.4, section 20106 of Title 49 of the United 
States Code provides that all regulations prescribed by the Secretary 
related to railroad safety preempt any State law, regulation, or order 
covering the same subject matter, except a provision necessary to 
eliminate or reduce an essentially local safety hazard that is not 
incompatible with a Federal law, regulation, or order and that does not 
unreasonably burden interstate commerce. This is consistent with past 
practice at FRA, and within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. FRA notes that the 
above factors have been considered throughout the development of this 
NPRM both internally and through consultation within the RSAC forum, as 
described in Section II of this preamble. After the Railroad Operating 
Rules Working Group failed to reach a consensus recommendation, FRA 
reported the Working Group's unofficial areas of agreement and 
disagreement to the RSAC. The RSAC has as permanent voting members two 
organizations representing State and local interests: AASHTO and ASRSM. 
The RSAC regularly provides recommendations to the FRA Administrator 
for solutions to 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 will be afforded opportunity to consult by virtue of this 
NPRM and comment period.
    Please be advised that on April 27, 2005, FRA received from the 
State of California a petition for rulemaking on the subject of remote 
control operations referred to in the SUPPLEMENTARY INFORMATION section 
as ``Technology Aided Point Protection.'' The petition requested that 
FRA initiate a rulemaking ``to formally approve and establish rules 
affecting RCL [remote control locomotive] operations by railroads over 
public highway-rail at-grade crossings.'' California's petition did not 
raise an issue regarding preemption. On October 27, 2005, FRA denied 
California's rulemaking petition because it was procedurally deficient 
and it did not include sufficient information upon which to base a 
rulemaking proceeding. See Docket No. FRA-2005-21094 (found at http://dms.dot.gov/). Nevertheless, this proposed rule contains specific 
provisions of the kind requested in the petition.
    For the foregoing reasons, FRA believes that this proposed rule is 
in accordance with the principles and criteria contained in Executive 
Order 13132.

E. Environmental Impact

    FRA has evaluated this proposed regulation 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 proposed regulation 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

[[Page 60405]]

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 proposed regulation is not a major Federal action 
significantly affecting the quality of the human environment.

F. Unfunded Mandates Act of 1995

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

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) that is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM 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. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, 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 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects

49 CFR Part 217

    Railroad operating rules, Program of operational tests and 
inspections, Program of instruction on operating rules, and 
Recordkeeping.

49 CFR Part 218

    Railroad operating practices, Handling equipment, switches and 
derails, Shoving or pushing movements, Main track switches, Crossover 
switches, Remote control locomotive operations, Good faith challenge 
procedures, Program of instruction, training and examination, and Job 
briefings.

The Proposed Rule

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

PART 217--[AMENDED]

    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.

    1A. Section 217.2 is added to read as follows:


Sec.  217.2  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of these regulations preempts any 
State law, regulation, or order covering the same subject matter, 
except an additional or more stringent law, regulation, or order that 
is necessary to eliminate or reduce an essentially local safety hazard; 
is not incompatible with a law, regulation, or order of the United 
States Government; and does not impose an unreasonable burden on 
interstate commerce.
    2. Section 217.4 is amended by adding the following definitions of 
Associate Administrator for Safety and Qualified to read as follows:


Sec.  217.4  Definitions.

* * * * *
    Associate Administrator for Safety means the Associate 
Administrator for Safety of the Federal Railroad Administration or that 
person's delegate as designated in writing.
* * * * *
    Qualified means that a person has successfully completed all 
instruction, training and examination programs required by the railroad 
and this part and that the person, therefore, has actual knowledge or 
may reasonably be expected to have knowledge of the subject on which 
the person is expected to be competent.
* * * * *
    3. Section 217.9 is revised to read as follows:


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

    (a) Requirement to conduct operational tests and inspections. Each 
railroad to which this part applies shall periodically conduct 
operational tests and inspections to determine the extent of compliance 
with its code of operating rules, timetables, and timetable special 
instructions, specifically including tests and inspections sufficient 
to verify compliance with the requirements of subpart F of part 218 of 
this chapter, in accordance with a written program retained at its 
system headquarters and at the division headquarters for each division 
where the tests are conducted.
    (b) Railroad and railroad testing officer responsibilities. (1) 
Each railroad officer who conducts operational tests and inspections 
shall:
    (i) Be qualified on the railroad's operating rules in accordance 
with Sec.  217.11 of this part;
    (ii) Be qualified on the operational testing program requirements 
and procedures relevant to the testing the officer will conduct;
    (iii) Receive appropriate field training, as necessary to achieve 
proficiency, on each operational test that the officer is authorized to 
conduct; and
    (iv) Conduct operational tests in accordance with the railroad's 
program of operational tests and inspections.
    (2) Written records documenting qualification of each railroad 
testing officer shall be retained at the railroad's system headquarters 
and at the division headquarters for each division where the officer is 
assigned and made

