Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations 11047

operator of an airport is reasonable

under section 113 of the Federal

Aviation Administration Authorization

Act of 1994 (August 23, 1994; Pub. L.

103–305; 108 Stat. 1577–1579).

Issued at Washington, DC this 22nd day of

February, 1995.

Federico Pen ̃ a,

Secretary of Transportation.

[FR Doc. 95–4984 Filed 2–28–95; 8:45 am]

BILLING CODE 4910–62–P

Federal Railroad Administration

49 CFR Part 218

[FRA Docket Number RSOR–11, Notice No.

4]

RIN 2130—AA77

Protection of Utility Employees

Response to Petitions to Reconsider

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule amendments with

request for comments.

SUMMARY: On August 16, 1993, FRA

published safety standards for utility

employees working as temporary

members of train and yard crews. FRA

now amends a definition, responds to

the concerns raised in petitions to

reconsider the final rule, issues an

amendment on a subject addressed

earlier in this rulemaking, and makes

technical corrections. The amendment

will permit single-person crews to work

within the protections provided for train

and yard crews.

DATES: These amendments will become

effective May 15, 1995. Comments on

the amendments must be received by

May 1, 1995.

ADDRESSES: Comments on the

amendments should be submitted to the

Docket Clerk, Office of Chief Counsel,

RCC–30, Federal Railroad

Administration, 400 Seventh Street,

SW., Room 8201, Washington, DC

20590.

FOR FURTHER INFORMATION CONTACT:

James T. Schultz, Chief, Operating

Practices Division, Office of Safety,

FRA, RRS–11, Washington, DC 20590

(telephone: 202–366–9252), or Kyle M.

Mulhall, Trial Attorney, Office of Chief

Counsel, FRA, Washington, DC 20590

(telephone: 202–366–0443).

SUPPLEMENTARY INFORMATION: On August

16, 1993 FRA published a regulation

allowing utility crew members to be

excluded from the blue signal protection

requirements of part 218 while the

employee works as a temporary member

of a train or yard crew. 58 FR 43287.

FRA believed this rule, which provides

new protections for utility employees,

would allow more efficient use of

railroad personnel without

compromising the level of safety

provided by the pre-amendment

regulations.

In response to this regulatory revision,

FRA received several petitions for

reconsideration of the new rule,

including its rationale and specific

provisions of its preamble and text.

Basis for the Rule

The preamble to the Final Rule

explained the agency’s rationale for

issuing this regulation. Several

petitioners continue to object to the

rule, arguing that expanding the original

train and yard crew exclusion to cover

utility employees will create safety risks

because the new rule does not provide

adequate protection for temporary crew

members.

The petitions FRA received from rail

labor question the safety data on which

FRA partially relied in this rulemaking.

One petitioner cites two specific

occurrences in 1987 and anecdotal

information regarding similar mishaps

involving operating crews that the

petitioner argues were preventable had

there been no exclusion for train and

yard crews. (That exclusion, of course,

was in FRA’s original rule and directly

tracked the statutory provision that

required the rule.) FRA does not agree

that these limited incidents outweigh

the remaining safety data. Our

conclusion continues to be that utility

employees can function safely without

blue signal protection under properly

structured Federal regulations and

railroad operating rules requiring

adequate communication and

understanding of the work to be

performed. FRA notes that the rule does

not prevent railroads from enacting

more stringent procedures to address

isolated safety problems. The agency

continues to believe that according a

utility employee the same level of

protection historically provided to train

and yard crews would not risk the

employee’s safety. Accordingly, FRA

will not withdraw the final rule.

FRA has no evidence on which to

conclude that crews are currently

experiencing a material risk ascribable

to unexpected train movements. FRA

believes, however, there may be reason

to conduct a future rulemaking on

protection for all train and yard crew

members, given the issues raised in this

rulemaking. Many of the issues raised

by participants in this rulemaking were

beyond the scope of this proceeding and

would be more appropriately addressed

in separate agency actions.

Preamble and Text of Final Rule

FRA received petitions from rail labor

and management questioning specific

portions of the preamble and rule. FRA

responds below to each primary

objection.

1. One-Member Crews. FRA’s notice

of proposed rulemaking requested

comment on the protection needed for

a single locomotive engineer performing

helper or hostler service. The notice

stated:

FRA is also concerned that protection

provided for one-person assignments

(i.e., hostlers or other unaccompanied

engineers) be consistent with safety and

efficiency. FRA specifically invites

comments on the circumstances under

which these engineers acting alone

might be permitted to perform functions

outside of the area under control of the

mechanical forces without complete

blue signal protection as provided under

§§ 218.25 (main track) or 218.27 (other

than main track).

