[Federal Register Volume 60, Number 40 (Wednesday, March 1, 1995)]
[Rules and Regulations]
[Pages 11047-11050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4761]



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DEPARTMENT OF TRANSPORTATION
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.

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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 Secs. 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 one-member 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 [[Page 11048]] 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 single-engineer 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 
Sec. 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 Sec. 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 Sec. 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 non-
crewmember 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 [[Page 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 
Sec. 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-of-equipment 
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 
Sec. 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 Sec. 218.5 to remove the definition ``Ranking crew 
member'' and to add the following definitions in alphabetical order to 
read as follows:


Sec. 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 [[Page 11050]] 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 Sec. 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 Sec. 218.24 to read as follows:
Sec. 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 Sec. 218.27 or Sec. 218.29, unless 
the duties to be performed are listed in Sec. 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:

------------------------------------------------------------------------
                                                                Willful 
                      Section                       Violation  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