[[Page 60406]]

available to representatives of the FRA for inspection and copying 
during normal business hours.
    (c) Written program of operational tests and inspections. Beginning 
thirty (30) days before commencing operations, each railroad to which 
this part applies shall retain one copy of its current program for 
periodic performance of the operational tests and inspections required 
by paragraph (a) of this section and one copy of each subsequent 
amendment to such program. These records shall be retained at the 
system headquarters of the railroad and at the division headquarters 
for each division where the tests are conducted, for three calendar 
years after the end of the calendar year to which they relate. These 
records shall be made available to representatives of the Federal 
Railroad Administration for inspection and copying during normal 
business hours. The program shall--
    (1) Provide for operational testing and inspection under the 
various operating conditions on the railroad with particular emphasis 
on 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. The railroad's program shall specifically provide for a 
minimum number of tests per year that cover the requirements of part 
218, subpart F of this chapter.
    (2) Describe each type of operational test and inspection adopted, 
including the means and procedures used to carry it out;
    (3) State the purpose of each type of operational test and 
inspection;
    (4) State, according to operating divisions where applicable, the 
frequency with which each type of operational test and inspection is 
conducted;
    (5) Designate an officer, or officers for each railroad with 
division headquarters, by name or job title, who shall be responsible 
for ensuring that the program of operational tests and inspections is 
properly implemented on a system-wide basis or, for officers 
responsible for a division, on a divisional basis. The designated 
officer's responsibility will 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.
    (6) Begin within thirty (30) days of the date of commencing 
operations; and
    (7) Include a schedule for making the program fully operative 
within 210 days after it begins.
    (d) Records of individual tests and inspections. Each railroad to 
which this part applies shall keep a record of the date, time, place, 
and result of each operational test and inspection that was performed 
in accordance with its program. Each record shall specify the officer 
administering the test and inspection and each employee tested. These 
records shall be retained at the system headquarters of the railroad 
and at the division headquarters for each division where the tests are 
conducted for one calendar year after the end of the calendar year to 
which they relate. These records shall be made available to 
representatives of the Federal Railroad Administration for inspection 
and copying during normal business hours.
    (e) Reviews of tests and inspections and adjustments to the program 
of operational tests.
    (1) Reviews by railroads other than passenger railroads. Each 
railroad to which this part applies, except for a railroad with less 
than 400,000 total employee work hours annually and except for a 
railroad subject to paragraph (e)(2) of this section, shall conduct 
periodic reviews and analyses as provided in this paragraph and shall 
retain, at each division headquarters, where applicable, and at its 
system headquarters, one copy of the following written reviews.
    (i) Monthly review. The designated officer for each division 
headquarters, or system headquarters, if no division headquarters 
exists, shall conduct a written monthly review of the operational 
testing data for the division or system to determine compliance by the 
railroad testing officers with the railroad's program of operational 
tests and inspections required by paragraph (c) of this section. At a 
minimum, this monthly review shall include the name of each railroad 
testing officer, the number of tests and inspections conducted by each 
officer, and whether the officer conducted the minimum number of each 
type of test or inspection required by the railroad's program. Monthly 
reviews shall be completed no later than 15 days after the month has 
ended.
    (ii) Quarterly review. The designated officer of each division 
headquarters, or system headquarters, if no division headquarters 
exists, shall conduct a written quarterly review of the accident/
incident data, the results of prior operational tests and inspections, 
and other pertinent safety data for that division or system to identify 
the relevant operating rules related to those accidents/incidents that 
occurred during the quarter. Based upon the results of that review, the 
designated officer shall make any necessary adjustments to the tests 
and inspections required of railroad officers for the subsequent 
period(s). Quarterly reviews and adjustments shall be completed no 
later than 30 days after the quarter has ended.
    (iii) Six month review. The designated officer of each system 
headquarters office responsible for development and administration of 
the program of operational tests shall conduct a review of the program 
of operational tests and inspections on a six month basis to ensure 
that it is being utilized as intended, that the monthly and quarterly 
reviews provided for in this paragraph have been properly completed, 
that appropriate adjustments have been made to the distribution of 
tests and inspections required, and that the railroad testing officers 
are appropriately directing their efforts. Six month reviews shall be 
completed no later than 30 days after the review period has ended.
    (2) Reviews by passenger railroads. Not less than once every six 
months, the designated officers of the National Railroad Passenger 
Corporation and of each railroad providing commuter service in a 
metropolitan or suburban area shall conduct periodic reviews and 
analyses as provided in this paragraph and shall retain, at each 
division headquarters, where applicable, and at its system 
headquarters, one copy of the reviews. Each such review shall be 
completed within 30 days of the close of the period.
    (i) The designated officer of each division headquarters, or system 
headquarters, if no division headquarters exists, shall conduct a 
written review of the operational testing data for the division or 
system to determine compliance by the railroad testing officers with 
its program of operational tests and inspections required by paragraph 
(c) of this section. At a minimum, this review shall include the name 
of each railroad testing officer, the number of tests and inspections 
conducted by each officer, and whether the officer conducted the 
minimum number of each type of test or inspection required by the 
railroad's program.
    (ii) The designated officer of each division headquarters, or 
system headquarters, if no division headquarters exists, shall conduct 
a written review of accident/incident data, the results of prior 
operational tests and inspections, and other pertinent safety data for 
the division or

