33888 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the 

analysis performed under various laws 

and executive orders for the counterpart 

Federal regulations. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the analysis performed under various 

laws and executive orders for the 

counterpart Federal regulations. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: May 22, 2008. 

Thomas D. Shope, 

Regional Director, Applachian Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 948 is amended 

as set forth below: 

PART 948—WEST VIRGINIA 

■ 1. The authority citation for part 948 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 948.15 is amended by 

adding a new entry to the table in 

chronological order by ‘‘Date of 

publication of final rule’’ to read as 

follows: 

§ 948.15 Approval of West Virginia 

regulatory program amendments. 

* * * * * 

Original amendment submission 

date Date of publication of final rule Citation/description of approved provisions 

* * * * * * * 

April 17, 2008 ................................. June 16, 2008 ................................ W. Va. Code 22–3–11(g) 

(interim approval), 11(h)(1) 

(interim approval). 

[FR Doc. E8–13456 Filed 6–13–08; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 217 and 218 

[Docket No. FRA–2006–25267] 

RIN 2130–AB76 

Railroad Operating Rules: Program of 

Operational Tests and Inspections; 

Railroad Operating Practices: Handling 

Equipment, Switches and Fixed Derails 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule; response to petitions 

for reconsideration. 

SUMMARY: This document responds to 

four petitions for reconsideration of 

FRA’s final rule which was published 

on February 13, 2008. The rule 

mandated certain changes to a railroad’s 

program of operational tests and 

inspections and mandated new 

requirements for the handling of 

equipment, switches, and fixed derails. 

DATES: This regulation is effective on 

June 16, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Douglas H. Taylor, Staff Director, 

Operating Practices Division, Office of 

Safety Assurance and Compliance, FRA, 

1200 New Jersey Avenue, SE., RRS–11, 

Mail Stop 25, Washington, DC 20590 

(telephone 202–493–6255); or Alan H. 

Nagler, Senior Trial Attorney, Office of 

Chief Counsel, FRA, 1200 New Jersey 

Avenue, SE., RCC–11, Mail Stop 10, 

Washington, DC 20590 (telephone 202–

493–6038). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Background 

II. Major Issues Raised by Petitions 

A. Implementation Dates 

B. Shove Lights 

C. Individual Liability and Enforcement 

D. Good Faith Challenge 

E. The Point Protection Technology 

Standard for Remote Control Zones 

III. Section-by-Section Analysis 

IV. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272 

C. Paperwork Reduction Act 

D. Federalism Implications 

E. Environmental Impact 

F. Unfunded Mandates Act of 1995 

G. Energy Impact 

H. Public Proceedings 

I. Privacy Act 

I. Background 

On May 18, 2005, the FRA’s Railroad 

Safety Advisory Committee (RSAC) 

accepted a task statement and agreed to 

establish the Railroad Operating Rules 

Working Group (Working Group) whose 

overall purpose was to recommend to 

the full committee how to reduce the 

number of human factor caused train 

accidents/incidents and related 

employee injuries. After consideration 

of the Working Group’s 

recommendations, FRA published a 

Notice of Proposed Rulemaking (NPRM) 

on October 12, 2006 to establish greater 

accountability on the part of railroad 

management for administration of 

railroad programs of operational tests 

and inspections, and greater 

accountability on the part of railroad 

supervisors and employees for 

compliance with those railroad 

operating rules that are responsible for 

approximately half of the train accidents 

related to human factors. See 71 FR 

60372. FRA received written comment 

on the NPRM as well as advice from its 

Working Group in preparing a final rule, 

which was published on February 13, 

2008. See 73 FR 8442. 

Following publication of the final 

rule, parties filed petitions seeking 

FRA’s reconsideration of the rule’s 

requirements. These petitions 

principally related to the following 

subject areas: the implementation dates; 

shove lights; the need for individual 

liability and enforcement; good faith 

challenge procedures; the point 

protection technology standard for 

remote control locomotive operations; 

and FRA’s rulemaking authority. 

This document responds to all the 

issues raised in the petitions for 

reconsideration except the issue 

pertaining to FRA’s rulemaking 

authority which is being addressed in a 

separate letter to that specific petitioner. 

FRA will make that response part of the 

public docket related to this proceeding. 

The amendments contained in this 

document in response to the petitions 

for reconsideration generally clarify the 

requirements currently contained in the 

final rule or allow for greater flexibility 

in complying with the rule, and are 

within the scope of the issues and 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33889 

options discussed, considered, or raised 

in the NPRM. 

The specific issues and 

recommendations raised by the 

petitioners, and FRA’s response to those 

petitions, are discussed below. The 

discussion will aid the regulated 

community in understanding the 

requirements of the rule. 

II. Major Issues Raised by Petitions 

A. Implementation Dates 

Petitioner Concern: Dates Do Not 

Provide Sufficient Time To Comply 

The Association of American 

Railroads (AAR) and the American 

Public Transportation Association 

(APTA) each submitted a petition for 

reconsideration requesting delays for 

the implementation of training and 

program deadlines found in 49 CFR 

217.9 and 218.95. AAR is a trade 

association whose membership includes 

freight railroads that operate 72 percent 

of the line-haul mileage, employ 92 

percent of the workers, and account for 

95 percent of the freight revenue of all 

railroads in the United States. AAR’s 

membership also includes passenger 

railroads that operate intercity 

passenger trains and provide commuter 

rail service. APTA’s members include 

commuter railroads. The National 

Railroad Passenger Corporation 

(Amtrak) is a member of both AAR and 

APTA. 

AAR and APTA raised similar 

concerns and requested the same action. 

Both associations requested that each 

implementation date contained in 49 

CFR 217.9 and 218.95 be extended by 

six months. 

Both petitions for reconsideration 

explained that railroads will need to 

overcome certain obstacles to establish 

a program of operational tests and 

inspections under 49 CFR 217.9. For 

example, AAR stated that the recent 

amendments to this section require each 

railroad to conduct specific types of 

periodic reviews and that some 

railroads have not been using any 

formal periodic reviews. In addition, 

those railroads implementing periodic 

reviews for the first time will need time 

to craft and implement a carefully 

thought out and worthwhile program. 

AAR also pointed out that oversight of 

the program will require a 

recordkeeping system that will aid in 

implementation and tracking 

compliance and that it is unaware of 

any railroad having such a 

recordkeeping system currently in 

place. Similarly, APTA stated that four 

months is not enough time for passenger 

railroads to review accident/incident 

records, determine which operating 

rules require particular emphasis in the 

testing and inspection program, develop 

the additional testing and inspection 

procedures, and qualify railroad testing 

officers on how to properly conduct the 

tests and inspections. APTA 

emphasized that passenger railroads are 

requesting additional time to do the job 

right rather than just quickly. 

Both associations raised concerns 

with the requirements in § 217.9(b) that 

pertain to qualifying railroad testing 

officers and keeping written records 

documenting each railroad testing 

officer’s qualification. APTA pointed 

out that the requirements pertaining to 

railroad testing officers are new, and 

implied that each railroad would need 

to expend additional resources to 

confirm that each railroad testing officer 

is qualified and to maintain records 

supporting each qualification decision. 

AAR stated that the July 1, 2008 

deadline for implementing paragraph (b) 

is unrealistic because it does not 

provide a railroad with sufficient time 

to qualify supervisors on the new 

requirements. AAR also suggested that 

many railroads will want to maintain an 

electronic recordkeeping system for 

tracking the qualifications of 

supervisors; and the applicability 

deadline of July 1, 2008 does not 

provide sufficient time to establish a 

new recordkeeping system. AAR also 

disliked FRA’s suggestion that ‘‘if a 

railroad has not previously kept a record 

of whether an officer is qualified on the 

operational testing program, that the 

railroad create a short survey which 

would allow an officer to acknowledge 

whether the officer considers himself/ 

herself qualified on the various aspects 

of the program, as well as qualified 

(either through experience or prior 

instruction, training, and examination) 

on the various types of tests and 

inspections that the officer may be 

asked to conduct.’’ 73 FR 8457. AAR 

asserts that if training took place before 

the establishment of a recordkeeping 

system, FRA and a railroad could be 

reliant on oral testimony, which could 

well result in controversial enforcement 

citations. Implied in AAR’s concern is 

that some railroad testing officers may 

believe they know how to conduct 

certain tests or inspections, but the 

officer’s ability to conduct a particular 

test or inspection has not been 

confirmed by the railroad. 

Consequently, AAR is concerned that a 

railroad testing officer that exaggerates 

his or her abilities could potentially 

subject a railroad to liability if the 

officer were to conduct an improper 

test. See § 217.9(b)(1). 

Both AAR and APTA are members of 

RSAC and were told by FRA that the 

agency’s goal was to publish the final 

rule by the fall of 2007. APTA states that 

had FRA published the rule in the fall 

of 2007, its members could have 

complied with the training in the 2008 

training cycle. AAR and APTA both 

requested that FRA consider that a 

consequence of publishing the final rule 

in the first quarter of 2008 was that the 

vast majority of railroads that typically 

conduct the bulk of training during the 

first quarter of the year are now 

thwarted from doing so. Both 

associations argued that it would be too 

difficult to alter training programs by 

July 1, 2008 pursuant to § 218.95(a) 

because new training course material is 

usually developed in the second half of 

the year. Railroads primarily allocate 

the first quarter of each year to training 

employees, but often that training 

continues into the second quarter. The 

trainers are typically the same people 

employed to revise the training 

programs in the second half of the year. 

Thus, it would be difficult for the 

railroads to finish the training already 

planned for 2008 while revising the 

training required by the final rule. AAR 

and APTA also argued that it would be 

difficult and costly to qualify employees 

in accordance with 49 CFR part 218, 

subpart F, by January 1, 2009 because 

employees are not as available as they 

are during the first quarter of the year 

due to personal and business 

obligations. 

FRA’s Response 

When FRA published the final rule, 

the agency did not fully appreciate the 

difficulties most railroads would face in 

trying to comply with the 

implementation dates. FRA was under 

the impression that it was providing a 

sufficient amount of time for a railroad 

to comply and that the implementation 

dates would not be controversial. FRA 

understood that by publishing the rule 

in mid-February, each railroad would 

need to qualify its employees and 

supervisors, as well as implement the 

new and revised programs outside of the 

railroads regular schedule for such 

actions. FRA perceived the actions 

needed for compliance to be not that 

much different than existing railroad 

programs relating to operating rules. 

