60372 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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. 

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: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590– 

001. 

• 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. 

• 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— 

• Blue Signal Protection for 

employees working on, under or 

between railroad rolling stock (49 CFR 

part 218, subpart B); 

• Railroad Communications (49 CFR 

part 220); 

• Prohibition of Tampering with 

Safety Devices (49 CFR part 218, subpart 

D); and 

• 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. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 noncompliance 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 


jlentini on PROD1PC65 with PROPOSAL2
60374 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

(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 NonSignaled 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 nonsignaled 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 facingpoint 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 handoperated main track switches in nonsignaled 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 handoperated 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 intracrew 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 noncompliance with established railroad 

operating rules related to fundamental 

railroad operations. In each case, 

compliance can be objectively and 

conclusively determined. For example, 

it can be definitively determined 

whether switches are properly lined, 

locked, latched or had been previously 

run through. It can be determined 

whether a shoving movement was made 

without point protection or without the 

signals or instructions necessary to 

control the movement. Similarly, it can 

be determined whether a car is left 

fouling a track such that it is causing an 

unsafe operating condition, or whether 

the track is clear ahead for a shoving 

movement. Finally, it can also be 

determined with certainty whether there 

has been a failure to apply or remove a 

derail. 

The top human factor causes that FRA 

is choosing not to address with this 

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, 


jlentini on PROD1PC65 with PROPOSAL2
60376 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 decisionmaking 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 nonregulatory 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 handoperated main track switches in nonsignaled 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 intraroadway worker group communication. 

See 70 FR at 61499–50 and § 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 

§ 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 handoperated main track switch that was 

operated by any crewmember of that 

train before it leaves the location of the 

switch. See § 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 § 218.103(i)(3)(ii). 

NTSB also ‘‘does not believe that 

* * * the use of forms [such as a SPAF] 


jlentini on PROD1PC65 with PROPOSAL2
60378 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 

§ 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 handoperated 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 doublecheck 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 handoperated main track switches in nonsignaled 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 § 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 § 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 § 217.9(e) would 

formalize a best practice from some of 

the largest and safest railroads nationwide. 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 Noncompliance’’). While railroads have 

universally done an acceptable job of 

taking corrective action following an 

accident, railroads have not done as 

well in consistently testing for the 

variety of operating rules, at a variety of 

locations, and at different times of the 

day, in order to meet FRA’s expectations 

for an effective testing and inspection 

program. Accidents and incidents of 

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 noncompliance. 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 


jlentini on PROD1PC65 with PROPOSAL2
60380 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 

§ 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 

§ 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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, bulletinboards, 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60382 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 

§ 218.99(b)(2)(i). 

The issue of reliance on noncrewmembers 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 noncrewmember, 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 noncrewmember 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 noncrewmember 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. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 § 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60384 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 noncompliance during the previous quarter. 

Even where a division or system has 

had a particularly safe quarter, railroad 

testing officers should be instructed to 

adjust the way in which they are 

conducting their tests so that employees 

cannot easily anticipate the types of 

tests to be conducted, nor the dates and 

locations of such tests. 

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-bysection 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 


jlentini on PROD1PC65 with PROPOSAL2
60386 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 

§ 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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, § 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, highwayrail 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 §§ 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60388 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

employees also have occasion to operate 

these switches. For lack of better 

terminology, we are characterizing these 

other types of switches as ‘‘handoperated’’ 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 § 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 highwayrail 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60390 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 § 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 noncompliance 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 


jlentini on PROD1PC65 with PROPOSAL2
60392 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 [§ 20109] is subject to resolution 

under section 3 of the Railway Labor 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 

§ 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 noncompliance and accidents. As specified 

in paragraph (e), there are other 

movements that could be considered 

shoving or pushing movements but FRA 

believes these other movements can be 

treated differently as they are safe if 

certain operating conditions are met. 