[[Page 60407]]

system to identify the relevant operating rules related to those 
accidents/incidents that occurred during the period. Based upon the 
results of that review, the designated officer shall make any necessary 
adjustments to the tests and inspections required of railroad officers 
for the subsequent period(s).
    (iii) The designated officer of each system headquarters office 
responsible for development and administration of the program of 
operational tests shall conduct a review of the program of operational 
tests and inspections to ensure that it is being utilized as intended, 
that the other reviews provided for in this paragraph have been 
properly completed, that appropriate adjustments have been made to the 
distribution of tests and inspections required, and that the railroad 
testing officers are appropriately directing their efforts.
    (3) Records retention. The records of periodic reviews required in 
paragraphs (e)(1) and (e)(2) of this section shall be retained for a 
period of one year after the end of the calendar year to which they 
relate and shall be made available to representatives of the Federal 
Railroad Administration for inspection and copying during normal 
business hours. All written records of reviews may be stored 
electronically.
    (f) Annual summary on operational tests and inspections. Before 
March 1 of each calendar year, each railroad to which this part 
applies, except for a railroad with less than 400,000 total employee 
work hours annually, shall retain, at each of its division headquarters 
and at the system headquarters of the railroad, one copy of a written 
summary of the following with respect to its previous calendar year 
activities: The number, type, and result of each operational test and 
inspection, stated according to operating divisions where applicable, 
that was conducted as required by paragraphs (a) and (c) of this 
section. These records shall be retained for three calendar years after 
the end of the calendar year to which they relate and shall be made 
available to representatives of the FRA for inspection and copying 
during normal business hours.
    (g) Electronic recordkeeping. Each railroad to which this part 
applies is authorized to retain by electronic recordkeeping the 
information prescribed in this section, provided that all of the 
following conditions are met:
    (1) The railroad adequately limits and controls accessibility to 
such information retained in its electronic database system and 
identifies those individuals who have such access;
    (2) The railroad has a terminal at the system headquarters and at 
each division headquarters;
    (3) Each such terminal has a computer (i.e., monitor, central 
processing unit, and keyboard) and either a facsimile machine or a 
printer connected to the computer to retrieve and produce information 
in a usable format for immediate review by FRA representatives;
    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as 
true and accurate copies of the electronically kept records; and
    (5) The railroad provides representatives of the FRA with immediate 
access to these records for inspection and copying during normal 
business hours and provides printouts of such records upon request.
    (h) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the record(s) required by this section; or
    (2) Otherwise falsify such records through material misstatement, 
omission, or mutilation.
    (i) Upon review of the program of operational tests and inspections 
required by this section, the Associate Administrator for Safety may, 
for cause stated, disapprove the program. Notification of such 
disapproval shall be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program, the railroad shall be provided an opportunity 
of not less than 30 days to respond and to provide written or oral 
submissions, or both, in support of the program. The Associate 
Administrator for Safety shall render a final decision in writing and 
the railroad shall be provided not less than 30 days to amend the 
program in accordance with the Associate Administrator for Safety's 
decision.
    4. Appendix A to Part 217 is amended by revising the entry for 
Sec.  217.9 to read as follows:

Appendix A to Part 217--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
217.9 Operational tests and inspections:
    (a) Program.........................          $7,500         $10,000
    (b) Railroad and railroad testing
     officer responsibilities:
        (1) Failure to provide                    $5,000          $7,500
         instruction, examination, or
         field training, or failure to
         conduct tests in accordance
         with program...................
        (2) Records.....................          $5,000          $7,500
    (c) Record of Program...............          $5,000          $7,500
    (d) Record of tests and inspections.          $7,500         $10,000
    (e) Failure to conduct or retain
     copy of:
        (1) Monthly review..............          $5,000          $7,500
        (2) Quarterly review............          $7,500         $10,000
        (3) Six month review............          $5,000          $7,500
        (4) Records.....................          $5,000          $7,500
    (f) Annual summary..................          $7,500         $10,000
    (h) Falsification of record.........            (--)         $11,000
    (i) Failure to timely or                      $7,500         $10,000
     appropriately amend program after
     disapproval........................
 
                              * * * * * * *
------------------------------------------------------------------------


[[Page 60408]]

PART 218--[AMENDED]

    5. 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.