Now that FRA has reviewed AAR and 

APTA’s petitions for reconsideration, 

we agree with the associations that 

delayed implementation is warranted 

for the reasons expressed in the 

petitions. It is important that each 

railroad effectively qualify its railroad 

testing officers and implement a 

meaningful program of tests and 

inspections under 49 CFR 217.9. The 

associations are certainly correct that 

mstockstill on PROD1PC66 with RULES

33890 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

ensuring railroad testing officers are 

qualified is an important aspect of the 

revised section and that keeping 

accurate records of the qualifications of 

each railroad testing officer is an 

integral component of that requirement. 

Thus, FRA is granting AAR and APTA’s 

requests to amend the applicability 

dates in 49 CFR 217.9, the logistics of 

which are described in the section-bysection analysis for that section. 

FRA also agrees with AAR and 

APTA’s requests to amend the 

applicability dates in 49 CFR 218.95. 

The associations’ petitions for 

reconsideration helped FRA understand 

the full extent of the burden the final 

rule will place on each railroad. FRA 

certainly prefers providing each railroad 

with the additional time it needs to fully 

implement 49 CFR part 218, subpart F 

than have a situation where many 

railroad programs are put together so 

quickly that the programs contain 

mistakes or fall short in some way, or 

training is rushed to the extent that 

employees do not fully understand the 

operating rules and the importance of 

them. Thus, FRA is granting AAR and 

APTA’s requests to amend the 

applicability dates in 49 CFR 218.95, the 

logistics of which are described in the 

section-by-section analysis for that 

section. 

B. Shove Lights 

AAR Petition 

AAR’s petition requested 

reconsideration of FRA’s decision to 

exclude shove lights as an acceptable 

technological alternative to visually 

protecting the point pursuant to the 

requirements in 49 CFR 218.99(b)(3)(i) 

unless either: (1) The track is 

completely circuited to indicate 

occupancy; or, (2) a visual 

determination is made that the track is 

clear to the beginning of the circuited 

section of the track. 73 FR 8478. Shove 

lights are lights that are sequentially 

circuited on the ends of departure tracks 

in classification yards to indicate a 

shoving movement’s approach to the 

opposite end of a track. There are a 

variety of different shove light 

arrangements, some using a single 

aspect/light and others using multiple 

aspects that have the ability to provide 

greater information regarding how much 

room is left in the circuited portion of 

the track. At some locations, radio 

messages are generated, instead of 

lights, to indicate when the cars being 

shoved have reached the bonded or 

circuited section of track. 

AAR acknowledges that ‘‘since shove 

lights or radios technically provide 

protection only for the length of the 

bonded track, not the entire length of 

the departure track, they arguably do 

not provide the equivalent of direct 

visual observation.’’ Despite this 

acknowledgment, AAR’s petition 

requests that FRA reconsider the shove 

light issue as a permitted operational 

exception under § 218.99(e). AAR makes 

two arguments in support of permitting 

shove lights and radio signal 

arrangements. One argument is that 

there is no evidence that the use of 

shove lights has caused accidents or 

injuries despite having been used for 

over thirty years. A second argument is 

that a prohibition on shove lights and 

radio arrangements creates an increased 

risk of injuries and thus does not justify 

the prohibition. AAR attributes the 

potential for an increase in injuries to 

the risks employees would need to take 

to visually determine the departure 

track is clear. For example, an employee 

who undertakes the riding of a long 

shove move or chooses to walk along 

the track would be at risk of a slip and 

fall injury due to the need to mount and 

dismount equipment or the need to 

walk carefully—especially in inclement 

weather. Another added risk to riding 

the shove move or walking the track is 

the danger posed by the close proximity 

to other tracks, i.e., close clearances. An 

employee riding a shove move where 

there are close clearances is at risk of 

being struck by equipment on an 

adjacent track. 

Joint Labor Petition Response Opposing 

AAR’s Petition 

A joint response to AAR’s petition 

was filed by the presidents of six labor 

organizations (Joint Labor Petition): the 

American Train Dispatchers Association 

(ATDA); the Brotherhood of Locomotive 

Engineers and Trainmen, a division of 

the Rail Conference of the International 

Brotherhood of Teamsters (BLET); the 

Brotherhood of Maintenance of Way 

Employes Division of the Rail 

Conference of the International 

Brotherhood of Teamsters (BMWED); 

the Brotherhood of Railway Carmen 

Division of the Transportation 

Communications International Union 

(BRC); the Brotherhood of Railroad 

Signalmen (BRS); and the United 

Transportation Union (UTU). These 

labor organizations represent over 

140,000 railroad workers engaged in 

train and engine service, train 

dispatching operations, equipment 

inspection, maintenance and repair, 

roadway worker activities, and signal 

construction, maintenance and repair. 

The Transportation Trades Department, 

AFL–CIO (TTD) filed a separate 

comment in support of the Joint Labor 

Petition. 

The Joint Labor Petition opposes 

AAR’s request for reconsideration of the 

shove light exception. This opposition 

is based on the fact that the track, unless 

completely circuited, will not be 

determined to be clear. The Joint Labor 

Petition points out that the final rule 

permits technology to substitute for a 

direct visual determination and thus 

one option is for a railroad to add 

additional indicator circuits. FRA notes 

that the Joint Labor Petition did not 

respond to AAR’s assertions that there 

is no evidence that the use of shove 

lights has caused accidents or injuries 

despite having been used for over thirty 

years and that a prohibition on shove 

lights and radio arrangements creates an 

increased risk of injuries that does not 

justify the prohibition. The Joint Labor 

Petition argues that AAR seeks to 

institutionalize a practice that is 

dangerous and will lead to an increase 

in accidents, incidents, and injuries, but 

the response does not elaborate on this 

conclusion. 

FRA’s Response 

In response to AAR’s petition, and 

after considering the Joint Labor 

Petition’s comments, FRA has decided 

to grant AAR’s petition for 

reconsideration in part and deny it in 

part. FRA agrees to add an operational 

exception under § 218.99(e)(5) for 

shoving or pushing movements made in 

the direction of the circuited end of a 

designated departure track equipped 

with a shove light system under certain 

specified conditions. The operational 

exception and the specified conditions 

are described in the section-by-section 

analysis. Many railroads with existing 

shove light systems should find that few 

changes, if any, will be necessary to 

comply with the requirements for the 

exception in new paragraph (e)(5). 

After publication of the final rule, 

FRA received feedback that some 

railroads were disappointed with FRA’s 

position on shove lights. As the issue 

did not initiate much discussion during 

the Working Group meetings, FRA had 

not compiled much information on it. In 

anticipation that a petition for 

reconsideration on the shove light issue 

might be filed, FRA conducted a review 

of shove light systems utilized by the 

major railroads. 

Between February 25 and March 21, 

2008, FRA reviewed procedures and 

observed operations on departure tracks 

with shove light systems throughout the 

country. FRA surveyed the major 

railroads to find out where shove lights 

were used and received information that 

five of the seven major railroads used 

shove light systems at thirty-four major 

classification yards in seventeen states. 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33891 

FRA confirmed through inspections that 

the railroads did not utilize shove light 

systems at any other major yard. The 

thirty-four yards contained a total of 356 

departure tracks equipped with shove 

lights. Only seven of the thirty-four 

yards were found to provide point 

protection by having the departure 

tracks entirely circuited or by using 

cameras to determine that the track is 

clear. Thus, FRA focused its attention 

on whether the remaining twenty-seven 

yards that did not already meet FRA’s 

new requirement for point protection 

under § 218.99(b)(3) were safe 

operations nonetheless. 

For instance, FRA conducted a review 

of accident/incident data that supports 

AAR’s position that departure tracks 

that use shove light systems are 

reasonably safe operations. FRA 

reviewed data for the twenty-seven 

departure yard operations that utilize 

shove lights for the twenty-six month 

period from January 2006 through 

February 2008. The total number of 

tracks available for use as departure 

tracks at these twenty-seven yards is 

291. FRA’s review included railroad 

records of all reportable and 

accountable rail equipment accidents/ 

incidents, and thus FRA’s review 

included minor incidents that would 

not have met FRA’s reportable threshold 

for an accident/incident. See 49 CFR 

225.5 (defining ‘‘accident/incident’’ and 

‘‘accountable rail equipment accident/ 

incident’’); 225.19 (defining the three 

groups of railroad accidents/incidents 

that are reportable); and 225.21(i) 

(requiring that a record of initial rail 

equipment accidents/incidents be 

completed and maintained). If FRA’s 

review had included only reportable 

accidents/incidents, and not 

accountable rail equipment accidents/ 

incidents, the scope of the review would 

have been significantly more limited 

and would not have included 

derailments and collisions that caused 

minor damage to track or on-track 

equipment. 

The records revealed that eighteen of 

the twenty-seven departure yard 

operations, i.e., 67 percent of the yards, 

did not have any human factor caused 

reportable or accountable rail 

equipment accidents/incidents during 

the twenty-six month period, and only 

one yard had recorded more than two 

accidents/incidents. Nine departure 

yard operations recorded a total of 

nineteen human factor caused 

reportable or accountable rail 

equipment accidents/incidents during 

the review period. Although FRA did 

not conduct investigations to determine 

whether the primary cause listed by 

each railroad is accurate, the records 

suggest that five of these nineteen 

accidents/incidents would not have 

been prevented through compliance 

with the point protection requirement of 

§ 218.99(b)(3) or any of the requirements 

in 49 CFR part 218, subpart F; i.e., four 

accidents/incidents were caused by 

some form of train handling error and 

one accident/incident was caused by a 

remote control operator’s failure to hear 

a radio transmission to stop the 

movement. In addition, five accidents/ 

incidents were caused by either 

improperly lining, locking, or latching 

switches, which are concerns addressed 

by requirements found in subpart F. 

Thus, FRA finds that, during the 

twenty-six month review period, only 

nine human factor caused reportable or 

accountable rail equipment accidents/ 

incidents might have been prevented 

through compliance with point 

protection requirements rather than 

relying on shove light systems and 

attendant procedures. 

FRA found fair to good illumination 

throughout the departure yard tracks, 

particularly at the entry and departure 

ends of each track. The circuited portion 

of the departure tracks ranged from 150 

feet to a little over 500 feet, with an 

average of 360 feet. 

At all twenty-seven yards, non-visual 

procedures were in place that provided 

yardmasters with a high degree of 

confidence with respect to the status of 

any of the departure tracks. One 

procedure common to all twenty-seven 

yards included a ‘‘turn-over’’ report, i.e., 

a job briefing, given verbally from one 

yardmaster to the next, based on the 

information logged on a written turnover sheet. In addition to the turnover 

report, at many yards, the yardmaster 

had access to a computer generated 

inventory allowing the yardmaster to 

monitor each car from the moment it 

arrived onto the receiving yard tracks. 