Paragraph (b)(1) 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60394 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 ‘‘processorbased 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 


jlentini on PROD1PC65 with PROPOSAL2
60396 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 handoperated 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 handoperated main track switches so that 

FRA regulates the positioning of all 

such switches; in contrast, FRA only 

prescribes requirements for handoperated main track switches in nonsignaled 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 handoperated 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 handoperated 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 


jlentini on PROD1PC65 with PROPOSAL2
60398 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 handoperated 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 handoperated 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 handoperated 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 § 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. 


jlentini on PROD1PC65 with PROPOSAL2
60400 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 handoperated 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 handoperated 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 twentyyear 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 60401 


jlentini on PROD1PC65 with PROPOSAL2EP12OC06.010</GPH>
60402 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL2EP12OC06.011</GPH>
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 60403 

BILLING CODE 4910–06–C 


jlentini on PROD1PC65 with PROPOSAL2EP12OC06.012</GPH>
60404 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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: 

robert.brogan@fra.dot.gov. 

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 §§ 217.2 and 218.4, both 

titled ‘‘Preemptive effect.’’ As stated in 

the corresponding preamble language 

for §§ 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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: 

§ 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: 

§ 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: 

§ 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 

§ 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 


jlentini on PROD1PC65 with PROPOSAL2
60406 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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 § 217.9 to read 

as follows: 

Appendix A to Part 217—Schedule of 

Civil Penalties 

Section Violation Willful violation 

* * * * * * * 

217.9 Operational tests and inspections: 

(a) Program ....................................................................................................................................................... $7,500 $10,000 

(b) Railroad and railroad testing officer responsibilities: 

(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in accordance with program ................................................................................................................................. $5,000 $7,500 

(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 appropriately amend program after disapproval ........................................................... $7,500 $10,000 

* * * * * * * 


jlentini on PROD1PC65 with PROPOSAL2
60408 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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: 

§ 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: 

§ 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: 

§ 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 

§ 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. 

§ 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-ofway 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 § 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 

§ 240.5 of this chapter, certified by a 

railroad to operate remote control 

locomotives pursuant to § 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. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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-ofway 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 § 214.7 of this chapter. 

Roadway worker in charge means a 

roadway worker who is qualified in 

accordance with § 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, ontrack 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. 

§ 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 § 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. 

§ 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 § 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 


jlentini on PROD1PC65 with PROPOSAL2
60410 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 noncompliance 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. 

§ 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 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 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. 

§ 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. 

§ 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 handoperated 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 nonsignaled 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 handoperated 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 maintenanceof-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 § 218.27 of this part; or 

(B) Used for inaccessible track 

protection under § 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 

§ 214.321, foul time under § 214.323, or 

train coordination under § 214.325, 

when a roadway worker qualified to 

operate hand-operated main track 

switches is granted permission by the 


jlentini on PROD1PC65 with PROPOSAL2
60412 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Proposed Rules 

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 §§ 218.95, 218.97, 218.99, 

218.101, and 218.103 to read as follows: 

Appendix A to Part 218—Schedule of 

Civil Penalties 

Section Violation Willful 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 appropriately amend program after disapproval ................................................... 7,500 10,000 

218.97 Good Faith Challenge Procedures: 

(a–c) Failure to adopt or implement procedures ....................................................................................... 7,500 10,000 

218.99 Shoving or Pushing Movements: 

(a) Failure to implement required operating rule ...................................................................................... 7,500 10,000 

(b) Failure to conduct job briefing, use a qualified employee, or establish protect protection ................. 7,500 10,000 

(c) Failure to observe equipment direction ............................................................................................... 7,500 10,000 

(d) Failure to establish remote control zone in lieu of point protection .................................................... 7,500 10,000 

(e) Failure to abide by operational exception requirements ..................................................................... 7,500 10,000 

218.101 Leaving Equipment in the Clear: 

(a) Failure to implement required operating rule ...................................................................................... 7,500 10,000 

(b) Equipment left improperly fouling ........................................................................................................ 7,500 10,000 

(c) Failure to implement procedures for identifying clearance points ....................................................... 7,500 10,000 

218.103 Switches and Derails: 

(a) Failure to implement required operating rule ...................................................................................... 7,500 10,000 

(b–i) Railroad and employee failures ........................................................................................................ 5,000 7,500 

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 


jlentini on PROD1PC65 with PROPOSAL2