    5A. Section 218.4 is added to read as follows:


Sec.  218.4  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of these regulations preempts any 
State law, regulation, or order covering the same subject matter, 
except an additional or more stringent law, regulation, or order that 
is necessary to eliminate or reduce an essentially local safety hazard; 
is not incompatible with a law, regulation, or order of the United 
States Government; and does not impose an unreasonable burden on 
interstate commerce.
    6. Section 218.5 is amended by revising the definition of Flagman's 
signals to read as follows:


Sec.  218.5  Definitions.

* * * * *
    Flagman's signals means a red flag by day and a white light at 
night, and fusees as prescribed in the railroad's operating rules.
* * * * *
    7. Section 218.37 is amended by revising paragraphs (a)(1)(iii) and 
(a)(1)(iv) to read as follows:


Sec.  218.37  Flag protection.

    (a) * * *
    (1) * * *
    (iii) When a train stops on main track, flag protection against 
following trains on the same track must be provided as follows: A crew 
member with flagman's signals must immediately go back at least the 
distance prescribed by timetable or other instructions for the 
territory and display one lighted fusee. He may then return one-half of 
the distance to his train where he must remain until he has stopped the 
approaching train or is recalled. When recalled, he must leave one 
lighted fusee and while returning to his train, he must also place 
single lighted fusees at intervals that do not exceed the burning time 
of the fusee. When the train departs, a crew member must leave one 
lighted fusee and until the train resumes speed not less than one-half 
the maximum authorized speed (including slow order limits) in that 
territory, he must drop off single lighted fusees at intervals that do 
not exceed the burning time of the fusee.
    (iv) When required by the railroad's operating rules, a forward 
crew member with flagman's signals must protect the front of his train 
against opposing movements by immediately going forward at least the 
distance prescribed by timetable or other instructions for the 
territory, displaying one lighted fusee, and remaining at that location 
until recalled.
* * * * *
    8. Part 218 is amended by adding subpart F to read as follows:
Subpart F--Handling Equipment, Switches and Derails
Sec.
218.91 Purpose and scope.
218.93 Definitions.
218.95 Instruction, training and examination.
218.97 Good faith challenge procedures.
218.99 Shoving or pushing movements.
218.101 Leaving equipment in the clear.
218.103 Hand-operated switches and derails.

Subpart F--Handling Equipment, Switches and Derails


Sec.  218.91  Purpose and scope.

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


Sec.  218.93  Definitions.

    As used in this subpart--
    Associate Administrator for Safety means the Associate 
Administrator for Safety of the Federal Railroad Administration or that 
person's delegate as designated in writing.
    Clearance point means the location near a turnout beyond which it 
is unsafe for passage on an adjacent track(s). Where a person is 
permitted by a railroad's operating rules to ride the side of a car, a 
clearance point shall accommodate a person riding the side of a car.
    Controlled siding means a siding within centralized traffic control 
(CTC) or interlocking limits where a signal indication authorizes the 
siding's use.
    Correspondence of crossover switches means both crossover switches 
are lined for the crossover or both are lined for the straight tracks.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this subpart.
    Foul or fouling a track means rolling equipment or on-track 
maintenance-of-way equipment is located such that any part of the 
equipment is between the clearance point and the switch point leading 
to the track on which the equipment is standing.
    Hand-operated switch means any type of switch when operated by 
manual manipulation, including when operated by a push button or radio 
control, when such switch is not protected by distant switch 
indicators, switch point indicators or other visual or audio 
verification that the switch points are lined for the intended route 
and fit properly.
    Highway-rail grade crossing means a location where a public 
highway, road, street, or private roadway, including associated 
sidewalks and pathways, crosses one or more railroad tracks at grade.
    Locomotive means a piece of on-track equipment (other than 
specialized roadway maintenance equipment or a dual purpose vehicle 
operating in accordance with Sec.  240.104(a)(2)):
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Pedestrian crossing means a separate designated sidewalk or pathway 
where pedestrians, but not vehicles, cross railroad tracks. Sidewalk 
crossings contiguous with, or separate but adjacent to, highway-rail 
grade crossings, are presumed to be part of the highway-rail grade 
crossings and are not considered pedestrian crossings.
    Qualified means that a person has successfully completed all 
instruction, training and examination programs required by the railroad 
and this subpart and that the person, therefore, has actual knowledge 
or may reasonably be expected to have knowledge of the subject on which 
the person is expected to be competent.
    Remote control operator means a locomotive engineer, as defined in 
Sec.  240.5 of this chapter, certified by a railroad to operate remote 
control locomotives pursuant to Sec.  240.107 of this chapter.
    Remote control zone means one or more tracks within defined limits 
designated in the timetable special instructions, or other railroad 
publication, within which remote control locomotives, under certain 
circumstances specified in this part, may be operated without an 
employee assigned to protect the pull-out end of the remote control 
movement, i.e., the end on which the locomotive is located.