57 FR 41457.

Protecting one-member crews was

therefore within the scope of the notice.

FRA chose not to address the subject in

rule text because no comments were

received. In the preamble to the final

rule, however, FRA expressed

discomfort with one-member crews. It

was stated that a lone engineer could

not take advantage of the exclusion from

blue signal protection unless joined by

a utility employee to ensure that the

locomotive cab was always occupied. 58

FR 43287.

The Association of American

Railroads (AAR) objected to that

preamble statement, arguing that the

language of the rule did not seem to bar

the use of one-person crews. FRA agrees

that the rule does not impose such a

prohibition on one-member crews. FRA

therefore grants this portion of AAR’s

request.

Although AAR is correct that the

utility employee rule did not, on its

face, preclude its application to onemember crews, application of utility

protection to such crews would not be

logical. The utility employee rule

presumes the presence of a permanent

crew to which the utility crew member

becomes temporarily attached for

specific purposes. One-person crews

either do not join larger crews or do so

to perform duties distinct from those

assigned a utility employee. FRA

remains concerned with the unique risk

faced by lone engineers despite the

current lack of evidence of a substantial

injury record for one-member crews. An
11048 Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations

engineer assigned to helper or hostler

service must frequently perform work,

such as placing rear end markers or

making connections between

locomotives, that puts that employee in

danger, particularly when this work is

performed in congested terminals and

rail yards. FRA believes that if singleengineer assignments are not carefully

controlled, the industry may risk an

entirely avoidable safety problem.

Safety can be assured only by providing

protection against unexpected

movement of equipment equivalent to a

crew member occupying the cab. AAR,

in its joint submission with the United

Transportation Union (UTU) dated

March 5, 1993, agreed that crews need

to have complete control over the

equipment on which they are working.

FRA believes this can be achieved and

therefore issues a new § 218.24 as an

amendment that prohibits an engineer

working alone from going on, under, or

between rolling equipment to perform

inspections, tests, repairs, or servicing

without blue signal protection unless all

of the following conditions are met:

(1) Each locomotive in the locomotive

engineer’s charge is either (i) coupled to

the train or other railroad rolling

equipment to be assisted or (ii) stopped

a sufficient distance from the train or

rolling equipment to ensure a separation

of at least 50 feet; and,

(2) Before a controlling locomotive is

left unattended, the one-member crew

shall secure the locomotive as follows:

(i) The throttle is in the IDLE position;

(ii) The generator field switch is in the

OFF position;

(iii) The reverser handle is removed

(if so equipped);

(iv) The isolation switch is in the

ISOLATE position;

(v) The locomotive independent

(engine) brake valve is fully applied;

(vi) The hand brake on the controlling

locomotive is fully applied (if so

equipped); and

(vii) A bright orange engineer’s tag (a

tag that is a minimum of three by eight

inches with the words ASSIGNED

LOCOMOTIVE—DO NOT OPERATE) is

displayed on the control stand of the

controlling locomotive.

If the single-engineer crew is working

in helper service, safety must also be

assured by effective communication

between engineers of controlling

locomotives to prevent unexpected

movement. Single-engineer helper

service crews are most commonly found

in heavy grade territory on main track

routes, where additional locomotives

are added to trains to push or pull trains

on steep grades.

FRA believes the single engineer is

particularly vulnerable while attaching

his or her locomotive to, or detaching it

from, the train to be assisted. FRA

provides protection by requiring that

communication be established between

engineers of controlling locomotives on

a common track or working a common

train, and these engineers reach an

understanding of the work to be

performed before taking advantage of

the exclusion for train and yard crews.

FRA proposes the following language to

achieve that purpose:

When assisting another train or yard crew

with the equipment the other crew was

assigned to operate, a single engineer must

communicate directly, either by radio in

compliance with Part 220 of this chapter or

by oral telecommunication of equivalent

integrity, with the crew of the train to be

assisted. The crews of both trains must notify

each other in advance of all moves to be

made by their respective equipment. Prior to

attachment or detachment of the assisting

locomotive(s), the crew of the train to be

assisted must inform the single engineer that

the train is secured against movement. The

crew of the train to be assisted must not

move the train or permit the train to move

until authorized by the single engineer.

Use of single-person crews is a

relatively recent practice. FRA gave

notice in the NPRM of its intent to

consider the safety of such crews, but

only addressed the issue in the

preamble to the final rule. While FRA is

not obliged to provide further

opportunity to comment, it has decided

that soliciting comment is the better

course. FRA therefore invites comment

on this amendment before it takes effect.