Many of these yardmasters were also 

able to track by computer the 

movements of each car through the yard 

complex. Some yardmasters also 

received information about each transfer 

job that brought cars from the 

classification yard to the departure yard. 

At some yards, railroads instituted 

standard instructions that required any 

car cut-off a departing train to be left on 

the circuited section of the track on 

which it was to be placed. Thus, if a car 

was left on the circuited section of track, 

a person observing the shove light 

would know that some equipment was 

left there and would be required to take 

appropriate action to determine what 

was left on the departure track prior to 

initiating a shoving or pushing 

movement. Meanwhile, other yards 

maintained similar instructions that any 

car to be cut-off a departing train must 

be left as close as possible to the end of 

the track opposite the circuited end of 

the departure track without fouling 

another track. This instruction 

permitted the person directing the 

movement to readily observe that the 

track was not clear and to take 

appropriate action to protect the 

shoving or pushing movement. 

The descriptions of these different 

non-visual procedures is not intended to 

be an exhaustive list of all the types of 

procedures that have been or could be 

implemented. FRA is describing these 

types of procedures because our recent 

review suggests that having these types 

of procedures help establish a reliable 

means of determining track occupancy. 

As each departure yard may have its 

own set of safety concerns and already 

established procedures, FRA is not 

requiring that all railroads adopt a 

particular set of non-visual procedures. 

However, as these types of procedures 

contribute to the overall safety record of 

departure tracks utilizing shove lights, 

the final rule contains a requirement 

that the types of procedures which 

provide for a reliable means of 

determining track occupancy prior to 

commencing a shoving or pushing 

movement must be adopted in writing 

so that yardmasters and other 

employees can fully understand the 

operation. See § 218.99(e)(5)(iii). 

FRA’s observations revealed that 

shove light systems can maintain an 

acceptable degree of safety. Our review 

suggests that, in addition to the 

establishment of non-visual procedures, 

several factors collectively promote a 

safe operation. For instance, there is a 

relatively small number of moves onto 

and off of the departure tracks. 

Compared to other yard operations, 

there is typically less danger on 

departure tracks with shove light 

systems in that fewer switches are 

operated in the departure yard and there 

are no free rolling cars. Furthermore, 

FRA noticed that each of the twentyseven departure yards were well 

supervised by either a yardmaster or 

other qualified employee. 

FRA’s observations at the twentyseven departure yards with shove light 

systems also revealed that some of the 

departure tracks evaluated have close 

clearances that could potentially pose a 

risk of an accident or injury to a rail 

employee attempting to make a visual 

determination that the departure track is 

clear. FRA found five of the departure 

yards had at least some tracks with close 

clearances that pose a significant 

potential risk of an injury to an 

employee protecting the point. While 

some departure yards had tracks with 

mstockstill on PROD1PC66 with RULES

33892 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

very good clearances, most tracks were 

found to have normal clearances—

which could still pose injury hazards 

due to the amount of clearance. 

Furthermore, it could be difficult for an 

employee riding the point of the move 

to see that a derail is applied and that 

employee could be seriously injured if 

the movement were to operate over the 

derail. In addition, FRA noted that 

departure tracks were generally long 

yard tracks. The length of the departure 

tracks is a factor in deciding whether to 

allow shove light systems to be used in 

lieu of point protection because 

employees would probably walk or ride 

the side of a car to provide point 

protection and lengthy departure tracks 

would expose employees to injury risk 

for a longer period than if the tracks 

were shorter. In conclusion, FRA’s 

observations corroborated AAR’s 

assertion that if employees were 

required to provide point protection by 

riding the side of a car or walking along 

the departure tracks, there would be an 

increased risk of injuries. 

FRA is granting AAR’s petition for 

reconsideration in part, and will allow 

a shove light system under certain 

conditions to substitute for point 

protection, because the recent accident/ 

incident histories at eighteen out of the 

twenty-seven major railroad departure 

yards have been excellent. FRA’s 

decision is not based on AAR’s concern 

that employees need to be protected 

from the dangers posed by protecting 

the point where there are close 

clearances. FRA believes that the risks 

of employees suffering injuries could be 

avoided greatly if more departure tracks 

equipped with shove light systems were 

either completely circuited or had 

cameras added that could be remotely 

viewed to determine the track is clear. 

In fact, FRA found five major railroad 

departure yards that maintain such 

cameras and two major railroad 

departure yards that maintain shove 

light systems with completely circuited 

departure tracks. Although FRA is 

promulgating an operational exception 

for shove light systems, we encourage 

each railroad to consider installing 

cameras or fully circuiting the departure 

tracks—especially in departure yards 

where non-compliance with yard 

procedures adopted under 

§ 218.99(e)(5)(iii) are found on a regular 

basis. Meanwhile, FRA has concluded 

that under certain conditions, a shove 

light system is a safe operation. 

Therefore, a railroad may utilize a shove 

light system, under the conditions 

specified in § 218.99(e)(5), as an 

alternative to having a qualified 

employee make a visual determination 

that the departure track is clear. 

FRA is, however, denying that portion 

of AAR’s petition that requests the 

inclusion of shove warning systems that 

rely solely on radio signal warnings 

because radio signals offer a lower level 

of safety to that of a shove light system. 

One of the essential conditions 

considered in partially granting AAR’s 

petition allowing shove light systems to 

substitute for a qualified employee 

visually determining the track is clear, 

is that the shove light system must be 

demonstrated to be failsafe. Shove 

warning systems that rely solely on 

radio signal warnings are not considered 

failsafe and FRA is skeptical that a 

system based on radio signals alone can 

ever be made failsafe. 

Radio signal based shove systems are 

designed to send radio signal warnings 

when the movement is occupying the 

circuited track. The radio warning 

typically states how much room is left 

in the departure track for the shoving or 

pushing movement by indicating a 

number of car lengths. If the shoving or 

pushing movement has not reached the 

circuited end of the departure track, the 

system will be silent. Thus, the train 

crewmember or other qualified 

employee listening to the radio and 

directing the move will interpret silence 

to mean the track is clear to continue 

the shoving or pushing movement. 

Silence may not always mean that the 

movement is not occupying the 

circuited end of the track. For example, 

the radio may be silent because it is 

malfunctioning. A radio may be silent if 

its battery is expired. Also, a person 

listening to a radio may not hear a radio 

warning for a variety of reasons 

including, but not limited to, a weak 

transmission signal; static; the radio’s 

volume is too low; or, a radio signal is 

blocked by a competing transmission 

because it is not broadcast on a 

dedicated channel. Finally, unlike 

shove light systems which remain 

continuously illuminated until the 

circuited section of track is occupied, 

FRA observed that the radio signal 

based shove system does not 

continuously send radio warnings that 

help monitor the departure end of the 

track once the movement has 

completely occupied the circuited 

section of track. 

FRA might be willing to reconsider 

this decision or grant a waiver for a 

shove warning system that relies solely 

on radio signal warnings if it can be 

demonstrated to be failsafe. However, 

given the logistical hurdles of arranging 

such a system, it would probably be 

easier to switch to a shove light system 

or add some kind of light component to 

the existing radio signal based shove 

system. As FRA found only one major 

railroad departure yard that solely used 

radio signals as a shove system, FRA 

does not anticipate that this denial 

decision will have any significant 

impact on that railroad or on the 

industry. 

C. Individual Liability and Enforcement 

1. Petitioner Concern: Accident Data 

Does Not Support Individual Civil 

Penalties 

The Joint Labor Petition requested 

reconsideration of the willful civil 

penalties published in the penalty 

schedule at 49 CFR part 218, app. A and 

the need for individual liability for 

willful violations; TTD’s comment 

supported the Joint Labor Petition. The 

Joint Labor Petition analyzed the 

accident data showing that there has 

been a reduction in both the raw 

number of accidents/incidents and the 

corresponding rates for the period 2005 

through 2007 that exceeded the increase 

for the period 2000 through 2004. Based 

on the analysis of that data, the Joint 

Labor Petition concludes that ‘‘[w]hile 

Petitioners concur that discipline—on 

the part of both our members and their 

supervisors—is an essential element in 

rule compliance, our analysis of FRA’s 

data establishes beyond question that 

the spikes in the number of human 

factor accidents/incidents and the 

frequency with which they occurred 

were not due to any industry-wide 

breakdown in rules compliance 

discipline.’’ Thus, on this first issue, the 

petition contends that the empirical 

basis no longer exists for FRA’s decision 

to include individual liability for civil 

penalties in the final rule. 

FRA’s Response 

The labor filing is a model of railroad 

safety scholarship, describing in broad 

strokes the major changes in the 

industry that, in the view of the writers, 

may have influenced safety trends. The 

resulting explanations attempt to fit 

safety data within a multi-factor 

analysis and lay the foundation for the 

requested relief. The history of a major 

industry is complex; and this 

proceeding is not the proper venue to 

agree or disagree about such theorems, 

however interesting that discussion 

might be. 

Rather, it is necessary to state that the 

central premise of the joint labor filing 

is incorrect, because it is not FRA 

actions that invoke the potential for 

civil penalty sanctions. Rather, civil 

penalty sanctions are a statutorilyimposed consequence of regulatory noncompliance. 49 U.S.C. 21301. Labor 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33893 

organizations have been among the 

more strenuous advocates of strong civil 

penalties as an answer to noncompliance by railroads and rail 

contractors, and even if FRA were at 

liberty to provide blanket immunity 

from statutory sanctions, there is 

nothing in the filing to support the 

conclusion that such sanctions would 

be less successful in influencing the 

intentional actions of individual 

employees than the unintentional or 

intentional actions of railroads and rail 

contractors. Indeed, individual 

employees are already accountable for 

personal compliance with a significant 

number of FRA regulations; and FRA is 

satisfied that the deterrent effect 

associated with the availability of a 

monetary sanction is helpful in 

preventing accidents that might occur 

through sloth or knowing reckless 

behavior. FRA has seldom found it 

necessary to invoke these sanctions 

against individuals, and in many cases 

where such action has been taken the 

targets have been railroad officers, 

rather than rank and file employees. 

Whether or not one subscribes to the 

proposition that penalties are necessary, 

giving the subject rules the status of 

Federal law should without question 

promote awareness among officers and 

employees regarding their 

responsibilities to one another and to 

the public. The labor filing (at page 5) 

acknowledges that ‘‘a more substantial 

framework of regulations’’ (FRA’s 

phrase) should be helpful in 

maintaining discipline during the 

current period of change in the railroad 

industry. The potential for civil 

penalties follows automatically, based 

on congressional action. 