[[Page 60409]]

    Roadway maintenance activity means any work limited to the duties 
prescribed for a roadway worker by definition in this section, 
including movement of on-track maintenance-of-way equipment other than 
locomotives.
    Roadway worker means any employee of a railroad, or of a contractor 
to a railroad, whose duties include inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts as defined in Sec.  
214.7 of this chapter.
    Roadway worker in charge means a roadway worker who is qualified in 
accordance with Sec.  214.353 of this chapter for the purpose of 
establishing on-track safety for roadway work groups.
    Switchtender means a qualified employee assigned to handle switches 
at a specific location.
    Track is clear means a crewmember or other qualified employee makes 
a visual determination that:
    (1) The portion of the track to be used is unoccupied by rolling 
equipment, on-track maintenance-of-way equipment and conflicting 
movements;
    (2) Intervening highway-rail grade crossings and pedestrian 
crossings are protected as follows:
    (i) Crossing gates are in the fully lowered position; or
    (ii) A designated and qualified employee is stationed at the 
crossing and has the ability to communicate with trains; or
    (iii) At crossings equipped only with flashing lights or passive 
warning devices, when it is clearly seen that no traffic is approaching 
or stopped at the crossing and the leading end of the movement over the 
crossing does not exceed 15 miles per hour;
    (3) Intervening switches and derails are properly lined for the 
intended movement; and
    (4) The portion of the track has sufficient room to contain the 
equipment being shoved or pushed.


Sec.  218.95  Instruction, training and examination.

    (a) Program. Effective [DATE 90 DAYS FOLLOWING THE EFFECTIVE DATE 
OF THE FINAL RULE], 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.
    (1) The written program of instruction, training and examination 
shall specifically address the requirements of this subpart, as well as 
consequences of non-compliance.
    (2) The written program of instruction, training and examination 
shall include training in any technology (and related procedures) 
employed to accomplish work subject to the particular requirements, 
actions required by the employee to enable and use the system, means to 
detect malfunctioning of equipment or deviations from proper 
procedures, actions to be taken when malfunctions or deviations are 
detected, and information needed to prevent unintentional interference 
with the proper functioning of such technology.
    (3) Implementation schedule for employees, generally. Each employee 
performing duties subject to the requirements in this subpart shall be 
initially instructed, trained and examined prior to [DATE 12 MONTHS 
FROM PUBLICATION DATE OF THE FINAL RULE], and employees required to be 
instructed, trained and examined thereafter or hired during the 12-
month period following [publication date of the final rule] shall be 
instructed, trained and examined before performing duties subject to 
the requirements in this subpart.
    (4) After [DATE 12 MONTHS AFTER PUBLICATION DATE OF THE FINAL 
RULE], no employee shall perform work requiring compliance with the 
operating rules implementing the requirements of this subpart unless 
instructed, trained and examined on these rules within the previous 
three years.
    (5) The records of instruction, examination and training required 
by this section shall document qualification of employees under this 
subpart.
    (b) Written records documenting instruction, training and 
examination of each employee required by this subpart shall be retained 
at its system headquarters and at the division headquarters for each 
division where the employee is assigned and made available to 
representatives of the FRA for inspection and copying during normal 
business hours.
    (c) Upon review of the program of instruction, training and 
examination required by this section, the Associate Administrator for 
Safety may, for cause stated, disapprove the program. Notification of 
such disapproval shall be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program, the railroad shall be provided an opportunity 
of not less than 30 days to respond and to provide written or oral 
submissions, or both, in support of the program. The Associate 
Administrator for Safety shall render a final decision in writing and 
the railroad shall be provided not less than 30 days to amend the 
program in accordance with the Associate Administrator for Safety's 
decision.


Sec.  218.97  Good faith challenge procedures.

    (a) General procedures. Each employer is responsible for the 
training of and compliance by its employees with the requirements of 
this subpart.
    (1) Each employer shall adopt and implement written procedures 
which guarantee each employee the right to challenge in good faith 
whether the procedures that will be used to accomplish a specific task 
comply with the requirements of this subpart or any operating rule 
relied upon to fulfill the requirements of this subpart. Each 
employer's written procedures shall provide for prompt and equitable 
resolution of challenges made in accordance with this subpart.
    (2) The written procedures required by this section shall indicate 
that the good faith challenge described in paragraph (a)(1) of this 
section is not intended to abridge any rights or remedies available to 
the employee under 49 U.S.C. 20109 or a collective bargaining 
agreement.
    (3) Each affected employee shall be instructed on the written 
procedures required by this paragraph as part of the training 
prescribed by Sec.  217.11 of this chapter.
    (4) A copy of the written procedures shall be provided to each 
affected employee and made available for inspection and copying by 
representatives of the FRA during normal business hours. The employer 
shall provide a copy of any amendments to its written procedures to 
each affected employee prior to its effective date.
    (b) The written procedures shall--
    (1) Grant each employee the right to challenge any directive which, 
based on the employee's good faith determination, would cause the 
employee to violate any requirement of this subpart or any operating 
rule relied upon to fulfill the requirements of this subpart;
    (2) Provide that an employee making a good faith challenge shall 
not be