FRA will provide a 60-day comment

period from the date of publication. At

the close of this period, FRA will review

the materials received and make

necessary adjustments to the

amendment.

FRA notes that the contemplated

requirements are nearly identical to

operating rules of several railroads that

currently use single-member crews.

2. Ranking Crew Member. Section

218.5 of the Final Rule defined ‘‘ranking

crew member’’ as the assigned

locomotive engineer, if the person in

general charge of the train was not

named by the railroad’s operating rules.

The UTU argued that the definition

dilutes the traditional authority of

railroad conductors at the expense of

safety. In response to these comments,

the final rule is modified to permit the

designation of the crew member

responsible for coordination with the

utility employee only by the railroad’s

operating rules. Accordingly, the last

sentence of the definition of ‘‘ranking

crew member’’ is deleted, and the term

is changed to ‘‘designated crew

member.’’

3. Occupied Locomotive Cab. Rail

management argued that the

requirement in § 218.22(b)(2), which

requires the locomotive engineer, or

another crew member, to be present in

the cab of the controlling locomotive in

order for the crew to make use of a

utility employee, was overly restrictive.

FRA believes that a crew member in the

controlling locomotive who is aware

that others are working on the train can

prevent equipment movement that

would endanger the crew. This crew

member’s presence in the cab serves to

prevent such events as unexpected

couplings when crew members are in

jeopardy and is, therefore, an essential

element of the exclusion.

4. Craft lines. In the Final Rule, at

§ 218.22(b)(5), FRA clarified the

agency’s intention not to expand the

type of work that could be performed by

crews without blue signal protection. In

order to accomplish this goal, FRA

listed the duties that a utility employee

is allowed to perform within the

exclusion. This list was intended to be

inclusive of all essential and routine

duties traditionally performed by crews.

Several petitioners objected that the list

was incomplete, preventing carriers

from making full use of utility

employees. FRA disagrees. FRA has, in

letters to each petitioner, addressed the

duties each has raised. The few specific

duties which the petitioners identified

as not on the list are in truth parts of

jobs listed or jobs which do not require

blue signal protection. FRA will not,

therefore, amend the list.

A labor union petitioner, the

Brotherhood of Railway Carmen (BRC),

objected that the list contained duties

beyond those traditionally performed by

train and yard crews. BRC did not

identify the duties to which it objected.

The petitioner asserts that the agency

therefore acted beyond the scope

provided by the notice of proposed

rulemaking. FRA disagrees. The Final

Rule merely permits utility employees

to work like other crew members under

specific conditions, which was the

expressed intent of the proposed rule.

Rail labor also objected to the

preamble explanation that if noncrewmember supervisors perform duties

that constitute inspecting, testing,

repairing, or servicing, and that cause

them to go on, under, or between the

equipment, they are not excused from

blue signal requirements by virtue of

their supervisory occupation. This

example illustrated FRA’s position that

blue signal requirements are based on

function and not craft. Any title could

be used in place of ‘‘supervisors.’’ It was

not a suggestion that supervisors replace

other employees who currently perform
Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations 11049

these jobs, as the petitioner seems to

fear.

In addition, it should be understood

that this rule does not replace existing

collective bargaining agreements with

respect to assignments of duties. This

rule simply defines the limits of the

duties a utility employee may perform

without traditional blue signal

protection. The existence of this rule,

however, does not mean that these

duties must be assigned to utility

employees. But it should be noted that

a utility employee must not be assigned

responsibilities beyond those listed,

without full blue signal protection,

regardless of existing labor and

management agreements.

5. Radio Communication. The rule

provides a process for utility employees

to join and quit a crew. Integral to this

process is communication among crew

members, most likely by radio as

provided in § 218.22(e). One petitioner,

Mr. Alan Thompson, objected to the

reliance on radios because of the

possibility that radios could

malfunction. FRA, however, does not

believe it is necessary to amend the

communication provisions. A utility

employee must not be excluded from

blue signal protection unless effective

communication is established. If a radio

malfunction prevents the required crew

notice, then the utility employee must

be protected by blue signals unless

required communication is achieved by

talking in person or other equivalent

forms of telecommunications.

6. Adequate Recordkeeping. FRA

rejects the argument that additional

recordkeeping requirements are needed

to make the rule enforceable. As noted

in the preamble to the Final Rule,

railroads are required to maintain hours

of service records, accident reports,

records of attendance at railroad

operating rules classes, and alcohol and

drug testing records for all operating

personnel, including utility employees.

The agency believes these records are

sufficient to determine an employee’s

status for enforcement purposes.