Although FRA agrees with the Joint 

Labor Petition that the number of 

human factor incidents has declined 

over the past few years, we do not agree 

that this trend diminishes the need for 

a regulation containing the potential to 

demand payment of civil money 

penalties from individuals for willful 

violations. There are a variety of reasons 

for the recent downward trend 

including, but not limited to, FRA’s 

focus on the increase in human factor 

caused accidents/incidents from 2000 

through 2004 in the RSAC and Working 

Group meetings. By bringing this issue 

to the railroad industry’s attention, 

railroads have placed increased 

emphasis on compliance with the 

operating rules FRA expressed an 

intention to consider regulating. 

Focused compliance reviews by FRA 

and aggressive, direct contacts with 

responsible railroad operating officers 

have no doubt contributed to this good 

result. Historically, FRA has noted 

previous positive trends after raising a 

safety concern with the industry, but 

prior to promulgation of a regulation. 

These trend lines do not always 

continue positively, and, without a 

regulation, FRA would be left with 

fewer options if accidents/incidents 

were to suddenly increase. Further, it 

would be fundamentally wrong to 

assume that major additional advances 

in the safety of railroad operations are 

not achievable. Rules compliance 

requires clear and unambiguous rules 

and procedures, common expectations 

for compliance that are modeled by line 

supervisors, excellent training, and 

regular verification that rules and 

procedures are being followed. This is 

the foundation for acceptable safety 

performance, and on that foundation 

can be built truly outstanding safety 

performance if the culture of the 

organization and the processes in place 

support open and productive 

communication to identify hazards, 

enhance crew performance, and refine 

work processes. FRA appreciates that 

this regulation cannot construct the 

entire edifice, but it can and must 

provide the foundation. 

As FRA has statutory authority to 

issue penalties against individuals for 

willful violations, FRA would retain 

this authority even if it deleted the 

willful penalties in the schedule of civil 

penalties (which section 49 U.S.C. 

21301(a)(2) directs us to provide). As 

FRA explained in its ‘‘Statement of 

Agency Policy Concerning Enforcement 

of the Federal Railroad Safety Laws’’

found at 49 CFR part 209, app. A, the 

Rail Safety Improvement Act of 1988 

(see 49 U.S.C 21304) made individuals 

liable for willful violations of the 

Federal railroad safety statutes that FRA 

enforces under delegation from the 

Secretary of Transportation. See 49 CFR 

1.49(c), (d), (f), (g), and (m). In that 

published policy statement, FRA 

explains how the agency intends to 

decide if an individual has acted 

willfully and how it will consider 

whether enforcement action is 

warranted against an individual. In the 

preamble to the final rule, FRA also 

explained that it did not single this 

regulation out for individual liability 

enforcement, but that ‘‘[e]ach of FRA’s 

rail safety regulations permit 

enforcement against any person who 

violates a regulatory requirement or 

causes the violation of any 

requirement.’’ 73 FR 8452–53. The 

publishing of the schedule amounts are 

merely meant to provide guidance as to 

FRA’s policy in predictable situations, 

not to bind FRA from using the full 

range of penalty authority where 

extraordinary circumstances warrant it. 

FRA will continue to exercise 

appropriate discretion with regard to 

individual liability enforcement matters 

as it does in all civil penalty matters 

cited against railroads. 

2. Petitioner Concern: Individual 

Liability Produces a Chilling Effect on 

Safety 

The Joint Labor Petition’s second 

request in this area was that FRA should 

eliminate the willful civil penalties 

published in the penalty schedule at 49 

CFR part 218, app. A and FRA should 

not seek civil penalty enforcement 

against individuals under 49 CFR part 

218. The petitioner contends that 

individual liability produces a chilling 

effect that will diminish, rather than 

enhance, safety. The Joint Labor Petition 

disagreed with FRA’s position that an 

employee would have an incentive to 

self-report noncompliance because such 

self-reporting would likely be 

considered a reason for FRA to exercise 

its enforcement discretion not to take 

enforcement action against the 

individual. Instead, the Joint Labor 

Petition focused on FRA’s statement 

that ‘‘[s]elf-reporting is not * * * a 

defense to a potential individual 

liability action, and self-reporting does 

not absolutely preclude FRA from 

taking enforcement action against an 

individual.’’ 73 FR 8453. The Joint 

Labor Petition concludes that an 

employee has a disincentive to selfreport as the employee is likely to face 

a railroad disciplinary sanction and an 

FRA civil penalty. 

FRA’s Response 

In FRA’s view, the Joint Labor 

Petition did not acknowledge FRA’s 

caveat that ‘‘FRA would consider selfreporting a strong reason for mitigation 

of the civil penalty, disqualification 

order, or other enforcement remedy.’’ 73 

FR 8453. The flip side of that argument 

is also true in that FRA would consider 

the failure to self-report non-compliance 

immediately after the non-compliance is 

discovered to be an aggravating factor 

justifying a higher penalty or longer 

period of disqualification. In the 

preamble, FRA emphasized that when 

each railroad instructs its employees on 

its operating rules, it should emphasize 

this incentive to self-report. FRA 

continues to encourage each railroad to 

reconsider its own discipline policy so 

that it does not discourage self-reporting 

of inadvertent noncompliance. For 

example, FRA continues to fund and 

promote the Confidential Close Call 

Reporting System Demonstration 

Project, which permits participating 

employees to self-report certain types of 

mstockstill on PROD1PC66 with RULES

33894 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

non-compliance without fear of railroad 

discipline or FRA enforcement. FRA 

believes that by encouraging selfreporting, an analysis of the data may 

reveal the identification of accident 

precursors or suggest ways to reduce the 

likelihood of future non-complying 

incidents that have the potential to 

cause accidents/incidents. 

FRA also expects that most 

individuals would self-report because it 

is the safe course of action. An 

individual who chooses not to selfreport after realizing he or she failed to 

comply with an important operating 

rule is likely to be putting him or her 

self, or colleagues, at risk of serious 

injury or death. Thus, FRA would 

expect that individuals who discover 

their own non-compliance would find 

the risks associated with choosing not to 

self-report far worse than the potential 

of being disciplined or fined for failing 

to comply, especially if the risk of a 

more severe disciplinary action or 

greater penalty is likely for a violation 

discovered and not immediately 

reported. 

The Joint Labor Petition also raised 

the issue that an innocent employee 

could be held liable for a civil penalty 

under the final rule if the employee was 

the last person recorded as handling a 

switch that was later found misaligned. 

The petition explained that it might be 

possible, on some railroads, for a 

roadway worker to manipulate main 

track switches in non-signaled territory 

without track authority or permission 

from the train dispatcher or control 

operator. The petition stated that FRA 

could end up enforcing a civil penalty 

against the wrong individual, and thus 

FRA should not cite individuals for civil 

penalties. FRA’s response is that this 

issue raises an evidentiary proof matter 

and a concern FRA will need to address 

on a case-by-case basis. However, FRA 

does not view this issue as a reason to 

completely forgo the agency’s statutory 

authority to cite individuals for civil 

penalties. 

In the conclusion section of the Joint 

Labor Petition, the petition suggests that 

FRA forgo the agency’s statutory 

authority to cite individuals for civil 

penalties in favor of FRA’s 

disqualification procedures. See 49 CFR 

part 209, subpart D. The petition argued 

that disqualifying an individual from 

performing safety sensitive service is a 

‘‘more than sufficient means available to 

enforce [part 218,] subpart F’’ and that 

‘‘there is neither a sound basis, nor a 

public interest, in the creation of 

individual liability for civil penalties.’’

We disagree. These are two different 

enforcement mechanisms and there may 

be instances where a disqualification is 

not warranted, and the less drastic 

response of a reasonable civil penalty is 

more appropriate. For instance, there 

may be instances where a person has a 

long work history of complying with 

operating rules but is found to have 

committed a willful violation one time. 

In these instances, it is likely more 

appropriate to demand a one-time civil 

penalty and allow the person to 

continue working in safety sensitive 

service than to initiate disqualification 

proceedings. In other circumstances, a 

person with or without a good history 

of compliance may be found to have 

committed a willful violation but there 

are aggravating circumstances that 

suggest the more extreme penalty of 

disqualification is unwarranted. Thus, 

in order to permit FRA to consider the 

appropriate enforcement mechanism 

and to provide maximum flexibility in 

its enforcement actions, FRA is denying 

the Joint Labor Petition’s requests to 

eliminate the willful civil penalties 

published in the penalty schedule at 49 

CFR part 218, app. A and for FRA to 

pledge not to seek civil penalty 

enforcement against individuals under 

49 CFR part 218, subpart F. 

D. Good Faith Challenge 

1. Request To Eliminate Provision 

AAR’s petition for reconsideration 

requests that FRA reconsider the need 

for any good faith challenge regulation. 

See 49 CFR 218.97. According to AAR, 

employees have statutory protection 

under 49 U.S.C. 20109 against 

retaliation for refusing to comply with a 

directive to violate a Federal regulation 

and thus it is puzzling why FRA is 

promulgating a regulation which has the 

potential to interfere significantly with 

railroad operations. In addition, AAR 

objects to a good faith challenge 

regulation because the final rule did not 

adequately create a record for 

suspecting that employees have been, or 

will be, asked to engage in tasks that 

violate Federal regulations or these 

types of railroad operating rules. The 

Joint Labor Petition and TTD’s comment 

disagreed with AAR’s position on this 

issue. 

FRA’s Position 

FRA disagrees with AAR and finds 

that there is a need for the good faith 

challenge regulation. The driving force 

for much of the final rule was the data 

showing significant increases in human 

factor caused accidents, and the high 

number of violations FRA found when 

it conducted inspections and 

investigations related to certain human 

factor cause codes. Prior to the effective 

date of the final rule, each railroad 

maintained similar operating rules 

governing the safe operation of shoving 

or pushing movements, leaving cars out 

to foul, and handling switches and fixed 

derails; meanwhile, over the first five 

years of this decade, human factor 

caused accidents accounted for 38 

percent of all train accidents, and, in 

2004, violations of the operating rules 

required in 49 CFR part 218, subpart F 

accounted for nearly 48 percent of all 

human factor accidents. Considering the 

mandatory nature of these railroad 

operating rules, it seems that there has 

been a high disregard for them either 

intentionally or unintentionally. 

Although we agree that FRA did not cite 

to specific examples of intentional noncompliance with railroad operating 

rules, FRA is aware of the pressure to 

occasionally shortcut an operating rule 

in order to maintain or increase 

production. FRA’s awareness is derived 

from inspections and investigations, as 

well as shared experiences from FRA 

personnel who have previously worked 

for one or more railroads. The good faith 

challenge procedures are intended to 

empower employees who choose to 

abide by the railroad’s operating rules 

but are either intentionally or 

unintentionally given a non-complying 

directive. The procedures are necessary 

to ensure that employees may challenge 

potentially non-complying directives 

immediately while the statutory 

protections in 49 U.S.C. 20109 primarily 

protect an employee from retaliation for 

refusing to comply with non-complying 

directives. Thus, the good faith 

challenge regulation has a different 

purpose than the statutory protections. 