[[Page 60410]]

discharged or in any way discriminated against for making the 
challenge;
    (3) Provide that no work is to be performed with respect to the 
challenged task until the challenge is resolved. A challenge may be 
resolved by: a railroad or employer officer's acceptance of the 
employee's request; an employee's acceptance of the directive; an 
employee's agreement to a compromise solution acceptable to the person 
issuing the directive; or a direct order to proceed with the work, as 
initially ordered. Such direct order shall be entered only in 
accordance with prior and subsequent procedures set forth in paragraph 
(c) of this section.
    (c) The written procedures, prior appeal and subsequent procedures 
shall:
    (1) Provide for immediate review by at least one officer of the 
railroad or employer prior to execution of a direct order. The review 
shall not be conducted by the person issuing the challenged directive, 
or his or her subordinate. The railroad or employer officer providing 
this immediate review shall have the same options for resolving the 
challenge as the initial officer, except that the reviewing officer's 
decision shall not be subject to further immediate review, unless 
provided for in a railroad's written procedures;
    (2) Provide that the employee be afforded an opportunity to 
document electronically or in writing any protest to the direct order 
before the tour of duty is complete. The employee shall be afforded the 
opportunity to retain a copy of the protest;
    (3) Provide that the employee be orally advised that completing the 
work as ordered will not subject the employee to penalties or 
consequences for non-compliance under this subpart; and
    (4) Provide that the employee has a right to further review by a 
designated railroad or employer officer, within a specified period 
following completion of the duty tour, for the purpose of verifying the 
proper application of the regulation, law, procedure or rule in 
question. Upon request by the employee, that verification decision 
shall be made in writing to the employee.


Sec.  218.99  Shoving or pushing movements.

    (a) Each railroad shall have in effect an operating rule which 
complies with the requirements of paragraphs (b) through (d) of this 
section, and, each railroad officer, supervisor and employee shall 
uphold and comply with that rule.
    (b) General movement requirements.
    (1) Job briefing. Rolling equipment shall not be shoved or pushed 
until the locomotive engineer has participated in a job briefing by the 
employee who will direct the move, who shall describe as part of the 
job briefing the means of communication to be used and how point 
protection will be provided.
    (2) Point Protection. When rolling equipment is shoved or pushed, 
point protection shall be provided by a crewmember or other qualified 
employee:
    (i) Visually determining, for the duration of the shoving or 
pushing movement, that the track is clear either within the range of 
vision or for the complete distance the equipment is to be shoved or 
pushed. The determination that the track is clear may be made with the 
aid of monitored cameras or other technological means, provided that it 
and the procedures for use provide an equivalent level of protection to 
that of a direct visual determination by an employee properly 
positioned to make the observation; and
    (ii) Giving signals or instructions necessary to control the 
movement.
    (c) Remote control movement requirements. All remote control 
movements are considered shoving or pushing movements, except when the 
remote control operator controlling the movement is riding the leading 
end of the leading locomotive in a position to visually determine 
conditions in the direction of movement. In addition to the other 
requirements of this section, when initiating a remote control shoving 
or pushing movement:
    (1) The remote control operator shall visually determine the 
direction the equipment moves; or
    (2) A member of the crew shall visually determine the direction the 
equipment moves and confirm the direction with the remote control 
operator. If no confirmation is received, the movement shall be 
immediately stopped.
    (d) Remote control zone, exception to point protection requirement. 
When a remote control zone is activated, point protection, as 
prescribed in paragraph (b)(2) of this section, is not required under 
the following conditions:
    (1) The remote control movement is operated from a controlling 
locomotive on the leading end in the direction of movement, i.e., the 
movement occurs on the pull-out end;
    (2) The track is clear for the movement as determined by the remote 
control crewmembers or crewmembers from a relieved remote control crew 
who have transferred the remote control zone directly to the relieving 
crew; and
    (3) The remote control zone is not jointly occupied and has not 
been jointly occupied since the last determination that the track is 
clear.
    (e) Operational exceptions. A railroad may adopt operating rules 
other than those required by paragraphs (b) through (d) of this section 
in the following circumstances:
    (1) Push-pull operations when operated from the leading end in the 
direction of movement, i.e., push mode;
    (2) Shoving or pushing operations with manned helper locomotives or 
distributed power locomotives when operated from the leading end in the 
direction of movement;
    (3) During the performance of roadway maintenance activity under 
the direct control of a roadway worker performing work in accordance 
with railroad operating rules specific to roadway workers; or
    (4) When the leading end of a shoving movement is on a main track 
or controlled siding, under the following conditions:
    (i) The train dispatcher gives permission to make the movement and 
verifies that:
    (A) Another movement or work authority is not in effect within the 
same or overlapping limits unless conflicting movements are protected; 
and
    (B) A main track is not removed from service by a work authority 
within the same or overlapping limits;
    (ii) Movement is limited to the train's authority;
    (iii) Movement shall not be made into or within yard limits, 
restricted limits, drawbridges, or work authority limits;
    (iv) Movement shall not enter or foul a highway-rail grade crossing 
or pedestrian crossing except when:
    (A) Crossing gates are in the fully lowered position; or
    (B) A designated and qualified employee is stationed at the 
crossing and has the ability to communicate with trains; or
    (C) At crossings equipped only with flashing lights or passive 
warning devices, when it is clearly seen that no traffic is approaching 
or stopped at the crossing and the leading end of the movement over the 
crossing does not exceed 15 miles per hour; and
    (v) Movement shall not be made into or within interlocking limits 
or controlled point limits unless the following conditions are met:
    (A) The signal governing movement is more favorable than 
restricting aspect;
    (B) Each signal governing movement into and through interlocking 
limits or controlled point limits shall be continuously observed by a 
member of that crew;
    (C) The crewmember is in a position to determine that the train's 
movement