7. Appendix Examples. Rail

management argued that the examples

published in Appendix A to the rule

should not include train and yard

crews. FRA chose to include all

operating employees, as well as utility

employees, in the last four examples to

highlight the extent of the blue signal

regulation. FRA has found that railroads

have occasionally utilized operating

employees instead of maintenance-ofequipment employees to perform work

which requires blue signal protection,

under the mistaken impression that the

exclusion from blue signal protection

for train and yard crews extends to all

work assigned to these employees.

The examples contain no new

requirements, but simply illustrate

existing law. They are therefore not

beyond the scope of this proceeding.

8. Economic Analysis. One petitioner,

BRC, questioned the amount of the

economic benefit FRA stated the rule

should create. BRC argued that time

spent completing required brake tests

was improperly counted as time spent

installing and removing end-of-train

devices. BRC concluded, therefore, that

the time FRA believed would be saved

by using utility employees would still

be spent performing brake tests. BRC

argued, therefore, that there would be

less cost savings created by the rule than

FRA had estimated, because there

would not be an improvement in time

preparing a train for departure.

FRA based its savings calculations on

the best information available to this

agency. No participant, including BRC,

provided contrary data. Moreover,

contrary to BRC’s assertion, FRA’s

economic analysis did not consider time

spent on brake tests as an area where

benefits could be created. FRA believes

that its cost and benefit calculations

accurately reflect the true impact of the

final rule.

9. Penalty Amounts. One petitioner

argued that the penalty amounts

contained in an appendix to the rule

were inadequate to encourage

compliance. The penalty amounts are

consistent with the civil penalties levied

for other violations of federal railroad

safety regulations. FRA does not believe

that the penalties are insufficient to

promote compliance. The penalty

schedule makes clear that FRA has the

authority to assess even higher amounts

where the facts of a particular violation

warrant.

FRA’s monitoring of industry

application of this rule over the next

year will provide evidence of carrier

compliance. If safety risks are created by

the repeated failure to comply with the

rule, FRA has other enforcement

options, including compliance or

emergency orders.

10. Technical Correction. The

definition of ‘‘locomotive servicing track

area’’ was unintentionally deleted from

the Final Rule. That definition is now

added to the list of definitions provided

in § 218.5.

Regulatory Impact Analysis

This amendment to the final rule has

been evaluated in accordance with

existing policies and procedures and is

considered ‘‘nonsignificant’’ under

Executive Order 12866. It is not

considered to be significant under

Department of Transportation policies

and procedures. See 44 FR 11034. The

amendment does not materially affect

the benefit/cost analysis provided in the

final rule.

The Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) was enacted by

Congress to ensure that small entities

are not unnecessarily and

disproportionately burdened by

Government regulations. This

amendment will have no new direct or

indirect economic impact on small units

of government, business, or other

organizations.

Federalism Implications

This amendment will not have a

substantial effect 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. Therefore, in

accordance with Executive Order 12612,

preparation of a Federalism Assessment

is not warranted.

Paperwork Reduction Act

There are no new information

collection requirements associated with

this amendment. Therefore, no estimate

of a public reporting burden is required.

Environmental Impact

This amendment will not have any

identifiable environmental impact.

List of Subjects in 49 CFR Part 218

Occupational safety and health,

Penalties, Railroad employees, Railroad

safety, Reporting and recordkeeping

requirements.

The Rule

In consideration of the foregoing, FRA

amends Part 218 of Title 49, Code of

Federal Regulations as follows:

PART 218—[AMENDED]

1. The authority for Part 218 is revised

to read as follows:

Authority: 49 U.S.C. 20101 et seq.; and 49

CFR 1.49(m).

2. By amending § 218.5 to remove the

definition ‘‘Ranking crew member’’ and

to add the following definitions in

alphabetical order to read as follows:

§ 218.5 Definitions.

* * * * *

Designated crew member means an

individual designated under the

railroad’s operating rules as the point of

contact between a train or yard crew
11050 Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations

and a utility employee working with

that crew.

* * * * *

Locomotive servicing track area

means one or more tracks, within an

area in which the testing, servicing,

repair, inspection, or rebuilding of

locomotives is under the exclusive

control of mechanical department

personnel.

* * * * *

3. By amending § 218.22 to remove

the word ‘‘ranking’’ and add, in its

place, the word ‘‘designated’’ in the

following places:

a. Section 218.22(c)(3);

b. Section 218.22(c)(4);

c. Section 218.22(d); and

d. Section 218.22(e).

4. Add a new § 218.24 to read as

follows:

§ 218.24 One-person crew.