2. Request To Amend Provision 

In the alternative, AAR’s petition for 

reconsideration requests that FRA 

amend the good faith challenge 

procedures required by 49 CFR 218.97 

so that they more closely resemble the 

roadway worker good faith challenge 

provisions. AAR states that FRA has 

departed from past precedent by issuing 

good faith challenge procedures that are 

different from those required for 

roadway workers. In AAR’s view, the 

roadway worker regulations are clear 

and easily implemented, while the 

procedures in § 218.97 are complex and 

could result in delaying railroad 

operations. For example, AAR states 

that there may be situations when a 

supervisor and employee cannot resolve 

a challenge, and a suitable railroad 

officer is not available to provide for 

immediate review under paragraph 

(d)(1). (It appears that AAR might also 

be asking FRA to reconsider or make an 

exception to the immediate review 

required in paragraph (d)(1) for any 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33895 

railroad regardless of size.) The Joint 

Labor Petition disagreed with AAR’s 

position on this issue. 

FRA’s Response 

FRA acknowledges that when it first 

began discussing this issue with the 

RSAC Working Group, FRA suggested 

that good faith challenge procedures 

similar to those promulgated for 

roadway workers might be appropriate. 

Discussions within the Working Group, 

especially with members representing 

labor organizations, revealed that 

roadway workers generally share a more 

cooperative working relationship with 

their supervisors than operating 

employees do with yardmasters, 

trainmasters and their other railroad 

officer supervisors. A supervisor of 

roadway workers is likely to be out at 

the work site and may share in the 

danger if the work gang is not 

adequately protected because the group 

failed to comply with a rule. A railroad 

officer supervising operating employees 

will likely not be at risk of injury to 

himself/herself through the issuance of 

a non-complying order but may be 

putting the operating employees 

executing the order, or other employees 

in the vicinity of the operation, in peril. 

For these reasons, a different approach, 

permitting a good faith challenge, is 

necessary. 

With regard to the request that FRA 

should eliminate the requirement for 

immediate review under § 218.97(d)(1), 

FRA is denying the request. Any 

railroad with 400,000 or more total 

employee work hours annually should 

employ at least one railroad officer who 

can be on call in case a challenge 

requires immediate review. Each 

railroad should consider whether to 

address in its program the issues of who 

can be contacted and what protocol 

should be followed if the person issuing 

the challenged directive has difficulty 

finding an officer suitable for immediate 

review. FRA suggests that AAR ask its 

members to voluntarily keep track of 

problems associated with implementing 

the good faith challenge procedures so 

that it can be raised as a future task for 

the RSAC or in a future petition for 

rulemaking. 

3. Implementation in Joint Operations 

After publication of the final rule, 

FRA met with labor organizations and 

railroad associations to discuss issues 

related to implementation. During those 

meetings, several parties raised the fact 

that the rule does not address how the 

good faith challenge is required to be 

implemented in joint operations 

territory. For example, FRA has been 

asked what happens if employees from 

Railroad #1 are directed to perform a 

shoving or pushing movement in a yard 

on Railroad #2 and the employees 

believe they are being asked to violate 

a rule because the point is not being 

properly protected. FRA has been asked 

which railroad’s good faith challenge 

procedures apply, and if Railroad #2’s 

procedures apply, then are Railroad #1’s 

employees required to be trained on 

Railroad #2’s procedures. 

FRA’s Response 

FRA acknowledges that the rule is 

silent on these issues. Generally, we 

would expect that the host railroad, i.e., 

Railroad #2 in the example, would want 

to maintain control of challenges made 

on its property and would therefore 

provide all reviews required. Although 

we expect quite a bit of uniformity 

among railroads, railroads who operate 

in joint operations will need to ensure 

that its employees know which 

railroad’s procedures apply and what 

those procedures require. Meanwhile, as 

the rule is silent on this issue, we would 

not object to railroads engaged in joint 

operations making other arrangements 

as long as those arrangements are 

explained to its employees during the 

required training and provided for in its 

procedures. In conclusion, unless 

otherwise specified in a railroad’s 

procedures, the host railroad’s 

procedures will apply and it will be the 

host railroad’s obligation to provide 

review of the alleged non-complying 

order and to maintain a record when 

necessary. 

E. The Point Protection Technology 

Standard for Remote Control Zones 

Requests for Clarification 

AAR’s petition explains that 

§ 218.99(c)(2) provides that if 

technology is relied on to provide pullout protection by preventing the 

movement from exceeding the limits of 

a remote control zone, the technology 

must be demonstrated to be failsafe or 

provide suitable redundancy. AAR does 

not object to the regulatory text. Instead, 

AAR’s petition for reconsideration 

raises the question of whether a 

particular discussion in the preamble 

regarding the point protection 

technology standard for remote control 

zones is intended to be a requirement. 

AAR is concerned that the preamble 

language will be read as a requirement. 

The preamble states that ‘‘[w]hen 

determining whether the technology, 

such as transponders backed up by a 

global positioning system (GPS) with a 

facility database is acceptable, FRA 

finds that 49 CFR part 236, subpart H 

and the corresponding appendix C to 

part 236 (‘‘Safety Assurance Criteria and 

Processes’’) contains appropriate safety 

analysis principles.’’ 73 FR 8479. AAR 

requests confirmation that the preamble 

reference to the safety analysis 

principles is meant to illustrate one way 

of determining if a technology is 

acceptable and the citation to part 236 

is not meant to be a requirement. 

(Presumably, if FRA disagrees with 

AAR’s understanding, AAR’s petition is 

meant to request an amendment to this 

section as AAR implies that it objects to 

this reference if it is a requirement.). 

The Joint Labor Petition responded to 

AAR’s petition. First, the Joint Labor 

Petition points out that the final rule 

preamble contained an error when it 

stated that no comments were received 

in response to the NPRM concerning 

this issue. BLET specifically responded 

to FRA’s request for comments by 

recommending that (1) the technologies 

used to ‘‘fence’’ remote control zones 

should be at least fail-safe and (2) to the 

extent that any of these technologies are 

not currently in use, they should be 

required to meet the criteria for 

processor-based signal and train control 

systems found in 49 CFR part 236, 

subpart H. The Joint Labor Petition 

reiterated BLET’s recommendations and 

stated that remote control zone pull-out 

protection technology is, by definition, 

a train control system. 

FRA’s Response 

FRA agrees with AAR that the 

preamble language reference to 49 CFR 

part 236, subpart H is intended to 

illustrate one way of determining if a 

technology is acceptable and the 

citation to part 236 is not meant to be 

a requirement. 

In response to the Joint Labor Petition, 

FRA offers the following clarification. 

First, FRA wishes to thank BLET for 

reminding FRA that BLET had 

commented on the NPRM preamble 

language. Second, although FRA has 

provided that remote control zone pullout protection technology must be 

demonstrated to be failsafe or provide 

suitable redundancy to prevent unsafe 

failure, a result consistent with the 

general approach of 49 CFR part 236, 

subpart H, FRA does not believe that 

this is the appropriate forum within 

which to determine the formal 

applicability of part 236. Although 

pullout protection arrangements are 

provided to restrict the movement of 

rolling equipment, they are not 

employed to authorize to control train 

movements; accordingly, using 

traditional interpretations they would 

not fall within the concept of a train 

control system. Nor do they resemble in 

function block signal systems. FRA is 

mstockstill on PROD1PC66 with RULES

33896 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

aware of views of some that a variety of 

innovative technologies that perform 

functions analogous to traditional signal 

and train control systems should be 

regulated under part 236; however, FRA 

strongly believes that such issues 

should not be addressed piecemeal. 

Accordingly, FRA declines in this forum 

to assert the applicability of part 236 to 

systems used to prevent shoving 

movements from exceeding the 

intended boundaries. 

Based on the discussion contained 

above, FRA is not amending the 

regulatory text as suggested in either 

AAR’s petition or the Joint Labor 

Petition. 

III. Section-by-Section Analysis 

Part 217—[AMENDED] 

Section 217.9 Program of Operational 

Tests and Inspections; Recordkeeping 

FRA is amending four paragraphs of 

this section to delay certain 

applicability dates. In the preamble 

section titled ‘‘Implementation Dates,’’

FRA explains the basis for amending 

each of these compliance deadlines. In 

summary, FRA considered the petitions 

which suggested that, due to the routine 

most railroads use to schedule training 

during the first quarter of each calendar 

year, many railroads might have rushed 

through implementation merely to meet 

the deadline without regard for the 

program’s likely effectiveness. FRA is 

amending the applicability dates in this 

section because we would prefer to 

provide each railroad with a reasonable 

opportunity to come into compliance 

with an effective amended program of 

operational tests and inspections, rather 

than to have compliance that is 

technically timely but ineffective. 

The introductory text of paragraph (b) 

is amended to make the requirements 

contained in this paragraph (b) 

applicable beginning January 1, 2009. 

As the applicability date was previously 

July 1, 2008, the amendment extends 

the deadline for compliance by six 

months. 

Paragraph (c)(1) requires the program 

to provide for operational testing and 

inspection under the various operating 

conditions on the railroad. The 

applicability date of this paragraph has 

been amended, so that on or after 

January 1, 2009, each railroad shall be 

required to amend its program to 

‘‘address with particular emphasis those 

operating rules that cause or are likely 

to cause the most accidents or incidents, 

such as those accidents or incidents 

identified in the quarterly reviews, six 

month reviews, and the annual 

summaries as required under 

paragraphs (e) and (f) of this section, as 

applicable.’’ As the applicability date 

was previously July 1, 2008, the 

amendment extends the deadline for 

compliance by six months. 

Paragraph (c)(6) requires the program 

show the railroad’s designation of an 

officer to manage the program at each 

level of responsibility (division or 

system, as applicable). The applicability 

date of this paragraph has been 

amended, so that compliance with it is 

not required until January 1, 2009. As 

the applicability date was previously 

July 1, 2008, the amendment extends 

the deadline for compliance by six 

months. 

Paragraph (e) requires each railroad to 

do reviews of its program of operational 

tests and inspections at certain specified 

periodic intervals. There are two 

applicability dates in introductory 

paragraph (e) and both dates have been 

amended to provide railroads with 

additional time to comply. Introductory 

paragraph (e) is amended so that the 

requirements in paragraph (e) apply to 

each Class I railroad and the National 

Railroad Passenger Corporation 

beginning April 1, 2009, and to all other 

railroads subject to this paragraph 

beginning July 1, 2009. Thus, each Class 

I railroad and the National Railroad 

Passenger Corporation are being 

provided an additional ten months to 

comply with the requirements in 

paragraph (e) and all other railroads 

subject to this paragraph are being 

provided an additional six months to 

comply. 

Part 218—[AMENDED] 

Section 218.93 Definitions 

A definition of departure track is 

added to this section because this term 

is used in added paragraph (e)(5) to 

§ 218.99. A departure track is a track 

located in a classification yard where 

rolling equipment is placed and made 

ready for an outgoing train movement. 

Thus, a departure track is typically the 

last type of track that cars will be on in 

the yard before the cars are completely 

assembled as a train and are ready to 

leave the confines of the classification 

yard. The ‘‘classification yard’’ is a term 

used to describe the greater yard area 

that contains, but is not limited to, runthrough tracks, van yard tracks that are 

used for trailers on flat cars or 

containers on flat cars (tofc/cofc), car 

repair tracks, locomotive servicing 

tracks, repair-in-place (rip) tracks, 

receiving tracks, bowl or classification 

tracks, and departure tracks. Some 

railroads have added shove light 

systems to departure tracks to aid train 

crews shoving or pushing large cuts of 

cars onto departure tracks; i.e., a person 

observing the shove light will be 

notified when the circuited end of the 

track is occupied without actually 

viewing the circuited end of the track. 

Section 218.95 Instruction, Training, 

and Examination 

Paragraph (a) requires that each 

railroad maintain a written program that 

will qualify its employees for 

compliance with operating rules 

implementing the requirements of this 

subpart to the extent these requirements 

are pertinent to the employee’s duties. 

FRA is amending this paragraph to 

require establishment and continued 

maintenance of the program beginning 

no later than January 1, 2009. As the 

applicability date was previously July 1, 

2008, the amendment extends the 

deadline for compliance by six months. 

Paragraphs (a)(3) and (a)(4) are also 

being amended to provide additional 

time to implement this subpart. 

Paragraph (a)(3) is amended to require 

that each employee performing duties 

subject to the requirements in this 

subpart shall be initially qualified prior 

to July 1, 2009. As the applicability date 

for paragraph (a)(3) was previously 

January 1, 2009, the amendment extends 

the deadline for compliance by six 

months. Paragraph (a)(3) is also 

amended by eliminating the 

requirement that ‘‘employees hired 

between April 14, 2008 and January 1, 

2009, and all employees thereafter 

required to perform duties subject to the 

requirements in this subpart shall be 

qualified before performing duties 

subject to the requirements in this 

subpart.’’ The elimination of this 

requirement follows from the decision 

to delay implementation of the program 

in paragraph (a) to January 1, 2009. The 

program implementation date is being 

delayed so that railroads will have time 

to adequately prepare a written program 

of training. As FRA has accepted AAR 

and APTA’s reasons for delaying 

implementation of the program, it seems 

logical to provide railroads additional 

time to train both the employees hired 

prior to the effective date of the rule as 

well as the newly hired employees. 

Similarly, the applicability date in 

paragraph (a)(4) is amended to require 

that, beginning July 1, 2009, no 

employee shall perform work requiring 

compliance with the operating rules 

implementing the requirements of this 

subpart unless qualified on these rules 

within the previous three years. As the 

applicability date for paragraph (a)(4) 

was previously January 1, 2009, the 

amendment extends the deadline for 

compliance by six months. Thus, as of 

July 1, 2009, each employee performing 

work subject to this subpart is required 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33897 

to be qualified regardless of when the 

employee was hired. 

Section 218.99 Shoving or Pushing 

Movements 

Paragraph (e)(5) is added to permit 

each railroad the option of using a shove 

light system in lieu of point protection 

under 49 CFR 218.99(b)(3), as long as 

certain specified conditions are met. In 

section II. B. of the preamble, titled 

‘‘Shove Lights,’’ FRA explains why it is 

permitting railroads to choose this 

option. In summary, FRA reviewed 

initial rail equipment accident/incident 

records over a recent twenty-six month 

period that suggested railroads have 

safely conducted shoving or pushing 

movements on departure tracks that 

utilize shove light systems without a 

point protection requirement. FRA 

conducted observations of 34 locations 

where shove light or radio systems were 

in operation and found that certain best 

practices increased the likelihood that 

the operation could be conducted safely. 

FRA has promulgated the best practices 

into requirements that allow a railroad 

to exercise this operational exception. In 

addition, FRA has determined that 

systems based on radio signals alone are 

not as safe as those that contain a visual 

display. Consequently, the operational 

exception uses the term ‘‘shove light 

system’’ which is intended to 

descriptively exclude the use of a radio 

system that does not utilize a light. 

Paragraph (e)(5)(i) requires that the 

shove light system is demonstrated to be 

failsafe. The safety concern is that, 

without a specific requirement, some 

railroads might try to implement 

technology that is not demonstrated to 

be safe and therefore provides a false 

sense of protection to rail employees. 

Fortunately, most shove light 

arrangements appear to utilize 

traditional signal circuits which by 

design fail safe. (For analogous 

requirements applicable to track circuits 

and occupancy display in block signal 

territory see, e.g., 49 CFR 236.5, 236.51.) 

Although the present rule in no way 

dictates the technology employed, it 

does require that it be failsafe in 

operation. (For principles pertinent to 

evaluating innovative detection 

technologies, see Appendix C to part 

236.) In order to demonstrate that the 

system is failsafe, FRA would expect 

that when the system is not working 

properly, it would produce the least 

favorable aspect—indicating that the 

movement should immediately be 

stopped or, if not yet begun, not started. 

Paragraph (e)(5)(ii) requires that the 

shove light system be arranged to 

display a less favorable aspect when the 

circuited section of the track is 

occupied. If the shove light system has 

only a single light, the light will turn 

off, i.e., go dark, when the circuited 

section of the track is occupied. If the 

shove light system has multiple lights or 

a single light with the ability to display 

multiple aspects or colors, the light will 

turn from a favorable aspect to a less 

favorable aspect when the circuit is first 

occupied, and later turn to a more 

restrictive aspect as the circuited track 

reaches full occupancy. Of course, 

shove light systems with multiple lights 

may simply go from a favorable aspect, 

e.g., green, to a less favorable aspect, 

e.g., red, in order to meet the 

requirement of this paragraph. 

Paragraph (e)(5)(iii) requires that 

written procedures be adopted and 

complied with that provide for a reliable 

means of determining track occupancy 

prior to commencing a shoving or 

pushing movement. The preamble 

section titled ‘‘Shove Lights’’ contains a 

description of various procedures many 

railroads have already established for 

departure tracks within departure yards 

equipped with shove light systems. The 

establishment of procedures is a way to 

create a uniform method of leaving a car 

or cut of cars on a departure track safely, 

thus permitting the yardmaster or next 

crew entering to know that the entire 

length of a particular departure track is 

not clear. Some railroads may choose to 

institute procedures that aid in tracking 

cars, either in writing, computer 

inventory, GPS tracking, or other 

electronic tracking. FRA is not requiring 

that all railroads must adopt and 

comply with a particular set of 

procedures. However, FRA believes 

these types of procedures contribute to 

the overall safety record of departure 

tracks utilizing shove lights and that 

such procedures must be established in 

writing so that all employees working in 

the departure yard can be expected to 

fully understand the operation. When 

FRA conducts inspections of these 

departure yards, we intend to review 

these procedures to ensure that any 

particular procedure, or lack thereof, 

does not create an undue safety risk and 

that the departure yard operation 

utilizing the shove light system is 

managed in a safe manner. 

Paragraph (e)(5)(iv) requires that the 

departure track be designated in writing. 

This is an important requirement 

because it is an exception to providing 

point protection and it is therefore 

imperative that employees know 

specifically on which tracks the 

exception applies. FRA is promulgating 

this requirement even though we are 

unaware of shove light systems being 

installed on other than designated 

departure tracks. The requirement in 

this paragraph is intended to prevent a 

railroad from installing shove lights on 

yard tracks that are not departure tracks 

and attempting to circumvent the point 

protection requirements under 

paragraph (b)(3) of this section. 

Paragraph (e)(5)(v) requires that the 

track be under the exclusive and 

continuous control of a yardmaster or 

other qualified employee. FRA’s recent 

observations of departure tracks at major 

railroad classification yards, described 

above, found that a universal best 

practice is to have an employee, 

typically a yardmaster, who controls all 

movements in and out of the departure 

tracks. Without such an employee, there 

would likely not be any person who 

would be tracking movements into or 

out of the departure tracks, and there 

would not be anyone who could reliably 

relay information to train crewmembers 

who need to know the status of a 

particular departure track. 

The operational exception in 

paragraph (e)(5) differs from the other 

numbered exceptions in paragraph (e) 

because, although introductory 

paragraph (e) states that ‘‘[a] railroad 

does not need to comply with 

paragraphs (b) through (d) of this 

section in the following circumstances,’’

the rule excepting shove lights does 

include some requirements within 

paragraphs (b) through (d). For instance, 

paragraph (e)(5)(vi) requires that ‘‘[t]he 

train crewmember or other qualified 

employee directing the shoving or 

pushing movement complies with the 

general movement requirements 

contained in paragraphs (b)(1) and(b)(2) 

of this section.’’ Thus, even though a 

shove light system may be used, this 

paragraph requires that employees 

conduct a proper job briefing under 

paragraph (b)(1) and that the employee 

directing the movement not engage in 

any task unrelated to the oversight of 

the shoving or pushing movement under 

paragraph (b)(2). Similarly, paragraph 

(e)(5)(vii) requires that ‘‘[a]ll remote 

control shoving or pushing movements 

comply with the requirements 

contained in paragraph (c)(1) of this 

section.’’ Hence, remote control 

operations utilizing shove lights are not 

excused from the requirement that 

either the remote control operator or a 

crewmember visually determine the 

direction the equipment moves, and, in 

the case of a crewmember making the 

observation, that the operator is 

promptly informed before continuing 

the movement. 

Paragraph (e)(5)(viii) requires that the 

shove light system be continuously 

illuminated when the circuited section 

of the track is unoccupied. FRA is 

including this requirement to ensure 

mstockstill on PROD1PC66 with RULES

33898 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

that the employee observing the shove 

light is always viewing a lit aspect when 

the circuited section of the track is 

unoccupied. To allow otherwise would 

mean that a shove light system with a 

single aspect shove light could remain 

dark until it lit up when the circuited 

section of the track is occupied. Such an 

arrangement would not be failsafe if the 

light bulb failed. In arranging a failsafe 

system, railroads that utilize a multiple 

aspect shove light system will need to 

address each possible scenario for one 

or more light bulb or aspect failures. If 

the system has multiple aspects and a 

bulb or aspect failed, an employee 

viewing the shove light should be able 

to tell that the system is not 

continuously illuminating a proper 

aspect. If the system fails to 

continuously illuminate, the operational 

exception under paragraph (e)(5) would 

no longer be available and the 

movement would be required to stop 

immediately. Thus, the safest course of 

action is required when there is a 

technological failure such as the system 

fails to continuously illuminate. 

IV. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This action has been evaluated in 

accordance with existing policies and 

procedures, and determined to be nonsignificant under both Executive Order 

12866 and DOT policies and procedures 

(44 FR 11034; Feb. 26, 1979). The 

original final rule was determined to be 

non-significant. Furthermore, the 

amendments contained in this action 

are not considered significant because 

they generally clarify requirements 

currently contained in the final rule or 

allow for greater flexibility in complying 

with the rule. These amendments, 

additions, and clarifications will have a 

minimal net effect on FRA’s original 

analysis of the costs and benefits 

associated with the final rule. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) and Executive Order 

13272 require a review of proposed and 

final rules to assess their impact on 

small entities. FRA certifies that this 

action is not expected to have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act or 

Executive Order 13272. Because the 

amendments contained in this 

document generally clarify requirements 

currently contained in the final rule or 

allow for greater flexibility in complying 

with the rule, FRA has concluded that 

there are no substantial economic 

impacts on small units of government, 

businesses, or other organizations 

resulting from this action. 

C. Paperwork Reduction Act 

The information collection 

requirements in the agency’s response to 

petitions of reconsideration of this final 

rule have been submitted for approval to 

the Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 

CFR Section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

217.7—Operating Rules; Filing and 

Recordkeeping: 

—Filing rules, timetables, and special instructions.1 New Railroad ..... 1 submission ........ 1 hour ................... 1 ............................ $43 

—Amendments to operating rules, 

timetables, and timetable special 

instructions by Class I, Class II, 

Amtrak, and Commuter Railroads.

55 Railroads ......... 165 amendments .. 20 minutes ............ 55 .......................... 2,365 

—Class III and Other Railroads: 

Copy of Current Operating 

Rules, Timetables, and Special 

Instructions.

20 New Railroads 20 submissions ..... 55 minutes ............ 18 .......................... 774 

—Class III Railroads: Amendments 

to operating rules.

632 Railroads ....... 1,896 amendments 15 minutes ............ 474 ........................ 20,382 

217.9—Program of Operational Tests: 

—Railroad and railroad officer testing responsibilities: Field Training.687 Railroads ....... 4,732 training sessions.8 ............................ 37,856 ................... 1,892,800 

—Written records of officer testing 

qualifications.

687 Railroads ....... 4,732 records ....... 2 minutes .............. 158 ........................ 0 (Incl. RIA) 

—Written program of operational 

tests/inspections.

20 New Railroads 20 programs ......... 9.92 ....................... 198 ........................ 8,514 

—Amendments to operational 

tests/insp. programs.

55 Railroads ......... 165 amendments .. 1.92 ....................... 317 ........................ 13,631 

—Records of individual tests/inspections.687 Railroads ....... 9,180,000 rcds ...... 5 minutes .............. 765,000 ................. 38,250,000 

—Review of tests/inspections/adjustments to the program of 

operational tests—Quarterly reviews.

687 Railroads ....... 37 reviews ............ 1 hour ................... 37 .......................... 0 (Incl. RIA) 

—Officer designations & Six Month 

reviews.

687 Railroads ....... 37 designations + 

74 reviews.

5 seconds + 1 

hour.

74 .......................... 0 (Incl. RIA) 

—Passenger Railroads: Officer 

designations & Six-month reviews.

20 Railroads ......... 20 designation + 

34 reviews.

5 seconds + 1 

hour.

34 .......................... 0 (Incl. RIA) 

—Records retention: Periodic reviews.687 Railroads ....... 589 review rcds .... 1 minute ................ 10 .......................... 0 (Incl. RIA) 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33899 

CFR Section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

—Annual summary on operational 

rests/inspections—Summary 

records.

37 Railroads ......... 37 summary rcds. 61 minutes ............ 38 .......................... 1,634 

—FRA disapproval of operational 

testing/insp. program: Railroad 

response to disapproval.

687 Railroads ....... 20 responses ........ 1 hour ................... 20 .......................... 1,460 

—Amended programs as a result 

of FRA.

687 Railroads ....... 20 amended ......... 30 .......................... 10 .......................... 730 

217.11—Program of Instructions on Operating Rules 

—Railroads instructions of employees.687 Railroads ....... 130,000 instr. employees.8 ............................ 1,040,000 .............. 52,000,000 

—Current copy of employee periodic instruction prog.20 New Railroads 20 programs ......... 8 ............................ 160 ........................ 6,880 

—Amendments to current employee instruction prog.687 Railroads ....... 220 amendments .. .92 hour ................ 202 ........................ 8,686 

218.95—Instruction, Training, and Examination: 

—Records of instruction, training, 

examination.

687 Railroads ....... 98,000 records ..... 5 minutes .............. 8,167 ..................... 351,181 

—FRA disapproval of program: 

Railroad responses.

687 Railroads ....... 50 submissions ..... 1 hour ................... 50 .......................... 2,150 

—Amended programs .................... 687 Railroads ....... 20 amended docs 30 minutes ............ 10 .......................... 730 

218.97—Good Faith Challenge Procedure: 687 Railroads ....... 687 procedures .... 2 hours ................. 1,374 ..................... 0 (Incl. RIA) 

—Copies to employees of good 

faith procedures.

687 Railroads ....... 130,000 copies ..... 6 minutes .............. 13,000 ................... 0 (Incl. RIA) 

—Copies of amendments to good 

faith procedures.

687 Railroads ....... 130,000 copies ..... 3 minutes .............. 6,500 ..................... 0 (Incl. RIA) 

—Good faith challenges to railroad 

directives.

98,000 employees 15 challenges ....... 10 minutes ............ 3 ............................ 0 (RIA) 

—Resolution of challenges ............. 687 Railroads ....... 15 responses ........ 5 minutes .............. 1 ............................ 0 (RIA) 

—Direct order to proceed procedures: Immediate review by railroad testing officer/employer.687 Railroads ....... 5 reviews .............. 15 minutes ............ 1 ............................ 0 (RIA) 

—Documentation of employee protests to direct order.687 Railroads ....... 10 protest docs ..... 15 minutes ............ 3 ............................ 0 (RIA) 

—Copies of protest documentation 687 Railroads ....... 20 copies .............. 1 minute ................ .33 ......................... 0 (RIA) 

—Further review by designated 

railroad officer.

687 Railroads ....... 3 reviews .............. 15 minutes ............ 1 ............................ 0 (RIA) 

—Employee requested written 

verification decisions.

687 Railroads ....... 10 decisions ......... 10 minutes ............ 2 ............................ 88 

—Recordkeeping/Retention—Copies of written procedures.687 Railroads ....... 760 copies ............ 5 minutes .............. 63 .......................... 2,709 

—Copies of good faith challenge 

verification decisions.

687 Railroads ....... 20 copies .............. 5 minutes .............. 2 ............................ 86 

218.99—Shoving or Pushing Movements: 

—Required operating rule compliant with this section.687 Railroads ....... 687 rule modific .... 1 hour ................... 687 ........................ 0 (Incl. RIA) 

—General Movement Requirements: Job briefings.100,000 RR employees.60,000 briefings .... 1 minute ................ 1,000 ..................... 50,000 

—Point Protection: Visual determination of clear track and corresponding signals or instructions.100,000 RR employees.87,600,000 deter/ 

instructions + 

87,600,000 signals.

1 minute ................ 2,920,000 .............. 128,480,000 

—Remote Control Movements: 

Confirmations by Crew.

100,000 RR employees.876,000 confirm .... 1 minute ................ 14,600 ................... 642,400 

—Remote Control zone, exceptions 

to point protection: Determination/Communication track is clear.

100,000 RR employees.876,000 deter/ 

communication.

1 minute ................ 14,600 ................... 642,400 

—Operational exceptions: 

—Dispatcher permitted movements 

that are verified.

6,000 RR Dispatchers.30,000 permitted 

movements.

1 minute ................ 500 ........................ 22,000 

[NEW REQUIREMENTS] 

mstockstill on PROD1PC66 with RULES

33900 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

CFR Section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

—Written procedures that are 

adopted/complied with to 

determinutee track occupancy 

prior to shoving/pushing movement.

687 Railroads ....... 41 procedures ...... 30 minutes ............ 42 .......................... 903 

—The track is designated in writing 687 Railroads ....... 41 designated 

track locations.

30 minutes ............ 42 .......................... 903 

218.101—Leaving Equipment in the 

Clear: 

—Operating Rule that Complies 

with this section.

687 Railroads ....... 687 amended op. 

rules.

30 minutes ............ 344 ........................ 0 (Incl. RIA) 

218.103—Hand-Operated Switches and 

Derails: 

—Operating Rule that Complies 

with this section.

687 Railroads ....... 687 amended op. 

rules.

60 minutes ............ 687 ........................ 0 (Incl. RIA) 

—Minimum requirements for adequate job briefing.632 Railroads ....... 632 modif rules ..... 60 minutes ............ 632 ........................ 0 (RIA) 

—Actual job briefings conducted by 

employees operating hand-operated main track switches.

632 Railroads ....... 1,125,000 brfngs .. 1 minute ................ 18,750 ................... 825,000 

218.105—Additional Job Briefings for 

hand-operated main track switches: 

687 Railroads ....... 60,000 briefings .... 1 minute ................ 1,000 ..................... 0 (Incl. RIA) 

—Exclusive track occupancy: Report of position of main track 

switches and conveyance of 

switch position.

687 Railroads ....... 100,000 reports + 

100,000 convey.

1 minute ................ 3,334 ..................... 0 (RIA) 

—Releasing authority limits: Acknowledgments and verbal confirmations of hand-operated main 

track switches.

6,000 RR Dispatchers.60,000 reports + 

60,000 confirm.

30 sec. + 5 sec .... 583 ........................ 0 (Incl. RIA) 

218.109—Hand-operated fixed derails—Job.687 Railroads ....... 562,500 brfngs ..... 30 seconds ........... 4,688 ..................... 234,400 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292 or Ms. Nakia 

Poston at 202–493–6073, or via e-mail at 

robert.brogan@dot.gov or 

nakia.poston@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this final rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. Any comments should 

be sent to: The Office of Management 

and Budget, 725 17th Street, NW., 

Washington, DC 20503, att: FRA Desk 

Officer. Comments may also be sent via 

e-mail to OMB at the following address: 

oira_submissions@omb.eop.gov. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

D. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with Federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the proposed regulation. 

Where a regulation has Federalism 

implications and preempts State law, 

the agency seeks to consult with State 

and local officials in the process of 

developing the regulation. 

This is an action with preemptive 

effect. Subject to a limited exception for 

essentially local safety hazards, its 

requirements will establish a uniform 

Federal safety standard that must be 

met, and State requirements covering 

the same subject are displaced, whether 

those standards are in the form of State 

statutes, regulations, local ordinances, 

or other forms of state law, including 

State common law. Preemption is 

addressed in §§ 217.2 and 218.4, both 

titled ‘‘Preemptive effect.’’ As stated in 

the corresponding preamble language 

for §§ 217.2 and 218.4 in the original 

final rule, section 20106 of Title 49 of 

the United States Code provides that all 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 33901 

regulations prescribed by the Secretary 

related to railroad safety preempt any 

State law, regulation, or order covering 

the same subject matter, except a 

provision necessary to eliminate or 

reduce an essentially local safety or 

security hazard that is not incompatible 

with a Federal law, regulation, or order 

and that does not unreasonably burden 

interstate commerce. This is consistent 

with past practice at FRA, and within 

the Department of Transportation. 

FRA has analyzed this action in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA notes that the above factors 

have been considered throughout the 

development of this rulemaking both 

internally and through consultation 

within the RSAC forum, as described in 

Section I of this preamble. After the 

Railroad Operating Rules Working 

Group failed to reach a consensus 

recommendation on the NPRM, FRA 

reported the Working Group’s unofficial 

areas of agreement and disagreement to 

the RSAC. After publication of the 

NPRM, FRA permitted the Working 

Group to meet and discuss the 

comments received; some consensus on 

the comments was derived and 

forwarded to the RSAC where it was 

ratified as a recommendation to the 

FRA. The RSAC has as permanent 

voting members two organizations 

representing State and local interests: 

AASHTO and ASRSM. The RSAC 

regularly provides recommendations to 

the FRA Administrator for solutions to 

regulatory issues that reflect significant 

input from its State members. To date, 

FRA has received no indication of 

concerns about the Federalism 

implications of this rulemaking from 

these representatives or from any other 

representative. States and other 

governments were afforded opportunity 

to consult by virtue of the NPRM and 

comment period, and the agency’s 

procedures permitting petitions for 

reconsideration. 

For the foregoing reasons, FRA 

believes that this action is in accordance 

with the principles and criteria 

contained in Executive Order 13132. 

E. Environmental Impact 

FRA has evaluated this action in 

accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this action is not a 

major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

64 FR 28547, May 26, 1999. In 

accordance with section 4(c) and (e) of 

FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this final rule 

is not a major Federal action 

significantly affecting the quality of the 

human environment. 

F. Unfunded Mandates Act of 1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) currently 

$128,100,000 in any 1 year, and before 

promulgating any final rule for which a 

general notice of proposed rulemaking 

was published, the agency shall prepare 

a written statement’’ detailing the effect 

on State, local, and tribal governments 

and the private sector. This action 

would not result in the expenditure, in 

the aggregate, of $128,100,000 or more 

in any one year, and thus preparation of 

such a statement is not required. 

G. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355 (May 22, 

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this action in accordance with 

Executive Order 13211. FRA has 

determined that this action is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

H. Public Proceedings 

FRA has not provided additional 

notice and request for public comment 

prior to making the amendments 

contained in this rule. FRA concluded 

that such notice and comment were 

impractical, unnecessary and contrary 

to the public interest since FRA is, for 

the most part, only making minor 

technical changes in response to 

requests for reconsideration of issues 

that were previously the subject of 

detailed notice and extensive comment 

in the development of the initial final 

rule in this proceeding. 

Certain of the amendments are so 

critical to the effective implementation 

of this rule that the delay that a notice 

and comment period would cause 

would clearly be contrary to the public 

interest in railroad safety. For example, 

the amendments delaying certain 

implementation of the rule need to go 

into effect immediately or some of the 

implementation dates in the initial final 

rule would go into effect before the 

amendments would. If the amendments 

were not allowed to go into effect 

immediately, many railroads would be 

rushing to develop and implement 

training and testing programs, and the 

quality of the programs and the training 

would suffer. In addition, an exemption 

or relief from a restriction is provided 

by allowing railroads to utilize existing 

shove light systems without establishing 

point protection. If this exemption is not 

immediately placed in effect, some 

railroads may require an employee to 

ride the side of a car or walk along a 

departure track equipped with shove 

lights, thereby increasing the 

employee’s risk of an injury. Under 

these circumstances, FRA has 

concluded that the rule may be made 

effective immediately. 5 U.S.C. 553(d). 

I. Privacy Act 

Anyone is able to search the 

electronic form of all comments or 

petitions for reconsideration received 

into any of FRA’s dockets by the name 

of the individual submitting the 

comment or petition for reconsideration 

(or signing the comment or petition for 

mstockstill on PROD1PC66 with RULES

33902 Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Rules and Regulations 

reconsideration, if submitted on behalf 

of an association, business, labor union, 

etc.). You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78), or you may visit 

http://DocketsInfo.dot.gov. 

List of Subjects 

49 CFR Part 217 

Penalties, Railroad safety, and 

Reporting and recordkeeping 

requirements. 

49 CFR Part 218 

Occupational safety and health, 

Penalties, Railroad employees, Railroad 

safety, and Reporting and recordkeeping 

requirements. 

The Final Rule 

■ For the reasons discussed in the 

preamble, FRA amends parts 217 and 

218 of Title 49, Code of Federal 

Regulations as follows: 

PART 217—[AMENDED] 

■ 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. 

■ 2. Section 217.9 is amended by 

revising the introductory text of 

paragraph (b), paragraphs (c)(1), (c)(6), 

and the introductory text of paragraph 

(e) to read as follows: 

§ 217.9 Program of operational tests and 

inspections; recordkeeping. 

* * * * * 

(b) Railroad and railroad testing 

officer responsibilities. The 

requirements of this paragraph (b) are 

applicable beginning January 1, 2009. 

* * * * * 

(c) * * * 

(1) Provide for operational testing and 

inspection under the various operating 

conditions on the railroad. As of January 

1, 2009, the program shall address with 

particular emphasis those operating 

rules that cause or are likely to cause the 

most accidents or incidents, such as 

those accidents or incidents identified 

in the quarterly reviews, six month 

reviews, and the annual summaries as 

required under paragraphs (e) and (f) of 

this section, as applicable; 

* * * * * 

(6) As of January 1, 2009, identify the 

officer(s) by name, job title, and, 

division or system, who shall be 

responsible for ensuring that the 

program of operational tests and 

inspections is properly implemented. 

The responsibilities of such officer(s) 

shall include, but not be limited to, 

ensuring that the railroad’s testing 

officers are directing their efforts in an 

appropriate manner to reduce accidents/ 

incidents and that all required reviews 

and summaries are completed. A 

railroad with divisions shall identify at 

least one officer at the system 

headquarters who is responsible for 

overseeing the entire program and the 

implementation by each division. 

* * * * * 

(e) Reviews of tests and inspections 

and adjustments to the program of 

operational tests. This paragraph (e) 

shall apply to each Class I railroad and 

the National Railroad Passenger 

Corporation beginning April 1, 2009 and 

to all other railroads subject to this 

paragraph beginning July 1, 2009. 

* * * * * 

PART 218—[AMENDED] 

■ 3. The authority citation for part 218 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

■ 4. Section 218.93 is amended by 

adding a definition of ‘‘departure track’’

in alphabetical order to read as follows: 

§ 218.93 Definitions. 

* * * * * 

Departure track means a track located 

in a classification yard where rolling 

equipment is placed and made ready for 

an outgoing train movement. 

* * * * * 

■ 5. Section 218.95 is amended by 

revising the introductory text of 

paragraph (a), and paragraphs (a)(3) and 

(a)(4) to read as follows: 

§ 218.95 Instruction, training, and 

examination. 

(a) Program. Beginning January 1, 

2009, each railroad shall maintain a 

written program of instruction, training, 

and examination of employees for 

compliance with operating rules 

implementing the requirements of this 

subpart to the extent these requirements 

are pertinent to the employee’s duties. 

If all requirements of this subpart are 

satisfied, a railroad may consolidate any 

portion of the instruction, training or 

examination required by this subpart 

with the program of instruction required 

under § 217.11 of this chapter. An 

employee who successfully completes 

all instruction, training, and 

examination required by this written 

program shall be considered qualified. 

* * * * * 

(3) Implementation schedule for 

employees, generally. Each employee 

performing duties subject to the 

requirements in this subpart shall be 

initially qualified prior to July 1, 2009. 

(4) Beginning July 1, 2009, no 

employee shall perform work requiring 

compliance with the operating rules 

implementing the requirements of this 

subpart unless qualified on these rules 

within the previous three years. 

* * * * * 

■ 6. Section 218.99 is amended by 

adding a new paragraph (e)(5) to read as 

follows: 

§ 218.99 Shoving or pushing movements. 

* * * * * 

(e) * * * 

(5) Shoving or pushing movements 

made in the direction of the circuited 

end of a designated departure track 

equipped with a shove light system, if 

all of the following conditions are met: 

(i) The shove light system is 

demonstrated to be failsafe; 

(ii) The shove light system is arranged 

to display a less favorable aspect when 

the circuited section of the track is 

occupied; 

(iii) Written procedures are adopted 

and complied with that provide for a 

reliable means of determining track 

occupancy prior to commencing a 

shoving or pushing movement; 

(iv) The track is designated in writing; 

(v) The track is under the exclusive 

and continuous control of a yardmaster 

or other qualified employee; 

(vi) The train crewmember or other 

qualified employee directing the 

shoving or pushing movement complies 

with the general movement 

requirements contained in paragraphs 

(b)(1) and (b)(2) of this section; 

(vii) All remote control shoving or 

pushing movements comply with the 

requirements contained in paragraph 

(c)(1) of this section; and 

(viii) The shove light system is 

continuously illuminated when the 

circuited section of the track is 

unoccupied. 

Issued in Washington, DC on June 10, 

2008. 

Joseph H. Boardman, 

Administrator. 

[FR Doc. 08–1354 Filed 6–11–08; 11:24 am] 

BILLING CODE 4910–06–P 

mstockstill on PROD1PC66 with RULES