[[Page 60411]]

has occupied the circuit controlling that signal as evidenced by that 
signal assuming its most restrictive aspect; and
    (D) Movement does not exceed the train's length.


Sec.  218.101  Leaving equipment in the clear.

    (a) Each railroad shall have in effect an operating rule which 
complies with the requirements of paragraphs (b) and (c) of this 
section and each railroad officer, supervisor and employee shall uphold 
and comply with that rule.
    (b) Equipment shall not be left where it will foul a connecting 
track unless:
    (1) The equipment is standing on a main track or siding and the 
main track or siding switch that the equipment is fouling is lined for 
the main track or siding on which the equipment is standing; or
    (2) The equipment is standing on a yard or industry switching lead 
track and the yard or industry track switch that the equipment is 
fouling is lined for the yard or industry switching lead track on which 
the equipment is standing.
    (c) Each railroad shall implement procedures that enable employees 
to identify clearance points and a means to identify locations where 
clearance points will not permit a person to safely ride on the side of 
a car.


Sec.  218.103  Hand-operated switches and derails.

    (a) Each railroad shall have in effect an operating rule which 
complies with the requirements set forth in this section and each 
railroad officer, supervisor and employee shall uphold and comply with 
that rule.
    (b) General. Employees operating or verifying the position of a 
hand-operated switch or derail shall:
    (1) Be qualified on the railroad's operating rules relating to 
their operation;
    (2) Be individually responsible for the position of the switch or 
derail in use;
    (3) Visually ensure that switches and derails are properly lined 
for the intended route;
    (4) Visually ensure that the points fit properly and the target, if 
so equipped, corresponds with the switch's position;
    (5) Ensure that the switch is latched or secured by placing the 
lock or hook, if so equipped, in the hasp before making movements in 
either direction over the switch;
    (6) After locking, hooking or latching a switch or derail that is 
so equipped, test the lock, hook or latch to ensure it is secured;
    (7) Ensure that switches are not operated while equipment is 
standing or moving over a switch; and
    (8) Ensure that when not in use, switches are locked, hooked, or 
latched if so equipped.
    (c) Hand-operated Main Track Switches. (1) The normal position of a 
hand-operated main track switch shall be designated by the railroad in 
writing and the switch shall be lined and locked in that position when 
not in use except when:
    (i) The train dispatcher directs otherwise with respect to the 
position of a hand-operated main track switch and the necessary 
protection is provided; or
    (ii) The hand-operated switch is left in the charge of a crewmember 
of another train, a switchtender, or a roadway worker in charge.
    (2) Releasing Authority Limits. In non-signaled territory, before a 
train or engine service employee releases the limits of a main track 
authority and a hand-operated switch is used to clear the main track, 
and, prior to departing the train's location, the following conditions 
are required:
    (i) The employee releasing the limits, after conducting a job 
briefing in accordance with paragraph (i)(3)(i) of this section, shall 
report to the train dispatcher that the hand-operated main track switch 
has been restored to its normal position and locked, unless the train 
dispatcher directs that the hand-operated main track switch be left 
lined and locked in the reverse position and the necessary protection 
is provided;
    (ii) If the report of the switch position is correct, the train 
dispatcher shall repeat the reported switch position information to the 
employee releasing the limits and ask whether that is correct; and
    (iii) The employee releasing the limits shall then confirm to the 
train dispatcher that this information is correct.
    (d) Rolling and on-track maintenance-of-way equipment shall not 
foul a track until all hand-operated switches and derails connected 
with the movement are properly lined, or in the case of hand-operated 
switches designed to be trailed through, until the intended route is 
seen to be clear or the train has been granted movement authority. When 
a conflicting movement is approaching a hand-operated switch, the track 
shall not be fouled or the switch or derail operated.
    (e) When equipment enters a track, the hand-operated switch to that 
track shall not be lined away from the track until the equipment has 
passed the clearance point in the track.
    (f) Except during continuous switching operations, when an employee 
lines a hand-operated switch to let equipment enter or leave the main 
track, the employee shall move at least twenty (20) feet away from the 
switch and not return to the switch until the movement is complete.
    (g)(1) Hand-operated crossover switches, generally. Both hand-
operated switches of a crossover shall be properly lined before 
equipment begins a crossover movement. A crossover movement shall be 
completed before either hand-operated switch is restored to normal 
position, except when one crew is using both tracks connected by the 
crossover during continuous switching operations.
    (2) Correspondence of hand-operated crossover switches. (i) Hand-
operated crossover switches shall be left in corresponding position 
except when:
    (A) Used to provide blue signal protection under Sec.  218.27 of 
this part; or
    (B) Used for inaccessible track protection under Sec.  214.327 of 
this chapter; or
    (C) Performing maintenance, testing or inspection of hand-operated 
crossover switches in centralized traffic control (CTC) territory.
    (ii) Hand-operated crossover switches shall be immediately restored 
to correspondence after protection is no longer required.
    (h) Hand-operated derails. (1) The normal position of fixed derails 
is in the derailing position except as provided in part 218, subpart B 
of this chapter, or the railroad's operating rules or special 
instructions. Derails shall be kept in that position except when 
changed to permit movement, whether or not any equipment is on the 
tracks they protect.
    (2) Movement shall not be made over a derail in the derailing 
position.
    (3) Derails equipped with locks shall be locked, when not in use.
    (i) Job briefings. (1) Minimum requirements necessary for an 
adequate job briefing shall be specified.
    (2) Job briefings shall be conducted by employees operating hand-
operated switches before work is begun, each time a work plan is 
changed and at completion of the work.
    (3) Additional job briefing requirements for hand-operated main 
track switches.
    (i) Before a train or a train crew leaves the location where any 
hand-operated main track switch was operated, all crewmembers shall 
have verbal communication to confirm the position of the switch.
    (ii) In the case of exclusive track occupancy authority established 
under Sec.  214.321, foul time under Sec.  214.323, or train 
coordination under Sec.  214.325, when a roadway worker qualified to 
operate hand-operated main track switches is granted permission by the

[[Page 60412]]

roadway worker in charge to occupy or otherwise use the limits of the 
exclusive track occupancy, such employee receiving permission to occupy 
the working limits shall report the position of any such switches 
operated upon expiration of the authority limits to the roadway worker 
in charge or to a designated intermediary employee who shall convey the 
switch position to the roadway worker in charge.
    9. Appendix A to Part 218 is amended by adding a heading for 
subpart F and entries for Sec. Sec.  218.95, 218.97, 218.99, 218.101, 
and 218.103 to read as follows:

Appendix A to Part 218--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
Subpart F--Handling Equipment, Switches
 and Derails:
    218.95 Instruction, Training and
     Examination:
        (a) Program.....................          $7,500         $10,000
        (b) Records.....................           5,000           7,500
        (c) Failure to timely or                   7,500          10,000
         appropriately amend program
         after disapproval..............
    218.97 Good Faith Challenge
     Procedures:
        (a-c) Failure to adopt or                  7,500          10,000
         implement procedures...........
    218.99 Shoving or Pushing Movements:
        (a) Failure to implement                   7,500          10,000
         required operating rule........
        (b) Failure to conduct job                 7,500          10,000
         briefing, use a qualified
         employee, or establish protect
         protection.....................
        (c) Failure to observe equipment           7,500          10,000
         direction......................
        (d) Failure to establish remote            7,500          10,000
         control zone in lieu of point
         protection.....................
        (e) Failure to abide by                    7,500          10,000
         operational exception
         requirements...................
    218.101 Leaving Equipment in the
     Clear:
        (a) Failure to implement                   7,500          10,000
         required operating rule........
        (b) Equipment left improperly              7,500          10,000
         fouling........................
        (c) Failure to implement                   7,500          10,000
         procedures for identifying
         clearance points...............
    218.103 Switches and Derails:
        (a) Failure to implement                   7,500          10,000
         required operating rule........
        (b-i) Railroad and employee                5,000           7,500
         failures.......................
------------------------------------------------------------------------


    Issued in Washington, DC on October 4, 2006.
Joseph H. Boardman,
Administrator.
[FR Doc. 06-8568 Filed 10-11-06; 8:45 am]
BILLING CODE 4910-06-P


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