(a) An engineer working alone as a

one-person crew shall not perform

duties on, under, or between rolling

equipment, without blue signal

protection that complies with § 218.27

or § 218.29, unless the duties to be

performed are listed in § 218.22(c)(5)

and the following protections are

provided:

(1) Each locomotive in the locomotive

engineer’s charge is either:

(i) Coupled to the train or other

railroad rolling equipment to be

assisted; or

(ii) Stopped a sufficient distance from

the train or rolling equipment to ensure

a separation of at least 50 feet; and

(2) Before a controlling locomotive is

left unattended, the one-member crew

shall secure the locomotive as follows:

(i) The throttle is in the IDLE position;

(ii) The generator field switch is in the

OFF position;

(iii) The reverser handle is removed

(if so equipped);

(iv) The isolation switch is in the

ISOLATE position;

(v) The locomotive independent

(engine) brake valve is fully applied;

(vi) The hand brake on the controlling

locomotive is fully applied (if so

equipped); and

(vii) A bright orange engineer’s tag (a

tag that is a minimum of three by eight

inches with the words ASSIGNED

LOCOMOTIVE—DO NOT OPERATE) is

displayed on the control stand of the

controlling locomotive.

(b) When assisting another train or

yard crew with the equipment the other

crew was assigned to operate, a single

engineer must communicate directly,

either by radio in compliance with Part

220 of this chapter or by oral

telecommunication of equivalent

integrity, with the crew of the train to

be assisted. The crews of both trains

must notify each other in advance of all

moves to be made by their respective

equipment. Prior to attachment or

detachment of the assisting

locomotive(s), the crew of the train to be

assisted must inform the single engineer

that the train is secured against

movement. The crew of the train to be

assisted must not move the train or

permit the train to move until

authorized by the single engineer.

Appendix A to Part 218 [Amended]

5. In Appendix A to Part 218—

Schedule of Civil Penalties, a new entry

is added in numerical order under

Subpart B to the penalty schedule to

read as follows:

Section Violation

Willful

violation

Subpart B—Blue signal

protection of workers:

* * * * *

218.24 One-person crew:

(a)(1) equipment not

coupled or insufficiently separated ........ $2,000 $4,000

(a)(2) unoccupied locomotive cab not secured .......................... 5,000 7,500

(b) helper service ........... 2,000 4,000

* * * * *

Issued in Washington, DC, on February 15,

1995.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 95–4761 Filed 2–28–95; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 204

[Docket No. 950203036–5036–01; I.D.

012495B]

OMB Control Numbers for NOAA

Information Collection Requirements;

Revision of Table

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule, technical

amendment.

SUMMARY: NMFS corrects and updates

the table containing Office of

Management and Budget (OMB) control

numbers for NOAA information

collection requirements. The intent is to

comply with the requirement of the

Paperwork Reduction Act (PRA) that

agencies display current OMB control

numbers for each agency information

collection requirement, and to make this

information available to the public.

EFFECTIVE DATE: March 1, 1995.

FOR FURTHER INFORMATION CONTACT:

George H. Darcy, NMFS, 301/713–2344.

SUPPLEMENTARY INFORMATION: Part 204 of

title 50 CFR displays control numbers

assigned to NMFS information

collection requirements by OMB,

pursuant to the PRA, for the public’s

information. Part 204 fulfills the

requirements of sec. 3507(f) of the PRA,

which requires that agencies display a

current control number, assigned by the

Director of OMB, for each agency

information collection requirement.

This final rule, technical amendment,

brings part 204 up to date and corrects

omissions and errors by revising the

table in § 204.1(b) to reflect the most

current list of OMB control numbers

associated with NMFS information

collection requirements contained in

regulations appearing in title 50. All of

the collection-of-information

requirements displayed in § 204.1(b)

have previously been submitted to OMB

for approval during implementation of

regulations appearing in the individual

parts of title 50; this final rule does not

involve any new reporting or

recordkeeping requirements.

Classification

Because this rule only corrects

omissions and other errors and brings

an existing table up to date for the

purposes of public information, it is

strictly administrative in nature; no

useful purpose would be served by

providing prior notice and opportunity

for comment on this rule. Accordingly,

under 5 U.S.C. 553(b)(B), it is

unnecessary to provide such notice and

opportunity for comment. Also, because

this rule is only administrative in nature

and imposes no new requirements or

restrictions on the public, NMFS finds

good cause to make it immediately

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

This rule is exempt from review

under E.O. 12866.

List of Subjects in 50 CFR Part 204

Reporting and recordkeeping

requirements.

Dated: February 23, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 204 is amended

as follows: