8442 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

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), DOT. 

ACTION: Final rule. 

SUMMARY: Human factors are the leading 

cause of train accidents, accounting for 

38 percent of the total in 2005. Human 

factors also contribute to employee 

injuries. This final rule establishes 

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. Additionally, 

this final rule will supplant Emergency 

Order 24, which requires special 

handling, instruction and testing of 

railroad operating rules pertaining to 

hand-operated main track switches in 

non-signaled territory. Finally, an 

appendix has been added to 49 CFR part 

218 to provide guidance for remote 

control locomotive operations that 

utilize technology in aiding point 

protection. 

DATES: This regulation is effective April 

14, 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 and Authority 

II. Proceedings to Date 

A. Increase in Human Factor Caused 

Accidents and Noncompliance 

B. Accident at Graniteville, SC and Safety 

Advisory 2005–01 

C. Emergency Order No. 24 

D. Secretary of Transportation’s Action 

Plan for Addressing Critical Railroad 

Safety Issues 

E. Railroad Safety Advisory Committee 

(RSAC) Overview 

F. Establishment of the Railroad Operating 

Rules Working Group and Development 

of the NPRM 

G. Development of the Final Rule 

1. Summary of the Comments 

2. RSAC’s Working Group Reviewed the 

Comments 

3. Consideration of Underlying Principles 

in Emergency Order 24 

4. Recognition of the Need To Improve 

Railroad Programs of Operational Tests 

and Inspections 

III. Remote Control Operations 

A. Background 

B. Situational Awareness 

C. Technology Aided Point Protection 

IV. General Comments/Major Issues 

A. Enforcement 

B. Good Faith Challenge—Legal Issues 

1. FRA’s Rulemaking Authority 

2. FRA’s Enforcement Authority 

3. Multiple Enforcement Actions 

4. Anti-Retaliation Provision 

C. Preemptive Effect 

V. Section-by-Section Analysis 

VI. 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 

I. Background and Authority 

The Federal Railroad Safety Act of 

1970, as codified at 49 U.S.C. 20103, 

provides that, ‘‘[t]he Secretary of 

Transportation, as necessary, shall 

prescribe regulations and issue orders 

for every area of railroad safety 

supplementing laws and regulations in 

effect on October 16, 1970.’’ The 

Secretary’s responsibility under this 

provision and the balance of the railroad 

safety laws have been delegated to the 

Federal Railroad Administrator. 49 CFR 

1.49(m). In the field of operating rules 

and practices, FRA has traditionally 

pursued a very conservative course of 

regulation, relying upon the industry to 

implement suitable railroad operating 

rules and mandating in the broadest of 

ways that employees be ‘‘instructed’’ in 

their requirements and that railroads 

create and administer programs of 

operational tests and inspections to 

verify rules compliance. This approach 

was based on several factors, including 

a recognition of the strong interest the 

railroads have in avoiding costly 

accidents and personal injuries, the 

limited resources available to FRA to 

directly enforce railroad operating rules, 

and the apparent success of 

management and employees in 

accomplishing most work in a safe 

manner. 

Over the years, however, it became 

necessary to ‘‘Federalize’’ certain 

requirements, either to remedy 

shortcomings in the railroads’ rules or to 

emphasize the importance of 

compliance and to provide FRA a more 

direct means of promoting compliance. 

These actions, which in most cases were 

preceded or followed by statutory 

mandates, included adoption of rules 

governing— 

1. Blue Signal Protection for 

employees working on, under or 

between railroad rolling equipment (49 

CFR part 218, subpart B); 

2. Railroad Communications (49 CFR 

part 220); 

3. Prohibition of Tampering with 

Safety Devices (49 CFR part 218, subpart 

D); and 

4. Control of Alcohol and Drug Use in 

Railroad Operations (49 CFR part 219). 

In addition, FRA has adopted 

requirements for Qualification and 

Certification of Locomotive Engineers 

(49 CFR Part 240) that directly prohibit 

contravention of certain specified 

operating rules and practices. 

FRA believes these programs of 

regulation contribute positively to 

railroad safety, in part because they 

contribute significantly to good 

discipline among affected employees. 

FRA is not specifically required by 

statute to issue a regulation on the 

subjects covered by this final rule. 

However, FRA believes that establishing 

greater accountability for 

implementation of sound operating 

rules is necessary for safety. FRA 

initiated and finalized this rulemaking 

because it has recognized that human 

factor train accidents comprise the 

largest single category of train accident 

causes and because existing regulations 

have proven inadequate to achieve a 

significant further reduction in their 

numbers or severity. Moreover, the 

current situation in the railroad 

industry, which is characterized by 

strong market demand, extensive hiring 

of new employees, and rapid attrition of 

older employees now becoming eligible 

for retirement, demands a more 

substantial framework of regulations to 

help ensure that operational necessity 

will not overwhelm systems of 

safeguards relied upon to maintain good 

discipline. 

The theme of this final rule is 

accountability. It embodies both a broad 

strategy intended to promote better 

administration of railroad programs and 

a highly targeted strategy designed to 

improve compliance with railroad 

operating rules addressing three critical 

areas. Within this framework, FRA has 


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taken responsibility to set out certain 

requirements heretofore left to private 

action. FRA will be monitoring 

compliance with those requirements 

through appropriate inspections and 

audits, and when necessary will be 

assessing appropriate civil penalties to 

assure compliance. Railroad 

management will be held accountable 

for putting in place appropriate rules, 

instructions, and programs of 

operational tests. Railroad supervisors 

will be held accountable for doing their 

part to administer operational tests and 

establish appropriate expectations with 

respect to rules compliance. Railroad 

employees will be held accountable for 

complying with specified operating 

rules, and will have a right of challenge 

should they be instructed to take actions 

that, in good faith, they believe would 

violate those rules. It is intended that 

this framework of accountability 

promote good discipline, prevent train 

accidents, and reduce serious injuries to 

railroad employees. In this 

supplementary information section, 

FRA provides a detailed explanation of 

the growing number of accidents, the 

severity of some of those accidents, the 

agency’s prior actions, and a discussion 

of major subjects addressed in the 

proposed rule or raised by the 

comments to that proposal. 

II. Proceedings to Date 

A. Increase in Human Factor Caused 

Accidents and Noncompliance 

FRA has grown steadily more 

concerned over the past few years as the 

frequency of human factor caused 

accidents has increased. When these 

accidents are reported, the reporting 

railroad is required to cite the causes of 

the accident. In the case of a human 

factor caused accident, an employee or 

employees are typically associated with 

a failure to abide by one or more 

railroad operating rules. Over the past 

few years, FRA inspectors have 

simultaneously observed a substantial 

increase in noncompliance with those 

railroad operating rules that are 

frequently cited as the primary or 

secondary causes to these types of 

accidents. 

Accidents caused by mishandling of 

equipment, switches and derails rose 

from 370 to 640 per year from the years 

1997 to 2004—an increase of 42 percent. 

The greatest causes of these accidents as 

identified by the railroads were (1) 

switch improperly lined and (2) absence 

of employee on, at or ahead of a shoving 

movement. These two issues alone 

account for over 60 percent of all 

accidents caused annually by employees 

mishandling of equipment, switches 

and derails. 

A grouping of four other causes saw 

steady increases from 133 per year in 

1997 to 213 per year in 2004—a 

cumulative increase of 37 percent; these 

causes are (1) failure to control a 

shoving movement, (2) switch 

previously run through, (3) cars left in 

the foul and (4) failure to apply or 

remove a derail. Two additional causes 

of accidents, (1) switch not latched or 

locked and (2) car(s) shoved out and left 

out of clear, were the cited cause of only 

10 accidents in 1997 and 40 accidents 

in 2004. 

While the accident data shows 

significant increases in these areas, the 

data collected by FRA during 

inspections suggests that the number of 

accidents could easily increase at an 

even greater rate. FRA inspection data 

shows that noncompliance related to 

mishandling of equipment, switches 

and derails rose from 319 to 2,954 per 

year from the years 2000 to 2004—a 

nine-fold increase. The most common 

areas of human factor noncompliance 

were (1) employee failed to observe 

switch points for obstruction before 

throwing switch; (2) employee failed to 

ensure all switches involved with a 

movement were properly lined; (3) 

employee failed to ensure switches were 

latched or locked; (4) employee failed to 

ensure switches were properly lined 

before movement began; and (5) 

employee left equipment fouling 

adjacent track. 

Several other related issues of 

noncompliance also saw substantial 

increases, although the overall number 

of incidents found by FRA was lower 

than the top five. These additional areas 

of noncompliance are: (1) Employee left 

derail improperly lined (on or off); (2) 

absence of employee on, at, or ahead of 

shoving movement; (3) employee failed 

to ensure train or engine was stopped in 

the clear; (4) employee failed to ensure 

switches were properly lined after being 

used; (5) employee failed to reapply 

hasp before making move over switch (if 

equipped); (6) employee failed to relock 

the switch after use; and (7) one or more 

employees failed to position themselves 

so that they could constantly look in the 

direction of movement. 

Some noncompliance data applies 

particularly to human factor mistakes 

FRA noted during inspections of 

operations involving remotely 

controlled locomotives. FRA assigned 

noncompliance codes to identify the 

following problems specifically 

associated with these remote control 

operations: (1) Employee operated 

equipment while out of operator’s range 

of vision; (2) employee failed to provide 

point protection, locomotive leading; 

and (3) employee failed to provide point 

protection, car leading. In 2004, the first 

year that FRA collected data under 

those codes, FRA inspectors recorded 29 

instances of noncompliance with the 

railroad’s operating rules underlying the 

three codes. In 2005, the number of 

instances of noncompliance with those 

same codes recorded by FRA inspectors 

increased to 92. These types of 

noncompliance are continuing with 

some frequency as in 2006, FRA noted 

43 instances of noncompliance with 

those cause codes and in the first half 

of 2007, FRA has noted 23 instances. 

B. Accident at Graniteville, SC and 

Safety Advisory 2005–01 

Although the increasing number of 

human factor caused accidents 

impacted the railroad industry and its 

employees, a catastrophic accident that 

occurred at Graniteville, South Carolina 

on January 6, 2005, catapulted the issue 

into the national spotlight. As the 

National Transportation Safety Board 

(NTSB) described in its report NTSB/ 

RAR–05/04, PB2005–916304 (Nov. 29, 

2005), that accident occurred when 

Norfolk Southern Railway Company 

(NS) freight train 192, while traveling in 

non-signaled territory at about 47 miles 

per hour (mph), encountered an 

improperly lined switch that diverted 

the train from the main track onto an 

industry track, where it struck an 

unoccupied, parked train (NS train P22). 

The collision derailed both locomotives 

and 16 of the 42 freight cars of train 192, 

as well as the locomotive and 1 of the 

2 cars of train P22. Among the derailed 

cars from train 192 were three tank cars 

containing chlorine, one of which was 

breached, releasing chlorine gas. The 

train engineer and eight other people 

died as a result of chlorine gas 

inhalation. About 554 people 

complaining of respiratory difficulties 

were taken to local hospitals. Of these, 

75 were admitted for treatment. Because 

of the chlorine release, about 5,400 

people within a 1-mile radius of the 

derailment site were evacuated for 9 to 

13 days. The property damage, 

including damages to the rolling stock 

and track, exceeded $6.9 million. In 

2006, NS recorded expenses of $41 

million related to this incident. This 

burden includes property damage and 

other economic losses, personal injury 

and individual property damage. (It 

should be noted that this figure does not 

include losses for which NS was 

insured, nor other costs that are 

associated with the accident such as 

liability incurred, increased shipping 

rates, higher insurance rates and other 

societal costs, i.e., expenses for nonVerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM 13FER3

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8444 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

railroad businesses, and expenses 

incurred related to claims from this 

accident.) NTSB determined that the 

probable cause of the collision was the 

failure of the crew of NS train P22 to 

return a main track switch to the normal 

position after the crew completed work 

at an industry. 

The crew’s failure violated railroad 

operating rules but did not violate any 

Federal requirement. NS Operating Rule 

104, in effect at the time, placed primary 

responsibility with the employee 

handling the switch and other 

crewmembers were secondarily 

responsible if they were in place to 

observe the switch’s position. NTSB/ 

RAR–05/04 at 8. In addition, NTSB 

concluded that NS rules required a job 

briefing which ‘‘would likely have 

included a discussion of the switches 

and specifically who was responsible 

for ensuring that they were properly 

positioned [and that] [h]ad such a 

briefing taken place, the relining of the 

switch might not have been 

overlooked.’’ Id. at 44. FRA concurs that 

the lack of intra-crew communication 

regarding the switch’s position was 

particularly significant at the time the 

crew was preparing to leave the site. Id. 

at 8–9. 

Four days after the Graniteville 

accident (and coincidentally, two days 

after a similar accident at Bieber, 

California with serious, but not 

catastrophic consequences), FRA 

responded by issuing Safety Advisory 

2005–01, ‘‘Position of Switches in NonSignaled Territory.’’ 70 FR 2455 (Jan. 10, 

2005). The issuance of a safety advisory 

is an opportunity for the agency to 

inform the industry and the general 

public regarding a safety issue, to 

articulate agency policy, and to make 

recommendations. FRA explained in the 

safety advisory that ‘‘[a] review of FRA’s 

accident/incident data shows that, 

overall, the safety of rail transportation 

continues to improve. However, FRA 

has particular concern that recent 

accidents on Class I railroads in nonsignaled territory were caused, or 

apparently caused, by the failure of 

railroad employees to return manual 

(hand-operated) main track switches to 

their normal position, i.e., usually lined 

for the main track, after use. As a result, 

rather than continuing their intended 

movement on the main track, trains 

approaching these switches in a facingpoint direction were unexpectedly 

diverted from the main track onto the 

diverging route, and consequently 

derailed.’’

Safety Advisory 2005–1 strongly 

urged all railroads to immediately adopt 

and comply with five recommendations 

that were intended to strengthen, clarify 

and re-emphasize railroad operating 

rules so as to ensure that all main track 

switches are returned to their normal 

position after use. The 

recommendations emphasized 

communication both with the 

dispatcher and other crewmembers. 

FRA recommended that crewmembers 

complete and sign a railroad-created 

Switch Position Awareness Form 

(SPAF). Proper completion of a SPAF 

was expected to trigger specific 

communication relevant to critical 

elements of the tasks to be performed. 

Additional training and railroad 

oversight were also recommended. 

C. Emergency Order No. 24 

Safety Advisory 2005–1 did not have 

the long-term effect that FRA hoped it 

would. The Safety Advisory was 

intended to allow the industry itself a 

chance to clamp down on the frequency 

and severity of one subset of human 

factor accidents, i.e., those accidents 

involving hand-operated main track 

switches in non-signaled territory. FRA 

credits the Safety Advisory with 

contributing to a nearly six-month 

respite from this type of accident, from 

January 12 through July 6, 2005, but 

following this respite there was a sharp 

increase in serious accidents. 

Three serious accidents over a 28-day 

period from August 19 to September 15, 

2005, were the catalyst for FRA issuing 

an emergency order: Emergency Order 

No. 24 (EO 24); Docket No. FRA–2005–

22796, 70 FR 61496 (Oct. 24, 2005). The 

three accidents cited in EO 24 resulted 

in fatal injuries to one railroad 

employee, non-fatal injuries to eight 

railroad employees, an evacuation of 

civilians, and railroad property damage 

of approximately two million dollars. 

Furthermore, each of these accidents 

could have been far worse, as each had 

the potential for additional deaths, 

injuries, property damage or 

environmental damage. Two of the 

accidents could have involved 

catastrophic releases of hazardous 

materials as these materials were 

present in at least one of the train 

consists that collided. 

FRA is authorized to issue emergency 

orders where an unsafe condition or 

practice ‘‘causes an emergency situation 

involving a hazard of death or personal 

injury.’’ 49 U.S.C. 20104. These orders 

may immediately impose ‘‘restrictions 

and prohibitions * * * that may be 

necessary to abate the situation.’’ Id. 

EO 24 was necessary because despite 

the Safety Advisory, there was 

insufficient compliance with railroad 

operating rules related to the operation 

of hand-operated main track switches in 

non-signaled territory. FRA considered 

issuing another Safety Advisory, but 

that might at best only provide another 

temporary respite. The issuance of EO 

24 was ‘‘intended to accomplish what 

the Safety Advisory could not: 

implement safety practices that will 

abate the emergency until FRA can 

complete rulemaking.’’ 70 FR at 61498. 

FRA further concluded that ‘‘reliance 

solely on employee compliance with 

railroad operating rules related to the 

operation of hand-operated main track 

switches in non-signaled territory, 

without a Federal enforcement 

mechanism, is inadequate to protect the 

public safety.’’ 70 FR at 61499. 

EO 24 is built on the foundation of 

FRA’s regulations, at 49 CFR part 217, 

which require each railroad to instruct 

its employees on the meaning and 

application of its code of operating 

rules, and to periodically test its 

employees to determine their level of 

compliance. With regard to handoperated switches in non-signaled 

territory, EO 24 requires that each 

railroad (1) instruct its employees, (2) 

allow only qualified employees to 

operate and verify switches, (3) require 

employees to confirm switch positions 

with the dispatcher prior to releasing 

the limits of a main track authority, (4) 

develop a Switch Position Awareness 

Form for employees to complete when 

operating switches, (5) require 

employees to conduct job briefings at 

important intervals, (6) require intracrew communication of switch 

positions after a switch is operated, (7) 

enhance its program of operational tests 

and inspections under 49 CFR part 217, 

and (8) distribute copies of EO 24, and 

retain proof of distribution, to all 

employees affected. Minor clarifying 

amendments were made to EO 24 in a 

second notice, but the overarching 

requirements remained unchanged from 

the first notice. 70 FR 71183 (Nov. 25, 

2005). 

D. Secretary of Transportation’s Action 

Plan for Addressing Critical Railroad 

Safety Issues 

Prior to the Graniteville accident, FRA 

had developed and implemented 

procedures to focus agency resources on 

critical railroad safety issues. Such 

procedures were appropriate even 

though the industry’s overall safety 

record had improved over the last 

decade and most safety trends were 

moving in the right direction. FRA 

recognizes that significant train 

accidents continue to occur, and the 

train accident rate has not shown 

substantive improvement in recent 

years. Several months after the 

Graniteville accident, the Secretary of 

Transportation announced a National 


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Rail Safety Action Plan to address this 

need. FRA acknowledged in the plan 

that ‘‘recent train accidents have 

highlighted specific issues that need 

prompt government and industry 

attention.’’ Action Plan at 1 (published 

on FRA’s Web site at http:// 

www.fra.dot.gov/). 

In the plan, FRA introduced its basic 

principles to address critical railroad 

safety issues. One basic principle is that 

FRA’s safety program is increasingly 

guided by careful analysis of accident, 

inspection, and other safety data. 

Another basic principle is that FRA 

attempts to direct both its regulatory 

and compliance efforts toward those 

areas involving the highest safety risks. 

The plan is intended to be proactive in 

that it will target the most frequent, 

highest risk causes of accidents. 

FRA identified ‘‘reducing human 

factor accidents’’ as one of the major 

areas in which the agency planned 

initiatives. In fact, the plan discusses 

this issue first because it constitutes the 

largest category of train accidents, 

accounting for 38 percent of all train 

accidents over the first five years of this 

decade, and human factor accidents 

were growing in number at the time the 

action plan was implemented. 

Furthermore, FRA’s plan takes aim at 

reducing human factor accidents 

because in recent years most of the 

serious events involving train collisions 

or derailments resulting in release of 

hazardous materials, or harm to rail 

passengers, have been caused by human 

factors or track problems. 

FRA’s analysis of train accident data 

has revealed that a small number of 

particular kinds of human errors are 

accounting for an inordinate number of 

human factor accidents. For example, 

the eight human factor causes involving 

mishandling equipment, switches and 

derails that FRA is addressing in this 

final rule accounted for nearly 48 

percent of all human factor accidents in 

2004; these eight causes, which resulted 

in accidents causing over $113 million 

in damages to railroad property from 

2001–2005, can be grouped into three 

basic areas of railroad operations: (1) 

Operating switches and derails; (2) 

leaving equipment out to foul; and (3) 

the failure to protect shoving or pushing 

movements. Thus, this rulemaking is 

meant to address nearly half of all 

human factor caused accidents on all 

classes of track. 

Of the 118 human factor causes that 

are tracked, the leading cause was 

improperly lined switches, which alone 

accounted for more than 16 percent of 

human factor accidents in 2004. The 

next two leading causes were shoving 

cars without a person on the front of the 

movement to monitor conditions ahead, 

i.e., lack of point protection, and 

shoving cars with point protection but 

still resulting in a failure to control the 

movement; these two shoving related 

causes together accounted for 17.6 

percent of human factor accidents in 

2004. The remaining five causes 

addressed in this final rule account for 

nearly 14 percent of the total number of 

accident causes; these causes involve 

leaving cars in a position that fouls an 

adjacent track, operating over a switch 

previously run through, a failure to 

apply or remove a derail, a failure to 

latch or lock a switch, and a failure to 

determine before shoving that the track 

is clear ahead of the movement. The two 

catch-all general causes that might be 

cited when a railroad believes one or 

more related causes may apply or is 

unsure of the exact cause are: (1) Other 

general switching rules; and (2) other 

train operation/human factors. 

The human factor causes that are the 

central focus of this final rule are of a 

type that involve noncompliance with 

established railroad operating rules 

related to fundamental railroad 

operations. In each case, compliance 

can be objectively and conclusively 

determined. For example, it can be 

definitively determined whether 

switches are properly lined, locked, 

latched or had been previously run 

through. It can be determined whether 

a shoving movement was made without 

point protection or without the signals 

or instructions necessary to control the 

movement. Similarly, it can be 

determined whether a car is left fouling 

a track such that it is causing an unsafe 

operating condition, or whether the 

track is clear ahead for a shoving 

movement. Finally, it can also be 

determined with certainty whether there 

has been a failure to apply or remove a 

derail. 

The top human factor causes that FRA 

is choosing not to address with this final 

rule are already regulated, to some 

extent, or would be significantly more 

difficult to regulate. For example, 

several human factor causes relate to the 

failure to apply a sufficient number of 

hand brakes; that issue is already 

covered by regulation at 49 CFR 

232.103(n). Speeding issues, including 

restricted speed, are regulated to 

discourage clearly excessive speeding 

by imposing revocation periods or civil 

penalties for locomotive engineer 

violators. 49 CFR 240.117(e)(2) and 

240.305(a)(2). Establishing a clear rule 

for regulating a train handling issue, 

such as a locomotive engineer’s 

improper use of an independent brake 

or air brakes to prevent excess buff or 

slack action, can pose difficulties as 

train handling is an area where 

locomotive engineers exercise 

discretion. 58 FR 18982, 18992 (Apr. 9, 

1993) (describing in section-by-section 

analysis why FRA amended the 

qualification and certification of 

locomotive engineer’s rule to require 

revocation only when there is a failure 

to conduct certain brake tests as 

opposed to the more general, original 

requirement to revoke for ‘‘failure to 

adhere to procedures for the safe use of 

train or engine brakes.’’ 56 FR 28228, 

28259 (June 19, 1991)). Likewise, the 

operating conditions related to improper 

coupling are too numerous to easily 

address through regulation, and 

determination of responsibility related 

to train handling and train make-up 

involves often complex technical issues 

that are still subject to study. See Safe 

Placement of Train Cars, Report to the 

Senate Committee on Science, 

Commerce and Transportation and the 

House Committee on Transportation 

and Infrastructure (June 2005), 

published at http://www.fra.dot.gov. 

Developing close call data. As part of 

its mission to improve railroad safety, 

FRA is sponsoring the Confidential 

Close Call Reporting System 

Demonstration Project to demonstrate 

the effectiveness of a confidential close 

call reporting system for the railroad 

industry. ‘‘Close calls’’ in this context 

are unsafe events that do not result in 

a reportable accident but very well 

could have. In other industries such as 

aviation, implementation of close call 

reporting systems that shield the 

reporting employee from discipline (and 

the employer from punitive sanctions 

levied by the regulator) have 

contributed to major reductions in 

accidents. In March of 2005, FRA 

completed an overarching memorandum 

of understanding with railroad labor 

organizations and railroad management 

to develop pilot programs to document 

close calls. Participating railroads will 

be expected to develop corrective 

actions to address the problems that 

may be revealed. The aggregate data 

may prove useful in FRA’s decisionmaking concerning regulatory and other 

options to promote a reduction in 

human factor-caused accidents. 

However, the project has not yet 

produced sufficient data to consider in 

this final rule. 

E. Railroad Safety Advisory Committee 

(RSAC) Overview 

In March 1996, FRA established 

RSAC, which provides a forum for 

developing consensus recommendations 

to FRA’s Administrator on rulemakings 

and other safety program issues. The 

Committee includes representation from 


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all of the agency’s major customer 

groups, including railroads, labor 

organizations, suppliers and 

manufacturers, and other interested 

parties. A list of member groups follows: 

American Association of Private 

Railroad Car Owners (AAPRCO); 

American Association of State Highway 

& Transportation Officials (AASHTO); 

American Public Transportation 

Association (APTA); 

American Short Line and Regional 

Railroad Association (ASLRRA); 

American Train Dispatchers Association 

(ATDA); 

Association of American Railroads 

(AAR); 

Association of Railway Museums 

(ARM); 

Association of State Rail Safety 

Managers (ASRSM); 

Brotherhood of Locomotive Engineers 

and Trainmen (BLET); 

Brotherhood of Maintenance of Way 

Employes Division (BMWED); 

Brotherhood of Railroad Signalmen 

(BRS); 

Federal Transit Administration (FTA)*; 

High Speed Ground Transportation 

Association (HSGTA); 

International Association of Machinists 

and Aerospace Workers; 

International Brotherhood of Electrical 

Workers (IBEW); 

Labor Council for Latin American 

Advancement (LCLAA)*; 

League of Railway Industry Women*; 

National Association of Railroad 

Passengers (NARP); 

National Association of Railway 

Business Women*; 

National Conference of Firemen & 

Oilers; 

National Railroad Construction and 

Maintenance Association; 

National Railroad Passenger Corporation 

(Amtrak); 

National Transportation Safety Board 

(NTSB)*; 

Railway Supply Institute (RSI); 

Safe Travel America (STA); 

Secretaria de Comunicaciones y 

Transporte*; 

Sheet Metal Workers International 

Association (SMWIA); 

Tourist Railway Association Inc.; 

Transport Canada*; 

Transport Workers Union of America 

(TWU); 

Transportation Communications 

International Union/BRC (TCIU/BRC); 

and United Transportation Union 

(UTU). 

Effective May 2006, the following 

additional members have been added to 

the Committee: 

Transportation Security 

Administration*; 

American Chemistry Council; 

American Petroleum Institute; 

Chlorine Institute; 

Fertilizer Institute; and 

Institute of Makers of Explosives. 

*Indicates associate, non-voting 

membership. 

When appropriate, FRA assigns a task 

to RSAC, and after consideration and 

debate, RSAC may accept or reject the 

task. If the task is accepted, RSAC 

establishes a working group that 

possesses the appropriate expertise and 

representation of interests to develop 

recommendations to FRA for action on 

the task. These recommendations are 

developed by consensus. A working 

group may establish one or more task 

forces to develop facts and options on 

a particular aspect of a given task. The 

task force then provides that 

information to the working group for 

consideration. If a working group comes 

to unanimous consensus on 

recommendations for action, the 

package is presented to the full RSAC 

for a vote. If the proposal is accepted by 

a simple majority of RSAC, the proposal 

is formally recommended to FRA. FRA 

then determines what action to take on 

the recommendation. Because FRA staff 

play an active role at the working group 

level in discussing the issues and 

options and in drafting the language of 

the consensus proposal, FRA is often 

favorably inclined toward the RSAC 

recommendation. However, FRA is in 

no way bound to follow the 

recommendation, and the agency 

exercises its independent judgment on 

whether the recommended rule achieves 

the agency’s regulatory goal, is soundly 

supported, and is in accordance with 

policy and legal requirements. Often, 

FRA varies in some respects from the 

RSAC recommendation in developing 

the actual regulatory proposal or final 

rule. Any such variations would be 

noted and explained in the rulemaking 

document issued by FRA. If the working 

group or RSAC is unable to reach 

consensus on recommendations for 

action, FRA moves ahead to resolve the 

issue through traditional rulemaking 

proceedings. 

F. Establishment of the Railroad 

Operating Rules Working Group and 

Development of the NPRM 

On April 14, 2005, FRA held a Human 

Factors Workshop which convened 

members of RSAC for the purpose of 

developing a task statement to be 

presented at the next RSAC meeting. 

FRA explained that current regulations 

do not address compliance with the 

relevant operating rules that cause the 

preponderance of human factor 

accidents. The agency expressed a 

desire to standardize and adopt these 

rules as Federal requirements with 

greater accountability being the goal. It 

was also raised that training and 

qualification programs should be 

included as part of the task because 

employee compliance is certainly 

directly related to how well employees 

are instructed and tested. FRA suggested 

that one area of consideration was to 

improve its regulations (49 CFR part 

217) which require each railroad to 

instruct its employees on the meaning 

and application of its code of operating 

rules, and to periodically test its 

employees to determine their level of 

compliance. Many participants 

expressed a preference for nonregulatory action. 

On May 18, 2005, the RSAC accepted 

a task statement and agreed to establish 

the Railroad Operating Rules Working 

Group whose overall purpose was to 

recommend to the full committee how 

to reduce the number of human factor 

caused train accidents/incidents and 

related employee injuries. The working 

group held eight two-day conferences, 

one per month from July 2005 through 

February 2006. The vast majority of the 

time at these meetings involved review 

of an FRA document suggesting 

language that could form the basis of 

proposed regulatory text. 

The draft proposed rule text that FRA 

developed for the working group was 

the agency’s first attempt to address 

several broad concerns. One, FRA set 

out to propose regulations that 

addressed those human factors that are 

the leading cause of train accidents. 

This involved analyzing the accident/ 

incident data, identifying the relevant 

causes, identifying the relevant 

operating rules and procedures, and 

synthesizing those railroad rules and 

procedures in clear and enforceable 

language. Two, FRA’s issuance of EO 24 

was intended to address the emergency 

created by the mishandling of handoperated main track switches in nonsignaled territory that caused several 

tragic accidents; however, EO 24 was 

never intended to be a permanent 

arrangement, and the initiation of an 

informal rulemaking was necessary to 

provide the public and the regulated 

community an opportunity to provide 

comment on preferences for a final rule. 

Three, as the agency with oversight of 

railroad safety, FRA was aware of both 

the successes and failures of each 

railroad’s program of operational tests 

and inspections required pursuant to 49 

CFR 217.9. The draft proposed rule text 

was designed to close loopholes and 

impose specific reviews to focus testing 

and inspection programs on the 


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operating rules that have the greatest 

impact on safety. 

FRA clearly benefitted from the 

participation of the working group in 

detailed review of railroad operating 

rules and practices. The working 

group’s meetings provided a meaningful 

forum for interested participants to be 

able to offer insight into the strengths 

and weaknesses of FRA’s suggested 

draft proposed rule text and related 

issues. Unfortunately, the RSAC 

participants were unable to reach a 

consensus for making formal 

recommendations prior to issuance of 

the proposed rule. The working group’s 

consensus was limited to an agreement 

to reconvene to discuss the NPRM, and 

any comments received, after the NPRM 

comment period closed. Relying heavily 

on items that the working group 

achieved near consensus on and ideas 

suggested by FRA that received support 

from at least some members of the 

working group, FRA published an 

NPRM on October 12, 2006. 71 FR 

60372. 

G. Development of the Final Rule 

As mentioned previously in this 

preamble, FRA’s main purpose in 

issuing this rule is to reduce the number 

of accidents/incidents attributed to 

human factor causes and this regulation 

is narrowly tailored to accomplish that 

goal. The correlation between these 

accidents/incidents and the final rule 

have been established. This final rule is 

the product of FRA’s decisions 

regarding the most effective way to 

regulate after review and consideration 

of input from both the comments filed 

in the docket and the RSAC. This final 

rule is also the product of FRA’s 

experience with EO 24; FRA is adopting 

many of its requirements and revising 

others. Furthermore, this final rule 

requires revisions to each railroad’s 

operational testing and inspection 

program to ensure that each railroad’s 

officers are better qualified to conduct 

tests and inspections and each railroad 

is, in fact, focusing its program on the 

most serious safety concerns. 

1. Summary of the Comments 

The NPRM specified that written 

comments must be received by 

December 11, 2006, and that comments 

received after that date would be 

considered to the extent possible 

without incurring additional expense or 

delay. FRA received 12 comments by 

the deadline and two comments after 

the deadline. As an aid to further 

discussion at a meeting of the RSAC 

Operating Practices Working Group held 

in early February 2007, FRA prepared 

two comment summaries which have 

been added to the docket. These 

documents contained the same 

information but one document arranged 

the comments by commenter and the 

other by section commented on. The 

14th comment received, i.e., the 

comment of Mr. Walter C. Rockey filed 

on February 5, 2007, was received too 

late to include in these summary 

documents, although the comment was 

reviewed and considered. Thus, FRA 

considered all 14 comments filed with 

the docket. 

The 14 commenters touched upon 

nearly every section of the NPRM, 

including some who made general 

comments that applied to the overall 

nature or approach of the NPRM. Some 

of the comments are addressed in the 

section of this preamble titled ‘‘IV. 

General Comments/Major Issues.’’ Most 

of the comments, however, were 

specific to a particular proposed section 

and thus it made greater sense to 

address the comment in the section of 

the preamble titled ‘‘V. Section-bySection Analysis.’’ FRA believes that it 

has addressed each of the comments 

made by the 14 commenters, either 

directly or indirectly, and has 

consequently considered all known 

reasonable alternatives to the NPRM. 

2. RSAC’s Working Group Reviewed the 

Comments 

The Railroad Operating Rules 

Working Group held two multi-day 

meetings (February 8–9, 2007 and April 

4–5, 2007) in an attempt to achieve 

consensus recommendations based on 

the proposed rule and the comments 

received. The RSAC participants were 

able to achieve limited consensus on a 

few items and those consensus items 

were agreed to by the full RSAC. In the 

areas where RSAC was able to achieve 

a consensus recommendation, FRA 

honored the principle of each 

recommendation and generally sought 

to carry forward the elements of the 

discussion draft that had benefited from 

thoughtful comment by RSAC 

participants. The final rule’s text, 

however, might be slightly different in 

light of regulatory drafting 

requirements. FRA developed a greater 

appreciation for the nuances of each of 

the railroad operating rules and 

practices discussed; and, armed with 

that additional insight, FRA has sought 

to put forth a reasonable final rule that 

reflects real world railroading. 

FRA has noted in the section-bysection analysis where we have adopted 

an RSAC recommendation or deviated 

from it. FRA also refers to comments 

and suggestions made by members of 

the Working Group, full RSAC, or other 

commenters so as to show the origin of 

certain issues and the nature of 

discussions concerning those issues. 

FRA believes these references serve to 

illuminate factors it has weighed in 

making its regulatory decisions, as well 

as the logic behind those decisions. The 

reader should keep in mind, of course, 

that only the full RSAC makes 

recommendations to FRA, and it is the 

consensus recommendation of the full 

RSAC on which FRA is acting. 

However, FRA is in no way bound to 

follow the recommendation, and the 

agency exercises its independent 

judgment on whether the 

recommendations achieve the agency’s 

regulatory goal, is soundly supported, 

and is in accordance with policy and 

legal requirements. 

3. Consideration of Underlying 

Principles in Emergency Order 24 

EO 24 illuminated the problems 

associated with mishandling of handoperated main track switches in nonsignaled territory. While there may be 

more than one cause that contributes to 

noncompliance with the operating rules, 

accidents could be prevented by strict 

employee compliance with those rules. 

Accidents involving this type of switch 

often occur when the employee 

operating the switch loses focus on the 

task at hand. In an effort to refocus the 

attention of employees who operate 

switches, EO 24’s seven sections can be 

boiled down to three major components: 

(1) Instruction, (2) communication, and 

(3) verification through testing. FRA’s 

final rule incorporates these three major 

components but with a broader 

application. 

Instruction. It is fundamental that an 

employee cannot be expected to 

properly abide by operating rules 

without proper instruction, especially 

when those operating rules have been 

amended. To that end, EO 24 provides 

an outline for essential initial 

instruction and periodic instruction. 

Likewise, FRA is requiring enhanced 

instruction, training, and examination, 

i.e., qualification, for employees on the 

relevant operating rules, pertaining to 

handling equipment, switches and fixed 

derails. 

Communication. FRA agrees with the 

general principle that mistakes can be 

prevented or corrected by proper 

communication. Communication 

prevents noncompliance and accidents 

because it generally is how people 

working together know what each other 

is doing. For example, EO 24 stressed 

the importance of communication by 

requiring job briefings at certain crucial 

intervals: Before work is begun; each 

time a work plan is changed; and at 

completion of the work. Such regular 


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job briefings ensure that employees 

working together understand the task 

they are intending to perform and 

exactly what role is expected of them 

and their colleagues. Through proper 

job briefings, employees can prevent 

some mishaps and contain others from 

worsening a bad situation. For these 

reasons, FRA proposes a job briefing 

component to this rulemaking. 

In the background section of EO 24, 

FRA described a recurrent scenario of 

noncompliance where a train crew’s 

mistake in leaving a main track switch 

lined for movement to an auxiliary track 

was the last act or omission that 

resulted in an accident; and yet these 

types of accidents are preventable 

through reliable communication of the 

actual switch position. This scenario 

‘‘occurs when a train crew has exclusive 

authority to occupy a specific track 

segment until they release it for other 

movements and [yet] that train crew 

goes off duty without lining and locking 

a hand-operated main track switch in its 

normal position.’’ 70 FR at 61497. It is 

unfortunate that FRA has to clarify that 

the communication be reliable and 

accurately reflect the switch position, 

but some accident investigations have 

revealed employees whose actions 

implied more of an interest in quitting 

work for the day than taking the safe 

route to verify a switch’s position and 

whether it was properly locked. FRA’s 

final rule retains EO 24’s emphasis on 

intra-crew communication or intraroadway worker group communication. 

See 70 FR at 61499–50 and § 218.105. 

Perhaps the most controversial aspect 

of EO 24 is the requirement that 

employees operating hand-operated 

main track switches in non-signaled 

territory complete a Switch Position 

Awareness Form (SPAF). The SPAF 

requirement is controversial because it 

creates a paperwork burden for 

employees and railroads. Switches may 

be lined and locked properly, but a 

violation of EO 24 may occur for merely 

failing to fill out a single component on 

the form. Critics of the form may not 

appreciate that FRA’s intention for 

requiring a SPAF is to create a 

contemporaneous communication that 

reminds the employee of the importance 

of properly lining and locking such 

main track switches. 

In the case of a train crew, the 

contemporaneous communication 

created by the SPAF is twofold: (1) The 

SPAF itself is a written communication 

that reminds the employee operating the 

switch to keep track of the switch’s 

position and (2) another crewmember, 

typically the locomotive engineer, 

serves as a secondary reminder to the 

employee operating the switch because 

that other crewmember is also required 

to request information as to the switch’s 

alignment. As FRA clarified in EO 24’s 

second notice, it is immaterial how 

crewmembers communicate, e.g., 

whether in-person, by radio, by hand 

signals, or other effective means, as long 

as the communication takes place. 70 

FR 71186 and 71188. By requiring both 

the SPAF and the intra-crew 

communication, FRA is requiring some 

redundancy, i.e., two communication 

reminders to properly line and lock 

such switches in the case of a train. 

For purposes of EO 24, the paperwork 

burden and the redundancy in 

communication created by the 

introduction of the SPAF was 

acceptable. The very sharp increase in 

collisions, deaths and injuries resulting 

from improperly lined main track 

switches required FRA to take decisive 

action. Prior to EO 24, many railroads 

had already adopted the use of a SPAF 

voluntarily as a best practice suggested 

in Safety Advisory 2005–1. However, 

the inclusion of a SPAF in EO 24 does 

not bind the agency to forever require it; 

and the final rulemaking promulgates an 

alternative approach that does not 

include it. Of course, as this subpart 

prescribes minimum standards and each 

railroad may prescribe additional or 

more stringent requirements, each 

railroad has the choice to decide 

whether to continue using a SPAF after 

the effective date of this rule. 

FRA decided not to require a SPAF in 

this final rule because the 

comprehensive communication 

requirements contained in §§ 218.103 

and 218.105, create a direct enforcement 

mechanism that makes enforcement 

through a SPAF redundant. For 

example, the final rule includes a 

requirement that all crewmembers 

verbally confirm the position of a handoperated main track switch that was 

operated by any crewmember of that 

train before it leaves the location of the 

switch. See § 218.105(c)(1). Likewise, 

the final rule requires that upon the 

expiration of exclusive track occupancy 

authority for roadway workers, roadway 

workers who operate hand-operated 

main track switches report the position 

of any such switches operated to the 

roadway worker in charge. See 

§ 218.103(c)(2). 

NTSB also ‘‘does not believe that 

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

is sufficient to prevent recurrences of 

accidents such as the one at 

Graniteville.’’ NTSB/RAR–05/04 at 45. 

In support of this position, NTSB cites 

to the example of railroads that require 

train crews to record signal indications 

as they are encountered en route in 

order to lessen the chance that a block 

or other fixed signal will be missed or 

misinterpreted by a crew. Meanwhile, 

NTSB states that it ‘‘has investigated a 

number of accidents in which such 

forms, although required and used, did 

not prevent crews from missing signals 

and causing accidents.’’ Id. 

Although NTSB does not support the 

use of a SPAF, it did express agreement 

with the emergency order in two 

respects. That is, NTSB supported EO 

24’s requirements directing that job 

briefings be held at the completion of 

work and that a train crewmember who 

repositions a hand-operated main track 

switch in non-signaled territory 

communicate with the engineer 

regarding the switch position. In 

support of this position, NTSB explains 

that ‘‘a comprehensive safety briefing 

was not held before the work at 

Graniteville [and] [h]ad such a briefing 

been held before and, more importantly, 

after the work (as required by the FRA 

emergency order), the accident might 

have been avoided.’’ Id. at 46. As stated 

previously, FRA is retaining these two 

aspects from the emergency order in its 

rule. 

The EO 24 requirements for 

employees releasing the limits of a main 

track authority in non-signaled territory 

to communicate with the train 

dispatcher have, for the most part, 

carried over to this final rule and been 

strengthened. The final rule retains the 

requirement in EO 24 that an employee 

releasing the limits of a main track 

authority in non-signaled territory 

communicate with the train dispatcher 

that all hand-operated main track 

switches operated have been restored to 

their normal position, unless the train 

dispatcher directs otherwise, but only to 

the extent that the switches are at the 

location where the limits are being 

released. 70 FR at 61499 and 

§ 218.105(d). With the elimination of the 

requirement for a SPAF, it would be 

difficult for an employee to recall the 

condition of any particular handoperated main track switch operated 

and there would likely be a reaction for 

an employee to believe he or she left all 

such switches in proper position—

without much opportunity to doublecheck the condition of those faraway 

switches at that time. As mentioned 

previously, accidents often occur where 

the limits are being released and that is 

why the final rule has placed emphasis 

on addressing the problem prior to 

departing the train’s location. The 

switches located at the point of release 

of the limits should be readily 

accessible for any employee who is 

unsure of the condition the switch was 

last left in. The final rule also adds the 

requirement that the employee report 


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that the switch has been locked; locking 

of the main track switch should prevent 

easy access to unauthorized users. 

Hand-in-hand with the EO 24 

requirement that the employee contact 

the dispatcher to release main track 

authority in non-signaled territory is the 

corresponding requirement in EO 24 for 

train dispatchers; that is, EO 24 requires 

that the train dispatcher must also 

confirm the switch positions with the 

employee releasing the limits before 

clearing the limits of the authority and 

confirm that the SPAF was initialed as 

required. The final rule also requires the 

train dispatcher to verify the switch 

position information with the employee 

and the requirement for the dispatcher 

to confirm that the switch is locked in 

the intended position by repeating to 

the employee releasing the limits the 

report of the switch position and asking 

whether that is correct. The final rule 

also strengthens the current requirement 

in EO 24 by requiring that the employee 

then confirm this information with the 

train dispatcher. 

Verification through testing. The third 

major component of EO 24’s 

requirements involves the verification of 

compliance through testing. FRA’s 

regulations, at 49 CFR Part 217, require 

each railroad to instruct its employees 

on the meaning and application of its 

code of operating rules, and to 

periodically test its employees to 

determine their level of compliance. 

Compliance with railroad operating 

rules is critical, especially when 

technology does not provide a fail safe 

option. 

4. Recognition of the Need To Improve 

Railroad Programs of Operational Tests 

and Inspections 

Most railroads have excellent written 

programs of operational tests and 

inspections, but FRA has identified 

weaknesses in the oversight and 

implementation of nearly all of these 

programs. For example, some railroad 

testing officers lack the competency to 

perform operational tests and 

inspections. Likewise, some railroads do 

not perform operational tests that 

address the root cause of human factor 

accidents, while others view the 

requirement as a numbers-generating 

exercise, and consequently conduct 

relatively few meaningful tests. That is, 

while it may be important that 

employees come to work with the 

proper equipment (and FRA considers 

that a basic requirement which, of 

course, must be satisfied), FRA’s 

concern is that not enough verification 

testing is occurring on the operating 

rules most likely to cause accidents, 

including but not limited to rules 

addressing handling of switches. 

In EO 24, FRA’s verification through 

testing and inspection requirements 

were narrowly focused on those 

operating rules involving the operation 

of hand-operated main track switches in 

non-signaled territory. The purpose of 

this narrow focus was to create a special 

obligation for only those types of rules 

violations that were causing the 

emergency situation. FRA still believes 

compliance with these types of rules 

should be verified. The final rule 

replaces EO 24’s requirements and adds 

requirements for verification of testing 

on a broader number of operating rules 

directly related to the root cause of 

human factor accidents; that is, the final 

rule requires testing of all the rules 

related to part 218, subpart F, not just 

those rules related to hand-operated 

main track switches in non-signaled 

territory. 

The final rule also amends §§ 217.4 

and 217.9 to require competency of 

railroad testing officers. In FRA’s view, 

it is unfathomable that railroad testing 

officers would be allowed to conduct 

tests and inspections without proper 

instruction, on-the-job training, and 

some kind of written examination or 

observation to determine that the person 

is qualified to do the testing; however, 

Federal regulations currently do not 

require that railroad testing officers be 

qualified in such a manner. Railroads 

should already be shouldering this 

burden without Federal requirements so 

we do not view this as a substantial 

burden; instead, we view the 

qualification of railroad testing officers 

as a necessary expense of operating a 

railroad. 

Furthermore, railroad officers that test 

for noncompliance are typically the 

same officers who are in charge of 

operations. In that regard, a railroad 

officer, who is knowledgeable of Federal 

requirements and the government’s 

enforcement authority over individual 

officers, should be discouraged from 

ordering an employee to violate any 

operating rule inconsistent with 

proposed part 218, subpart F. In other 

words, if all railroad testing officers on 

a particular railroad are properly 

qualified, it will be more difficult for 

railroad officers to accept inconsistency 

in the application of operating rules. 

FRA is amending § 217.9 to require 

railroads to focus programs of 

operational tests and inspections ‘‘on 

those operating rules that cause or are 

likely to cause the most accidents or 

incidents.’’ See § 217.9(c)(1). Except for 

the smallest freight railroads, FRA is 

requiring that each railroad conduct one 

or more reviews of operational tests and 

inspections that should help guide each 

railroad in the implementation of its 

program. The quarterly and six-month 

reviews for freight railroads, as well as 

the reviews for passenger railroads, in 

§ 217.9(e) would formalize a best 

practice from some of the largest and 

safest railroads nationwide. These 

reviews are intended to ensure that each 

railroad is conducting tests and 

inspections directed at the causes of 

human factor train accidents and 

employee casualties. Each program will 

be specifically required to include 

appropriate tests and inspections 

addressing the rules dealing with 

handling of switches, leaving equipment 

in the clear, and protecting the point of 

the shove. Structured tests or 

observations permit railroads to find 

employees that need additional training 

or who may benefit from a reminder that 

it is not acceptable to take shortcuts that 

violate the operating rules. 

Furthermore, the final rule’s 

requirements to amend the program of 

operational tests and inspections, by 

emphasizing its purpose to focus on 

operating rules violations that cause 

accidents, should cut down on the 

disparity between the few instances of 

noncompliance found by many railroads 

with the many instances of 

noncompliance found through FRA 

inspections on the same railroads (see 

discussion in ‘‘Increase In Human 

Factor Caused Accidents and 

Noncompliance’’). While railroads have 

universally done an acceptable job of 

taking corrective action following an 

accident, railroads have not done as 

well in consistently testing for the 

variety of operating rules, at a variety of 

locations, and at different times of the 

day, in order to meet FRA’s expectations 

for an effective testing and inspection 

program. Accidents and incidents of 

noncompliance should be prevented by 

the formalization of the process of 

verification through testing and FRA’s 

ability to inspect each railroad’s 

program of operational tests and 

inspections, as well as its records. 

Finally, FRA emphasizes that it is 

retaining an enforcement mechanism, as 

it did in EO 24, because prior reliance 

on the railroad to ensure employee 

compliance with railroad operating 

rules without a Federal enforcement 

mechanism has repeatedly proven to be 

inadequate to protect the public and 

employee safety. Under current 

regulations, FRA has been able to 

effectively intervene in railroad 

operating rules compliance issues (apart 

from those already codified as 

obligations under existing regulations) 

only indirectly, through use of 

substantial resources, and in the case of 


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exceptionally pervasive noncompliance. 

The system of accountability provided 

for in this final rule will, by contrast, 

encourage railroad management to 

prevent a lessening of oversight or 

decline in compliance by reviewing 

safety performance in detail, assisting 

individual employees to acquire habits 

of work that are consistent with safety 

by permitting them to challenge 

directions that could cause them to cut 

corners, and permitting individual FRA 

inspectors to more persuasively seek 

corrective action early in the process of 

deteriorating rules compliance. 

III. Remote Control Operations 

A. Background 

Remote control devices have been 

used to operate locomotives at various 

locations in the United States for many 

years, primarily within certain 

industrial sites. Railroads in Canada 

have made extensive use of remote 

control locomotives for more than a 

decade. FRA began investigating remote 

control operations in 1994 and held its 

first public hearing on the subject in 

February 1995 to gather information and 

examine the safety issues relating to this 

new technology. On July 19, 2000, FRA 

held a technical conference in which all 

interested parties, including rail unions, 

remote control systems suppliers, and 

railroad industry representatives, shared 

their views and described their 

experiences with remote control 

operations. This meeting was extremely 

beneficial to FRA in developing its 

subsequent Safety Advisory. 

On February 14, 2001, the FRA 

published recommended guidelines for 

conducting remote control locomotive 

operations. See 66 FR 10340, Notice of 

Safety Advisory 2001–01, Docket No. 

FRA–2000–7325. By issuing these 

recommendations, FRA sought to 

identify a set of ‘‘best practices’’ to 

guide the rail industry when 

implementing this technology. As this is 

an emerging technology, FRA believes 

this approach serves the railroad 

industry by providing flexibility to both 

manufacturers designing the equipment 

and to railroads in their different 

operations, while reinforcing the 

importance of complying with all 

existing railroad safety regulations. All 

of the major railroads have adopted 

these recommendations, with only 

slight modifications to suit their 

individual requirements. 

Regarding the enforcement of Federal 

regulations as they apply to remote 

control locomotive operations, the 

Safety Advisory explains that: 

‘‘although compliance with this Safety 

Advisory is voluntary, nothing in this 

Safety Advisory is meant to relieve a 

railroad from compliance with all 

existing railroad safety regulations [and] 

[t]herefore, when procedures required 

by regulation are cited in this Safety 

Advisory, compliance is mandatory.’’

Id. at 10343. For example, the Safety 

Advisory clearly states that ‘‘each 

person operating an RCL [remote control 

locomotive] must be certified and 

qualified in accordance with 49 CFR 

Part 240 [FRA’s locomotive engineer 

rule] if conventional operation of a 

locomotive under the same 

circumstances would require 

certification under that regulation.’’ Id. 

at 10344. 

In November 2001, all six major 

railroads submitted to FRA their 

training programs for remote control 

operators as required by Part 240. Since 

that initial filing, several railroads have 

made changes to their remote control 

training programs at FRA’s request. FRA 

is closely monitoring this training and 

making additional suggestions for 

improvement on individual railroads as 

they become necessary. These training 

programs currently require a minimum 

of two weeks classroom and hands-on 

training for railroad workers who were 

previously qualified on the railroad’s 

operating and safety rules. Federal 

regulations require that locomotive 

engineers be trained and certified to 

perform the most demanding type of 

service they will be called upon to 

perform. Thus, a remote control 

operator who will only be called upon 

to perform switching duties using a 

remote control locomotive would not 

need to be trained to operate a 

locomotive on main track from the 

control stand of the cab. Major railroads 

are currently reviewing their remote 

control operator training plans in light 

of discussions with labor 

representatives and FRA regarding the 

requirements of these positions. 

In addition to the required training, 

the regulations require railroads to 

conduct skills performance testing of 

remote control operators that is 

comparable to the testing required of 

any other locomotive engineer 

performing the same type of work. 

Federal regulations also hold remote 

control operators responsible for 

compliance with the same types of 

railroad operating rules and practices 

that other locomotive engineers are 

required to comply with in order to 

retain certification. See 49 CFR 240.117. 

Any alleged noncompliance triggers an 

investigation and review process. If a 

violation is found, the remote control 

operator will be prohibited from 

operating a locomotive on any railroad 

in the United States for a minimum of 

15 days to a maximum of three years. 

The length of the prohibition (or 

revocation of the certificate) depends on 

whether the person was found to have 

committed other violations within the 

previous three years and whether the 

railroad, using its discretion, 

determined that the person had 

completed any necessary remedial 

training. 

Furthermore, FRA addressed the 

current Federal locomotive inspection 

requirements and the application of 

those requirements to remote control 

locomotive technology. For example, 

the Safety Advisory states that the 

remote control locomotive ‘‘system must 

be included as part of the calendar day 

inspection required by 49 CFR 229.21, 

since this equipment becomes an 

appurtenance to the locomotive.’’ 66 FR 

at 10344 (emphasis added). Another 

example of a mandatory requirement 

mentioned in the Safety Advisory is that 

the remote control locomotive ‘‘system 

components that interface with the 

mechanical devices of the locomotive, 

e.g., air pressure monitoring devices, 

pressure switches, speed sensors, etc., 

should be inspected and calibrated as 

often as necessary, but not less than the 

locomotive’s periodic (92-day) 

inspection.’’ Id. (emphasis added); see 

49 CFR 229.23. Thus, the Safety 

Advisory reiterated that existing Federal 

regulations require inspection of the 

remote control locomotive equipment. 

Although some aspects of this 

proposed rule pertains to main track 

operations where remote control 

locomotive operations rarely occur, 

most of the problems this proposal is 

intended to address are found equally in 

conventional and remote control 

locomotive yard switching operations. 

As FRA reported to Congress earlier this 

year, ‘‘RCL [i.e., remote control 

locomotive] and conventional train 

accident rates were virtually identical 

for those major railroads that made 

extensive use of both types of 

operations.’’ ‘‘Final Report—Safety of 

Remote Control Locomotive 

Operations’’ (‘‘Final Report’’) (March 

2006) (published on FRA’s Web site at 

http://www.fra.dot.gov/). The current 

remote control locomotive technology is 

best used for yard switching operations 

and is primarily used for that purpose. 

See Final Report at 15–17. 

The final rule would continue FRA’s 

policy of implementing minimum 

requirements for safe remote control 

locomotive operations within the 

confines of railroad operating rules 

having broad applicability. As 

previously explained, FRA has found 

existing rules adequate to accommodate 

safe remote control locomotive 


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operations without the need to draft a 

rule narrowly focused on remote control 

locomotive operations. See Docket No. 

FRA–2000–8422 (found at http:// 

dms.dot.gov/) (denying a request for 

initiation of a rulemaking to solely 

address remote control locomotive 

issues). That said, after identifying 

certain characteristics of remote control 

locomotive shoving or pushing 

operations, FRA is implementing one 

requirement that pertains to remote 

control locomotive operations; that 

requirement addresses the problem of 

lack of situational awareness. See 

§ 218.99(c). FRA also recognizes the 

relatively new use of permanently 

installed cameras in yards or at grade 

crossings which permit an employee to 

provide point protection without being 

physically present on, at, or ahead of the 

movement. Although it is possible for 

this technology to be used in 

conventional operations, e.g., by a 

yardmaster for a train crew, we believe 

it is more often used for remote control 

locomotive operations. See 

§ 218.99(b)(2). The following 

background on these two issues should 

illuminate them further. 

B. Situational Awareness 

In FRA’s recent report to Congress, 

the agency identified the potential for a 

reduction in a remote control operator’s 

situational awareness as one of four 

human factor issues that warrant close 

attention as remote control locomotive 

technology continues to evolve. See 

Final Report at 24–26. A locomotive 

engineer, including a remote control 

operator, who is located in the cab of a 

controlling locomotive has a greater 

situational awareness than a remote 

control operator located on the ground. 

A remote control operator located on the 

ground may also be more easily 

distracted by conflicting movements or 

other physical dangers caused by 

continuously moving about the yard 

than a person located in a locomotive 

cab. The nature of remote control 

locomotive operations can also cause 

the remote control operator to be 

distracted by concentrating on 

switching operations, e.g., constantly 

referring to the switch list, coupling and 

uncoupling cars, and, pitching and 

catching. Also, a remote control 

operator on the ground may forget, or 

may not know, the locomotive 

orientation (i.e., the particular direction 

the remote control locomotive is 

heading) due to his or her location away 

from the remote control locomotive, and 

thus may inadvertently initiate a 

movement in the wrong direction. 

Similarly, a defective or misaligned 

switch could cause a movement to be 

diverted onto a connecting track 

unintentionally and go unnoticed if the 

remote control crewmembers are not 

observing the direction of movement. 

Apparently, the latter is what happened 

on December 7, 2003, on the Union 

Pacific Railroad in San Antonio, Texas, 

when a remote control locomotive 

operator, while switching, was struck 

and killed by his locomotive at the west 

end of UP’s East yard. The employee 

had reversed one end of a crossover 

switch and was walking toward the 

other end of the crossover switch to line 

it when he was struck from behind by 

the remote control locomotive. The 

employee had started the remote control 

locomotive moving as he was walking 

toward the other end of the crossover. 

See Final Report at 90. This move was 

initiated after the employee pushed a 

button to realign a power-assisted 

switch, but likely did not wait at the 

switch machine to confirm visually that 

the points had moved to the correct 

position. NTSB/RAB–06/02 at 9. In 

addition to lack of adequate railroad 

oversight of the misaligned powerassisted switch, NTSB concluded that 

the probable cause of this accident was 

the employee’s ‘‘inattentiveness to the 

location of the locomotives and the 

switch position.’’ NTSB/RAB–06/02 at 

11. Certainly, this inattentiveness is 

another way to describe a lack of 

situational awareness. 

As many railroads were not eager to 

invest in remote control technology 

until after FRA issued its Safety 

Advisory 2001–01, there is limited data 

and few studies completed detailing the 

safety implications of remote control 

operations; however, among the few 

studies that have been completed, 

situational awareness has arisen as a 

recurring theme. For example, in a 

study funded by FRA, an independently 

conducted root cause analysis of six 

remote control locomotive-involved 

accidents/incidents that occurred in 

2006, found that the loss of situational 

awareness was a major factor in five of 

the accidents/incidents analyzed. 

Human Factors Root Cause Analysis of 

Accidents/Incidents Involving Remote 

Control Locomotive Operations (May 

2006) (DOT/FRA/ORD–06/05) 

(published on FRA’s Web site at http:// 

www.fra.dot.gov/downloads/Research/ 

ord0605.pdf). Further analysis suggests 

that remote control locomotive 

technology facilitated this loss of 

awareness in four of these five 

accidents/incidents by enabling remote 

control operators to control their cuts of 

cars away (i.e., remotely) from the point 

of movement. Additionally, four 

probable contributing factors were 

related to one or more remote control 

operator’s control of a movement from 

a physical location away from the 

remote control locomotive and/or cut of 

cars. Consequently, the independent 

contractor who performed the root cause 

analysis identified the loss of remote 

control operator situational awareness 

as one of only four critical safety issues 

identified. See Final Report at 85–90. 

FRA also sponsored the same 

independent contractor to undertake a 

study based on focus group sessions 

with remote control operators. These 

sessions provided a forum to gather 

information about operator experiences 

with remote control locomotive 

operations, to identify safety issues, 

lessons learned, and best practices from 

those who are most familiar with remote 

control locomotive operations and 

equipment. Focus groups also provided 

a means to solicit suggestions on how to 

improve remote control locomotive 

operations. One of the themes identified 

was that situational awareness can be 

lost when the remote control operator is 

not in the immediate vicinity of the 

remote control locomotive. Among the 

recommended practices from the focus 

groups were the suggestions to 

standardize operating practices and to 

require remote control operators to 

protect the point at all times. See Final 

Report at 79–85. 

The Brotherhood of Locomotive 

Engineers and Trainmen (BLET) 

sponsored a study by Dr. Frederick C. 

Gamst, a private consultant specializing 

in railroading, and Mr. George A. 

Gavalla, a private consultant and former 

FRA Associate Administrator for Safety. 

‘‘Hazard Survey of Remote Control 

Locomotive Operations on the General 

System of Railroads in the United 

States’’ (‘‘BLET Study’’) (The BLET 

Study is available in the docket for this 

NPRM). The BLET Study is based on 

anecdotal information supplied by 

railroad workers and officers who 

voluntarily self-reported their thoughts 

and experiences concerning their 

interactions with remote control 

operations. All of the self-reporting was 

done in writing and mainly via the 

Internet in its various forms of 

communication (i.e., e-mails, bulletinboards, weblog, etc.). The study 

catalogues the myriad experiences, 

complaints, and ideas that were 

recorded by Dr. Gamst over three years 

beginning in January 2002. The 

anecdotal information collected by Dr. 

Gamst reflects the same general themes 

identified in the focus group study 

sponsored by FRA and described in the 

preceding paragraph. As in FRA’s 

sponsored focus group study, the 

information Dr. Gamst collected is not 


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statistically sampled to be 

representative of all remote control 

operators in the U.S. or Canada. While 

the main drawback to these types of 

studies is that the researchers do not 

attempt to validate any statements made 

by employees, as participation is often 

premised on the condition that 

employees remain anonymous, the 

collection of individual opinions and 

perceptions taken as a whole are useful 

in identifying problems associated with 

remote control operations. Like the 

FRA’s sponsored studies, the BLET’s 

sponsored study also identified 

perceived problems associated with a 

remote control crew not observing the 

direction of movement. Specifically, the 

BLET study raised the issue as the 

reason why a remote control operator 

might keep shoving or pulling after a 

movement derailed or collided with an 

obstruction. Id. at 60–62. 

C. Technology Aided Point Protection 

The proposed rule contained a 

preamble discussion regarding how 

cameras and other technologies are 

increasingly being installed as an 

alternative to having an employee 

directly observing the leading end of a 

shoving or pushing movement. The 

technology permits indirect observation 

and is in use, mainly in yards, to 

provide point protection during remote 

control operations or when it would be 

more efficient during some conventional 

operations. In the proposed rule, FRA 

explained that it is possible to set up 

these cameras and monitors so that they 

provide at least an equivalent level of 

safety to that of an employee protecting 

the point. Of course, not every operation 

may be set up properly, working 

properly, or provide an equivalent level 

of safety. In order to facilitate the use of 

such technology, the final rule would 

only permit such an operation to 

substitute for an employee’s direct 

visual determination where the 

technology provides an equivalent level 

of protection to that of a direct visual 

determination. See § 218.99(b)(3)(i). 

Even with this clarification, the 

proposed rule raised the concern 

regarding whether previously published 

guidance should be incorporated in the 

final rule. The BRS commented that 

there are too many questions regarding 

the safe use of remote cameras and that 

regulation is necessary to provide that 

cameras cannot be used when they are 

not working as intended for any reason. 

FRA believes the final rule addresses 

BRS’s concern as the technology cannot 

possibly afford an equivalent level of 

protection if it is not working properly. 

Furthermore, FRA has decided to 

incorporate the guidance as an appendix 

to part 218. Appendix D includes 

further explanation and mandatory 

requirements for exercising the option 

to provide point protection with the aid 

of technology as permitted in 

§ 218.99(b)(3)(i). 

The issue of reliance on noncrewmembers to carry out some remote 

control locomotive operator crew 

functions was raised in the focus group 

study sponsored by FRA and 

summarized in the Final Report. The 

remote control operators that made up 

the focus groups had indicated that 

there were occasions in which a noncrewmember, generally a yardmaster, 

would provide point protection, line 

switches, or check the status of a derail 

for a remote control crew. When this 

was allowed, several potential problems 

could result. First, there is great 

potential for an error in communication 

or a misunderstanding between the noncrewmember and the crewmembers 

regarding the activity or status of 

equipment. Further, a yardmaster who 

is occupied with his or her other 

responsibilities might not give the task 

the attention it deserves, or could be 

distracted and give an incorrect answer 

to a question by a remote control 

crewmember (e.g., ‘‘is the move 

lined?’’). The result could be that the 

task does not get completed or there is 

an error in task execution. Further, the 

remote control crew might not have any 

alternative way of determining that 

there is a problem with the point 

protection provided by the noncrewmember until it is too late. See 

Final Report at 82. Similar issues were 

raised in the BLET Study. BLET Study 

at 44. 

In response to these concerns, FRA 

has specified additional requirements 

for technology aided point protection to 

be used by remote control locomotive 

operations at highway-rail grade 

crossings, pedestrian crossings, and 

yard access crossings in Appendix D, II. 

One, before conducting such operations, 

diagnostic testing is required to 

determine the suitability of the crossing 

for permitting technology aided point 

protection. The Crossing Diagnostic 

Team shall include representatives from 

the railroad, FRA, as well as the relevant 

State and local governments. Two, 

Appendix D specifically requires such 

operations to be conducted only ‘‘at 

crossings equipped with flashing lights, 

gates, and constant warning time train 

detection systems;’’ thus, it is clear that 

such operations are not permitted where 

there are passive warning systems or 

only some but not all of those active 

warning systems listed. Three, the safety 

of such operations is enhanced by 

having the remote control operator view 

the monitor and thus that has also been 

added to the requirements. The fourth 

and fifth requirements for such 

operations are intended to ensure that 

the cameras are arranged so that the 

remote control locomotive operator can 

accurately judge the end of the 

movement’s proximity to the crossing as 

well as the speed and driver behavior of 

any approaching motor vehicles. Six, 

the remote control locomotive operator 

is required to be able to determine that 

the flashing lights and gates are working 

as intended either by sufficient camera 

resolution or a remote health monitoring 

system. The seventh and final 

requirement for such operations is that 

the railroad notify FRA’s Associate 

Administrator for Safety in writing 

when this type of protection has been 

installed and activated at a crossing. 

IV. General Comments/Major Issues 

A. Enforcement 

FRA received a variety of comments 

that expressed concern about 

enforcement of the rule. At the RSAC 

working group meetings, the labor 

organizations expressed concern that 

the final rule might enable FRA to 

assess civil penalties against individual 

employees for noncompliance with 

what were formerly just railroad 

operating rules. FRA understands from 

the comments and RSAC discussions 

that the labor organizations would 

prefer that FRA implement a process for 

employees to report unsafe conditions, 

such as FRA’s Confidential Close Call 

Reporting System Demonstration Project 

discussed in this preamble (II. D.), 

rather than penalizing employees. 

BMWED’s comments may have captured 

the labor position best when it 

expressed that there are underlying root 

causes for why accidents occur and thus 

FRA should exercise maximum restraint 

in assessing civil penalties against 

individual employees. BMWED also 

requested that FRA limit enforcement to 

individual railroad employees who 

commit the most egregious, gross and 

willful violations, and that mistakes, 

human error, and poor judgment do not 

rise to the level of the most egregious, 

gross and willful violations. 

FRA wishes to clarify some apparent 

misunderstandings. For instance, there 

was a general idea expressed by labor 

participants in the RSAC meetings that 

this final rule would be different than 

the other Federal rail safety regulations 

because this one specifically allows 

FRA to enforce the regulation against an 

individual employee. This is incorrect. 

Each of FRA’s rail safety regulations 

permit enforcement against any person 

who violates a regulatory requirement or 


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causes the violation of any requirement. 

See e.g., § 217.5 and § 218.9. ‘‘Person’’ is 

broadly defined and includes any 

employee, regardless of whether the 

employer is a railroad or not, or whether 

the employee is a manager, supervisor 

or other official. In other words, this 

final rule is not unique to FRA’s 

regulations in that it permits FRA to 

take enforcement action against 

individual persons for a failure to 

comply including the assessment of 

civil penalties if the violation is willful 

or the issuance of a warning letter for a 

willful or nonwillful violation or a 

notice of proposed disqualification for a 

willful or nonwillful violation that 

demonstrates the person’s unfitness for 

safety-sensitive service. 

In response to BMWED’s concern that 

FRA limit enforcement to individual 

railroad employees who commit the 

most egregious, gross and willful 

violations, we note that this is very 

similar to FRA’s existing enforcement 

policy which we would apply to 

enforcement of this final rule. In both 

parts 217 and 218, FRA already states 

that ‘‘[p]enalties may be assessed against 

individuals only for willful violations, 

and, where a grossly negligent violation 

or a pattern of repeated violations has 

created an imminent hazard of death or 

injury to persons, or has caused death 

or injury.’’ Id. FRA’s well-established 

policy with regard to the assessment of 

civil penalties against individuals will 

apply here. See 49 CFR part 209, app. 

A. 

Likewise, in the NPRM, FRA 

mentioned the concern that there may 

be instances where an employee realizes 

that he or she violated an operating rule 

but is afraid of the consequences of 

reporting the error—even when such 

reporting would have the potential to 

prevent an accident or injury to other 

workers or innocent bystanders. NTSB 

addressed this point in its report on the 

Graniteville accident when it stated that 

a ‘‘significant civil penalty may have an 

unintended impact on safety under 

some circumstances. That is, an 

employee who, after leaving a work site, 

realizes that a switch has been left 

improperly lined may be made more 

reluctant than in the past to 

immediately report the error to train 

dispatchers. The threat of the severe fine 

may prompt the employee to attempt a 

remedy (such as returning later to reline 

the switch) before the mistake can 

become known. As happened in the 

September 2005 fatal collision in 

Shepherd, Texas, such action on the 

part of the employee could contribute to 

an accident that might otherwise have 

been avoidable.’’ NTSB/RAR–05/04 at 

46. FRA disagrees with NTSB that 

FRA’s enforcement program would have 

a negative effect on an employee’s 

decision to remedy a mistake. Given 

FRA’s published enforcement policy, an 

employee who recognizes 

noncompliance and seeks to correct it 

has likely not acted willfully nor been 

grossly negligent. Instead, an individual 

civil penalty is warranted where an 

employee recognizes noncompliance 

and does not act to correct it. Thus, 

FRA’s enforcement policy offers 

employees an incentive to self-report 

noncompliance as doing so would likely 

be considered a reason for FRA to 

exercise its enforcement discretion not 

to take enforcement action against the 

individual. (Self-reporting is not, 

however, a defense to a potential 

individual liability action, and selfreporting does not absolutely preclude 

FRA from taking enforcement action 

against an individual although FRA 

would consider self-reporting a strong 

reason for mitigation of the civil 

penalty, disqualification order, or other 

enforcement remedy.) . When each 

railroad instructs its employees on its 

operating rules, it should emphasize 

this incentive to self-report. In addition, 

we encourage each railroad to 

reconsider its own discipline policy so 

that it does not discourage self-reporting 

of inadvertent noncompliance. 

B. Good Faith Challenge—Legal Issues 

Both prior to and subsequent to the 

publication of the NPRM, AAR raised 

legal objections to FRA promulgating a 

rule with a good faith challenge 

requirement as found in § 218.97. AAR’s 

objections essentially raised four main 

issues: (1) Whether FRA has the 

authority to issue a regulation requiring 

good faith challenge procedures; (2) 

whether FRA is preempted by statute 

from enforcing regulatory good faith 

challenge procedures; (3) whether any 

regulatory good faith challenge 

procedures would contradict legislative 

intent by subjecting railroads to 

multiple enforcement actions and 

penalties; and (4) whether FRA is 

preempted by statute from requiring and 

enforcing an anti-retaliatory provision 

as part of the good faith challenge 

requirements. 

Some of AAR’s concerns are premised 

on the legislative history and statutory 

construction of 49 U.S.C. 20109 (Section 

20109), which offers rail employees 

protections from retaliation when 

engaged in specified safety-related 

conduct. Meanwhile, Section 20109 was 

amended between the deadline for 

comments to the NPRM and this final 

rule. Public Law 110–53, which became 

effective on August 3, 2007, 

substantially amended Section 20109 by 

increasing the number of situations in 

which an employee is statutorily 

protected from retaliation. For example, 

paragraph (a) of Section 20109 makes it 

unlawful to discriminate against 

employees when the discrimination is at 

all based on an ‘‘employee’s lawful, 

good faith act:’’ (1) To aid nearly any 

type of investigation whether initiated 

by a governmental agency, Congress, or 

another person with supervisory 

authority over the employee or the 

authority to conduct such 

investigations; (2) ‘‘to refuse to violate 

or assist in the violation of any Federal 

law, rule, or regulation relating to 

railroad safety or security;’’ (3) to file a 

complaint, directly cause a railroad 

safety or security enforcement 

proceeding to be brought, or testify in 

such a proceeding; (4) ‘‘to notify, or 

attempt to notify, the railroad carrier or 

the Secretary of Transportation of a 

work-related personal injury or workrelated illness of an employee;’’ and (5) 

to accurately report hours on duty 

pursuant to the Hours of Service Laws. 

Rail employees looking to seek 

protection against alleged retaliation for 

refusing to violate or assist in the 

violation of one of the regulations in 

part 218, subpart F, would likely do so 

under Section 20109(a)(2). 

Under Section 20109(b), the statute 

prohibits a railroad employer from 

retaliating against an employee for: (1) 

‘‘Reporting, in good faith, a hazardous 

safety or security condition;’’ (2) 

refusing to work, under certain 

conditions, when a hazardous safety or 

security condition is confronted in the 

employee’s duties; and (3) refusing to 

authorize the use of any safety-related 

equipment, track or structures, if those 

items are in a hazardous safety or 

security condition and certain other 

conditions are met. Unlike Section 

20109(a)(2), a refusal under Section 

20109(b) is not predicated on a refusal 

to violate or assist in the alleged 

violation of any Federal law, rule, or 

regulation relating to railroad safety or 

security. Another substantial change to 

Section 20109 is that the statute no 

longer states that disputes and 

grievances are to be handled under the 

Railway Labor Act (‘‘RLA’’), but instead 

permits relief under this section to be 

initiated by an employee filing a 

complaint with the Secretary of Labor. 

Considering the substantial changes to 

Section 20109, rail employees and 

railroads are encouraged to carefully 

review the statute in order to 

respectively retain the protections 

afforded and comply with the law. 

In consideration of the statutory 

amendments to Section 20109, there is 

no longer a need for a regulatory antiVerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM 13FER3

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retaliation provision. This 

determination is further discussed in 

this section under the title ‘‘4. AntiRetaliation Provision.’’ We anticipate 

that the elimination of the regulatory 

anti-retaliation provision, as well as 

other changes to the good faith 

challenge procedures made in response 

to various comments should allay most 

concerns, both legal and non-legal, 

raised by AAR and other commenters. 

Furthermore, for the following reasons, 

FRA remains unconvinced that there are 

any legal impediments to promulgating 

a good faith challenge regulation. 

1. FRA’s Rulemaking Authority 

One of AAR’s legal issues is the 

assertion that FRA does not have 

rulemaking authority to issue a good 

faith challenge provision. We disagree. 

FRA has authority to regulate railroad 

safety under 49 U.S.C. 20103 (Section 

20103). More specifically, the language 

of Section 20103(a) mandates that ‘‘[t]he 

Secretary of Transportation, as 

necessary, shall prescribe regulations 

and issue orders for every area of 

railroad safety’’ (emphasis added). In 

addition, case law supports a broad 

interpretation of an agency’s authorizing 

statute. For example, in Whirlpool Corp. 

v. Marshall, 445 U.S. 1 at 11, (1980), the 

Supreme Court concluded that OSHA 

‘‘clearly conform[ed] to the fundamental 

objective of the [Occupational Safety 

and Health] Act’’—the purpose of which 

was ‘‘to prevent occupational deaths 

and serious injuries’’—when it 

promulgated a regulation limiting 

retaliation against employees that refuse 

to work because of a good faith belief 

that they would be subjected to real 

danger of death or injury. Similarly, in 

promulgating § 218.97, FRA is 

conforming to the objective of its 

authorizing statute (to improve railroad 

safety), by prescribing a regulation 

which gives employees the right to 

challenge what may be an unsafe work 

assignment. Accordingly, FRA is 

authorized to issue the rule’s good faith 

challenge provision because it is 

intended to improve railroad safety. 

AAR does not challenge FRA’s 

authority to regulate railroad safety 

under Section 20103. Instead, AAR 

claims that Section 20109 precludes that 

authority as it relates to the good faith 

challenge procedures, specifically 

singling out the proposed antiretaliation provision previously found at 

§ 218.97(b)(2). Meanwhile, changes to 

the rule and the statute have rendered 

AAR’s concerns moot. For instance, the 

final rule does not contain an antiretaliation provision similar to the 

proposed provision and, thus, there 

cannot be a conflict between 

Congressional intent and that particular 

regulatory provision. 

AAR also argues that by legislating to 

provide employees a right to refuse to 

work in certain circumstances under 

Section 20109, Congress intended to 

preclude FRA from issuing a rule 

providing employees the right to 

exercise a good faith challenge in 

similar circumstances. It is important to 

note that the good faith challenge in 

both the NPRM and this final rule is 

distinguished from the statutory refusal 

to work as the regulatory challenge does 

not permit an employee to refuse to 

comply with the challenged directive 

indefinitely, but instead only protects 

the employee from being required to do 

the challenged task while the appeal 

process afforded by the good faith 

challenge procedures is on-going. See 

proposed § 218.97(b)(3), redesignated as 

§ 218.97(c)(5)(iv) and (d)(2). The issue 

thus becomes whether Congress 

intended to preempt this type of 

rulemaking by FRA. 

In support of such an argument, AAR 

asserts that FRA does not have the 

authority to issue rules providing for the 

good faith challenge for the same 

reasons that FRA may not directly 

regulate hours of service. In particular, 

AAR cites Atchison, Topeka and Santa 

Fe Ry. v. Pena, 44 F.3d 437, 441–42 (7th 

Cir. 1994), aff’d, Bhd. of Locomotive 

Engineers v. Atchison, Topeka and 

Santa Fe Ry, 516 U.S. 152 (1996), in 

which the Seventh Circuit overturned 

FRA’s interpretation of the Hours of 

Service Act, 45 U.S.C. 61–66 (‘‘Hours of 

Service Act’’). AAR stated that ‘‘[s]ince 

Congress has established hours-ofservice restrictions, FRA has no 

rulemaking authority to establish its 

own hours-of-service requirements.’’

AAR’s Comments at 3 (Dec. 11, 2006). 

By analogy, AAR argues that as 

Congress has established specific 

standards and a specific process for an 

employee to refuse work in Section 

20109, FRA has no rulemaking authority 

to establish its own requirements for an 

employee to refuse work. 

AAR’s analogy to, and reliance on, 

Atchison is misplaced. FRA is neither 

interpreting Section 20109 nor issuing 

rules that implement Section 20109. In 

order to effectuate that point, the final 

rule specifically requires in 

§ 218.97(b)(2) that a railroad or 

employer’s good faith challenge written 

procedures ‘‘shall indicate that the good 

faith challenge described in paragraph 

(b)(1) is not intended to abridge any 

rights or remedies available to the 

employee under a collective bargaining 

agreement, or any Federal law 

including, but not limited to, 29 U.S.C. 

651 et seq., 6 U.S.C. 1142, or 49 U.S.C. 

20109.’’ This requirement in the 

regulation is intended to clarify that 

FRA is not attempting to undermine the 

Congressional intent or language found 

in Section 20109. Instead, FRA is using 

the clear substantive rulemaking 

authority in railroad safety matters 

found in Section 20103. 

2. FRA’s Enforcement Authority 

Another of AAR’s legal issues is the 

assertion that FRA’s proposed rule 

provides for resolution of disputes and 

grievances arising in situations already 

covered by Section 20109. AAR argues 

that enforcing the good faith challenge 

procedures proposed in the NPRM 

would contradict legislative intent to 

preclude any agency enforcement of this 

issue and that Section 20109 provides 

similar employee protections and 

requires disputes, claims and grievances 

arising under that section to be handled 

by the RLA. AAR further notes that a 

House of Representatives committee 

report in the legislative history for that 

statute demonstrates that Congress 

intended the RLA to ‘‘be the exclusive 

means for enforcing this section’’ and 

that it did ‘‘not intend for FRA to be 

involved in this area.’’ H.R. Rep. No. 

1025, 96th Cong., 2d Sess., at 16 (1980). 

AAR thus argues that the enforcement of 

the regulatory good faith challenge 

procedures is preempted by Section 

20109(c) and its legislative history. With 

the recent amendments to Section 

20109, AAR’s references to legislative 

history have lost relevancy. However, 

FRA disagrees with AAR’s position 

under the former statute and the version 

effective August 3, 2007. 

AAR confuses procedures for 

handling the initial exercise of a right 

with procedures for handling a claim of 

retaliation ‘‘resulting from’’ the initial 

exercise of a right. Under the former 

statute, Section 20109(c) provided 

procedures for handling a claim of 

retaliation as a consequence of the 

initial refusal to work. That section 

stated that ‘‘a dispute, grievance, or 

claim arising under this section is 

subject to resolution under section 3 of 

the Railway Labor Act.’’ This language 

refers to disputes, claims and grievances 

resulting from a claim of retaliation as 

a result of the employee’s exercise of the 

right under former Section 20109. The 

legislative history of that statute 

corroborates this assertion. A House of 

Representatives Committee Report 

discussing the remedy under former 

Section 20109 refers to discrimination 

not involving discharge or suspension 

‘‘such as assignment to undesirable 

duties.’’ Since a dispute over an 

assignment of undesirable duties refers 

to an act of retaliation rather than an 


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exercise of the initial right to refuse 

work, this report lends support to the 

proposition that the language ‘‘dispute, 

grievance, or claim arising under this 

section’’ in former Section 20109(c) 

refers to disputes resulting from the 

retaliation that occurred and not from 

the initial exercise of the right to refuse 

to work. The same position is applicable 

to Section 20109 as recently amended. 

This rulemaking, on the other hand, 

only requires procedures for handling 

the ‘‘initial’’ exercise of the good faith 

challenge. These procedures include 

such actions as not requiring the 

challenging employee to complete the 

work until the good faith challenge is 

resolved and allowing the employee to 

document the challenge. The 

procedures provide employers and 

employees with a process for handling 

an employee’s good faith challenge. 

Unlike Section 20109, the procedures 

do not provide employers and 

employees with a process for handling 

an employee’s claim of retaliation 

resulting from his or her good faith 

challenge. Therefore, FRA’s procedures 

for handling the good faith challenge do 

not contradict legislative intent as 

applied to this issue. 

3. Multiple Enforcement Actions 

AAR argues that the good faith 

challenge would contradict legislative 

intent by subjecting railroads to 

multiple enforcement actions and 

penalties in situations where both the 

statutory right to refuse work under 

Section 20109 and the regulatory right 

to a good faith challenge would apply. 

Assuming the employee chose to make 

a good faith challenge and then claimed 

that he was consequently retaliated 

against, AAR argues that the employer 

would not only be subject to a civil 

penalty by the FRA under the regulation 

but would also be subject to damages by 

the Department of Labor (‘‘DOL’’) for 

violating Section 20109. AAR argues 

that multiple penalties for the same 

occurrence contradict legislative intent. 

The statutory and legislative histories 

of both the former and current versions 

of Section 20109 do not appear to 

support AAR’s claim that multiple 

penalties are impermissible. While 

former 49 U.S.C. 20109(d), current 49 

U.S.C. 20109(e), and H.R. Report No. 

1025 state that employees may not seek 

protection under multiple provisions, 

they do not address the issue of 

preventing employers from facing 

multiple penalties. The statutory 

‘‘election of remedies’’ provision is 

intended to protect an employer from 

having to pay the same types of damages 

to an employee multiple times just 

because there are multiple statutory 

provisions upon which an employee 

could file a complaint or a suit. The 

election of remedies provision is 

intended to prevent, for example, an 

employee from getting double the 

backpay, compensatory damages, and 

punitive damages the employee is 

entitled to by seeking protection under 

both the Occupational Safety and Health 

Act of 1970, 29 U.S.C. 660(c), and 

Section 20109. We believe AAR is 

misinterpreting the election of remedies 

provision by confusing FRA’s 

enforcement of penalties against an 

alleged bad actor versus an employee 

seeking remedies for him or herself. 

Furthermore, a railroad routinely may 

face multiple demands for penalties or 

lawsuits in safety matters. Many times, 

when FRA enforces a regulation against 

a railroad for a set of facts, the railroad 

is privately sued based on the same set 

of facts. This situation is no different 

and legally acceptable. 

4. Anti-Retaliation Provision 

AAR made several arguments 

suggesting that FRA is prohibited by 

statute from including an antiretaliation provision in the rule and, 

although FRA disagrees with AAR’s 

legal conclusion, the proposed antiretaliation provision found in 

§ 218.97(b)(2) of the NPRM has not been 

retained in the final rule. FRA proposed 

an anti-retaliation provision that 

required each railroad’s good faith 

written procedures to provide that an 

employee making a good faith challenge 

not be discharged or in any way 

discriminated against for making the 

challenge. In order for the good faith 

challenge to achieve its intended 

purpose, i.e., improve railroad safety, it 

is fundamental that an employee be 

protected from retaliation when holding 

an employer or supervisor accountable. 

In October 2006, when the NPRM was 

published, the Federal laws protecting 

rail employees from retaliation were 

more narrowly written than the recently 

amended statutory protections provided 

for in Section 20109; consequently, 

when the NPRM was published, FRA 

was concerned that there could be 

multiple scenarios where an employee 

could raise a good faith challenge and 

not otherwise be legally protected from 

employer retaliation. 

Given the statutory amendments 

effective August 3, 2007, it is unlikely 

that a rail employee, whether working 

for a publicly-owned railroad, a 

privately-owned railroad, or a contractor 

or subcontractor of either type of 

railroad, would not be protected from 

retaliation under either Section 20109 or 

6 U.S.C. 1142, which was also enacted 

in Public Law 110–53. These two 

statutes protect employees from 

retaliation for ‘‘the employee’s lawful, 

good faith act done, or perceived by the 

employer to have been done or about to 

be done * * * to refuse to violate or 

assist in the violation of any Federal 

law, rule, or regulation relating to’’

either ‘‘public transportation safety or 

security’’ or ‘‘railroad safety or security’’

respectively. 6 U.S.C. 1142(a)(2) or 49 

U.S.C. 20109(a)(2); see also 29 U.S.C. 

660(c). These statutes require DOL to 

investigate complaints of anti-retaliatory 

action and provide an array of remedies 

to an employee for violation of the law 

including reinstatement, backpay with 

interest, compensatory damages, and 

punitive damages up to $250,000. 49 

U.S.C 20109(d)(3) and 6 U.S.C 

1142(d)(3). Consequently, the recently 

effective anti-retaliatory statutory 

protections afforded to rail employees 

would now protect an employee from 

retaliation under FRA’s good faith 

challenge rule and it is thus 

unnecessary for this final rule to require 

that each railroad include a similar antiretaliation provision in its good faith 

challenge procedures. 

Any potential FRA enforcement of 

anti-retaliation under the good faith 

challenge regulation would likely only 

add a nominal deterrent effect given the 

substantial remedies employees may 

seek directly against a defendant under 

the employee protections statutes. 

FRA’s enforcement authority is limited 

to civil penalty assessments up to 

$27,000 against employers and 

individuals (see 49 U.S.C. 21301), 

emergency orders, compliance orders 

and agreements, and FRA’s other 

statutorily granted enforcement 

authority. FRA does not have the 

authority to collect damages or back pay 

on behalf of any employee, nor order a 

railroad to reverse itself on a claim of 

discharge, discrimination or other 

retaliation. In consideration of these 

employee protection alternatives, FRA 

has decided to remove the antiretaliatory provision from this rule 

rather than try to duplicate an 

investigation into alleged antiretaliatory acts or omissions that an 

employee will certainly want to pursue 

under a collective bargaining agreement, 

with DOL, or in another forum. 

Given the changed playing field for 

Federal inquiries into alleged 

retaliation, FRA is now assured that 

claims of retaliation will be adequately 

investigated and remedied by another 

Federal agency. FRA has already held 

discussions with DOL on ways to 

integrate FRA’s safety program with 

DOL’s whistleblower protection 

program. For example, FRA’s employees 

will be trained to recognize when an 


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employee has alleged retaliation so that 

FRA may inform employees of their 

basic rights and refer such employees to 

DOL. FRA anticipates taking other 

action to inform employees of the 

statutory protections, such as providing 

a link to DOL’s Web site from FRA’s 

Web site and reminding employee 

complainants of the statutory 

protection. 

C. Preemptive Effect 

The American Association for Justice 

(AAJ) commented that FRA had 

impermissibly broadened the scope of 

preemption under 49 U.S.C. 20106. AAJ 

objected to FRA’s discussion in the 

preamble of the NPRM regarding 49 CFR 

217.2 and 49 CFR 218.4. FRA’s 

discussion of each of these sections was 

identical, providing that: 

This section informs the public of FRA’s 

intention and views on the preemptive effect 

of the rule. The preemptive effect of this rule 

is broad, as its purpose is to create a uniform 

national standard. Section 20106 of Title 49 

of the United States Code provides that all 

regulations prescribed by the Secretary 

related to railroad safety preempt any State 

law, regulation, or order covering the same 

subject matter, except a provision necessary 

to eliminate or reduce an essentially local 

safety hazard that is not incompatible with a 

Federal law, regulation, or order and that 

does not unreasonably burden interstate 

commerce. Exceptions would be rare. In 

general, 49 U.S.C. 20106 will preempt any 

State law—whether statutory or common 

law—and any State regulation, rule, or order, 

that concerns the same subject matter as the 

regulations in this rule. 71 FR 60372 at 60382 

and 60386. 

AAJ specifically objected to FRA’s 

assertion that the preemptive effect of 

the rule is broad, that exceptions would 

be rare, and that § 20106 preempts 

common law claims. In support of its 

position that these assertions amounted 

to an expansion of preemption, AAJ 

cited In re Soo Line R. Co. Derailment 

of January 18, 2002, 2006 WL 1153359, 

an unreported Minnesota state court 

decision. In that decision, the court 

found for various reasons that plaintiffs’

claims were not preempted. Some were 

not preempted, according to the court, 

because although Federal regulations 

covered the subject matter of the claims, 

the conditions at the location at the time 

of the derailment constituted an 

essentially local safety hazard. Others 

were not preempted, the court said, 

because the Federal regulations covering 

the subject matter of the claims were 

violated. A third category of claims were 

found not to be preempted because the 

regulations alleged to cover the subject 

matter of the claims were deemed by the 

court not specific enough to do so, and 

a final group of claims were found not 

to be preempted because there was no 

regulation covering the subject matter. 

While FRA disagreed with AAJ’s 

comments, AAJ’s comments have been 

rendered moot by enactment of Pub. L. 

No.110–53, discussed below. 

Normal State negligence standards 

apply where there is no Federal action 

covering the subject matter. In Pub. L. 

No.110–53, Congress recently clarified 

the availability of State law causes of 

action under section 20106 where there 

is Federal action covering the subject 

matter. As amended, 49 U.S.C. 20106 

provides that issuance of these 

regulations preempts any State law, 

regulation, or order covering the same 

subject matter, except an additional or 

more stringent law, regulation, or order 

that is necessary to eliminate or reduce 

an essentially local railroad safety or 

railroad security hazard; that is not 

incompatible with a law, regulation, or 

order of the United States Government; 

and that does not unreasonably burden 

interstate commerce. Section 20106 

permits State tort actions arising from 

events or activities occurring on or after 

January 18, 2002, for the following: (a) 

A violation of the Federal standard of 

care established by regulation or order 

issued the Secretary of Transportation 

(with respect to railroad safety, such as 

these regulations) or the Secretary of 

Homeland Security (with respect to 

railroad security); (b) a party’s violation 

of, or failure to comply with, its own 

plan, rule, or standard that it created 

pursuant to a regulation or order issued 

by either of the two Secretaries; and (c) 

a party’s violation of a State standard 

that is necessary to eliminate or reduce 

an essentially local safety or security 

hazard, is not incompatible with a law, 

regulation, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. Nothing in 

section 20106 creates a Federal cause of 

action on behalf of an injured party or 

confers Federal question jurisdiction for 

such State law causes of action. 

V. Section-by-Section Analysis 

Part 217—[Amended] 

Section 217.2 Preemptive Effect 

This section informs the public of 

FRA’s intention and views on the 

preemptive effect of the rule. The 

preemptive effect of this rule is broad, 

as its purpose is to create a uniform 

national standard. Section 20106 of 

Title 49 of the United States Code 

provides that all regulations prescribed 

by the Secretary related to railroad 

safety preempt any State law, 

regulation, or order covering the same 

subject matter, except an additional or 

more stringent 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. Section 20106 permits State 

tort actions arising from events or 

activities occurring on or after January 

18, 2002, for the following: (a) A 

violation of the Federal standard of care 

established by regulation or order issued 

by the Secretary of Transportation (with 

respect to railroad safety, such as these 

regulations) or the Secretary of 

Homeland Security (with respect to 

railroad security); (b) a party’s violation 

of, or failure to comply with, its own 

plan, rule, or standard that it created 

pursuant to a regulation or order issued 

by either of the two Secretaries; and (c) 

a party’s violation of a State standard 

that is necessary to eliminate or reduce 

an essentially local safety or security 

hazard, is not incompatible with a law, 

regulation, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. Nothing in 

section 20106 creates a Federal cause of 

action on behalf of an injured party or 

confers Federal question jurisdiction for 

such State law causes of action. The 

NPRM language has been amended to 

reflect the changes made to Section 

20106. 

Only one comment addressed this 

paragraph and that comment has been 

discussed in the preamble. See IV. 

General Comments/Major Issues, C. 

Preemptive Effect. 

Section 217.4 Definitions 

FRA has added a definition of 

Associate Administrator for Safety to 

this section that is consistent with other 

definitions of this term in this chapter. 

The purpose of including this definition 

is to identify an official who would have 

the authority to require amendments to 

programs of operational tests and 

inspections. FRA did not receive any 

comments related to this definition. 

FRA has added a definition of 

qualified to this section. The need for 

this definition arose from the new 

requirements for railroad testing officers 

in § 217.9. As further explained in the 

analysis for that section, it is not 

acceptable for a railroad testing officer 

to be monitoring or instructing 

employees without being instructed, 

trained and examined, i.e., qualified, on 

the railroad’s operating rules and the 

tests the officer is expected to perform; 

thus, FRA is requiring such 

qualification. A person cannot be 

considered qualified unless he or she 

has successfully completed all 

‘‘instruction, training, and examination’’


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programs required by both the railroad 

and this part. 

The definition of ‘‘qualified’’ is 

modeled after the definition used in 

§ 240.7 in this chapter and should have 

the same meaning despite some slight 

differences. The phrase ‘‘training and 

testing’’ has been replaced by 

‘‘instruction, training, and examination’’

to more thoroughly reflect the 

educational aspects of the requirements 

for a qualified person. The definition 

does not contain the word 

‘‘appropriate’’ prior to the educational 

aspects so as to emphasize that the 

educational aspects of qualifying a 

person are mandatory, not discretionary. 

A word choice was made to substitute 

the term ‘‘successfully completed’’ for 

the word ‘‘passed.’’ The definition 

added to part 217 is the same definition 

added to part 218, subpart F. The 

relevant comments FRA received 

pertained to the proposed requirements 

in § 217.9 and not the definition itself. 

Section 217.9 Program of Operational 

Tests and Inspections; Recordkeeping 

FRA is amending and adding 

paragraphs to this section. Although not 

every existing paragraph is being 

amended, FRA is reprinting the entire 

section to make it easier for readers to 

follow. 

FRA’s amendment to paragraph (a) 

would clarify that the requirement to 

conduct operational tests and 

inspections specifically include tests 

and inspections sufficient to verify 

compliance with the requirements of 

subpart F of part 218 of this chapter. 

The proposed and final rules identify 

certain operating rules with which 

noncompliance has led to an increase in 

human factor-caused accidents. Subpart 

F of part 218 requires that each railroad 

have in effect certain operating rules 

and that each railroad officer, supervisor 

and employee uphold and comply with 

those rules. As the operating rules 

identified in subpart F of part 218 are 

designed to address the most frequently 

caused human factor accidents, FRA’s 

amendment to paragraph (a) requires 

that each railroad periodically conduct 

operational tests and inspections to 

determine the extent of compliance with 

its code of operating rules, timetables, 

and timetable special instructions, 

specifically including tests and 

inspections sufficient to verify 

compliance with the requirements of 

subpart F of part 218 of this chapter, in 

accordance with a written program as 

required by paragraph (c) of this section. 

The program’s increased focus on 

human factor-caused accident 

prevention should direct awareness to 

the related operating rules and correlate 

with a decrease in such accidents. 

Paragraph (b) is added to this section 

to establish new responsibilities for both 

railroads and those railroad officers who 

conduct operational tests and 

inspections, i.e., railroad testing officers. 

FRA inspections and investigations 

have revealed railroad testing officers 

who lack the fundamental knowledge to 

perform adequate tests and inspections. 

In order for these officers to be able to 

do a proper job, they must know the 

railroad’s operating rules, how the tests 

they will conduct fit into the railroad’s 

testing program, and how to conduct a 

proper test. AAR and APTA 

recommended amending paragraph 

(b)(1)(iii) because they believe this 

paragraph might be wrongly interpreted 

to require field training on every 

operational test an officer might be 

authorized to conduct. FRA does not 

agree that changing ‘‘as necessary to 

achieve proficiency’’ to ‘‘when 

necessary to achieve proficiency’’

changes the meaning, as AAR and 

APTA prefer. We also disagree with 

AAR’s interpretation of the proposed, 

and now final, paragraph. It is 

unnecessary for every railroad testing 

officer to be qualified and receive field 

training on every conceivable 

operational test. Experience can 

substitute for field training, as long as 

the person is able to conduct an 

acceptable test. In addition, a railroad 

testing officer does not need to receive 

field training on an operational test that 

the officer will not be asked to conduct. 

Of course, if an officer who conducts an 

improperly executed test is found to 

lack relevant experience conducting 

such a test and any field training on 

how to conduct such a proper test, FRA 

would consider the event to be a 

violation of the requirement. That said, 

FRA recognizes that some tests and 

inspections are so simple that no 

particular experience or training should 

be necessary; a railroad will need to use 

discretion and make training decisions 

on a case-by-case basis if it chooses not 

to train its railroad testing officers on 

each operational test. Paragraph 

(b)(1)(iv) requires that railroad testing 

officers conduct operational tests in 

accordance with the railroad’s program 

for such tests and inspections. A test 

that is incompetently executed should 

not count towards compliance with a 

railroad’s program of operational tests 

and inspections. Finally, this paragraph 

requires written records documenting 

that each railroad testing officer was 

properly qualified and that such records 

be made available to FRA upon request. 

FRA received several comments with 

regard to proposed paragraph (b). BRS 

and BLET expressed support for the 

concept of requiring railroad testing 

officers to be qualified on operating 

rules, the testing program and 

conducting operational tests. AAR 

requested a ‘‘grandfather provision’’ that 

would allow current testing officers to 

continue conducting tests for ninety 

days after the effective date of the rule 

before records would need to be kept 

that these testing officers were qualified 

in accordance with paragraph (b)(2). 

Similarly, APTA requested that each 

railroad have until December 21, 2008, 

to qualify its railroad testing officers on 

the operational testing program. In the 

NPRM, FRA expressed disagreement 

with the need for such a grandfather 

provision. However, based on the 

comments and further consideration of 

the qualification and recordkeeping 

requirements, FRA will not require 

compliance with this paragraph until 

July 1, 2008, although we encourage 

each railroad to attempt to comply 

earlier. 

FRA does not consider the 

requirements of paragraph (b) to be 

onerous. Each railroad should already 

maintain an accessible record showing 

when each testing officer was last 

qualified on the railroad’s operating 

rules in accordance with paragraph 

(b)(1)(i). It is contrary to logic that a 

railroad would allow a person to 

become a railroad testing officer without 

ensuring that the person is qualified on 

the operational testing program 

requirements and procedures relevant to 

tests and inspections the testing officer 

would be expected to conduct. We do 

not understand how a person could 

possibly do a testing officer’s job if the 

person lacked sufficient knowledge of 

the railroad’s testing program such that 

the person could not conduct an 

adequate test or inspection. With that 

understanding, FRA would not expect 

that a great degree of new training is 

necessary, nor that it would be 

burdensome to create a record. APTA 

recommended that FRA relax the record 

retention requirements for 

‘‘grandfathered’’ or existing testing 

officers. In the alternative, we suggest 

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. Meanwhile, 


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FRA acknowledges that each railroad 

must qualify its railroad testing officers 

on any amended or added operating 

rules that seek to conform with part 218, 

subpart F of this chapter, and any 

corresponding changes to the railroad’s 

operational testing program by July 1, 

2008; however, as most of these new 

Federal requirements are already similar 

to existing operating rules on the vast 

majority of railroads, we do not 

anticipate that this additional training 

will be extensive. Except for adding this 

applicability date, the final version of 

paragraph (b) is the same as the version 

proposed. 

FRA has moved paragraph (b) to (c) 

and added two new requirements found 

at (c)(1) and (c)(5). Regarding the two 

new requirements, FRA has 

implemented a scheme that requires 

each railroad to amend the existing 

program of operational tests and 

inspections with the purpose of 

requiring railroads to do a better job of 

focusing their tests and inspections on 

those types of operating rules that either 

cause the most human factor-caused 

accidents nationwide or are identified 

as problematic on the particular 

railroad’s division or system. At a 

minimum, FRA expects railroads to test 

and inspect for those operating rules 

identified as problematic in the 

quarterly or six month reviews, i.e., 

those operating rules violations that 

have recently caused accidents or 

incidents on the division or systemwide. We also expect railroads to 

regularly spot-check for compliance 

with those operating rules that lead to 

accidents and incidents nationwide, 

even if the railroad has not specifically 

encountered any recent incidents. As 

mentioned in the SUPPLEMENTARY

INFORMATION section under 

‘‘Development of the NPRM,’’ the 

verification through testing process does 

not always work well because during 

some periods of disruption related to 

organizational or personnel changes, 

some railroads do not perform 

operational tests that address the root 

cause of human factor accidents. At 

worst, administration of the program 

may be reduced to a numbers-generating 

exercise, and, consequently, on portions 

of the railroad, officers may conduct 

relatively few meaningful tests. Clearly, 

FRA intends for the program of 

operational tests and inspections to be 

meaningful and the amendments are 

intended to forcefully move lagging 

railroads to produce more meaningful 

tests and inspections. 

Paragraph (c)(1) contains the existing 

requirement that the program shall 

provide for operational testing and 

inspection under the various operating 

conditions on the railroad. It has also 

been amended, so that on or after July 

1, 2008, each railroad shall be required 

to amend its program to ‘‘particularly 

emphasize those operating rules that 

cause or are likely to cause the most 

accidents or incidents, such as those 

accidents or incidents identified in the 

quarterly reviews, six month reviews, 

and the annual summaries as required 

under paragraphs (e) and (f), as 

applicable.’’ Thus, FRA expects that 

each railroad would conduct a 

significant number of tests and 

inspections directed at addressing 

localized problems with compliance, 

such as those identified on a division, 

problems identified on a system-wide 

basis, and leading causes of human 

factor-caused accidents nationwide, 

such as those identified through this 

final rule. 

In order to gain some specificity in 

each railroad’s program, paragraph (c)(1) 

also requires ‘‘a minimum number of 

tests per year that cover the 

requirements of part 218, subpart F of 

this chapter.’’ FRA is reluctant to state 

a percentage or specific number per 

number of employee work hours as each 

railroad may have particular operating 

rules it wishes to emphasize to a greater 

degree than the next; however, the 

objective in including this language is to 

encourage sufficient testing in these 

critical areas to verify good compliance 

by railroad operating employees and to 

help establish the expectation that there 

will be compliance with those rules. 

FRA would be critical of a program that 

placed the majority of its emphasis on 

enforcing operating rules that are not 

leading causes of accidents/incidents. 

The requirement for a specific minimum 

number of such tests per year follows 

from such a requirement imposed in EO 

24, albeit EO 24 covered a smaller 

subset of the operating rules FRA is 

covering in part 218, subpart F. AAR 

requested that the rule allow a railroad 

to specify in its program ‘‘a minimum 

percentage of tests per year’’ that cover 

the requirements of part 218, subpart F 

of this chapter, as opposed to a just ‘‘a 

minimum number of tests per year.’’

AAR’s comment was somewhat unclear 

in that it did not specify how the 

percentage might be calculated; we 

assume that AAR means a percentage of 

the total number of operational tests to 

be performed in a given year will cover 

part 218, subpart F requirements. FRA 

is not adopting AAR’s suggestion as we 

do not understand why a railroad that 

can identify a minimum number of total 

operational tests per year would have 

trouble identifying a minimum number 

of tests that cover the requirements of 

part 218, subpart F. It may be that 

railroads would like the flexibility to 

change the minimum number of tests in 

periods less than a year, i.e., monthly, 

quarterly, or six-month intervals. FRA 

recognizes that, from time-to-time, a 

railroad may have a reduction in 

business, a reduction in the number of 

operating employees, a reduction in 

employee work hours, or another factor 

that reduces the need to conduct as 

many operational tests as it set forth in 

its operational testing program. When 

such factors occur, a railroad should 

simply amend its program and create a 

record explaining the reason for the 

reduction in the amount of minimum 

tests. In that way, when FRA audits the 

program, we can readily deduce why 

the railroad has reduced the minimum 

number of tests to be conducted, decide 

whether the reasons are valid, and 

notify the railroad if we disapprove of 

the action taken pursuant to paragraph 

(i). 

Paragraph (c)(5) adds a new 

requirement that, on or after July 1, 

2008, the program show the railroad’s 

designation of an officer to manage the 

program at each level of responsibility 

(division or system, as applicable). The 

officer may be designated either by 

name or job title, as long as the 

designation clearly identifies a 

responsible person that FRA can contact 

when FRA audits the program. The 

officer shall also have oversight 

responsibility to ensure that the 

program is being implemented properly 

across each division and system-wide. 

FRA’s expectation is that this officer 

will at least manage the program to 

ensure that the overall direction of the 

program is sound. This designated 

officer would be expected to take an 

active role in ensuring that divisions 

and the entire system are meeting 

program requirements and ordering 

changes when expectations are not met. 

To the degree that a system-level officer 

can identify a division, or a specific 

railroad testing officer, that is failing to 

appropriately direct efforts, the 

designated officer is expected to take 

corrective action. In order to ensure that 

the railroad’s testing officers are 

properly directing their efforts to reduce 

accidents/incidents, the designated 

officer or officers will need to make 

adjustments to the implementation of 

the program based on any reviews that 

might be required in paragraph (e), as 

well as the annual summary produced 

in accordance with former paragraph 

(d), which has been redesignated as 

paragraph (f). 

Additionally, former paragraph (b)(6) 

has been redesignated as paragraph 

(c)(7) without any changes from the 


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prior existing rule. Former paragraph (c) 

has been redesignated as paragraph (d) 

also without change. 

Paragraph (e) adds requirements for 

periodic reviews for any railroad with at 

least 400,000 total employee work hours 

annually. FRA has decided to provide 

each Class I railroad (including the 

National Railroad Passenger 

Corporation) until July 1, 2008 to 

comply with this paragraph and, the 

remaining railroads to which this 

paragraph applies, shall comply with an 

applicability date of January 1, 2009. 

The NPRM only would have provided 

until the effective date of the rule to 

comply with this section and FRA 

decided to heed the concerns raised 

during the RSAC working group 

meetings that the effective date of the 

rule would not provide sufficient time 

for each railroad to implement the 

reviews required by this paragraph. 

FRA has decided to exclude freight 

railroads that have less than 400,000 

total employee work hours annually 

from conducting periodic reviews and 

analyses as provided in paragraph (e)(1) 

because only 135 smaller railroads that 

meet this criterion reported any human 

factor caused rail accidents, and of those 

135 that reported such accidents, only 

20 railroads reported five (5) or more 

human factor caused rail accidents 

during the years 2002 through 2005. 

During this four year period, these 135 

smaller railroads experienced 334 

human factor caused rail accidents 

amounting to 7 percent of all human 

factor caused rail accidents. It should 

also be considered that there are almost 

600 smaller railroads that fit this 

criterion and yet only 135 reported any 

human factor caused rail accidents at 

all. On that basis, FRA is excepting the 

smallest railroads, based on the less 

than 400,000 employee work hours 

threshold, from the monthly and 

quarterly reviews. Of course, if FRA 

accumulates evidence to suggest that 

railroads with less than 400,000 

employee work hours are experiencing 

a significant number of human factor 

caused accidents, FRA will consider 

whether to initiate a new rulemaking 

revising this final rule. 

Similarly, Amtrak and the railroads 

providing commuter service in a 

metropolitan or suburban area also 

experience a relatively low number of 

human factor caused rail accidents 

compared to the freight railroads with 

greater than 400,000 employee work 

hours annually. During the years 2002–

2004, Amtrak and the commuter 

railroads experienced a total of 270 

accidents attributed to human factor 

causes. At a meeting held with members 

of APTA on April 27, 2006, (notes of 

this meeting are in the docket of this 

proceeding) APTA explained that many 

of its member railroads do not keep 

accident/incident data and/or 

operational testing data electronically 

and, thus, conducting periodic reviews 

greater than annually would create a 

substantial burden for those railroads 

that could not simply run a report from 

a computer. In addition, APTA members 

reminded FRA that a commuter 

railroad’s budget is dependant on the 

generosity of local and state 

governments, which may not want to 

upgrade computers and software which 

would permit quicker and more efficient 

accident/incident reviews. Passenger 

railroads are generally more stable in 

their organizations and experience 

greater continuity with respect to 

staffing at the line officer level (where 

many problems often develop). 

With regard to six month reviews, 

however, there is a definite benefit for 

Amtrak and the commuter railroads to 

conduct a thorough system level review 

to achieve some degree of 

accountability. Meaningful reviews 

should help drive proper 

implementation of the program of 

operational tests and inspections—thus 

driving down the number of accidents/ 

incidents attributable to human factors. 

APTA explained in its comments that 

there are funding and development 

issues that will require a period of 

training on these new regulations and 

any new automated reporting system 

that is created in response to the rule; 

consequently, APTA requested 12 

months to implement the first six-month 

review under paragraph (e)(2). FRA has 

decided to deny APTA’s request to 

delay implementation of the six-month 

review for a year. FRA does not agree 

with APTA that the six-month review 

requires a ‘‘new automated reporting 

system’’ for any railroad that does not 

already have one up and running. The 

records and reviews required by this 

section could be maintained by oldfashioned written records, and the 

analysis required could be completed 

without the aid of a computer or with 

software readily available in stores now. 

That said, we agree that an automated 

system would likely provide for more 

efficiently completed analysis. FRA, 

however, has not required such 

automation. Finally, FRA has not 

excepted even the smallest commuter 

railroads from the requirement that 

reviews be conducted, because in FRA’s 

experience no railroad is free from the 

risk that good discipline will erode over 

time, and the consequences of a 

passenger train accident can be very 

serious indeed. The benefits of the 

review are too important to postpone for 

a year. 

For the major freight railroads, the 

quarterly review is to be developed and 

conducted at the division level unless 

no division headquarters, or its 

equivalent, exists. Most larger railroads 

have created division headquarters (see 

current definition in § 217.4 of this part) 

to manage portions of the railroad and, 

certainly, railroads that have divisions 

do so because it is more efficient. That 

is, it is easier for an officer at a division 

headquarters to know what safety issues 

are problematic in his or her division 

than an officer of a large railroad at the 

system level. 

AAR asserted in its comments an 

overall objection to paragraph (e) as it 

deems the reviews and recordkeeping 

requirements of this section as ‘‘micromanagement’’and ‘‘command-andcontrol regulation at its worst.’’ AAR 

maintains that monthly, quarterly, and 

six-month reviews are not typically 

conducted by freight railroads as FRA 

asserted in its proposed rule and that 

FRA is wrong to maintain that it is a 

best practice for freight railroads to 

adjust its program of tests and 

inspections based on one quarter’s 

worth of data. Furthermore, AAR asserts 

that even if some railroads voluntarily 

conducted the same types of reviews 

without regulation, FRA is not justified 

to impose this ‘‘regulatory straitjacket, 

with the formality and recordkeeping 

that are byproducts of regulatory 

requirements,’’ on each railroad. 

FRA appreciates the comments of 

AAR with regard to paragraph (e) and 

certainly has given AAR’s counterpoint 

due consideration. The main focus of 

this rule is to reduce the number of 

human factor caused accidents, and 

FRA’s experience has been that one way 

to do that is to impose these types of 

review requirements which force 

needed improvements on a railroad’s 

operational testing and inspection 

program. Prior to the publication of this 

rule, when FRA has identified 

significant problems with such a 

program and there has also been a 

correlation of noncompliance with 

important safety laws, FRA has shown 

some restraint in enforcement while 

working with some railroads in trying to 

improve compliance. On a case-by-case 

basis, FRA has entered into a voluntary 

compliance agreement with a railroad so 

that it is clear what enforcement action 

FRA will take if the operational testing 

and monitoring changes requested by 

FRA are not completed by a specific 

deadline. 

Although voluntary compliance 

agreements are typically effective in 

improving safety on a particular railroad 


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or division, FRA’s experience has been 

that the problems that trigger the need 

for such agreements are fairly common 

in the industry. The regulatory approach 

in this rule is significantly more 

efficient than entering into tens or 

hundreds of individual agreements. The 

implementation of this rule will 

effectively require the implementation 

of best practices that should aid in the 

reduction of accidents/incidents before 

FRA is able to pinpoint any problem 

associated with a particular railroad’s 

system of tests and inspections. Rather 

than changing one railroad, or one 

division on a large railroad, at a time, 

this rule will require all but the smallest 

freight railroads to place greater 

emphasis on human factor caused 

accidents in each operational test and 

inspection program. 

AAR also commented that FRA 

should not require that a designated 

officer for each division shall be the sole 

officer who may perform the required 

monthly and quarterly reviews of tests 

and inspections, if a railroad has 

divisions. AAR suggests that the rule 

permit each railroad the flexibility to 

choose whether an officer at 

headquarters can perform the required 

reviews. FRA is rejecting AAR’s 

comment as it applies to the quarterly 

review. In order to comply with the 

requirements for the quarterly review 

under paragraph (e)(1)(i), an officer 

would need to have a detailed 

knowledge of the operation. It is our 

experience that railroads that have 

divisions are too large for a person at the 

system headquarters to have the kind of 

mastery over each division to conduct 

the kind of in-depth analysis required of 

the quarterly review. Where FRA has 

audited strong programs, division 

officers are conducting periodic analysis 

of accidents/incidents at the division 

level and making appropriate 

adjustments at the division level as 

remedial action. We are surprised at 

AAR’s comments because the divisions 

typically operate semi-autonomously 

from system headquarters, albeit with 

regular coordination on system-wide 

matters. As a practical matter, if a 

division headquarters exists, an officer 

at the division level will be in the best 

position to perform the types of reviews 

required by the quarterly review. 

Meanwhile, FRA has responded to 

AAR’s comment by deleting the 

requirement for a monthly review. 

Instead, the review to determine 

whether each railroad testing officer is 

conducting the minimum number of 

each type of test or inspection required 

by the railroad’s program will only be 

required on a quarterly basis, as 

opposed to a monthly basis. What was 

formerly referred to as the monthly 

review, but is now part of the quarterly 

review, is not expected to be an onerous 

task. It is merely a quick written tally of 

the number of tests performed by each 

railroad testing officer, including the 

railroad operating rules tested for, and 

a determination made whether the tally 

shows adherence to the written program 

of operational tests and inspections. 

When this type of review reveals 

noncompliance with the program, the 

designated officer is required to make 

any necessary adjustments to the tests 

and inspections required of railroad 

officers for the subsequent period(s). 

The designated railroad officer in 

paragraph (c)(5) may or may not be the 

officer who performs this review, but 

this designated railroad officer would be 

required to ensure that the quarterly 

review is properly completed. As FRA 

would expect that this aspect of the 

quarterly review would be derived from 

data collected at the division level, FRA 

does not anticipate any problems for a 

division officer producing this 

information in a quarterly review. 

FRA is mandating a comprehensive 

quarterly review for freight railroads 

under paragraph (e)(1)(i). In addition to 

the scorecard for each railroad testing 

officer (i.e., the formerly proposed 

monthly review), it shall include a 

‘‘review of the [railroad’s] accident/ 

incident data, the results of prior 

operational tests and inspections, and 

other pertinent safety data for that 

division or system to identify the 

relevant operating rules related to those 

accidents/incidents that occurred 

during the quarter.’’ The focus of the 

quarterly review is to identify those 

operating rules which pose the greatest 

risk of being violated—which should 

then be targeted for regular tests and 

inspections. That is why FRA is 

requiring that based upon the results of 

the quarterly review, the designated 

officer shall make any necessary 

adjustments to the tests and inspections 

required of railroad officers for the 

subsequent period. The quarterly review 

must be in writing and include the data 

upon which any conclusions are based. 

In response to several comments, FRA 

has clarified that any review, record or 

other information required by this 

section to be in writing may be retained 

electronically pursuant to paragraph (g). 

FRA expects that in order to conduct 

a meaningful quarterly review, each 

railroad will review accident/incident 

data, operational test data, and other 

pertinent data. For example, a railroad 

should identify the relevant facts for 

each category of data. The relevant facts 

are usually covered if a railroad can 

answer the questions signifying who, 

what, where, when, why, and how 

often. For accident/incident data, these 

questions would involve identifying all 

the employees involved in the accident/ 

incident, a description of the accident/ 

incident, the location where it occurred, 

the time it occurred, the root cause and 

any secondary causes, and whether the 

division or system has suffered this type 

of accident/incident often, sometimes or 

never. For operational test data, the 

issues include identifying the railroad 

testing officer(s) responsible for the 

particular location, whether the testing 

officers are testing for the operating 

rules responsible for any recent 

accidents/incidents, whether the testing 

officers conducted any tests where any 

recent accidents/incidents occurred, 

whether the testing officers are testing 

during the hours of highest incident 

rates, whether any railroad officers are 

briefing the employees as to the root or 

secondary causes and the fact that the 

railroad will be testing for compliance, 

and how often the officers are 

conducting any follow-up testing and 

job briefings. 

FRA believes there are at least five 

other types of pertinent safety data that 

should be included in a proper quarterly 

review. One, if FRA has conducted any 

recent inspections, the railroad should 

check whether its officers’ tests reflect 

FRA’s findings. Two, if an employee is 

involved in an accident/incident, the 

employee’s safety record may provide 

insight. Three, the railroad should 

determine if there is any correlation 

between the training or experience of 

the local railroad testing officers and the 

locations where accidents/incidents 

have occurred. Four, a railroad should 

similarly consider the extent to which 

employee experience plays a part in any 

given accident/incident. Fifth, a 

railroad’s review should consider 

whether any operational conditions 

have recently changed that increased 

the likelihood of either noncompliance 

with the operating rules or accidents/ 

incidents. Special attention to all these 

details in the quarterly or six month 

review, as applicable, should lead a 

railroad to meaningful application of its 

written program of operational tests and 

inspections with a greater potential for 

driving down the frequency and severity 

of accidents/incidents. 

Although it would be best if quarterly 

reviews were completed immediately 

following the end of each quarter, FRA 

is requiring completion no later than 30 

days after the quarter has ended. We did 

not receive any negative comments 

regarding the 30 day period. FRA 

originally considered requiring the 

quarterly review in half that time but 

railroads participating at a Railroad 


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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8461 

Operating Rules Working Group 

meeting suggested that additional time 

would be needed for those railroads that 

do not maintain their safety data 

electronically. For those railroads that 

keep records electronically, FRA 

encourages quarterly reviews to take 

place contemporaneously with the 

conclusion of the quarter. Regardless of 

how long it takes to complete the 

quarterly review, each division or 

system should be prepared to redirect 

its railroad testing officers in order to 

appropriately react to any accidents/ 

incidents of noncompliance during the 

previous quarter. Even where a division 

or system has had a particularly safe 

quarter, railroad testing officers should 

be instructed to adjust the way in which 

they are conducting their tests so that 

employees cannot easily anticipate the 

types of tests to be conducted, nor the 

dates and locations of such tests. 

Because freight railroads with divisions 

might find it difficult to do the systemwide six month review in only 30 days, 

especially since the quarterly reviews 

might not be completed until the 30th 

day, FRA has amended the proposed 

rule by allowing freight railroads 60 

days after the review period has ended 

to complete the six month review. 

Passenger railroads with divisions are 

not quite as large or complex that 

completion of the six month review 

should take more than 30 days. 

In paragraphs (e)(1)(ii) and (e)(2), six 

month reviews are only required for 

each Class I railroad, Amtrak, and each 

railroad providing commuter service in 

a metropolitan or suburban area. The 

basis for the requirement is that the 

identified freight railroads are so large 

that each would benefit from an officer, 

likely at the system headquarters, who 

is identifiable by name or job title, who 

will oversee whether each division, line 

or segment is complying with the 

program of operational tests and 

inspections. It is expected that such an 

officer would have the authority to 

intervene in division, line or segment 

operations to the extent that this officer 

could order changes to the way 

divisions are implementing the 

program. The purpose for such 

intervention would be to require certain 

types of operational tests or inspections 

based on observations made systemwide that may not be apparent to each 

designated division officer armed only 

with data from his or her own division. 

In the case of Amtrak and the 

commuter railroads, paragraph (e)(2) 

requires reviews equivalent to those for 

the freight railroads in paragraph (e)(1), 

however all the reviews are to take place 

at least every six months. Of course, 

these are minimum requirements and 

passenger railroads are free to initiate 

more frequent reviews. For example, 

paragraphs (e)(2)(i) and (ii) describe 

reviews that are equivalent to the review 

required for freight railroads on a 

quarterly basis and certainly passenger 

railroads may perform that review on a 

quarterly basis as well; however, the 

passenger railroads are required to 

comply with those two requirements at 

least every six months. Paragraph 

(e)(2)(iii) describes a review that is to be 

completed at least once every six 

months and is the equivalent of the six 

month review required for freight 

railroads. As it is required that the 

passenger railroads conduct the same 

reviews as the freight railroad with the 

exception of the timing of those reviews, 

the prior section-by-section analysis 

description for each review is applicable 

here. 

Because FRA needs to be assured that 

each railroad is complying with any 

required reviews, the regulation requires 

that the reviews be retained for one year 

after the end of the calendar year to 

which they relate and shall be made 

available to FRA upon request. FRA also 

encourages railroads to store these 

records electronically, pursuant to 

paragraph (g), as long as the information 

can be produced upon request. 

Former paragraph (d), which is 

redesignated as paragraph (f), is being 

amended in two respects. One 

amendment is merely to change the 

term ‘‘manhours’’ to ‘‘employee work 

hours’’ as the latter is gender neutral. 

The second amendment would clarify 

that this requirement does not apply to 

‘‘a railroad with less than 400,000 total’’

employee work hours annually, as the 

current rule accidentally fails to include 

the qualification of the time period. 

In the NPRM, FRA questioned the 

necessity of retaining the annual 

summary requirement in paragraph (f) 

and FRA received several comments, 

including from AAR, APTA, and UTU, 

supporting the elimination of the annual 

summary on operational tests and 

inspections requirement. After further 

consideration, FRA realizes that the 

annual review requires different 

information than the other reviews and 

that eliminating it would have a serious 

detrimental effect on FRA’s ability to 

audit a railroad’s program. The annual 

summary requires all but the smallest 

railroads to create a written summary of 

the number, type, and result of each 

operational test and inspection, stated 

according to operating divisions where 

applicable, that was conducted as 

required by paragraphs (a) and (c) of this 

section. This written record may be kept 

in an electronic format pursuant to 

paragraph (g). Generally, railroads keep 

the data used to create this report in an 

electronic database which makes it 

relatively simple to generate the 

required annual summary. 

Former paragraph (e) is redesignated 

paragraph (g) with one amendment. The 

former rule specified that the railroad 

maintain a ‘‘desk-top’’ computer upon 

which the railroad can retrieve data. As 

laptop and notebook computers have 

become more common, and their 

computing abilities now rival desk-top 

models, there is no reason to restrict 

railroads from using any computer to 

retrieve records for FRA under this 

section. 

Proposed paragraph (h), which 

suggested a requirement specifying that 

railroads and individuals can be liable 

for falsifying or deliberately mutilating 

records required by this section, has 

been deleted as unnecessary for two 

reasons. One, if FRA has sufficient 

evidence to prove that a railroad or 

individual has falsified a program 

required under this section or a record 

kept for such a required program, then 

that railroad or individual could be 

cited by FRA for a willful violation of 

the underlying section. The penalty 

assessed would be greater than a typical 

civil penalty assessment. See 49 CFR 

217.5 and app. A to Part 217. Thus, even 

with the deletion of this proposed 

paragraph, FRA retains the authority to 

assess civil penalties for falsification of 

the required records pertaining to this 

section. Two, the activity at issue is also 

prohibited by criminal law. See, e.g., 49 

U.S.C. 21311. Consequently, FRA has 

decided to remove this paragraph from 

the final rule and would expect that the 

existing criminal law and this final rule 

will provide sufficient disincentives for 

railroads and individuals to complete 

the programs and records required 

under this part without falsifying, 

mutilating, or destroying such a record. 

Proposed paragraph (i), which has 

been redesignated as paragraph (h) 

requires that FRA have some specific 

oversight mechanism for disapproving a 

railroad’s program of operational tests 

and inspections. It also requires 

minimum procedures and structure for 

the review process. The paragraph 

requires that the Associate 

Administrator for Safety only 

disapprove programs required by this 

section for cause stated. As the 

disapproval decision is made for cause, 

it is significant for the railroad to 

understand exactly why FRA is 

disapproving the program; thus, 

notification of such disapproval will be 

made in writing and specify the basis 

for the disapproval decision. If the 

Associate Administrator for Safety 

disapproves the program, the railroad 


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has 35 days from the date of the written 

notification of such disapproval to 

either (1) amend its program and submit 

it to the Associate Administrator for 

Safety for approval, or (2) provide a 

written response in support of the 

program to the Associate Administrator 

for Safety. If the railroad chooses the 

second option to defend the allegedly 

defective program, the Associate 

Administrator for Safety will inform the 

railroad of FRA’s final decision in 

writing. Although the rule is silent 

regarding whether a railroad may 

request an extension, FRA intends for 

the Associate Administrator for Safety, 

as the agency’s decision-maker, to have 

the flexibility to decide procedural 

issues, such as having the ability to 

grant or deny requests for extensions of 

time, as the issues arise. The Associate 

Administrator for Safety renders a final 

decision in writing which will specify 

the terms and conditions under which 

the program will be considered 

approved or disapproved. If the decision 

denies the railroad’s request in whole or 

in part, FRA intends for the railroad to 

amend its program and submit it to the 

Associate Administrator for Safety for 

approval within 35 days of the final 

decision as that is the period of time 

accorded for amending programs when 

a railroad chooses not to appeal the 

disapproval. Again, a railroad may 

request an extension of time to amend 

its program and submit it to the 

Associate Administrator for Safety for 

approval, and FRA intends for the 

Associate Administrator for Safety to 

have the flexibility to decide whether to 

grant or deny such procedural requests. 

Although enforcement action is always 

discretionary, FRA believes that 

enforcement action is warranted when a 

railroad fails to appropriately and 

timely amend its program; for this 

reason, FRA is requiring in paragraph 

(h)(2) that a failure to submit the 

program with the necessary revisions to 

the Associate Administrator for Safety 

will be considered a failure to 

implement a program under this part. 

The approach in paragraph (h) 

recognizes that FRA will want to review 

such written programs during audits or 

investigations and that FRA should have 

the authority to request changes to the 

program if it does not meet the 

minimum requirements of this rule. 

Although FRA retains the authority to 

review in detail each railroad’s program, 

FRA is not requiring that each railroad 

submit its program for prior review and 

approval. Rather, FRA intends to review 

the programs of the major railroads over 

a multi-year cycle to determine if they 

are effective. In BLET’s written 

comment, it requested that FRA 

reconsider this approach and instead 

advocated that each railroad be required 

to submit its operational tests and 

inspections program for FRA’s explicit 

approval. BLET’s reason for requiring a 

submission and approval process is that 

employees need to be afforded no less 

than the highest degree of assurance that 

a railroad’s compliance monitoring is 

appropriate if the employee can be held 

responsible for noncompliance. A 

similar comment was raised by UTU in 

the context that FRA should prohibit 

testing officers from performing 

operational tests that violate operating 

rules or endanger employees. While 

FRA appreciates these comments, we 

are not adopting them for the following 

reasons. Although FRA has found 

deficiencies with some railroads’

programs from time-to-time, if a railroad 

has a program, it will typically contain 

all the requirements necessary to be 

deemed approved. Most problems with 

a program cannot be determined until 

an audit or investigation reveals 

inadequacies. Thus, a mandatory 

approval process is both a drain on the 

agency’s resources and also unlikely to 

reveal many programmatic deficiencies. 

The best time to request a programmatic 

change is when an inadequacy is 

revealed. However, the NPRM did not 

provide for specific procedures for FRA 

to take place when an inadequacy was 

identified. The rule has been 

strengthened to provide for specific 

oversight authority vesting with the 

Associate Administrator for Safety. It is 

also helpful to remember that FRA is 

requiring railroad testing officers to 

conduct tests and inspections in 

accordance with a railroad’s program, 

and that it is implicit that an improperly 

conducted test shall not be considered 

a valid test toward satisfying any 

requirement under the program. 

In the proposed rule, FRA solicited 

comments as to whether the final rule 

should require each railroad to instruct 

its employees on operating rules at least 

once every three years. BLET submitted 

a comment supporting triennial 

qualification of employees on all 

Federalized operating rules. As BLET 

points out, adding this requirement 

would merely expand the proposal to 

require each railroad to qualify its 

employees on Part 218, subpart F in this 

chapter, and many employees are 

already covered as locomotive engineers 

are currently required to be qualified 

every three years pursuant to 

§ 240.210(c) of this chapter. FRA would 

add that a triennial operating class is the 

typical standard requirement on most 

railroads today. However, FRA also 

recognizes that our definition of 

qualified might be deemed to lead to 

more extensive or rigorous instruction, 

training, and examination than is 

currently in practice. While that might 

be a positive development, FRA 

recognizes that there might be costs 

involved with assuring the additional 

qualifications are met, and FRA has not 

found a correlation between the lack of 

operating rules training in general and 

accidents/incidents. FRA’s decision 

only requires such periodic instruction 

as it applies to those operating rules that 

would be required by part 218, subpart 

F because the rules set out in that 

subpart do have a direct correlation to 

a substantial number of accidents/ 

incidents and other noncompliance 

detected by FRA. See § 218.95(a)(5). 

FRA will consider implementing 

another rulemaking if noncompliance 

with other operating rules are identified 

that are causing a significant number of 

accidents/incidents. Based on available 

information, the current requirement, 

that each railroad periodically instruct 

each employee on the meaning and 

application of the railroad’s operating 

rules, appears to be sufficient. See 

§ 217.11. 

Section 217.11 Program of Instruction 

on Operating Rules; Recordkeeping; 

Electronic Recordkeeping 

FRA did not propose any changes to 

this section in the NPRM; however, after 

the NPRM’s publication we realized that 

it contained a cross-cite to § 217.9(e)(1) 

through (e)(5), which has been 

redesignated as § 217.9(g)(1) through (5). 

This citation change is the only 

amendment to this section. 

Part 218—[Amended] 

Section 218.4 Preemptive Effect 

This section informs the public of 

FRA’s intention and views on the 

preemptive effect of the rule. The 

preemptive effect of this rule is broad, 

as its purpose is to create a uniform 

national standard. Section 20106 of 

Title 49 of the United States Code 

provides that all regulations prescribed 

by the Secretary related to railroad 

safety preempt any State law, 

regulation, or order covering the same 

subject matter, except an additional or 

more stringent 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. Section 20106 permits State 

tort actions arising from events or 

activities occurring on or after January 

18, 2002, for the following: (a) A 


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violation of the Federal standard of care 

established by regulation or order issued 

the Secretary of Transportation (with 

respect to railroad safety, such as these 

regulations) or the Secretary of 

Homeland Security (with respect to 

railroad security); (b) a party’s violation 

of, or failure to comply with, its own 

plan, rule, or standard that it created 

pursuant to a regulation or order issued 

by either of the two Secretaries; and (c) 

a party’s violation of a State standard 

that is necessary to eliminate or reduce 

an essentially local safety or security 

hazard, is not incompatible with a law, 

regulation, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. Nothing in 

section 20106 creates a Federal cause of 

action on behalf of an injured party or 

confers Federal question jurisdiction for 

such State law causes of action. The 

NPRM language has been amended to 

reflect the changes made to Section 

20106. 

Only one comment addressed this 

paragraph and that comment has been 

discussed in the preamble. See IV. 

General Comments/Major Issues, C. 

Preemptive Effect. 

Section 218.5 Definitions 

FRA is amending the definition of 

flagman’s signals in order to eliminate 

a reference to ‘‘torpedoes.’’ Torpedoes 

are antiquated signaling devices which 

have fallen into disuse in the industry. 

Likewise, we are amending § 218.37, 

which refers to this definition and the 

placing of torpedoes when providing 

flag protection. 

FRA is also amending the definition 

of locomotive to explain that this 

particular definition of locomotive does 

not apply to subpart F. The definition of 

locomotive in this section is a more 

mechanically-minded definition than 

the definition contained in 49 CFR 

218.93. This definition continues to 

apply to the requirements in part 218, 

with the exception of subpart F. 

Section 218.37 Flag Protection 

FRA is eliminating references to 

‘‘torpedoes’’ as these are antiquated 

signaling devices which have fallen into 

disuse in the industry. The former rule 

required each railroad to have in effect 

an operating rule which complies with 

this section, and thus contains 

references to the use of torpedoes, even 

though the railroad could meet other 

flagging requirements without ever 

needing to carry or use torpedoes. In the 

former section, there are two paragraphs 

that reference torpedoes. Former 

paragraph (a)(1)(iii) states, in part, that 

‘‘[w]hen a train stops on main track, flag 

protection against following trains on 

the same track must be provided as 

follows: A crew member with flagman’s 

signals must immediately go back at 

least the distance prescribed by 

timetable or other instructions for the 

territory, place at least two torpedoes on 

the rail at least 100 feet apart and 

display one lighted fusee.’’ The 

language in italics has been deleted by 

this final rule. Former paragraph 

(a)(1)(iv) states that ‘‘[w]hen required by 

the railroad’s operating rules, a forward 

crew member with flagman’s signals 

must protect the front of his train 

against opposing movements by 

immediately going forward at least the 

distance prescribed by timetable or 

other instructions for the territory 

placing at least two torpedoes on the 

rail at least 100 feet apart, displaying 

one lighted fusee, and remaining at that 

location until recalled.’’ Again, the 

language in italics has been deleted by 

this final rule. Elimination of the 

references to torpedoes does not 

eliminate the requirement that each 

railroad have in effect an operating rule 

that complies with the requirements in 

this section. Furthermore, FRA has 

made minor amendments to make the 

regulatory language gender neutral. 

Subpart F—Handling Equipment, 

Switches, and Fixed Derails 

Section 218.91 Purpose and Scope 

As previously explained in the 

supplementary information, FRA has 

identified that noncompliance with a 

small number of railroad operating rules 

has caused an inordinate percentage of 

total human factor caused accidents. 

FRA’s purpose is first to establish clear 

and unambiguous procedures that will 

provide for the safety of railroad 

employees and the public. In the RSAC 

Working Group discussions that 

preceded the preparation of the 

proposed rule, FRA noted significant 

variation in basic safety procedures 

followed on participating railroads. 

Although some variation is necessary to 

address local conditions, the presence of 

extensive joint operations in the railroad 

industry makes it essential that certain 

common procedures apply. Joint 

operations are not new to the railroad 

industry, as evidenced by the historic 

role of terminal companies. However, 

the practice has more recently expanded 

through mergers and consequent awards 

of trackage rights and through the 

creation of hundreds of small railroads 

that are often provided access to larger 

railroad’s facilities to facilitate efficient 

interchange of cars. 

In order to ensure compliance with 

operating rules, it is essential that they 

be consistent, commonly understood, 

and applied in a predictable manner. 

Further, it must be understood that the 

rules may not be circumvented at the 

whim of a supervisor or employee to 

hasten completion of the work. The 

rules in this subpart are intended to 

support these purposes. 

In addition, making these rules 

mandatory from a Federal standpoint 

provides an enforcement mechanism to 

discourage noncompliance. 

FRA is standardizing this small 

number of railroad operating rules by 

establishing minimum requirements. 

The minimum requirements are based 

on accepted best practices and rules 

currently in use. Of course, railroads 

may choose to prescribe additional or 

more stringent requirements. 

FRA received one comment regarding 

this section. AAR proposed that FRA 

add a paragraph that exempts 

employees subject to blue signal 

protection under subpart B of this 

chapter, or to employees moving 

equipment within the confines of a 

locomotive repair or servicing area, or a 

car shop repair track area. FRA 

disagrees with AAR’s premise that 

employees performing these functions 

do not need to be qualified on the 

requirements of this subpart. It is 

absolutely imperative that all employees 

operating a hand-operated switch or 

fixed derail understand how to properly 

operate and determine the position of 

such switches and derails. We do not 

share AAR’s belief that there is any 

conflict with the blue signal 

requirements of this chapter. 

Additionally, FRA did carve out one 

exception under proposed 

§ 218.103(g)(2)(a), redesignated as 

§ 218.107(c)(1)(i), so that hand-operated 

crossover switches could be left out of 

correspondence when used to provide 

blue signal protection under § 218.27. 

FRA has also clarified in the title to 

this subpart, the purpose and scope 

section, and in § 218.109, that this 

subpart applies to ‘‘fixed’’ derails and 

does not apply to ‘‘portable derails.’’ In 

the NPRM, FRA did not distinguish 

between the two general types of 

derails, i.e., fixed and portable. FRA is 

using the term ‘‘fixed derails’’ to 

contrast it with derails that are portable. 

Portable, or temporary, derails can 

easily be transported and applied at 

different locations throughout the day in 

order to protect workers and equipment 

as needed. Fixed, or permanent, derails 

cannot be easily transported because 

they are typically affixed to the track 

structure in some manner. Fixed derails 

are normally found prior to entering a 

locomotive servicing area or car shop 

repair area, where they are used to 

protect workers in those areas from 


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encroachment by unauthorized 

movements of rolling equipment. Fixed 

derails are also used on industry tracks 

to prevent rolling equipment from 

unintentionally rolling out onto a main 

track. 

Section 218.93 Definitions 

The definitions in this section only 

have applicability to this subpart so it 

should be easier for the reader to locate 

each definition in this section rather 

than in subpart A—General, § 218.5. 

Several definitions are consistent with 

other definitions of these terms in this 

chapter. These terms are Associate 

Administrator for Safety, employee, 

locomotive, pedestrian crossing, 

qualified, and roadway worker. In an 

effort to be as clear as possible, FRA is 

including definitions of these terms in 

this subpart for the benefit of anyone 

unfamiliar with these terms. 

FRA is defining the term clearance 

point because this term is necessary to 

describe an important concept that is 

used several times in this subpart. 

‘‘Clearance point’’ means the location 

near a turnout beyond which it is unsafe 

for passage by equipment or a person 

riding the side of a car on an adjacent 

track. While clearance points may be 

identified by marks on the rail, signs, or 

other visible identifiers, these points are 

often referring to an approximate 

location that will need to be deduced by 

an employee. Railroads shall implement 

procedures for identifying such 

approximate locations and for waiting to 

line hand-operated switches away until 

equipment that has entered the track has 

passed this point. See §§ 218.101(c) and 

218.103(d). Without a definition of 

clearance point, it would be difficult to 

define what is meant by ‘‘foul or fouling 

a track.’’ Through the proper 

identification of clearance points, 

employees can avoid collisions and 

personal injury to other employees 

riding the sides of cars. 

The definitions for correspondence of 

crossover switches and crossover are 

interrelated, and should be familiar to 

people working in the railroad industry. 

FRA defined the term ‘‘correspondence 

of crossover switches’’ in the NPRM and 

no comments were filed suggesting that 

the industry was confused by the term. 

Crossover switches are considered in 

correspondence under two conditions: 

(1) When it is desired to travel from one 

adjacent track to another, both crossover 

switches would need to be lined for the 

crossover movement; or (2) if no 

crossover movement is desired or 

intended, both crossover switches must 

be lined for the straight-away 

movement, i.e., straight track. 

FRA is adding a definition of 

crossover because, while drafting this 

final rule, we realized that the industry 

has not settled on one common 

definition of the term. Some railroads 

define the term crossover in their rule 

books as ‘‘a combination of two 

switches that connect two adjacent 

tracks.’’ One railroad adds the following 

sentence to that definition: ‘‘When 

lined, this switch combination allows 

movements to cross from one track to 

the other.’’ Other railroads simply 

define a crossover as ‘‘a track 

connection between two adjacent 

tracks.’’ Meanwhile, Christoper 

Schulte’s Dictionary of Railway Track 

Terms, (3d ed. 2003), defines a 

crossover as ‘‘a pair or group of turnouts 

which allows rolling stock and on-track 

equipment to cross from one track to 

another.’’ Still another dictionary of 

railway terms, Don Dressel’s Railroad 

Terminology, Definitions, & Slang, (4th 

ed.1994), defines a crossover as ‘‘two 

turnouts * * * connecting two nearby 

and usually parallel tracks.’’ FRA is 

aware that there are many variations of 

track configurations that may resemble 

a crossover, or may fall generally within 

the parameters of one of the definitions 

referenced above but, as a practical 

matter, are not crossovers in the purest 

sense that FRA and most of the industry 

understand and intend the term to 

mean. Therefore, in the application of 

this subpart, the term crossover applies 

to a track connection between two 

adjacent, but not necessarily parallel, 

tracks, consisting of two switches, 

which is intended to be used primarily 

for the purpose of crossing over from 

one track to another. Categorically 

excluded from this application are track 

connections between adjacent tracks 

that, while they may physically permit 

equipment to pass from one track to 

another, are of sufficient length so as to 

be able to store or hold rolling 

equipment on them, or to set out bad 

order cars, or to store track equipment, 

or for any other purpose than solely for 

crossover movements. Of course, it is 

possible to have a crossover that holds 

just a few pieces of rolling equipment 

and that is not typically used for 

allowing other movements to pass or 

used for storage, but yet is used for such 

purpose. In response to these atypical 

situations, FRA intends to use its 

enforcement discretion on a case by case 

basis. 

A definition for foul or fouling a track 

is provided because this term is 

necessary to describe an important 

concept that is used several times in this 

subpart. Foul or fouling a track means 

rolling equipment or on-track 

maintenance-of-way equipment is 

located such that the end of the 

equipment is between the clearance 

point and the switch points of the 

switch leading to the track on which the 

equipment is standing. The potential for 

an accident is great when equipment is 

left standing on a track in such a 

manner that a movement on an adjacent 

track would collide with it; this is 

especially true when the standing 

equipment is left so that it appears that 

equipment might be able to pass by on 

the adjacent track. Equipment, or a 

person riding a side of a car, on adjacent 

track could strike fouling equipment. 

This type of accident is usually a sideswipe type accident and the severity of 

the accident depends on the factors 

involved; e.g., the factors determining 

severity include, but are not limited to, 

the speed of the moving equipment, the 

type of equipment struck, the contents 

of the cars struck, whether a person was 

riding a car and whether an occupied 

locomotive struck the equipment. The 

issue of foul or fouling a track is 

addressed in § 218.101 titled ‘‘Leaving 

Rolling and On-Track Maintenance-ofWay Equipment in the Clear,’’ because 

certain scenarios of fouling are 

avoidable and FRA believes that each 

railroad should have an operating rule 

that prohibits this dangerous practice. 

The final rule was amended from the 

NPRM to clarify an issue raised during 

the RSAC process. FRA was asked to 

clarify what it meant by the term ‘‘any 

part of the equipment.’’ Some 

commenters questioned whether FRA 

would consider a high-and-wide load, 

or a shifted load of lumber protruding 

from the side of a flat car, as ‘‘fouling’’

an adjacent track even though the end 

of the car might still be within the 

clearance point of the switch. FRA’s 

experience has been that when there are 

high-and-wide or shifted loads, 

railroads have implemented proper 

procedures for employees to take 

appropriate action and address the 

safety concerns. The situation FRA 

intends to address in this rule by 

defining ‘‘foul and fouling’’ occurs 

when the end of a car itself is fouling 

and struck by a movement on an 

adjacent track; the reason for FRA’s 

narrower focus is because that situation 

is the type of accident described 

universally in the accident/incident 

reports filed with FRA that are 

categorized as ‘‘cars left foul’’ or ‘‘car(s) 

shoved out and left out of clear.’’ By 

referring to the end of the equipment, 

FRA’s regulation is patterned after the 

long-standing operating rule, and we 

would hope make it easier to 

understand for employees. This 


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clarification is based on an RSAC 

recommendation. FRA will consider 

initiating a new rulemaking amending 

the definition of ‘‘foul or fouling’’ if 

future data reveals that high-and-wide 

or shifted loads become an increasing 

explanation for accidents/incidents. 

FRA defines hand-operated switch 

broadly to identify any type of switch 

when operated by manual manipulation 

including traditional hand-operated 

(rigid) switches, power switches, and 

spring switches. Excluded from this 

definition are switches operated by 

push button or radio control if the 

switch is protected by distant switch 

indicators, switch point indicators, or 

other visual or audio verification that 

the switch points are lined for the 

intended route and fit properly. The 

definition includes all switches which 

are normally operated by manual 

manipulation of the switch lever. As 

FRA has defined this term, ‘‘handoperated switch’’ includes switches 

operated by push button or radio 

control, but only when such switch is 

not protected by distant switch 

indicators, switch point indicators, or 

other visual or audio verification that 

the switch points are lined for the 

intended route and fit properly. For 

example, the two types of indicators 

provide a visual indication of the switch 

alignment; and other electronic 

advancements are capable of sending a 

message to a receiver indicating the 

switch’s alignment; such that a visual 

check by an employee to determine that 

the switch is properly aligned would be 

redundant after receiving an electronic 

message that has already served that 

purpose. For switches that use push 

button or radio control technology, the 

‘‘manual manipulation’’ aspect is that 

the employee is required to throw the 

switch; and the electronic aspect of the 

switch manipulation is primarily an 

option for avoiding personal injuries 

due to the throwing of a switch lever. 

FRA does not intend to address issues 

related to power-assisted switches 

operated from central consoles, whether 

within or outside of signaled territory, 

when so operated. 

With regard to the definition of handoperated switch, several members of the 

RSAC Operating Rules Working Group 

requested that FRA explain which 

employees would be required to comply 

with the requirements for hand-operated 

switches. FRA explained that the 

definition intended to characterize the 

types of switches normally operated by 

operating employees, whether or not 

there is some electronic aspect to the 

operation of the switch. Such operating 

employees include, but are not limited 

to, conductors, brakemen, trainmen, 

switchmen and remote control 

operators. On rare occasions, a 

conventional locomotive engineer might 

operate a switch, although, with push 

button and radio control technology, it 

is possible that locomotive engineers 

may find themselves operating a greater 

number of switches in future years. 

Maintenance-of-way and mechanical 

employees also have occasion to operate 

these switches. That being said, the rule 

is focused on the type of switch that is 

operated and not the job title of the 

person operating; thus, regardless of a 

person’s job classification, a person who 

operates a switch fitting the definition 

of a ‘‘hand-operated switch’’ is required 

to comply with the requirements of this 

subpart. 

BRS commented that the proposed 

definition of hand-operated switch was 

problematic. In general, the view raised 

by BRS, in comments and discussions 

during the RSAC working group, was 

that the definition did not accurately 

describe what signalmen would 

consider a ‘‘hand-operated switch.’’ In 

BRS’s view, FRA’s definition included 

other types of switches and was thus 

over-inclusive. BRS also raised a 

concern that if FRA has a definition of 

‘‘hand-operated switch’’ in this subpart, 

that this definition might eventually be 

adopted by FRA in other parts of the 

chapter. FRA gave great consideration to 

this request and attempted to draft the 

definition according to the preferences 

expressed by BRS in its comments; 

however, FRA has decided not to amend 

the rule for the following reasons. In 

attempting to craft an alternative that 

defined hand-operated switch more 

narrowly, FRA found itself having to 

create and define at least three other 

terms as well (e.g., power switch, dualcontrol power switch, and manuallyoperated switch), in order to cover all of 

the types of switches FRA wanted the 

rule to cover. In our view, the regulation 

would be more complicated with four 

definitions when one will do. The 

definitions located in this section are 

explicitly identified as to be ‘‘used in 

this subpart;’’ any rule that FRA 

promulgates concerning the 

maintenance of different types of 

switches will be written in a separate 

part or subpart of this chapter and may 

require more technically detailed 

descriptions. Certainly, FRA is not 

required to maintain this definition of 

hand-operated switch throughout all of 

its regulations if it requires greater detail 

in other contexts. Considering all of the 

different crafts of workers, signalmen 

should have the least amount of 

difficulty understanding how to 

properly operate and verify switches. 

This regulation is geared more for the 

perspective of operational railroad 

workers who simply need to know that 

no matter what the signal department 

calls the switch, FRA requires it to be 

treated as the equivalent of a handoperated switch if it is unprotected by 

any type of indicator or verifier, and has 

some manual operation aspect to it—

regardless of whether that manual 

operation is by push button or radio 

control. BRS’s concern is a valid one, 

but is one that is likely to perplex more 

signalmen than operations employees. 

Finally, we make the observation that 

EO 24 was issued without ever defining 

what FRA meant by a ‘‘hand-operated 

switch’’ in non-signaled territory; this 

emergency order, which this final rule 

supercedes, has been in effect since 

November 22, 2005, without any person 

requesting interpretive guidance on this 

term and yet FRA’s experience has been 

that every railroad has applied EO 24 to 

those types of switches defined by the 

‘‘hand-operated switch’’ definition FRA 

has promulgated in this rule. 

Finally, BRS requested that FRA use 

this rulemaking to regulate the design, 

inspection, and maintenance of the 

signals that are protected by distant 

switch indicators, switch point 

indicators, or other visual or audio 

verification, i.e., all those non-handoperated switches. FRA agrees that use 

of substandard technology can lead to 

inappropriate reliance on audible or 

visual indications that a switch is in the 

desired position and locked when it is 

not properly aligned and secured. FRA 

further notes that failure to provide 

fouling circuits in cases where 

employees cannot visually confirm that 

no equipment is out to foul the intended 

route could substantially undercut the 

redundant safety protections intended 

by this rule. Finally, we acknowledge 

that this rule fails to adequately address 

the ability of employees to confirm that 

conflicting movements are not 

approaching a switch location when 

radio controlled switches are employed 

and approach circuits are not in place. 

FRA also agrees with BRS that there is 

a safety concern if any railroad is failing 

to regularly inspect or maintain these 

‘‘other signal arrangements.’’ However, 

FRA believes any such regulation of 

these other signal arrangements should 

be part of a separate rulemaking, not one 

intended to solely focus on railroad 

operating rules and practices. FRA has 

not yet initiated a rulemaking in this 

area, but held a technical conference on 

April 19, 2007, in Washington, DC to 

address the technical aspects of this 

issue (72 FR 14641; March 28, 2007). 

Interested parties may wish to file 


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comments to Docket No. FRA–2007–

27623. Until FRA is able to provide 

suitable regulations to address 

technology being employed to perform 

functions described in this final rule, 

and similar functions, railroads should 

exercise caution and prudence in 

implementing that technology. FRA was 

encouraged to note that many 

participants in the Special Safety 

Inquiry appeared sensitive to this need. 

FRA defined highway-rail grade 

crossing in the NPRM, but has refined 

the definition for purposes of this final 

rule. The definition in the NPRM 

mirrored the definition in § 234.5 of this 

chapter. FRA originally intended to try 

and keep the definition simple by 

carrying the same definition for this 

term used in the Grade Crossing Signal 

System Safety rule found at 49 CFR part 

234; however, upon further reflection, 

FRA realized that the proposed 

definition would include many ad hoc 

crossings on private property that are 

often created and removed in short 

order. Some of these temporary 

crossings may also be illegal or built 

without consent of the railroad that 

owns the track. As the term ‘‘highwayrail grade crossing’’ is used in this rule 

in the context of protecting shoving or 

pushing movements, the proposed 

definition would have required that a 

railroad and its employees be 

responsible for determining that such ad 

hoc crossings are protected during 

shoving or pushing movements. It is 

conceivable that the proposed 

requirement could have created 

enforcement dilemmas, especially when 

a crossing is created without any 

notification to the railroad or train crew, 

or the operation occurs at night, on a 

curve, or there is some other reason that 

the ad hoc crossing would be difficult 

to spot without prior knowledge of its 

existence. 

Consequently, to avoid setting this 

trap, FRA has changed the definition to 

exclude the type of ad hoc crossings that 

are not part of the DOT National 

Highway-Rail Grade Crossing inventory 

or are unmarked by signage indicating 

the presence of an at-grade crossing. If 

a crossing has a DOT inventory number 

but is not an ‘‘at-grade crossing,’’ the 

crossing does not fall within this 

definition. In contrast, if a crossing does 

not have a DOT inventory number, but 

has signage (e.g., crossbuck or stop sign) 

indicating the presence of an at-grade 

crossing, the crossing would fall within 

the definition. Although it is possible 

that a private property owner might 

quickly construct a crossing that 

included appropriate signs of the newly 

established at-grade crossing without 

the track owner’s permission, it would 

seem ill-advised to absorb such 

expenses without proper permission; 

thus, we would expect that at nearly 

every crossing with crossbucks, stop 

signs, or other appropriate signage 

indicating the presence of an at-grade 

crossing, the railroad will be able to 

identify these crossings and alert its 

employees of the need to protect such 

crossings during shoving or pushing 

movements pursuant to § 218.99. 

FRA did not propose, but has added, 

a definition of industry track in order to 

refine the requirements in § 218.101 

‘‘Leaving Rolling and On-Track 

Maintenance-of-Way Equipment in the 

Clear.’’ Industry track is defined as a 

switching track, or series of tracks, 

serving the needs of a commercial 

industry other than a railroad. Thus, it 

should be absolutely clear that a 

railroad yard does not contain industry 

track, even though, admittedly, there 

might be industry track connected to the 

yard. The RSAC recommended this 

definition as it distinguishes industry 

track from other types of tracks used for 

similar purposes (e.g., yard tracks, team 

tracks, sidings, etc.). The definition 

RSAC recommended, and which is the 

definition FRA is promulgating, is the 

same definition FRA uses in its Guide 

for Preparing Accident/Incident 

Reports. 

FRA has maintained from the NPRM 

a definition of locomotive that is 

consistent with the definition contained 

in 49 CFR 240.7. FRA has promulgated 

this definition because the shoving and 

pushing requirements of this subpart 

apply to certified locomotive engineers 

who may be operating vehicles that 

meet this definition, but do not fall 

within the more mechanically-minded 

definition used elsewhere in this 

chapter and part. FRA is aware that this 

part already contains a more 

mechanically-minded definition, see 

§ 218.5, and intends that the definition 

used in this subpart supercede that 

other definition. To clarify that there are 

two definitions of this term with 

different applicability, FRA has added 

language to the definitions to clarify 

which definition is applicable to 

subpart F and which is applicable to the 

part ‘‘except for purposes of subpart F.’’

FRA has added a definition of 

qualified which is identical to the 

definition added for 49 CFR 217.4 in 

this rule. A person cannot be qualified 

unless he or she has successfully 

completed all ‘‘instruction, training, and 

examination’’ programs required by 

both the railroad and this subpart. 

Where FRA specifies that a qualified 

employee is to do the work, it is because 

we want some assurance that the person 

either has actual knowledge, or may 

reasonably be expected to have 

knowledge, such that there is no 

question the person should be able to do 

the work in accordance with the 

railroad’s operating rules. It is 

imperative that only employees who 

have been qualified should do such 

work that the rule restricts to qualified 

employees because a railroad that 

allows unqualified employees to do 

such work is increasing the likelihood 

of an accident/incident. 

FRA defines remote control operator 

merely to aid in the clarification of 

shoving or pushing movement 

requirements involving remote control 

operations versus the requirements for 

conventional operations. Remote control 

operators are ‘‘locomotive engineers’’

per FRA’s regulations found at 49 CFR 

part 240. Traditional engineers, i.e., 

those persons qualified to operate 

locomotives in a conventional manner, 

may be trained on remote control 

equipment—and are thus also certified 

for remote control operations; in that 

situation, the term remote control 

operator applies to the conventional 

engineer. Hence, the term ‘‘remote 

control operator’’ is not limited to those 

persons who only are certified to 

operate remote control locomotives, but 

to anyone certified to operate such 

locomotives. The industry uses the 

shorthanded term ‘‘remote control 

operator’’ to refer to ‘‘remote control 

locomotive operators’’ and, because 

FRA solicited but did not receive any 

comments to the contrary, we trust that 

no one is confused by the dropping of 

the reference to ‘‘locomotives’’ in the 

terminology. FRA received one 

comment from AAR raising two 

concerns with regard to this definition. 

First, AAR correctly noted that the 

proposed definition mistakenly cited 

§ 240.5 when § 240.7 is the accurate cite; 

FRA has corrected this mistake. Second, 

AAR suggested an alternative definition 

of remote control operator because it 

stated that the industry does not 

normally describe such operators as 

locomotive engineers. AAR’s suggestion 

for an alternative definition eliminates 

the term locomotive engineer from the 

definition, and refers to the operator as 

‘‘an employee certified by a railroad to 

operate remote control locomotives 

pursuant to part 240 of this chapter.’’

FRA rejects AAR’s second suggestion 

because we do not agree with the 

distinction AAR is trying to make. 

Functionally, a locomotive engineer 

operating from a control stand in a cab 

and a remote control locomotive 

operator play the same role in switching 

operations, and, in some cases, they 

play the same role in train movements. 


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Thus, we consider it fundamental to 

both part 240 of this chapter and this 

final rule that a remote control operator 

be considered a locomotive engineer. 

FRA defines remote control zone in 

order to permit a shoving or pushing 

operation that is safe and yet protected 

differently from conventional shoving or 

pushing operations. This zone is a term 

adopted by railroads that designate one 

or more segments of track, typically in 

a yard, where remote control operators 

can safely switch cars without 

continually determining that the track is 

clear for the movement, as long as a 

prior determination has been made. 

Although the location of a remote 

control zone may be permanent, the 

regulation requires certain conditions to 

be met each time a zone is used for its 

intended purpose of allowing an 

operation without an employee assigned 

to protect the leading end in the 

direction of movement, i.e., the pull-out 

end, of the remote control movement. 

See § 218.99(d). 

FRA has noticed some confusion 

between the terms ‘‘remote control 

zone’’ and ‘‘remote control area.’’ A 

‘‘zone’’ is an integral part of remote 

control operations, whereas an ‘‘area’’

describes for informational purposes 

only a location within which remote 

control operations occur and does not 

directly affect such operations. The 

‘‘area’’ is usually created by putting up 

signs to warn employees working in the 

vicinity that moving locomotives may 

be unmanned. The ‘‘area’’ is typically 

larger than the ‘‘zone’’ as it covers 

anywhere the remote control operation 

could take place. It is important to 

create these areas so that employees are 

warned to use care in moving around 

the yard with the knowledge that using 

hand signals to convey a message to a 

moving locomotive may be in vain as 

there may not be an engineer in the cab 

to see them. Thus, these terms do not 

mean the same thing and should not be 

used interchangeably. 

FRA defines roadway maintenance 

activity to distinguish between those 

duties prescribed for roadway workers, 

including movement of on-track 

maintenance-of-way equipment other 

than locomotives, and other types of 

duties that a roadway worker may 

perform which are not so limited. In 

other words, a person designated a 

‘‘roadway worker’’ may engage in an 

activity that is not a ‘‘roadway 

maintenance activity.’’ This term is used 

to describe an exception to the general 

shoving and pushing requirements 

found in § 218.99(e)(3). 

FRA defines roadway worker in 

charge in order to provide a generic title 

to the roadway worker who is in charge 

of a roadway work group. The 

designation of such a worker enables 

FRA to require leaving main track 

switches in such a person’s charge as 

well as being the conduit for switch 

alignment information when other 

workers in the group have operated 

switches. The communication among 

group members is similar in importance 

to the communication that is required 

between train crewmembers. FRA 

intends this term to have the same 

general usage as in subpart C of 49 CFR 

part 214. 

FRA has added a definition of the 

term siding to describe an auxiliary 

track, adjacent and connected to a main 

track, used for meeting or passing trains. 

In § 218.101, the term ‘‘siding’’ is used 

in connection with an exception to 

leaving equipment in the clear. FRA 

understands that, in conversational or 

common usage, the term ‘‘siding’’ can 

also be taken to mean a customer’s 

siding or an industry’s siding. 

Meanwhile, the regulation exempts 

operations from abiding by the 

requirements for leaving equipment in 

the clear on industry tracks beyond the 

clearance point of the switch leading to 

the industry. By adding the definition of 

the term ‘‘siding,’’ FRA intends to 

clarify the narrow meaning of the term 

in this subpart from its broader, 

conversational usage. 

FRA has added a definition of 

signaled siding to this rule to describe 

a siding within a traffic control system 

(TCS) territory or within interlocking 

limits where a signal indication 

authorizes the siding’s use. In the 

NPRM, this definition was used to 

define a controlled siding, but, upon 

further reflection, FRA realizes that this 

definition actually defines a ‘‘signaled 

siding.’’ The NPRM used the term 

‘‘controlled siding’’ in its exceptions to 

making a shoving or pushing movement 

on main tracks and controlled sidings, 

without requiring point protection, if 

certain conditions or prerequisites were 

met. The reason for the change to 

signaled siding is because the term 

controlled siding is not consistently 

applied to mean the same thing on all 

railroads. The term signaled siding, 

however, more accurately captures 

FRA’s meaning and intent, which is a 

siding that is circuited (bonded) 

throughout its length. FRA also changed 

the term ‘‘centralized traffic control 

(CTC)’’ to ‘‘traffic control system (TCS)’’

to use the generic term rather than one 

specific brand of TCS. 

FRA defines switchtender because a 

few railroads still utilize a worker with 

responsibilities for lining specific 

switches for trains and a person with 

this position is not a crewmember. FRA 

defines this term because we want to 

acknowledge that this type of worker 

may be qualified to operate switches, so 

switches can be safely left in a 

switchtender’s charge. FRA has not 

defined ‘‘switchtender’’ in order to 

suggest that railroads create such 

positions or that there is any sort of 

requirement to employ switchtenders. 

FRA defines the term track is clear to 

describe the required condition of the 

track prior to initiating or continuing a 

shoving or pushing movement under 

§ 218.99. If the four conditions for 

determining that the track is clear are 

met, then if an accident occurs, it is 

unlikely to be the fault of the person 

making the determination. That is, 

when the portion of the track to be used 

is clear there should not be any rolling 

equipment, on-track maintenance-ofway equipment or conflicting on-track 

movements that could collide with the 

shoving or pushing movement; there 

should be no intervening motor-vehicles 

or pedestrians to strike as all 

intervening public highway-rail grade 

crossings, private highway-rail grade 

crossings outside the physical confines 

of a railroad yard, pedestrian crossings 

outside of the physical confines of a 

railroad yard, and yard access crossings 

are to be protected; there should be no 

intervening switches or fixed derails to 

run through or over as these devices 

should all be properly lined for the 

intended movement; and, the shoving or 

pushing movement should not 

accidentally collide with cars on a 

connecting track if the portion of the 

track to be used has sufficient room to 

contain the equipment being shoved or 

pushed. 

Within the definition of track is clear 

are the conditions for determining that 

intervening public highway-rail grade 

crossings, private highway-rail grade 

crossings outside the physical confines 

of a railroad yard, pedestrian crossings 

outside of the physical confines of a 

railroad yard, and yard access crossings 

are protected. As shoving or pushing 

movements typically occur without a 

locomotive engineer in a locomotive 

leading the movement, it is vital to 

protect crossings to prevent easily 

avoidable accidents. The definition for 

track is clear considers the crossing 

protected if the gates are in the fully 

lowered position, and have not been 

observed or known to be 

malfunctioning. Whether or not there 

are working gates, a crossing may be 

protected by stationing a designated and 

qualified employee at the crossing who 

has the ability to communicate with 

trains. A third option for protecting a 

crossing would be available when 

crossings are equipped only with 


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flashing lights or passive warning 

devices; in that situation, the crossing 

would be considered protected when it 

is clearly seen that no traffic is 

approaching or stopped at the crossing 

and the leading end of the movement 

over the crossing does not exceed 15 

miles per hour. 

In response to AAR’s comment and 

input during the RSAC process, FRA 

has modified the definition of ‘‘track is 

clear’’ from the NPRM in several places. 

FRA has removed the requirement that 

a crewmember or other qualified 

employee make a visual determination 

because that requirement is already 

found in redesignated § 218.99(b)(3), 

formerly paragraph (b)(2). FRA has 

changed the term ‘‘conflicting 

movements’’ in the proposed first 

numbered condition to ‘‘conflicting ontrack movements’’ in the final rule. The 

purpose for this change is to reflect that 

the track can be considered clear even 

if maintenance-of-way equipment is in 

the vicinity of the track to be shoved or 

pushed onto; instead, if the equipment 

is not on a track at the time the move 

is commencing or continuing, it is not 

considered a conflicting movement that 

would prevent the movement from 

being initiated. As discussed previously, 

a definition of ‘‘yard access crossing’’

has been added to ensure that railroads 

protect the crossings in railroad yards 

that someone other than an employee is 

likely to use. FRA has amended 

paragraph (2)(i) to reflect the proposed 

section analysis that crossings are 

protected when the crossing gates are in 

the fully lowered position but only 

when the gates have not been observed 

or known to be malfunctioning; FRA 

notes that the employees involved in the 

shoving or pushing move in which a 

determination that the track is clear is 

required need to share any information 

regarding malfunctioning grade 

crossings and may collectively be 

responsible for improperly protecting an 

observed or known to be malfunctioning 

crossing. Finally, FRA has added the 

qualifier in the third condition that any 

intervening ‘‘fixed’’ derails, as well as 

intervening switches, shall be lined for 

the intended movement when 

determining that track is clear; although 

FRA would also expect employees to be 

on the lookout for portable derails 

before determining that the track is 

clear, there certainly is no excuse for 

operating over an intervening fixed 

derail. 

FRA is defining, for purposes of this 

subpart, the term yard access crossing in 

order to further define what grade 

crossings must be protected to ensure 

that the ‘‘track is clear’’ (another term 

defined in this section) during shoving 

and pushing movements under § 218.99. 

A yard access crossing is a highway-rail 

grade crossing that is located within a 

yard and is either (1) open to 

unrestricted public access, or (2) open to 

persons other than railroad employees 

going about their normal duties, e.g., 

business guests or family members. A 

yard access crossing is one of the types 

of crossings that must be protected. The 

name is intended to describe a crossing 

in a railroad yard, that is regularly used 

by people who are not railroad 

employees (although railroad employees 

will, of course, also use these crossings). 

For example, one or more crossings in 

a yard may be open to anyone needing 

to get to a yard office or building. 

Family members and others may need to 

come drop off or pick up railroad 

employees, or make other pick-ups and 

deliveries; if that activity is permitted 

by the railroad and a crossing in the 

yard must be traversed, then the 

crossing shall be considered a yard 

access crossing for purposes of this rule. 

If the crossing is located away from yard 

buildings such that they would not need 

to be traversed by non-employees, then 

the crossing should not be considered a 

yard access crossing. FRA does not 

intend for every crossing in a yard to be 

considered a yard access crossing just 

because a non-employee might be 

foolish enough to take an unmarked or 

circuitous, unconventional route to the 

yard office. Of course, FRA advises each 

railroad to provide adequate signs for 

visitors to its yards so that there is no 

confusion about where to go—and thus 

no confusion for employees regarding 

which crossings are required to be 

protected. Generally speaking, we 

would expect that a crossing that 

consists of ballast thrown down to allow 

maintenance-of-way vehicles and 

employees to cross a track within a yard 

would not be the type of crossing a 

railroad would expect the members of 

the general public to cross; thus, those 

ad hoc crossings would nearly always 

not be considered a yard access crossing 

and would not need to be protected in 

accordance with the shoving and 

pushing requirements in this rule. 

Section 218.95 Instruction, Training, 

and Examination 

In paragraph (a), FRA 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. 

Thus, the pool of employees that would 

need to be covered by the program are 

those employees involved in shoving or 

pushing operations, remote control 

operations, and any operation where 

equipment might be left fouling a 

connecting track—as well as any 

employee that may be required to 

operate hand-operated switches and 

fixed derails. The written program may 

be a stand-alone program or 

consolidated with the program of 

instruction required under § 217.11 of 

this chapter. FRA anticipates that most 

railroads would choose to consolidate 

this program with the part 217 

requirement. Although FRA encourages 

the efficiencies consolidation is sure to 

bring, FRA’s expectation is that the 

consolidated written program will 

sufficiently emphasize the requirements 

of this subpart. Each railroad is required 

to establish the program no later than 

July 1, 2008, and continue to maintain 

it thereafter. 

Paragraphs (a)(1) and (a)(2) provide 

more details regarding what should be 

included in the written program. 

Paragraph (a)(1) requires that the 

program include instruction on 

consequences of noncompliance, i.e., 

that FRA can take enforcement action 

through civil penalties or 

disqualification from safety sensitive 

service. See 49 CFR part 209, subpart DDisqualification Procedures. Paragraph 

(a)(2) requires that the written program 

address the need to qualify employees 

on all aspects of the technology the 

employees will be utilizing when 

complying with the operating rules 

required by this subpart. For example, 

employees may be expected to operate 

a variety of hand-operated switches and 

must be taught how to properly operate 

them as well as what to do if a 

malfunction or deviation is detected. 

This final rule differs slightly from the 

proposal. In the NPRM, FRA requested 

comments regarding whether the final 

rule should include any specific 

reference to qualification of employees 

on the territory where they will be 

working. FRA explained in the proposal 

that it was not immediately obvious 

how this concept should be applied in 

the subpart F context. During the RSAC 

discussions and in comments, labor 

representatives asked for a more explicit 

recognition of this requirement and 

suggested revising paragraph (a)(2) to 

require that each worker be ‘‘qualified,’’

rather than just ‘‘trained,’’ on the items 

listed in that paragraph. FRA agrees and 

has changed the relevant proposed 

phrasing from ‘‘shall include training’’

to ‘‘shall include qualifying the 

employee.’’ Although this change does 

not amount to a specific requirement 

that every employee shall be territorially 

qualified, it is implicit that this type of 

qualification is required when necessary 


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to provide the knowledge required to 

comply with the subject rules. 

Locomotive engineers, including those 

that are remote control operators, are 

already required to be territorially 

qualified pursuant to part 240 of this 

chapter. Furthermore, FRA hopes to 

allay labor’s fears by reminding 

interested parties that if territorial 

qualification is a necessary component 

for complying with one of the subpart 

F operating rule requirements and that 

qualification was not provided to an 

employee, FRA is unlikely to bring an 

enforcement action against the 

employee because FRA would likely 

have difficulty proving that the 

violation was ‘‘willful.’’ See 49 CFR part 

209, app. A. Finally, FRA has revised 

paragraph (a)(2) by changing the word 

‘‘employed’’ to ‘‘necessary’’ because, in 

context, the word ‘‘employed’’ implied 

‘‘used;’’ the change clarifies that an 

employee cannot be deemed qualified to 

accomplish the work without satisfying 

the qualifications requirements in the 

program that specify any instruction, 

training and examination needed to 

operate the technology and understand 

any related procedures. 

Paragraphs (a)(3) and (a)(4) address 

the implementation schedule for this 

subpart. Paragraph (a)(3) requires that 

prior to January 1, 2009, employees 

performing duties subject to these 

requirements shall be qualified per the 

minimum requirements in this subpart. 

It is further required under paragraph 

(a)(3) that employees who are hired 

during the period following April 14, 

2008 through January 1, 2009, would 

not be provided such a grace period; 

instead, is required that new hires 

receive the proper qualification training 

before being allowed to perform duties 

subject to the requirements of this 

subpart. Furthermore, under paragraph 

(a)(4), after January 1, 2009, no further 

grace period is provided and employees 

shall receive recurrence training at least 

every three years. FRA is requiring this 

three year window because it is 

becoming a standard industry practice 

to re-qualify employees on operating 

rules at least every three years and that 

is a reasonable time period in which to 

conduct continuing education. The 

dates in paragraphs (a)(3) and (a)(4) 

were extended so that they would 

coincide with the calendar year, rather 

than the effective date of the final rule. 

Finally, pursuant to paragraph (a)(5), the 

record for each employee shall 

document qualification of employees 

under this subpart by including any 

records of required instruction, 

examination and training. 

Both AAR and APTA requested that 

FRA change the training schedule 

through a longer grandfather provision 

than the one year proposed and extend 

all the schedules for implementation so 

that the required training could be 

accomplished during the normal three 

year cycle. The latter concern is that a 

large railroad with many employees to 

qualify will only need to train about a 

third of its employees each year, while 

FRA proposed requiring all current 

employees to be trained within one year 

from the date of the rule’s publication. 

FRA is not adopting the suggestions 

because one full year should be 

sufficient time for a railroad to modify 

its operating rules according to this 

subpart and qualify its employees on the 

small number of operating rules covered 

by this subpart. Many railroads may 

find little difference, if any, between the 

subpart F requirements and their 

existing operating rules. Experienced 

employees should have little difficulty 

understanding the nuances of any of the 

new rules, so FRA does not envision 

qualifying existing employees to be 

greater than a refresher course with 

limited subjects to be covered. FRA 

perceives that the commenters may be 

expressing a frustration that the 

railroads will need to schedule this 

qualification class and not be able to 

logistically combine it with a regularly 

scheduled operating rules training class 

under § 217.11 for every one of its 

employees; i.e., employees scheduled to 

receive operating rules training this year 

would be covered, but not those 

previously scheduled for the following 

two years. FRA permits railroads to 

combine the training under this subpart 

with the § 217.11 training, but not to 

extend the deadlines for the subpart F 

training. Again, AAR and APTA’s 

requests are denied mainly because the 

qualifications requirements under this 

subpart cover a limited number of 

operating rules and subject areas that 

experienced employees should readily 

comprehend without many questions or 

concerns. 

Paragraph (b) requires that 

qualification records required by this 

subpart be retained at a railroad’s 

system headquarters and at the division 

headquarters, if any, where the 

employee is assigned. This will enable 

FRA to quickly obtain such qualification 

records upon request. FRA has not 

required a retention schedule for these 

records as we believe the section 

mandates that at a minimum: (1) 

Records must be kept for each employee 

qualified and (2) when an employee is 

requalified, there is no longer a need for 

a railroad to retain the old record as it 

has been superceded by the new one. 

Paragraph (b) also includes the option to 

allow a railroad to retain these records 

electronically in accordance with 

§§ 217.9(g) and 217.11(c) of this chapter; 

this option was added to address a 

comment from APTA for FRA to specify 

that electronic recordkeeping would be 

acceptable. 

Paragraph (c) provides a mechanism 

for FRA to review and disapprove of a 

railroad’s written program required 

under paragraph (a). It also requires 

minimum procedures and structure to 

the review process. The paragraph 

provides that the Associate 

Administrator for Safety will only 

disapprove programs of instruction, 

training, and examination required by 

this section for cause stated. As the 

disapproval decision is made for cause, 

it is significant for the railroad to 

understand exactly why FRA is 

disapproving the program; thus, 

notification of such disapproval will be 

made in writing and specify the basis 

for the disapproval decision. If the 

Associate Administrator for Safety 

disapproves the program, the railroad 

has 35 days from the date of the written 

notification of such disapproval to 

either (1) amend its program and submit 

it to the Associate Administrator for 

Safety for approval, or (2) provide a 

written response in support of the 

program to the Associate Administrator 

for Safety. If the railroad chooses the 

second option to defend the allegedly 

defective program, the Associate 

Administrator for Safety will inform the 

railroad of FRA’s final decision in 

writing. Although the rule is silent 

regarding whether a railroad may 

request an extension, FRA intends for 

the Associate Administrator for Safety, 

as the agency’s decision-maker, to have 

the flexibility to decide procedural 

issues, such as having the ability to 

grant or deny requests for extensions of 

time, as the issues arise. The Associate 

Administrator for Safety renders a final 

decision in writing which will specify 

the terms and conditions under which 

the program will be considered 

approved or disapproved. If the decision 

denies the railroad’s request in whole or 

in part, FRA intends for the railroad to 

amend its program and submit it to the 

Associate Administrator for Safety for 

approval within 35 days of the final 

decision as that is the period of time 

accorded for amending programs when 

a railroad chooses not to appeal the 

disapproval. Again, a railroad may 

request an extension of time to amend 

its program and submit it to the 

Associate Administrator for Safety for 

approval, and FRA intends for the 

Associate Administrator for Safety to 

have the flexibility to decide whether to 


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grant or deny such procedural requests. 

Although enforcement action is always 

discretionary, FRA believes that 

enforcement action is warranted when a 

railroad fails to appropriately and 

timely amend its program; for this 

reason, FRA is requiring in paragraph 

(c)(2) that a failure to submit the 

program with the necessary revisions to 

the Associate Administrator for Safety 

will be considered a failure to 

implement a program under this part. 

The approach in paragraph (c) 

recognizes that FRA will typically want 

to review such written programs during 

audits or investigations and that FRA 

should have the authority to request 

changes to the program if it does not 

meet the minimum requirements of this 

rule. The oversight authority vests with 

the Associate Administrator for Safety. 

Although FRA would have authority to 

review in detail each railroad’s program, 

FRA is not requiring each railroad to 

submit its program for review and 

explicit approval. Rather, FRA will 

review the qualification programs of the 

railroads over a multi-year cycle, in 

connection with review of the overall 

program of operating rules, to determine 

if they are effective. Among the factors 

that would be considered would be the 

extent to which the program is founded 

on appropriate task analysis, the 

completeness of the curriculum, the 

types of instructional methods, 

appropriateness of written and other 

tests, criteria for successful completion, 

and—most importantly—the ability of 

employees said to be qualified to apply 

the rules in practical situations. The 

final rule contains more details than in 

the NPRM but the overall approach is 

not significantly different. 

Section 218.97 Good Faith Challenge 

Procedures 

FRA received a wide-variety of 

comments pertaining to the proposed 

good faith challenge procedures section. 

In short, the labor organizations 

generally supported the procedures and 

offered small suggestions for 

improvement, while the associations 

representing railroad management 

generally requested more significant 

changes based on legal and policy 

concerns. The legal concerns raised by 

the comments are addressed earlier in 

this rule in the preamble. See IV. 

General Comments/Major Issues, Good 

Faith Challenge—Legal Issues. While 

most of the procedures in this paragraph 

are maintained from the proposed rule, 

FRA has amended this section to allay 

valid concerns raised by the comments 

and to correct deficiencies in enforcing 

the challenge. 

The main purpose of requiring that 

each railroad establish operating rules 

containing certain minimum 

requirements under this subpart is to 

ensure safe handling requirements of 

certain operations by employees where 

human factor caused accidents have 

historically occurred. Codifying these 

requirements will enable FRA to take 

enforcement action when necessary, and 

will therefore discourage 

noncompliance with these important 

safety rules. FRA is convinced that 

human factor caused accident rates and 

incidents of noncompliance would be 

significantly lower if each railroad were 

properly qualifying employees and 

consistently enforcing its own operating 

rules. FRA’s perception is that on 

occasion some railroad officers are 

permissive in allowing occasional 

violations of operating rules in order to 

achieve short-term perceived 

efficiencies. For example, a railroad 

officer may order an employee to shove 

blind, i.e., without ensuring that the 

track is clear for the movement, in an 

effort to finish a job quickly and get a 

train out of the yard. If the move 

originated from a direct order by a 

railroad official, the employee might 

fear challenging the railroad official on 

the order or might have complied with 

so many similar orders in the past as to 

not perceive the danger in occasionally 

violating an operating rule. Another 

example could occur when an employee 

is told he or she may leave work early 

as soon as a particular assignment is 

complete. Rather than taking the longer 

but safer route to determine that a 

switch was left properly lined, the 

employee assumes the switch was left 

properly lined, even though some time 

has passed since the employee last 

observed it. This rule is intended to 

check emergence of the culture that 

occasionally accepts some degree of 

noncompliance with a railroad’s 

operating rules. 

One essential aspect of changing this 

undesirable culture of complacency 

with some noncompliance is to 

establish better lines of communication 

between employees and railroad 

officers. Section 218.95 requires that 

railroads have a written program that 

will ensure that employees are well 

trained and qualified to do the work. A 

qualified employee should readily 

recognize when a railroad officer has 

given the employee an order that does 

not comply with the railroad’s own 

operating rules. In order to address this 

issue further, FRA is requiring good 

faith challenge procedures. 

The good faith challenge procedures 

are about establishing dialogues 

between employees and railroad 

officials. A good faith challenge is 

initiated by an employee who believes 

that if he or she obeys a particular order 

issued by a railroad official, the 

employee would violate one or more of 

the operating rules required by this 

subpart. At its core, the good faith 

challenge and its attendant procedures 

should force a railroad official to listen 

to an employee’s concern regarding 

such an order and to reconsider the 

validity of the order. FRA has created a 

mechanism for appealing the first 

official’s order to a second official in the 

situation where dialogue and 

compromise do not resolve the 

discrepancy. 

FRA has added paragraph (a) so that 

the regulation sets forth the 

responsibility of employees to provide 

consistence with other good faith 

challenge regulations promulgated by 

FRA. See 49 CFR 214.503(a) and 

214.313. This paragraph clarifies that 

whenever an employee makes a good 

faith determination that the employee 

has been directed to violate either FRA 

regulations or a railroad’s operating 

rules regarding the handling of 

equipment, switches, and fixed derails, 

the employee shall inform the railroad 

or employer (as not all rail employees 

work directly for a railroad) of the belief 

that the order may be in violation. Thus, 

in the interest of safety, an employee 

has a duty to raise challenges to 

perceived non-complying orders. With 

the addition of paragraph (a), all of the 

proposed paragraphs required 

renumbering. 

As explained in the proposed rule, 

FRA refers to the challenge as the ‘‘good 

faith’’ challenge because we do not 

intend for employees to abuse it. We 

expect bad faith challenges to never or 

rarely occur and for the challenge to 

provide, in part, for a dialogue between 

employee and supervisor that railroads 

should be permitting and encouraging 

without being prompted by regulation. 

That said, it is possible for bad faith 

challenges to occur. For example, if 

several experienced employees in a 

particular yard were all to initiate 

separate challenges where no real 

dispute could be articulated, this 

concerted effort to create a work 

stoppage or slowdown would be in bad 

faith. It might also be considered bad 

faith, or at least cause for concern, if an 

employee repeatedly made similar 

challenges that were without merit; in 

such an instance, the facts and 

circumstances of each incident would 

need evaluation as the problem could be 

inadequate qualifications or 

experience—not necessarily a challenge 

made in bad faith. It is certainly not an 

act of bad faith for an employee who 


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makes a challenge to have simply 

misinterpreted the operating rule or 

practice, and we would have serious 

concerns with a railroad that sought to 

punish an employee merely for asserting 

the challenge and being wrong. Again, 

we emphasize that we do not anticipate 

abuse of the challenge as FRA has not 

heard any anecdotal discussions of 

abuse with the already existing good 

faith challenges. Furthermore, if the 

good faith challenge is found to be 

regularly abused, FRA would consider 

amending the challenge to reduce the 

likelihood of abuse or abolishing the 

challenge during a future rulemaking. 

FRA is promulgating good faith 

challenge procedures that are more 

detailed than those established for 

roadway workers because the officer/ 

employee relationship dynamic is 

different for roadway work versus 

operations work. That is, the strict chain 

of command is more prevalent in 

operations than roadway work. Thus, a 

supervisor of roadway work may be 

more accepting of a challenge than an 

operations supervisor, e.g., a 

yardmaster. 

The concept of a good faith challenge 

applied to operations is not wholly 

unknown in the railroad industry. For 

example, we applaud the efforts of 

Metro-North Railroad, which has 

instituted a good faith challenge that is 

much broader than what FRA is 

requiring through this rule. Metro-North 

allows good faith challenges to any 

directive that would violate an 

operating rule or instruction in the 

following areas: operating rules, 

timetable, equipment operating 

instructions, electrical instructions, 

hazardous material instructions, safety 

instructions, and bulletin orders and 

general notices. Metro-North provides 

its employees the right to have a second 

supervisor review the challenge and 

lists the titles of the supervisors who are 

able to perform a second review: 

Operations Managers, District 

Superintendents, Line Superintendents, 

General and System Road Foremen, 

Chief Rail Traffic Controllers, and 

Operating Rules Department 

Supervisors. Metro-North also pledges 

that it will not subject an employee to 

discipline for a violation of a rule or 

instruction when being ordered to 

comply by a second supervisor, 

provides for the right to document the 

challenge prior to the completion of the 

tour of duty, and the right to a written 

decision if requested promptly. MetroNorth has also instituted its own form 

for tracking each challenge. Of course, 

FRA is prescribing minimum good faith 

challenge requirements only and each 

railroad may prescribe additional or 

more stringent requirements. See 49 

CFR 218.1. 

Proposed paragraph (a) is 

redesignated as paragraph (b). Paragraph 

(b) provides the general procedures for 

implementing a good faith challenge 

specific to the requirements of this 

subpart; railroads or employers of 

railroad employees subject to this 

subpart, of course, are free to implement 

a good faith challenge in areas not 

subject to this subpart as Metro-North 

has done. Paragraph (b) requires that 

each employer be responsible for the 

training and compliance by its 

employees with the requirements of this 

subpart. Obviously, railroads will have 

to instruct employees on all aspects of 

the good faith challenge or it will have 

no effect. The good faith challenge 

procedures must be made available to 

roadway workers as the definition of 

‘‘employee’’ includes ‘‘an individual 

who is engaged or compensated by a 

railroad or by a contractor to a railroad 

to perform any of the duties defined in 

this subpart. Although FRA does not 

anticipate that roadway workers would 

be involved in many, if any, shoving or 

pushing movements, the regulations 

pertaining to switches, fixed derails and 

leaving equipment in the clear would 

likely be applicable. FRA intends to take 

enforcement action where a railroad 

fails to properly instruct employees or a 

railroad’s officers fail to comply with 

implementation of the good faith 

challenge procedures. 

Paragraph (b)(1) requires that each 

employer adopt and implement written 

procedures which guarantee each 

employee the right to challenge in good 

faith whether the procedures that will 

be used to accomplish a specific task 

comply with the requirements of this 

subpart or any operating rule relied 

upon to fulfill the requirements of this 

subpart. Therefore, it is not enough for 

an employer to maintain such a 

guarantee in its written procedures as 

the employer has a duty to implement 

this guarantee. If an employee is denied 

the right to make a challenge, or is 

denied any aspect of the required 

procedures, FRA may seek enforcement 

action against the employer or 

individual responsible for denying the 

employee’s right. Of course, the 

requirement’s applicability would only 

be for a challenge to any order that 

violates a requirement in subpart F. 

Paragraph (b)(1) of the rule also 

requires a railroad to adopt and 

implement written procedures as the 

mechanism for instituting the good faith 

challenge. Such written procedures 

should not lead to protracted arguments 

that are unusually disruptive to 

operations as FRA is requiring that each 

railroad’s procedures provide for 

‘‘prompt’’ challenges. FRA’s 

expectations are that such challenges 

should be resolved in a matter of 

minutes, certainly not an hour or more. 

It is within this context that FRA also 

specified the concept that a railroad’s 

written procedures provide for 

‘‘equitable resolution of challenges;’’ by 

this requirement, FRA meant for a 

railroad officer to give deference to an 

employee’s challenge if the employee 

has suggested a safe way to do the work 

that is in compliance with the relevant 

operating rules. Follow-up to clarify the 

correct application of the rule leading to 

the challenge can be done at a later time 

or date so that a definitive answer may 

be provided by the railroad to the 

railroad officer and employee involved; 

e.g., a railroad’s manager of operating 

rules may want to issue a bulletin 

generically outlining the challenge and 

the proper application of the rule. As a 

good practice, a railroad should take 

this extra step to clarify a definitive 

answer even if the employee does not 

request such a review, as provided for 

in paragraph (d)(4), as it may be used as 

a learning experience for other 

employees and supervisors. 

FRA is revising proposed paragraph 

(a)(2), which has been redesignated as 

paragraph (b)(2). The proposed 

paragraph would have required that a 

railroad’s good faith procedures indicate 

that the challenge is not intended to 

supplant any rights or remedies 

available to the employee under a 

collective bargaining agreement or 

under the statute providing for 

employee protections found at 49 U.S.C. 

20109. As discussed earlier, the 

employee protections of this statute 

have been expanded and the authority 

to investigate whistleblower complaints 

has been transferred to DOL. The 

paragraph’s revisions require that the 

written procedures required by this 

section shall indicate that the good faith 

challenge described in paragraph (b)(1) 

is not intended to abridge any rights or 

remedies available to the employee 

under a collective bargaining agreement, 

or any Federal law including, but not 

limited to, 29 U.S.C. 651 et seq., 6 

U.S.C. 1142, or 49 U.S.C. 20109. The 

citation to 29 U.S.C. 651 et seq. is a 

reference to the Occupational Safety and 

Health Act of 1970 (OSH Act of 1970) 

that is implemented by DOL’s 

Occupational Safety and Health 

Administration (OSHA) and is designed 

to regulate employment conditions 

relating to occupational safety and 

health and to achieve safer and more 

healthful workplaces. Section 11(c) of 

the OSH Act of 1970, found at 29 U.S.C. 


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660(c), generally protects employees 

from retaliation for raising concerns or 

filing complaints alleging workplace 

safety or health violations under the 

Act. The citations to 6 U.S.C. 1142 and 

49 U.S.C. 20109 are references to 

protections afforded to public 

transportation employees and 

employees of a railroad carrier engaged 

in interstate or foreign commerce 

respectively, including employees of 

contractors and subcontractors. Both of 

these provisions are implemented by 

DOL. Although FRA views these 

statutory provisions as wholly separate 

from the regulation we are promulgating 

and FRA’s enforcement authority, the 

statutory provisions provide employees 

with rights and remedies in cases of 

retaliation for refusing to violate or 

assist in the violation of any Federal 

law, rule, or regulation related to 

railroad safety as well as taking other 

enumerated actions. The citation to 

these laws in the written procedures is 

a reminder to employees of their rights 

and remedies which provide an 

opportunity to pursue an assortment of 

relief, including punitive damages, 

against an employer for an improper 

action. 

FRA’s decision to expand paragraph 

(b)(2) is being made in conjunction with 

the deletion of proposed (b)(2). 

Proposed paragraph (b)(2) would have 

required that each railroad’s good faith 

written procedures contain a 

requirement that would provide that an 

employee making a good faith challenge 

shall not be discharged or in any way 

discriminated against for making the 

challenge. FRA viewed the proposal as 

an essential aspect of the good faith 

challenge procedures as employees 

would certainly be discouraged from 

raising a challenge if the employer is not 

prohibited from retaliating against an 

employee for making a challenge. 

However, as explained in the preamble, 

the recently amended statutory 

employee protection provisions changed 

the landscape of whistleblower 

protection for railroad employees such 

that FRA no longer perceives a need for 

a separate regulatory requirement 

against retaliatory conduct. See B. Good 

Faith Challenge—Legal Issues, 4. AntiRetaliation Provision. 

Proposed paragraph (a)(3) is 

redesignated as paragraph (b)(3). This 

paragraph requires that a railroad 

instruct affected employees on the good 

faith challenge procedures 

contemporaneously with the training 

railroads are required to provide under 

49 CFR 217.11. The idea is that an 

employee’s chance of understanding the 

proper application of the good faith 

challenge should be greatest at the time 

the employee is receiving instruction on 

the relevant operating rules. Of course, 

FRA does not expect a railroad to 

instruct an employee whose duties do 

not involve handling equipment, 

switches and derails. If an employee’s 

duties change to include these activities, 

the railroad will have to provide the 

instruction prior to assigning the new 

duties. 

The good faith challenge procedures 

are a critical component of this final 

rule, which is narrowly tailored with 

the intention to drive down the number 

of accidents caused by human factors. 

Employees learn in the classroom but 

there are often so many topics covered 

in an operating rules class that it could 

be difficult for an employee to retain 

everything taught. To compensate, 

railroads traditionally provide operating 

rule books not only to put employees on 

notice that compliance with these rules 

is expected, but also, as a reference so 

that each employee can check the rules 

and be reminded of their requirements. 

In similar fashion, FRA is requiring in 

paragraph (b)(4), previously proposed 

paragraph (a)(4), that each railroad 

provide a current copy of its written 

good faith procedures to each affected 

employee. By requiring a current copy, 

FRA has incorporated the idea in the 

proposed rule that each railroad provide 

each affected employee with any 

amendments to its written procedures 

prior to the effective date of the 

amendments. Also, like any other record 

FRA requires, a railroad would need to 

make the written procedures available 

for inspection by FRA during normal 

business hours. 

Proposed paragraph (b) has been 

redesignated as paragraph (c). Paragraph 

(c) requires additional procedures for 

each railroad to include in its written 

good faith procedures. Each of these 

more specific requirements lays the 

framework for what FRA envisions as a 

respectful dialogue between two 

individuals with differences of opinion 

on an operations issue with a safety 

component; the two individuals are, of 

course, an employee and an officer of 

the railroad or employer. 

Paragraph (c)(1) requires written 

procedures granting each employee the 

right to challenge any directive which, 

based on the employee’s good faith 

determination, would cause the 

employee to violate any requirement of 

this subpart or any operating rule relied 

upon to fulfill the requirements of this 

subpart. The good faith challenge 

procedures should eliminate any stigma 

employees have regarding challenging 

railroad officers on safety issues 

pertaining to handling equipment, 

switches and derails. Likewise, 

standardization of the challenge should 

cause railroad officers to truly reflect on 

the orders issued and whether any 

aspect of an order would result in 

noncompliance with the relevant 

railroad operating rules. 

Proposed paragraph (b)(3) contained 

two components, one of which has been 

redesignated as paragraph (c)(2). 

Paragraph (c)(2) contains a similar 

requirement to the first component of 

proposed (b)(2), but with some 

important differences. Several railroads, 

and the associations that represent 

them, objected to the proposed 

paragraph in that it stated that the good 

faith written procedures include a 

provision ‘‘that no work is to be 

performed with respect to the 

challenged task until the challenge is 

resolved.’’ The proposal was intended to 

duplicate a similar provision found in 

the roadway worker rule that required 

allowing the challenging employee ‘‘to 

remain clear of the track until the 

challenge is resolved.’’ 49 CFR 

214.311(b). And while this requirement 

has not posed any problems for 

employers of roadway workers, many 

railroads expressed dismay at this 

provision and sought additional 

amendment or deletion of this 

paragraph. 

The amendments to paragraph (c)(2) 

are intended to protect the employee 

who made the challenge from being 

required to comply with the challenged 

directive while the challenge is 

unresolved. The first part of the 

paragraph requires that the written 

program ‘‘provide that the railroad or 

employer shall not require the 

challenging employee to comply with 

the directive until the challenge 

resulting from the good faith 

determination is resolved.’’ This 

language more closely conforms to 

FRA’s other good faith challenge 

regulations than the NPRM. 

In RSAC Working Group meetings, 

FRA heard two related complaints from 

railroads regarding proposed paragraph 

(b)(3). One, several railroads commented 

that the proposed regulatory text did not 

address whether the challenging 

employee could be ordered to do other 

work while the challenge is unresolved. 

As it was FRA’s intent to allow for this 

type of work, we have added paragraph 

(c)(3) to address this issue. Paragraph 

(c)(3) requires that the written 

procedures shall provide that the 

railroad or employer may require the 

challenging employee to perform tasks 

unrelated to the challenge until the 

challenge is resolved. Of course, 

whether or not a railroad or employer 

chooses to exercise the option of 

switching an employee’s duties while 


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the challenge is being resolved is a 

decision for the railroad or employer. 

The second of the two complaints 

from railroads regarding proposed 

paragraph (b)(3) involved a concern that 

the NPRM indicated that nobody could 

do the work with respect to the 

challenged task until the challenge was 

resolved. FRA did not agree that the 

NPRM prohibited another employee 

from doing the challenged task prior to 

resolving the challenge. Meanwhile, we 

had, and still have, reservations about 

providing a railroad or employer with a 

clear path to order some other employee 

to do work that another employee is 

challenging as non-complying—and 

thus unsafe. In response to the requests 

for clarification, paragraph (c)(4) has 

been added. This paragraph requires the 

written procedures to provide that the 

employer may direct an employee, other 

than the challenging employee, to 

perform the challenged task prior to the 

challenge being resolved as long as this 

other employee is informed of the 

challenge and does not also make a good 

faith determination that the challenged 

task would violate FRA regulations 

regarding the handling of equipment, 

switches, and fixed derails as required 

in this subpart, or a railroad’s operating 

rules implementing the requirements of 

this subpart. Thus, paragraph (c)(4) 

prohibits an employer from ordering a 

second employee to do the work 

without verbally notifying this second 

employee that another employee has 

asserted a good faith challenge. At a 

minimum, for purposes of this 

paragraph being ‘‘informed of the 

challenge’’ means that the person giving 

the directive shall explain that another 

employee has made a good faith 

determination that the task does not 

comply with an operating rule or FRA 

regulation, as well as provide a synopsis 

of the specifics of the challenge. This 

option permits an employer, who is 

certain that the challenging employee is 

wrong, an opportunity to get the work 

done by another qualified person. Of 

course, any employee asked to perform 

a task that does not comply with this 

subpart has the same right to challenge 

the task, regardless of whether any other 

employee has also challenged that task. 

Also, all employees have the same 

responsibility under paragraph (a) to 

inform the employer of directives that 

violate this subpart or any operating 

rules implementing this subpart. 

The second part of proposed 

paragraph (b)(3), which has been 

redesignated as (c)(5), identifies the 

ways that a challenge may be 

‘‘resolved.’’ Each of the ways that a 

challenge may be resolved has been 

designated in its own paragraph 

numbered (i) through (iv). One, we 

expect that some railroad officers when 

challenged will realize that the 

employee’s suggested alternative 

method of operation is an acceptable 

option that is in compliance with this 

subpart and the carrier’s operating rules 

implementing this subpart. The officer 

may or may not agree that the original 

directive was non-complying but the 

challenge in this case can be resolved 

amicably. Two, after making a challenge 

and receiving an explanation or 

recitation of the rule from the officer, an 

employee may likewise realize that the 

officer’s directive was in compliance 

and decide to comply with the directive. 

Three, in some situations, the challenge 

may lead to a discussion of options on 

how the task can be performed in 

compliance with the operating rules. 

That discussion may lead to a 

realization either that both persons were 

only partially correct or there is another 

option not previously asserted. Under 

those circumstances, an amicable 

resolution would be the advancement of 

a third option that was reached through 

communication and compromise, and is 

therefore satisfactory to both parties. 

Four, there may be instances when an 

officer believes the directive is 

permitted by the operating rules, and 

that either the employee’s challenge is 

being made in bad faith or there is no 

reasonable alternative to the direct 

order; in those situations, the written 

procedures will provide for review as 

further determined under paragraph (d) 

of this section. 

Proposed paragraph (c), which was 

redesignated as paragraph (d), requires 

each railroad to provide additional 

written procedures in the event that a 

challenge cannot be resolved amicably. 

Thus, the additional procedures in this 

paragraph are required to be complied 

with when the person issuing the 

directive determines that the employee’s 

challenge has not been made in good 

faith or there is no reasonable 

alternative to the direct order. As it is 

often difficult to determine that a person 

is acting in bad faith, the person issuing 

the directive should typically give the 

challenging employee the benefit of the 

doubt that the challenge is being made 

in good faith and attempt to resolve the 

challenge without the need for further 

review. 

In the event of a stalemate, where the 

challenging employee and the person 

issuing the directive cannot agree to 

resolve the challenge, paragraph (d) 

requires that the written procedures 

provide that four additional 

requirements be met. Paragraph (d)(1) 

carries over from the NPRM the 

requirement that an immediate review 

by another railroad or employer officer 

be provided. The immediate review 

must be held by another officer who 

cannot be unduly influenced by the 

officer who issued the challenged 

directive or the review will not have the 

appearance of fairness. FRA expects that 

fair review will be accomplished if the 

reviewing officer is a different officer 

who is not a subordinate of the officer 

who issued the challenged directive. 

FRA envisions this immediate review as 

a quick check with another officer that 

should not be unduly burdensome. 

In the NPRM, FRA requested 

comments regarding whether some 

smaller railroads might have difficulty 

complying with an immediate review 

requirement. FRA did receive 

comments, mostly oral during the RSAC 

Railroad Operating Rules Working 

Group meetings, explaining that the 

smallest railroads would likely 

encounter problems providing an 

immediate review when so few officers 

would be available to conduct them. 

Consequently, FRA has decided to 

revise the requirement in paragraph 

(d)(1) so that the immediate review will 

not be mandatory for each railroad with 

less than 400,000 total employee work 

hours annually. 

In paragraph (d)(1)(i), FRA retains 

from the NPRM the requirement that the 

immediate review not be conducted by 

the person issuing the challenged 

directive, or that person’s subordinate. 

APTA commented that it is not always 

clear what other officers are in another’s 

chain of command, and whether one 

officer is subordinate to another. 

Although not directly addressed in the 

rule, the rule’s silence on this issue is 

intended to provide each railroad with 

the flexibility to describe its approach in 

its procedures and how the intent of the 

rule will be followed. Similarly, during 

the RSAC Railroad Operating Rules 

Working Group meetings, AAR and 

APTA voiced opposition to the idea of 

the promulgation of a good faith 

challenge. Both associations were 

concerned that implementation of such 

a challenge would pose numerous 

logistical difficulties as well as a 

perceived high potential for abuse by 

employees. One concern raised was that 

on-time performance could easily be 

compromised if an employee raised a 

challenge and a quick compromise 

solution could not be reached. The rule 

does not need to address this issue as 

each railroad or employer needs to 

address it by setting up effective 

protocols for supervisors to follow when 

issuing direct orders to proceed; i.e., 

each yardmaster or other supervisor 

should know who to contact in the 

event that an immediate review is 


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needed. A railroad may wish to provide 

contact lists to each supervisor of other 

supervisors so that each supervisor has 

multiple people to contact in the event 

a challenge needs immediate review. 

Again, the intent of the rule is to 

provide for an immediate review by a 

railroad officer who cannot be unduly 

influenced by the officer who issued the 

initial order so that a fair review may be 

perceived. As explained previously in 

this analysis, Metro-North has 

addressed this issue in its good faith 

challenge program and has thus 

provided an example of how to address 

this issue. 

The requirement in paragraph 

(d)(1)(ii) is based on a requirement in 

proposed paragraph (c)(1). During an 

immediate review, the reviewing officer 

has the same options to resolve the 

challenge as the person who issued the 

challenged directive, however, the 

officer making the immediate review 

shall also have the option described in 

paragraph (d)(2). FRA believes that there 

has to be some finality to the immediate 

review process and that one review is 

enough. Of course, paragraph (d)(1) 

provides the minimum immediate 

review requirements and a railroad is 

not prohibited from providing a second 

immediate review or other additional 

requirements. 

Paragraph (d)(2) provides that if the 

officer making the railroad’s or 

employer’s final decision concludes that 

the challenged directive would not 

cause the employee to violate any 

requirement of this subpart or the 

railroad’s or employer’s operating rule 

relied upon to fulfill the requirements of 

this subpart and directs the employee to 

perform the challenged directive, the 

officer shall further explain to the 

employee that Federal law may protect 

the employee from retaliation if the 

employee refuses to do the work and if 

the employee’s refusal is a lawful, good 

faith act. This paragraph is based on the 

option in proposed paragraph (b)(3) that 

suggested permitting an officer to 

resolve a challenge by issuing a direct 

order to proceed with the work as 

initially ordered. There may be 

situations where the officer making the 

final decision concludes that the direct 

order would not violate this subpart, or 

any operating rule relied upon to fulfill 

the requirements of this subpart; in that 

situation, the officer may direct the 

employee to perform the challenged 

directive after explaining to the 

employee that Federal law may protect 

the employee from retaliation if the 

employee refuses to do the work and if 

the employee’s refusal is a lawful, good 

faith act. This notification requirement 

serves several purposes. One, it reminds 

the employee of the statutory antiretaliation protection prior to the 

employee choosing between doing or 

refusing to do the work. Two, it reminds 

the employee that if he or she refuses to 

do the work, the statutory protections 

will not protect him or her from 

retaliation if the employee is acting 

unlawfully or in bad faith. Three, the 

officer’s act of providing this 

notification to the employee also 

provides a reminder to the officer that 

the employee is likely protected from 

retaliation for refusing to do the work 

except where there is evidence proving 

that the employee’s refusal is unlawful 

or made in bad faith. An officer ordering 

an employee to do such work would be 

expected to have a high degree of 

confidence in issuing such an order, and 

we would expect railroads and 

employers to carefully instruct officers 

on these procedures, as a challenging 

employee might file a complaint or 

lawsuit based on the failure to follow 

proper good faith challenge procedures 

or for later retaliation based on a refusal 

to do the work. 

Paragraph (d)(3) maintains a similar 

requirement from proposed paragraph 

(c)(2) that the written procedures 

provide the employee with an 

opportunity to document electronically 

or in writing any protest to the railroad 

or employer’s final decision before the 

tour of duty is complete. The employee 

shall also be afforded the opportunity to 

retain a copy of the protest. Examples of 

electronic records may include, but are 

not limited to, recorded radio 

communications, electronic mail (i.e., 

e-mail), or filling out a computer form 

or database. If electronic recording is 

permitted by the railroad’s program, 

railroads will need to maintain methods 

for providing the employee with a copy 

of that record. Maintaining such a 

record facilitates the employee’s ability 

to follow-up on any further review 

requested under paragraph (d)(3). FRA 

considered whether to require that the 

employee be provided with the 

opportunity to create this record 

immediately following the direct order 

to proceed with the task, however, FRA 

has accepted several railroads’

arguments that this could prove too 

disruptive to operations, especially 

passenger and commuter operations 

where on-time performance is critical. 

Additional time delays would result if 

an employee had the right to 

immediately document the challenge 

before returning to work. FRA has 

addressed this issue by requiring in 

paragraph (d)(3) that the employee be 

afforded an opportunity to document 

the protest electronically (e.g., by radio 

transmission to be recorded) or in 

writing any time ‘‘before the tour of 

duty is complete.’’ This additional 

requirement also reflects an existing 

statutory requirement that entitles an 

individual to document a protest of a 

direct order of a railroad carrier official 

or supervisor under protest 

communicated to the official or 

supervisor. 49 U.S.C. 21304. Of course, 

‘‘the absence of such a protest will not 

be viewed as warranting a presumption 

of willfulness on the part of the 

employee who might have 

communicated it.’’ 49 CFR part 209, 

app. A, ‘‘Civil Penalties Against 

Individuals.’’ Paragraph (d)(3) does not 

supercede the statutory requirement nor 

does it exceed it. Given the existing 

statutory requirement, the time needed 

to document a protest should not pose 

a new burden on railroads. 

FRA has deleted proposed paragraph 

(c)(3) which stated that the written 

program ‘‘provide that the employee be 

orally advised that completing the work 

as ordered will not subject the employee 

to penalties or consequences for 

noncompliance with this subpart.’’

When FRA published the NPRM, this 

paragraph was intended to further 

clarify existing statutory rights under 49 

U.S.C. 21304. Upon further reflection, 

FRA found the proposed paragraph 

could be confusing in that it might 

suggest that a railroad officer or 

supervisor could bind the FRA in the 

use of the agency’s enforcement 

discretion. This might be true even 

where the railroad official misapplied 

the law, or the individual was not 

entitled to the right. APTA also raised 

a valid concern that the proposed 

paragraph could easily be 

misinterpreted in another way; e.g., an 

employee who invokes a good faith 

challenge on a shoving move may 

believe that he can’t be disciplined, or 

have certification revoked if the 

employee is a locomotive engineer, for 

passing a stop signal related to that 

same movement even though the officer 

did not give the crew authority or 

permission to pass the signal. Despite 

the fact that this paragraph was deleted 

and that employees are not required to 

be orally advised that completing the 

work as ordered will be a defense to 

penalties or consequences of 

noncompliance under this subpart, 

section 21304 is still applicable. Thus, 

‘‘[a]n individual is deemed not to have 

committed a willful violation if the 

individual was following the direct 

order of a railroad carrier official or 

supervisor under protest communicated 

to the official or supervisor.’’ 49 U.S.C. 

21304. 


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Proposed paragraph (c)(4), 

redesignated as paragraph (d)(4), 

requires that the direct order procedures 

shall also provide the employee with 

the right to one more review by a 

railroad officer designated by name or 

title in the written procedures who will 

make the final interpretation of the 

applicable operating rule. The railroad 

is not prohibited from designating more 

than one individual by name or title, 

although it would likely be useful to 

have one person or office overseeing 

these interpretations. In the proposed 

rule, FRA did not specify a deadline for 

issuing the verification decision; after 

further consideration, FRA has decided 

that some reasonable time limit should 

be imposed to prevent a railroad from 

taking an inordinate amount of time to 

respond to an employee’s request. FRA 

has decided to require that a railroad 

issuing a verification decision must do 

so within 30 days after the expiration of 

the month during which the challenge 

occurred. Thus, regardless of whether 

the challenge occurred on November 1st 

or 30th, the verification decision must 

be provided to the employee no later 

than December 30. FRA considered 

imposing a strict 30-day deadline, but 

decided that this type of deadline, 

patterned after the one found in 49 CFR 

225.11, for reporting of accidents/ 

incidents, provides greater flexibility 

without unduly delaying the 

verification decision. This paragraph 

was also changed to require that the 

employee make the request for further 

review in writing; the proposed 

paragraph left open the possibility of a 

verbal request which, if left 

unanswered, could potentially lead to 

arguments over whether the request was 

actually made. FRA is not requiring that 

the written request be on a form, but a 

railroad may choose to create one. 

However, rather than permit the 

employee to decide whether or not the 

railroad should provide the employee 

with a written decision as in the NPRM, 

the railroad is required to provide the 

employee with a written decision so 

that there is no dispute regarding 

whether the railroad fulfilled this 

obligation. A final written decision will 

also permit FRA with the opportunity to 

more easily investigate claims that the 

challenge had merit or the railroad is 

not properly applying the Federal 

regulations. 

FRA did not propose, but has added, 

paragraph (e) to address recordkeeping 

and record retention issues pertaining to 

the good faith challenge procedures. For 

example, in the NPRM, FRA required 

each railroad to maintain written 

procedures, but did not specify where 

the procedures needed to be kept so 

FRA could inspect or copy them. 

Paragraph (e)(1) addresses this issue by 

requiring a copy of the procedures to be 

retained at both the railroad’s system 

headquarters and at each division 

headquarters. This paragraph also 

explains that the procedures shall be 

made available to representatives of the 

FRA for inspection and copying during 

normal business hours. 

In paragraph (e)(2), FRA has added a 

new record retention requirement for 

any written good faith challenge 

verification decision made in 

accordance with paragraph (d)(4). The 

good faith challenge procedures are 

designed so that most challenges will be 

resolved on the spot through employee/ 

officer discussions that will not produce 

a written decision. When the conflict 

between the parties cannot be resolved 

on the spot, a written decision is 

required. FRA needs to be able to review 

those written verification decisions to 

analyze what types of conflicts did not 

get resolved amicably. Those types of 

challenges may have some merit and 

result in further FRA involvement to 

resolve underlying safety issues. The 

written decision should provide enough 

background to understand the challenge 

by citing the applicable rules and 

procedures, and providing an in-depth 

explanation of any interpretations 

necessary to analyze the factual 

circumstance. FRA is also requiring that 

those decisions be retained for at least 

one calendar year after expiration of the 

year during which the decision was 

issued. The requirement for record 

retention, while not proposed, follows 

as a logical requirement from proposed 

paragraph (c)(4) permitting the 

employee to request that the railroad 

provide a written decision. We cannot 

fathom that a railroad would produce 

such a written decision and not retain 

it for some reasonable period thereafter 

in order to retain an unaltered original 

and possibly to use as a reference to 

help address future, similar challenges. 

Paragraph (e)(3) was added to clarify 

that each railroad is authorized to retain 

any records required by this section in 

an electronic format so long as the 

electronic records are kept in 

accordance with the standards set forth 

in § 217.9(g)(1) through (5) of this 

chapter. Of course, any records required 

by this section may be maintained in 

either written or electronic form at the 

option of the railroad. 

Section 218.99 Shoving or Pushing 

Movements 

Although the majority of this section 

remains the same as the proposed rule, 

a number of changes have been made in 

consideration of the comments received. 

Four commenters raised specific issues 

in written comments: BMWED, AAR, 

UTU, and BLET. The discussions of 

these comments are integrated into the 

paragraphs under which they apply. 

Generally, in conventional operations, 

shoving or pushing movements occur 

when the controlling locomotive is not 

leading the movement because the 

locomotive engineer is not in a position 

to have an unobstructed view of the 

track in the direction of the shoving 

movement. However, in remote control 

operations, there may be an issue with 

respect to point protection in either 

direction of movement. The terms 

‘‘shoving’’ and ‘‘pushing’’ have the same 

meaning but FRA uses both terms 

because our nation’s railroads have split 

in the usage of each term. 

The requirement proposed in 

paragraph (a) has been redesignated as 

paragraph (a)(1) and revised, but the 

reasons behind the requirement remains 

the same. The reasons behind this 

paragraph are to ensure that (1) each 

railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The revisions to this 

paragraph are intended to clarify FRA’s 

intent. 

Paragraph (a)(2) adds a new 

requirement that the shoving or pushing 

movement requirements of this section 

do not apply to free rolling equipment—

a clarification that was not in the 

proposed rule. FRA added this 

clarification regarding free rolling 

equipment because several participants 

at the RSAC working group meetings 

were unclear regarding whether FRA 

intended the rule to apply to switching 

activities that result in free rolling 

equipment, in which a shoving or 

pushing movement is the initial 

movement that allows equipment to roll 

free without power attached. The 

addition of paragraph (a)(2) is intended 

to clarify that this section does not 

apply to the rolling equipment once it 

is free rolling. It would be impossible to 

engage in this type of acceptable 

switching activity if a determination 

would need to be made that the ‘‘track 

is clear’’ prior to each release of a free 


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rolling car. Therefore, the rule does not 

apply to kicking, humping, or dropping 

cars as FRA does not consider those 

activities to be controlled shoving or 

pushing movements. Furthermore, 

FRA’s experience is that each railroad 

that permits these activities maintains 

operating rules that require employees 

to protect free rolling equipment from 

traveling over highway-rail grade 

crossings, pedestrian crossings, and 

yard access crossings. FRA is rejecting 

the idea of regulating the movement of 

free rolling equipment initiated by a 

shoving or pushing movement because 

we have not seen an increase in the 

number of accidents/incidents in this 

area attributed to human factor causes; 

of course, if we document an increasing 

trend of such accidents/incidents, FRA 

will consider whether to initiate a 

rulemaking. 

As specified in paragraphs (b) through 

(d), shoving or pushing movements can 

be made safely if precautions are taken. 

This section states those minimum 

precautions and requires that each 

railroad have in effect specific operating 

rules incorporating the precautions. The 

precautions take direct aim at those 

human factor causes that have been 

identified as causing the increasing 

trend of noncompliance and accidents. 

As specified in paragraph (e), there are 

other movements that could be 

considered shoving or pushing 

movements but FRA believes these 

other movements can be treated 

differently as they are safe if certain 

operating conditions are met. 

Paragraph (b)(1) requires that prior to 

rolling equipment being shoved or 

pushed, the locomotive engineer and 

the employee directing the move shall 

be required to participate in a job 

briefing which will cover the means of 

communication to be used and how 

protection will be provided. The job 

briefing requirement in this paragraph, 

which remains the same as the proposed 

paragraph, requires that the locomotive 

engineer (conventional or remote 

control operator) shall have a job 

briefing detailing the method of 

communication used to relay 

information, e.g., radio, hand signals, or 

pitch and catch. If the employee 

providing protection is not part of the 

crew, the job briefing shall include how 

that qualified employee will provide 

that protection; for example, if a 

yardmaster is the qualified employee, 

the conductor directing the move would 

explain in the briefing that the 

yardmaster intends to provide point 

protection by viewing a monitor that 

provides a real-time image of the track 

from a camera set up in the yard. Under 

this scenario, the yardmaster would be 

performing covered service under the 

hours of service laws. 

Paragraph (b)(2) of the final rule 

contains the requirement that during the 

shoving or pushing movement, the 

employee controlling the movement 

shall not engage in any task unrelated to 

the oversight of the shoving or pushing 

movement. This requirement, which 

was not in the proposed rule, was added 

to address a concern brought to FRA’s 

attention following the fatal accident 

involving a remotely controlled 

movement that led to FRA’s issuance of 

Safety Advisory 2007–01. 72 FR 2333. It 

was also a position raised by BMWED, 

UTU and BLET in their comments. In 

both the NPRM and this final rule, the 

preamble addresses the problem that 

remote control operators may not 

always have complete situational 

awareness of the movement even if the 

operator is observing the movement. 

Obviously, if a remote control operator 

or other employee controlling the 

shoving or pushing movement is 

distracted by engaging in an unrelated 

task, that person’s disengagement with 

the movement, even briefly, may 

increase the probability or severity of an 

accident/incident. For example, in the 

accident in Manlius, New York that was 

the subject of Safety Advisory 2007–01, 

FRA raised the issues of ‘‘multi-tasking’’

and trying to accomplish other tasks 

that cause the person to divert attention 

from providing point protection. These 

are two separate issues. The issue of 

‘‘multi-tasking’’ as raised in the notice 

involved a remote control operator who 

allegedly operated from the passenger 

seat of a moving motor vehicle; such 

moves are inherently fraught with 

hazards, although this was not the cause 

of this accident/incident. The issue of 

diverted attention occurred after the 

operator determined that the track was 

clear for the entire length of the 

movement; instead of looking down the 

track waiting for his train to come into 

view, FRA’s investigation suggested that 

the remote control operator (RCO) may 

have been attending to duties unrelated 

to the movement as the RCO did not 

observe the collision and initiated a 

brake application only after hearing a 

radio transmission from the yardmaster. 

By requiring that the employee 

directing the movement not engage in 

any task unrelated to the oversight of 

the movement, the regulation increases 

the probability that the controlling 

employee will be in a position to reduce 

the severity of any accident that might 

occur. FRA considers a ‘‘task unrelated 

to the oversight of the movement’’ to be 

any activity that carries significant 

potential to distract the person directing 

the movement from adequately 

overseeing the movement. The 

unrelated task would most likely be a 

work related activity, but certainly tasks 

of a personal nature could be considered 

significantly distracting. Any unrelated 

task that would remove the person from 

a location where oversight could be 

effectively performed is strictly 

prohibited. The following are not 

significantly distracting activities and 

are arguably not even ‘‘tasks:’’

momentary glances away from the 

direction of movement; acknowledging 

another person’s presence; and 

sneezing. In contrast, the filling out of 

any form, e.g., a switch list, would be 

a distracting, unrelated task that can not 

be safely accomplished while the 

movement is occurring. 

FRA acknowledges that its adoption 

of the requirement in paragraph (b)(2) 

will not prevent all accidents. A rule 

that requires a controlling employee to 

continuously observe the leading end of 

the movement might be more effective 

in preventing accidents; however, as 

FRA stated earlier, a ‘‘continuous 

observation’’ requirement would force 

more employees to either walk or ride 

the point—creating an even greater 

vulnerability that someone could get 

hurt. An employee walking the point 

could slip, trip, or fall, and an employee 

riding the point could be injured or 

killed in any collision with another 

piece of rolling equipment. In addition, 

this final rule’s required determination 

that the track is clear prior to initiating 

the shoving or pushing movement 

should substantially reduce the 

likelihood of any collisions. That is, a 

determination that the track is clear 

includes the determination that ‘‘the 

portion of the track to be used is 

unoccupied by rolling equipment, ontrack maintenance-of-way equipment, 

and conflicting on-track movements.’’

The application of FRA’s final rule 

reduces the likelihood of an accident 

between a carman operating a pickup 

truck across a yard crossing if the 

pickup truck is crossing the track at a 

type of yard crossing to be protected 

(i.e., a ‘highway-rail grade crossing’ or 

‘‘yard access crossing’’ as those terms 

are defined under § 218.93). In addition, 

the severity of a collision between a 

shoving or pushing movement and offtrack maintenance-of-way equipment 

may be reduced by an alert employee 

protecting the point who responds 

quickly to stop the movement. 

Meanwhile, railroad employees 

operating off-track machinery will need 

to continue to be careful to follow 

railroad operating rules that require 

them to protect themselves when 


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crossing tracks at unprotected yard 

crossings. 

Former paragraph (b)(2), which has 

been redesignated as paragraph (b)(3) 

states the requirements for establishing 

point protection during shoving or 

pushing movements. The rule requires 

that only a crewmember or other 

qualified employee shall provide point 

protection. In this context, 

crewmembers or qualified employees 

include remote control operators 

working together, members of other 

train crews, and other employees, 

regardless of job title, who are qualified 

to perform the job (see definitions of 

‘‘employee’’ and ‘‘qualified’’ in this 

subpart). The requirements of this 

section address work that is ‘‘covered 

service’’ under the hours of service 

laws. 49 U.S.C. 21101, et seq. Thus, to 

be a qualified employee, the employee 

will need to receive instruction and 

testing, be subject to Federal regulations 

controlling alcohol and drug use and 

hours of service recordkeeping provided 

for, respectively, in parts 217, 219 and 

228 of this chapter. The purpose of 

requiring a qualified employee, as 

opposed to any employee, is to prevent 

persons that may not be qualified (e.g., 

taxi drivers, crane operators, or clerks) 

from making safety sensitive operating 

decisions without the proper instruction 

and safeguards in place. Incidently, if an 

unqualified person were to perform this 

work in violation of the rule, the person 

would still have to be accounted for 

under the hours of service laws or the 

railroad would incur additional 

liability. 

FRA has decided that some of the 

proposed requirements in paragraph 

(b)(2)(i) needed alteration based on 

comments received and the 

consideration of the facts surrounding 

the accident that led to the issuance of 

Safety Advisory 2007–01. The purpose 

of this paragraph remains the same, 

although the final rule’s requirements 

are altered from that originally 

proposed. Shoving accidents often occur 

because a train crew makes a shoving 

movement without determining that the 

track is clear in the direction of 

movement. The proposed rule suggested 

a requirement that the employee 

providing point protection visually 

determine, for the duration of the 

shoving or pushing movement, that the 

track is clear within the range of vision 

or for the complete distance to be 

shoved or pushed. AAR commented that 

the phrase ‘‘the duration of the shoving 

movement’’ is problematic as there 

could be instances where an employee’s 

vision is momentarily obscured and so 

it would not be possible to always 

provide a continuous, visual 

observation for the entire duration of the 

movement. Further discussions at the 

RSAC working group meetings raised 

additional concerns. Both labor and 

management representatives were 

concerned that the requirement meant 

that every shoving or pushing 

movement would require an employee 

to be in position to watch the leading 

end of the movement even when doing 

so would place the employee in danger. 

The proposed rule would have required 

employees watching shoving and 

pushing movements to walk greater 

distances than most current operating 

rules and practices require, the result 

being a greater likelihood of 

experiencing slip, trip or fall injuries. 

FRA agrees with these comments. We 

certainly did not intend to reduce one 

kind of accident only to increase 

another type. 

AAR suggested an alternative to ‘‘the 

duration of the shoving movement’’

proposed requirement. AAR’s 

suggestion was to change the first 

sentence in paragraph (b)(2)(i) to read as 

follows: ‘‘[v]isually determining that the 

track is clear and will remain clear 

either within the range of vision or for 

the complete distance the equipment is 

to be shoved or pushed.’’ This 

alternative is similar to FRA’s proposal 

and many current railroad operating 

rules, however, the plain meaning of the 

alternative does not reflect how it is 

typically interpreted. The plain meaning 

of this alternative appears to also 

contain the expectation that a 

continuous, visual observation for the 

entire duration of the movement is 

required even if the ‘‘the duration of the 

shoving movement’’ language has been 

removed. Meanwhile, a near universal 

position was that employees can safely 

make shoving or pushing movements 

without continuously observing the 

leading car for the entire distance of the 

movement. The key to a safe move is the 

determination that the portion of the 

track to be used for the intended move 

is clear. The determination that the 

track is clear will be made prior to 

initiating a shoving or pushing 

movement, but additional portions of 

track may be determined to be clear 

during the duration of one continuous 

shoving or pushing movement. 

Furthermore, FRA did not agree with 

AAR’s suggestion to include the phrase 

‘‘and will remain clear’’ as this phrase 

adds a condition that is outside of the 

control of the employee providing the 

point protection. 

After considering the comments, FRA 

realized that its proposed rule was also 

flawed in that it was repetitive. The 

definition of ‘‘track is clear’’ and the 

proposed point protection paragraph 

both required that a crewmember or 

qualified employee make a visual 

determination. This repetitive issue has 

been resolved by removing the visual 

determination requirement from the 

‘‘track is clear’’ definition. 

The final rule differs from the 

proposed rule in that the determination 

that the track is clear no longer 

explicitly requires that the 

determination can be made ‘‘either 

within the range of vision or for the 

complete distance the equipment is to 

be shoved or pushed.’’ FRA believes this 

proposed phrase merely added 

extraneous language, and thus it has 

been deleted from the final rule. As a 

practical matter, the deletion of this 

phrase should not have any impact on 

how an employee provides point 

protection. If a crewmember or other 

qualified employee responsible for 

controlling a shoving or pushing 

movement can ensure that every 

requirement specified in the definition 

of track is clear has been met, the 

employee may initiate and continue the 

movement for the full distance of the 

movement. For example, if a shoving 

movement of less than 100 car lengths 

is to be made onto track that is capable 

of holding 100 cars and a crewmember 

or other qualified employee observes 

that the track is clear for the entire 

length of the track, the employee may 

initiate movement onto or down the 

track; as the shoving movement 

continues, the employee will provide 

updates to the locomotive engineer, as 

necessary, until the entire movement is 

complete. Meanwhile, if the employee 

providing the visual determination that 

the track is clear can only see part of the 

way down the track to be shoved or 

pushed, and does not have the option to 

travel ahead of the movement to 

determine that the track is clear for the 

entire length of the movement, the 

employee shall only be permitted to 

initiate movement for the distance that 

the employee can visually ensure that 

the track is clear. In this second 

example, the facts are the same except 

that there is curvature in the track that 

does not allow the observing employee 

to see more than 20 car lengths at a 

time; in this situation, the employee 

may initiate movement onto or down 

the track but must have either 

continuous visual contact with the 

locomotive engineer or be in radio 

communication with the locomotive 

engineer, so as to provide distance 

instruction on how far the locomotive 

engineer may safely shove, until the 

shoving or pushing movement is 

complete. In other words, there is 

nothing in this rule that prohibits 


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incremental or multiple determinations 

that the track is clear until the complete 

distance to be shoved or pushed is 

traversed. 

In paragraph (b)(3), the term ‘‘rolling 

equipment,’’ which is defined in 

§ 218.5, is used. The definition of 

‘‘rolling equipment’’ states that the term 

‘‘includes locomotives, railroad cars, 

and one or more locomotives coupled to 

one or more cars.’’ Thus, the definition 

of ‘‘rolling equipment’’ explicitly 

includes locomotives. Meanwhile, FRA 

is aware that some railroads may 

incorrectly consider any movements 

involving consists made of locomotives 

alone not to be shoving or pushing 

movements. By adding that lite 

locomotives are also covered in 

paragraph (b)(3) and defining ‘‘lite 

locomotive consist’’ in this subpart, 

FRA is ensuring that lite locomotive 

consists are covered by the shoving or 

pushing movement requirements. To do 

otherwise would permit lite locomotive 

consists to shove blind without 

adequate point protection. 

FRA has expressed the intention to 

provide railroads and qualified 

employees with the option of making 

the visual determination required in 

paragraph (b)(3)(i) with the aid of 

monitored cameras or other 

technological means, provided that the 

technological means and attendant 

procedures provide an equivalent level 

of protection to that of a direct visual 

determination. Railroads shall ensure 

that any monitored camera have 

sufficient resolution and real time 

coverage to provide protection equal to 

a direct visual determination. 

Concerning attendant procedures, one 

such procedure may be for an employee 

viewing a monitor to communicate 

updates to the locomotive engineer or 

controlling crewmember at appropriate 

intervals. FRA equates the employee 

monitoring the camera to the employee 

controlling the movement who must not 

engage in any task unrelated to the 

oversight of the movement; thus, each 

railroad utilizing such cameras shall 

implement attendant procedures 

limiting any of the monitoring 

employee’s ancillary duties that might 

distract from the employee’s ability to 

provide continual visual determinations 

and communication. 

FRA also amended paragraph (b)(3)(i) 

to add a requirement that if a railroad 

intends to use monitored cameras or 

other technology to determine that the 

track is clear, the railroad is required to 

abide by the procedures prescribed in 

this section as well as the additional 

requirements prescribed in appendix D 

to this part. As explained in the analysis 

to appendix D, the addition of this 

mandatory appendix is to establish 

safeguards for establishing technology 

driven point protection. The alternative 

would continue the haphazard 

application of such technology, without 

appropriate assurances of Federal, State, 

or local governmental input when such 

technology potentially impacts the 

general public. 

Other technological means may 

include, but are not limited to, a 

completely circuited track indicating 

track occupancy, and electronic switch 

position indicators. AAR requested that 

FRA consider shove lights to be an 

‘‘equivalent technological means.’’

Shove lights are lights that are 

sequentially circuited on the ends of 

tracks to indicate a shoving movement’s 

approach to the opposite end of a track. 

Shove lights are limited, however, as 

they do not show if the track is 

occupied between the entrance of the 

track and the beginning of the track 

circuit; in other words, shove lights 

alone cannot provide absolute 

notification that the track is clear of 

equipment. Consequently, FRA is 

willing to consider shove lights as an 

acceptable technological alternative to 

visually protecting the point as long as 

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. 

The requirements listed in proposed 

paragraph (b)(2)(ii), redesignated as 

paragraph (b)(3)(ii), state that a 

crewmember or other qualified 

employee give signals or instructions 

necessary to control the movement. 

Such signals or instructions may be 

made verbally, i.e., either via face-toface or radio communication. However, 

any effective method of communication 

is acceptable. For example, some 

acceptable forms of communication 

include, but are not limited to, hand 

signals, whistle signals, and electronic 

signals utilizing remote control 

technology. 

In paragraph (c), FRA requires that all 

remote control movements be treated as 

shoving or pushing movements, except 

when the remote control operation is 

being conducted like a conventional 

pulling operation such that the operator 

controlling the movement is riding the 

leading locomotive in a position to 

observe conditions ahead in the 

direction of movement. Under this 

situation, the operator is riding the 

point in a position to visually determine 

that the track ahead of the movement is 

clear, and is certainly in a position to 

determine the direction the equipment 

is moving. One particular reason for a 

remote control operator to ride the point 

is to be in a position to observe that 

grade crossings are not obstructed. 

Paragraph (c) also states two 

additional requirements for remote 

control operations during shoving or 

pushing movements. The first 

additional requirement, paragraph 

(c)(1), is necessary so that the remote 

control operator, either directly or 

indirectly, can confirm that the 

movement is observed moving in the 

direction intended. If the remote control 

operator does not confirm or receive 

confirmation that the equipment is 

traveling in the intended direction, the 

operator must immediately stop the 

movement. Accident reports indicate 

that remote control operators who have 

forgotten which way the controlling 

locomotive is headed may 

unintentionally make a reverse 

movement when a forward movement 

was intended, or vice versa; had these 

operators been abiding by this rule, at 

least some of these types of accidents 

could have been avoided by abiding by 

this rule. Further discussion on this 

issue may be found in the 

SUPPLEMENTARY INFORMATION section 

titled ‘‘Situational Awareness.’’

FRA suggests that each railroad 

instruct its remote control operators 

that, whenever possible, the operator or 

crewmember should view the 

controlling locomotive when 

determining the direction of movement, 

as opposed to any other piece of 

equipment in the movement. It is not 

always logistically possible or safe for 

the operator or crewmember to have 

direct visual contact with the 

controlling locomotive when initiating 

movement—which explains why FRA is 

not requiring it. However, where it is 

logistically possible and safe to do so, 

that should be the preferred method. If 

a person is viewing the direction the 

controlling locomotive moves, the 

person would have a greater chance of 

observing a problem with the 

locomotive becoming uncoupled from 

the rest of the movement or a similar 

problem if a coupler broke between 

other equipment in the movement. In 

the alternative, as intended by 

paragraph (c)(1), an operator or 

crewmember watching the equipment 

for the direction of movement will need 

to be cognizant of time and distance 

from the controlling locomotive so that 

immediate action may be taken to stop 

the movement if the movement is 

initiated but not observed to be moving 

within expectations. 

The title of paragraph (c) has been 

changed from ‘‘Remote control 

movement requirements’’ in the NPRM 

to ‘‘Additional requirements for remote 

control movements.’’ The reason for the 


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change in title is to emphasize that the 

requirements in paragraph (c) apply to 

shoving movements implemented with 

remote control locomotives and adds 

additional requirements to those general 

movement requirements described in 

paragraph (b). In other words, by 

changing the title, we are hoping to 

avoid confusion that some railroads 

might perceive paragraph (c) as the only 

requirements for shoving movements 

implemented with remote control 

locomotives. Comments were not 

received regarding paragraph (c). 

Paragraph (c)(2) adds another 

requirement for remote control 

movements that was suggested in the 

preamble of the NPRM, but was not part 

of the proposed regulatory text. At the 

end of the section-by-section analysis 

for this section in the NPRM, FRA 

raised concerns regarding the reliance 

on technology used to contain remote 

control operations within zones, where 

remote control operators cannot directly 

observe the far end of the pull-out 

movement. Such technology is used to 

prevent incursions into other rail 

operations. The NPRM noted that 

‘‘[a]lthough the rule text does not 

contain language on this point, FRA 

requests comment on whether such 

technology should be required to fail 

safe in design or at least include 

redundant safeguards.’’ FRA did not 

receive any comments on this issue and 

has decided to act to address the 

concern. 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 remote control 

crews. Without some kind of standard 

for concluding that the technology has 

either been demonstrated to be failsafe 

or demonstrated to provide suitable 

redundancy to prevent unsafe failure, a 

remote control crew could unreasonably 

conclude that the technology is safe 

enough to stop a movement when such 

reliance is unfounded. Given this 

inevitable reliance, failsafe or redundant 

technology is required to prevent 

collisions and derailments at the 

perimeter of these zones. The pull-out 

protection technology would not likely 

be relied upon as the typical method of 

stopping the movement from leaving the 

zone, but might be used to expedite a 

movement where the crew would 

ordinarily be slowed down by having to 

count cars and estimate the length of the 

movement in relation to the 

configuration of the facility. When 

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. 

In paragraph (d), FRA recognizes that 

many railroads utilizing remote control 

technology will create a designated area 

of track, controlled by a remote control 

operator, that can make a remote control 

operation more efficient; this area is 

called a remote control zone and it is 

defined in this subpart. When a remote 

control zone is activated, a designated 

remote control operator has the 

authority to deny other movements 

entry into the tracks designated as 

within the zone. However, it is not until 

the remote control crewmembers 

determine that a particular segment 

meets the definition of ‘‘track is clear’’

that the operation may shove, push, or 

pull cars into the cleared track segment 

of the zone as required in paragraph 

(b)(3). 

Paragraph (d) permits the point 

protection required by paragraph (b)(3) 

to be provided by a prior determination 

that the track is clear for a remote 

control operation that is shoving within 

an activated remote control zone, as 

long as the movement will take place on 

the pull-out end, the zone is not jointly 

occupied, and certain conditions are 

met for the prior determination that 

provides a reasonable assurance that the 

track is clear. If conditions change, such 

that the track is no longer clear, a new 

determination that the track is clear 

must be made. This paragraph has 

undergone substantial revision from the 

NPRM, although the underlying concept 

has remained unchanged. In the NPRM, 

the proposed rule mis-characterized this 

requirement as an exception to the point 

protection requirement, when we 

intended and described a point 

protection requirement. The final rule 

clarifies FRA’s intent that point 

protection, and all the general 

movement requirements under 

paragraph (b), are applicable to remote 

control movements in the zone when 

the remote control movement is to take 

advantage of the zone setup. Thus, 

when the movement occurs in an 

activated zone, on the pull-out end, and 

is not jointly occupied, it is possible for 

the remote control operator to rely on a 

prior determination that the track is 

clear rather than making a separate 

determination for each shoving or 

pushing movement. 

Paragraph (d) states the obvious that, 

at some point in time, after the zone is 

activated, an initial determination must 

be made that the track is clear. If there 

is no initial determination, then the 

crew certainly does not have any prior 

determination to fall back on. Paragraph 

(d)(3) provides the requirements for 

determining that a prior determination 

that the track is clear may be relied on. 

These changes, which are further 

described below, should better reflect, 

in hopefully what will be considered 

plain language, what a remote control 

crew needs to do to determine that the 

track is clear so that railroads may take 

advantage of shoving or pushing within 

a remote control zone. 

Paragraph (d)(1) specifies that the 

remote control zone exception to a 

separate track is clear determination for 

each shoving or pushing movement 

applies only when the controlling 

locomotive of the remote control 

movement is on the leading end in the 

direction of movement. This describes a 

movement that is typically referred to as 

a remote control movement occurring 

on the pull-out end, and that reference 

is made in this paragraph. When the 

controlling remote control locomotive is 

not located on the leading end in the 

direction of movement, the remote 

control crew cannot rely on a prior 

determination that the track is clear and 

shall, instead make a separate track is 

clear determination for each shoving or 

pushing movement regardless of 

whether the operation is to take place 

within the remote control zone. FRA 

does not subscribe to the view that an 

entire yard can be characterized as a 

remote control zone and, as long as it is 

not jointly occupied, the remote control 

crewmembers are free to shove or push 

anywhere in the zone without 

determining that the track is clear for 

each shoving or pushing movement; 

again, the reason FRA disagrees with 

this view is that we believe that is an 

unsafe practice and that is why the rule 

only permits the zone exception to 

apply to remote control movements 

when the controlling locomotive of the 

remote control movement is on the 

leading end in the direction of 

movement. 

Paragraph (d)(1) is changed from the 

NPRM to reflect that the remote control 

movement does not need to be 

‘‘operated from a controlling 

locomotive’’ to fit the exception, but 

instead ‘‘the controlling locomotive’’ of 

the movement shall be on the leading 

end in the direction of the movement. 

This change was made to prevent future 

confusion that the proposed language 

might be interpreted to only apply when 

a remote control operator was actually 

on the controlling locomotive, when it 

was intended to allow for the operator 

to either be on the locomotive or 

someplace else when the controlling 

locomotive on the leading end in the 


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direction of movement is operated. In 

other words, the amendment is made to 

specifically include remote control 

operations no matter where the operator 

is located. 

FRA has switched the numbers of 

proposed paragraphs (d)(2) and (d)(3) in 

an effort to lay out the sequence of 

determinations in a logical order. 

Paragraph (d)(2) requires that the zone 

may not be jointly occupied at the time 

that a remote control crew exercises the 

exception permitting the reliance on a 

prior determination that the track is 

clear. This condition is directed to 

prevent collisions between a remote 

control operation that is controlling the 

zone, and any equipment or switches 

controlled or manipulated by a jointly 

occupying crew. Thus, this condition 

means that if there is a jointly 

occupying crew, the remote control 

crewmembers shall determine that the 

track is clear for each shoving or 

pushing movement and shall not rely on 

a prior determination that the track is 

clear. FRA has deleted from the 

proposed requirement the phrase ‘‘and 

has not been jointly occupied since the 

last determination that the track is 

clear.’’ This condition has been deleted 

because an amendment to proposed 

paragraph (d)(2), redesignated (b)(3)(iii) 

addresses the issue by diverting from 

this proposed requirement. That is, 

paragraph (b)(3)(iii) permits the last 

jointly occupying crew to make a direct 

relay of the track is clear determination 

to the remote control crewmembers. The 

basis for this latter change is that 

accidents have generally occurred when 

jointly occupying crews did not seek 

permission into the remote control zone, 

not that the jointly occupying crews 

failed to provide accurate information 

regarding whether the track was left 

clear. This issue is explained in more 

detail below. 

Paragraph (d)(3) describes the three 

methods for a remote control crew to 

determine whether a prior 

determination that the track is clear is 

acceptable when the controlling 

locomotive of the remote control 

movement is on the leading end in the 

direction of movement and the zone is 

not jointly occupied. Paragraph (d)(3)(i) 

describes that, if the remote control 

crewmembers themselves made the 

prior determination, it is acceptable and 

a separate determination is unnecessary 

for each movement. Paragraph (d)(3)(ii) 

carries over the option from the 

proposed rule that one remote control 

crew may pass onto a relieving remote 

control crew an activated zone that 

meets the definition of track is clear. 

Some railroads currently allow for this 

transfer for efficiency purposes; 

otherwise, any relieving crew would 

need to make an initial determination 

that the pull-out end of the track is 

clear. 

FRA has added a third option, not 

proposed, that would permit the 

crewmembers from a jointly occupying 

crew to directly communicate to a 

remote control crewmember that the 

zone is no longer jointly occupied and 

meets the requirements for track is clear. 

This option is based on an RSAC 

consensus item that recommended 

allowing the verbal determination that 

the ‘‘track is clear’’ between the crews 

jointly occupying the remote control 

zone, provided that it is a direct 

communication between the crews 

involved, and not through a third party. 

The RSAC’s rationale is that a verbal, 

direct communication to determine 

‘‘track is clear’’ between remote control 

crews is currently permitted at shift 

changes, so why not after a joint 

occupancy? After further review of 

FRA’s accident database, we cannot find 

sufficient justification to disallow this 

practice. If FRA develops any accident 

data to suggest that the practices 

permitted by paragraphs (d)(3)(ii) or (iii) 

are unsafe, we will consider amending 

the rule. The addition of this third 

option is largely based on comments 

received by the AAR stating that this 

option is currently implemented safely 

by its members. We want to emphasize 

that the ‘‘direct’’ communication 

requirement means that the crew that 

completed its joint occupation of the 

zone must speak directly with one of the 

remote control crewmembers. Thus, it is 

unacceptable for a yardmaster or other 

employee to relay the information 

between the two sets of crewmembers. 

There is a greater chance of a 

communication error if information is 

allowed to be relayed from someone 

who does not have firsthand 

information. Indirect communication 

reduces the likelihood that a remote 

control crewmember would have the 

option to ask the crew that previously 

jointly occupied the zone a follow up 

question. ‘‘Directly communicate,’’ in 

this instance, does not mean that 

crewmembers are prohibited from 

communicating by radio, or any other 

communication that is not face-to-face. 

As further clarification, the rule 

includes the description that ‘‘directly 

communicates’’ means ‘‘not through a 

third party.’’ To illustrate this point, 

please consider the situation where two 

remote control operations are working 

side-by-side in the same remote control 

area. The two operations cannot share a 

pull-out end safely, because that would 

mean there is joint occupation, and, 

thus, each operation must be in control 

of different zones. (For the difference 

between a remote control area and a 

remote control zone, please see the 

section analysis for the definition of 

‘‘remote control zone’’ under § 218.93). 

Likewise, if another crew enters and 

departs the remote control zone, that 

last jointly occupying crew cannot 

contact just any remote control 

crewmember working in the area, but 

instead is required to directly 

communicate with a remote control 

crewmember from the crew of the zone 

just departed. To allow otherwise would 

mean that, at best, the last jointly 

occupying crew would pass on the 

determination that the track is clear 

indirectly, and, at worst, not at all. 

As specified in paragraph (e), shoving 

or pushing movements are safe under 

certain operating conditions and, thus, 

FRA chooses to exempt these listed 

operations from the requirements in 

paragraphs (b) through (d) under the 

specified conditions. One, paragraph 

(e)(1) exempts push-pull operations 

when operated from the leading end in 

the direction of movement because if a 

cab control car is on the leading end of 

a movement and a locomotive engineer 

is operating the train from the cab 

control car, the operation is as safe as a 

conventional locomotive operation that 

does not involve shoving or pushing. 

Two, paragraph (e)(2) also describes a 

situation where a locomotive engineer is 

operating a train from the leading end 

in the direction of movement, albeit 

with assistance from other power. That 

other power assisting in the movement 

may be occupied and operated by a 

locomotive engineer, i.e., a manned 

helper locomotive, or an unmanned 

locomotive, i.e., a distributed power 

locomotive. Because the additional 

power may be located in the back or the 

middle of the train, this type of 

operation could be considered a shoving 

or pushing movement. The exception 

clarifies that as long as a manned 

locomotive is being operated from the 

leading end of the train in the direction 

of movement, this type of operation will 

not be considered a shoving or pushing 

movement that must comply with 

paragraphs (b) through (d). FRA has 

made minor changes to this paragraph 

from the NPRM in order to clarify that 

the manned helper locomotives or 

distributed power shall be ‘‘assisting a 

train’’ when ‘‘the train is being’’

operated from the leading end in the 

direction of movement for the exception 

to apply. 

Pursuant to paragraph (e)(3), the third 

operational exception to the shoving or 

pushing minimum requirements set out 

in paragraphs (b) through (d) of this 

section is the allowance of the 


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performance of roadway maintenance 

activity under the direct control of a 

roadway worker performing work in 

accordance with railroad operating rules 

specific to roadway workers. In other 

words, a crewmember or qualified 

employee is not required to provide 

point protection when a train crew is 

working under the direct control of a 

roadway worker and that roadway 

worker can provide adequate point 

protection. For example, if a ballast or 

work train is operated by a train crew, 

a roadway worker may direct the ballast 

or work train crew to move the train in 

order to perform the maintenance 

activity. This exception would not 

permit a railroad to have an operating 

rule allowing a roadway worker to 

direct a train crew on logistical or 

revenue moves and such action would 

violate paragraph (c) of this section. 

Paragraph (e)(4) permits an exception 

from the shoving and pushing rules 

because few of the shoving or pushing 

accidents have occurred on a main track 

or signaled siding. From 2002 through 

2005, only about 5 percent of shoving or 

pushing accidents occurred on main 

track. However, in order to make this 

exemption work, a long list of 

conditions apply that would provide an 

equivalent level of safety to that of the 

requirements found in paragraphs (b) 

through (d) of this section. The 

requirements should look familiar to the 

industry as the requirements follow 

commonly used railroad operating rules. 

See General Code of Operating Rules 

(GCOR) 5th Edition, (effective Apr. 3, 

2005) Rules 6.5, 6.6, and 6.32, and 

Northeast Operating Rules Advisory 

Committee (NORAC) Rules 116 and 

138e. The following clarification is 

provided for a few of the requirements 

that may not be quite as evident as the 

others. Paragraph (e)(4)(i)(A) requires 

that if another movement or work 

authority is in effect within the same or 

overlapping limits, the shoving or 

pushing movement shall not be initiated 

until the leading end of the movement 

is protected by a qualified employee. 

Paragraph (e)(4)(ii) requires that 

movement is limited to the train’s 

authority because the danger of an 

accident increases substantially when a 

train shoves beyond the limits of its 

current authority. The requirement in 

paragraph (e)(4)(iv) is met by meeting 

either (A), (B), or (C), as meeting any 

one of these three requirements should 

ensure safe movement into and over a 

highway-rail grade crossing or 

pedestrian crossing as those terms are 

defined in the definitions section of this 

subpart. To meet the requirement of 

paragraph (e)(4)(iv)(B), a designated and 

qualified ‘‘employee,’’ as defined in this 

subpart, must be stationed at the 

crossing and have the capability to 

communicate with trains in sufficient 

time to inform the train of the condition 

of the crossing; the rule does not specify 

the method of communication as the 

key issue is that the communication be 

effective. In paragraph (e)(4)(v), FRA 

uses the terms ‘‘interlocking limits,’’

which is defined in § 218.5 of this part, 

and ‘‘controlled point limits,’’ which is 

undefined but FRA considers as having 

the same meaning as ‘‘interlocking 

limits.’’ Interlocking limits means the 

tracks between the opposing home 

signals of an interlocking. In paragraph 

(e)(4)(v)(C), a crewmember is in a 

position to determine that the train’s 

movement has occupied the circuit 

controlling a signal such that the 

crewmember has the ability to 

determine that it is the leading wheels 

of his or her own movement that has 

activated the signal circuit. 

Section 218.101 Leaving Rolling and 

On-Track Maintenance-of-Way 

Equipment in the Clear 

The title of this section has changed 

from the NPRM, as well as a 

corresponding change in paragraph (b), 

to clarify that the section is intended to 

apply to both rolling and on-track 

maintenance-of-way equipment. In the 

NPRM, FRA used the generic term 

‘‘equipment’’ and assumed that the term 

would be understood to include both 

types of equipment. Rather than risk 

confusion regarding whether the 

regulation only applies to rolling 

equipment, the rule now specifies that 

both rolling equipment and on-track 

maintenance-of-way equipment are 

covered by this section. 

The requirement proposed in 

paragraph (a) has been revised, but the 

reasons behind the requirement remains 

the same. The reasons behind this 

paragraph are to ensure that (1) each 

railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The revisions to this 

paragraph are intended to clarify FRA’s 

intent that each railroad adopt and 

comply with an operating rule which 

establishes minimum requirements for 

preventing equipment from fouling 

connecting tracks unsafely, and that 

each railroad implement procedures 

that will enable employees to identify 

when the equipment is fouling. The 

purpose for requiring that each railroad, 

railroad officer, supervisor, and 

employee shall be considered in 

violation of this section when a railroad 

operating rule that complies with this 

section is violated is so that FRA has the 

authority to enforce this regulation as 

opposed to merely requiring that each 

railroad maintain and have in effect 

such a rule. In order to fully understand 

this section, one must consider FRA’s 

definitions of ‘‘clearance point’’ and 

‘‘foul or fouling a track’’ under § 218.93. 

Paragraph (b) sets forth the general 

rule that rolling and on-track 

maintenance-of-way equipment not be 

left where it will foul a connecting track 

except as permitted in paragraphs (b)(1) 

through (b)(4) discussed below. This 

paragraph differs from FRA’s proposed 

rule in that each of the two proposed 

exceptions were divided into two 

simpler exceptions. We hope that by 

breaking out the two proposed 

exceptions into four exceptions that the 

section will be easier to understand. 

Paragraph (b)(1) permits equipment 

standing on a main track to foul a siding 

track switch if the fouling switch is 

lined for the main track on which the 

equipment is standing. For example, it 

is permissible for a train on the main 

track to be stopped at an absolute signal 

with the rear of the train fouling a siding 

switch lined for the main track upon 

which the train is standing. 

Additionally, this would prohibit the 

switch that is being fouled from being 

thrown underneath the train while it is 

fouling the switch. See also 

§ 218.103(b)(4) and (b)(7). Signal 

systems and main track authority rules 

should protect such movements from 

approaching trains. 

Paragraph (b)(2) permits equipment 

standing on a siding to foul a main track 

switch if the fouling switch is lined for 

the siding on which the equipment is 

standing. While this is permissible, it is 

obviously not safe to do so unless 

movements on the main track are 

required to operate prepared to stop for 

the switch. 

Paragraph (b)(3) permits equipment 

that is standing on a yard switching lead 

track (commonly referred to as a lead 

track, switching lead, or ladder track) to 

foul a yard track if the switch is lined 

for the yard switching lead track upon 

which the equipment is standing. 

Conversely, it is not permissible for 

equipment to be standing on a yard 

track and foul the yard switching lead 


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track, regardless of the position of the 

switch on which the equipment is 

standing (fouling). In simple terms, it is 

permissible to occupy a yard switching 

lead track and foul a track connected to 

it, but it is not permissible to occupy the 

connecting track in a manner that fouls 

the yard switching lead track. 

Paragraph (b)(4) permits equipment to 

be left where it will foul a connecting 

track when the equipment is on an 

industry track beyond the clearance 

point of the switch leading to the 

industry. During the RSAC process, 

several commenters raised the issue that 

when picking up or setting off cars at an 

industry customer, a railroad is often 

faced with limited industry track on 

which to set off or pick up cars. The 

problem of limited track at some 

industries would make compliance with 

this rule extremely difficult within 

those industries and could potentially 

have a detrimental economic effect on 

those industry customers, as well as the 

railroads that service those industry 

customers. FRA’s accident/incident data 

does not reflect that fouling within an 

industry has been a problem. FRA 

accident data indicates that of the 5% 

total human factor accidents caused by 

equipment left in the foul during the 

four-year period 2003 through 2006, 

only 0.5% (1⁄2 of one percent) occurred 

on industry tracks. Further, industries 

are constantly moving equipment 

around within their plants for loading/ 

unloading, or for other purposes, 

thereby rendering the enforceability of 

the regulation within industry tracks 

somewhat dubious at best. Meanwhile, 

if an industry has limited track, and that 

track is crowded with rolling 

equipment, FRA expects railroads 

servicing those industries to operate at 

extremely slow speeds and with 

particularly careful observation to 

protect all movements from anything 

that may be potentially fouling the 

track. This change from the NPRM is 

based on an RSAC recommendation. 

FRA will certainly consider initiating a 

new rulemaking to include industry 

tracks in this section if accident/ 

incidents increase due to fouling 

equipment. 

Paragraph (c) requires that each 

railroad, whether at the system, 

division, or terminal level, shall 

implement procedures for instructing 

employees who handle equipment so 

that the employees can identify 

clearance points and avoid leaving 

equipment out to foul. One way to 

implement such procedures is to show 

employees that there are readily 

observable clearance points on or near 

the track, e.g., marks on the rails or ties 

indicating a clearance point. When 

clearance points are not identified on or 

near the track, railroads must institute 

procedures for instructing employees on 

how to calculate clearance points; e.g., 

a railroad may choose to implement a 

procedure requiring employees to stand 

next to the rail and extend an arm to 

simulate the width of equipment. Great 

care should be used in instituting 

procedures for determining clearance 

points so that the margin of error is 

appropriate where employees are 

permitted to ride the side of a car and 

as the clearance point would be further 

back on the track for employees with 

bigger or longer bodies than the average 

person. This section is not intended to 

apply to close clearance as it relates to 

buildings, loading docks, or doorways, 

although a railroad may choose to 

provide procedures for implementing 

safe operations under such 

circumstances. 

FRA received a comment from the 

AAR to delete this entire section 

because, in AAR’s view, this section 

duplicates requirements found in other 

sections of the NPRM. After discussions 

in the RSAC process, the RSAC 

achieved consensus that this section is 

necessary, and recommended that FRA 

retain it. The requirement that 

equipment not be left where it will foul 

other tracks is a long-standing operating 

rule in the industry which is merely 

being Federalized to strengthen 

enforceability. Leaving equipment in the 

foul accounted for 5% of all human 

factor accidents during the four-year 

period 2003 through 2006. The RSAC 

acknowledged that there are other 

elements in the NPRM that require the 

track to be clear prior to a pushing or 

shoving movement, and for all handoperated switches to be properly lined 

before fouling a track, and that these 

requirements might appear, 

perfunctorily, to obviate the need for a 

fouling rule. However, the RSAC also 

recognized that leaving equipment in 

the foul sets the stage for a potential 

accident in the event one or more of the 

ancillary requirements in the regulation 

are overlooked. In light of RSAC’s 

consensus recommendation, and FRA’s 

view that a specific rule is useful to 

reducing the many accidents attributed 

to failing to leave equipment in the 

clear, FRA is retaining this section. 

FRA received several comments from 

BLET suggesting operational situations 

where it may be possible to leave 

equipment in the clear safely. For 

example, BLET suggested that FRA 

prohibit leaving equipment in the foul 

where the authorized speed is greater 

than restricted speed. Another BLET 

suggestion was for FRA to add a 

requirement that permission must be 

obtained from the employee controlling 

the track prior to leaving equipment in 

the foul. FRA appreciates BLET’s 

suggestions because each suggestion 

provided the basis for useful RSAC 

discussions exploring the intricacies of 

leaving equipment in the clear. In the 

end, though, FRA did not adopt BLET’s 

suggestions because adding such 

suggestions would likely complicate 

what FRA believes is a fairly clear and 

concise rule. 

Finally, FRA acknowledges that some 

railroads have yard tracks or other types 

of track arrangements outside of a yard 

which are not described as exceptions to 

the general requirement in paragraph 

(b), and fouling equipment under these 

particular track arrangements may not 

pose a real safety concern. Because of 

the many different types of track 

arrangements that are atypical, it would 

be difficult to craft a rule that fully 

encompasses every such arrangement 

and excepts those that pose no danger. 

Where there is truly an atypical 

arrangement that appears to violate this 

section but poses no true safety hazard, 

FRA intends to consider the safety 

implications when deciding whether to 

exercise its enforcement authority. 

Section 218.103 Hand-Operated 

Switches, Including Crossover Switches 

In the NPRM, this section was titled 

‘‘Hand-operated Switches and Derails.’’ 

After the RSAC process had concluded, 

FRA considered the scope of this 

section and decided that it covered 

several interrelated but separate issues. 

By including so many requirements in 

one section, the section appeared 

disjointed. Consequently, this section 

differs from the proposed section 

because it contains only a portion of the 

requirements found in proposed 

§ 218.103. The rest of the proposed 

requirements have been redesignated 

within §§ 218.105, 218.107, and 

218.109. Although each of these 

sections contains slight modifications 

from the proposed requirements, 

overall, the final rule does not differ 

greatly in its requirement from what was 

proposed. 

The requirement proposed in 

paragraph (a) has been revised, but the 

reasons behind the requirement remains 

the same. The reasons behind this 

paragraph are to ensure that (1) each 

railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 


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be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The purpose for 

requiring that each railroad, railroad 

officer, supervisor, and employee shall 

be considered in violation of this 

section when a railroad operating rule 

that complies with this section is 

violated is so that FRA has the authority 

to enforce this regulation as opposed to 

merely requiring that each railroad 

maintain and have in effect such a rule. 

This section applies to all handoperated switches, as that term is 

defined in § 218.93, including handoperated crossover switches. This 

represents a departure from FRA’s 

current enforcement scheme which is 

limited to hand-operated switches in 

non-signaled territory as specified in EO 

24. 

Paragraph (a)(2) has been added to 

require that each railroad specify 

minimum requirements for an adequate 

job briefing concerning hand-operated 

switches, including crossover switches. 

This requirement was found in the 

proposed rule in paragraph (i), but was 

redesignated in paragraph (a)(1). 

Because this is such a fundamental 

requirement, it was redesignated at the 

beginning of the section. As previously 

mentioned in the SUPPLEMENTARY

INFORMATION section titled ‘‘Accident at 

Graniteville, SC and Safety Advisory 

2005–01,’’ NTSB found that catastrophic 

accidents, such as the one at 

Graniteville, SC, could be prevented by 

adequate job briefings. The requirement 

is for each railroad to have its own rules 

and procedures governing the minimum 

requirements for a satisfactory job 

briefing, which to FRA’s knowledge, 

nearly all railroads already do. It is 

essential that employees working 

together know exactly what each 

person’s role is in the job, what the 

methods of operation and protection 

will be, and the order in which 

segments of the job are to be 

accomplished. With such knowledge, 

one employee could recognize the 

mistakes of another and correct them 

before any operating rule violation or 

serious accident occurred. 

Paragraph (b) sets forth certain general 

rules for employees who operate or 

verify the position of a hand-operated 

switch. A reference to § 218.93 has been 

added so that anyone reading this 

section will understand that ‘‘handoperated switch’’ has a specific meaning 

for this section and subpart. Proposed 

paragraph (i)(2) has been redesignated 

as paragraph (b)(1). Paragraph (b)(1) 

requires frequent job briefings at 

important junctures. It is critical that 

employees know what is expected of 

them before they start working, know 

what is expected to happen if the work 

plan changes after work is initiated but 

before the work is completed, and to 

confirm whether all the work was 

completed to everyone’s satisfaction and 

according to the operating rules. For 

experienced employees, each job 

briefing should not be a particularly 

long meeting; in fact, FRA expects that 

some job briefings may last less than 

one minute, but the length of an 

adequate briefing will most likely 

depend on the complexity of the job. 

Proposed paragraph (b)(1) has been 

redesignated as paragraph (b)(2). This 

paragraph sets forth the fundamental 

requirement that an employee operating 

or verifying a hand-operated switch’s 

position shall be ‘‘qualified,’’ as that 

term is defined in this subpart. It would 

be easy for an unqualified person to 

make a mistake in switch alignment or 

fail to recognize a defective switch 

because, unlike a qualified employee, 

the unqualified person is not trained on 

proper switch operation or on how to 

detect a defective switch. It is exactly 

these types of defective conditions that 

cause accidents and may be preventable 

by promulgation of this rule. 

Proposed paragraph (b)(2) has been 

redesignated as paragraph (b)(3). This 

paragraph establishes a requirement that 

each railroad have an operating rule 

warning employees that each person 

who operates or verifies the position of 

a hand-operated switch is individually 

responsible for the position of the 

switch in use. The purpose of this 

paragraph is to remind an employee that 

FRA may take enforcement action 

against the employee personally for a 

willful violation. FRA hopes that the 

personal liability aspect of this rule will 

reinforce among employees the critical 

importance of ensuring that handoperated switches are left properly lined 

before leaving the location of the switch. 

Proposed paragraphs (b)(3) and (b)(4) 

have been redesignated as paragraphs 

(b)(4) and (b)(5) respectively. These 

paragraphs require employees to make 

certain observations. A slight 

modification has been made to each of 

these paragraphs by changing the phrase 

‘‘visually ensure’’ to ‘‘visually 

determine.’’ The reason for this change 

is to maintain consistent terminology 

throughout this subpart. The 

requirements listed are to ‘‘visually 

determine’’ that hand-operated switches 

are properly lined for the intended 

route, that no equipment is fouling the 

switches, that the points fit properly, 

and the target, if so equipped, 

corresponds with the switch’s position. 

These requirements specify the need for 

the operating/verifying employee to take 

a good, hard look at the switch. For 

example, a proper observation would 

deduce whether the switch points fit 

properly against the stock rail, i.e. no 

gaps. The operating/verifying employee 

should certainly not be relying on 

second-hand knowledge of the switch or 

derail’s position in verifying its 

position. 

Paragraph (b)(4) differs from the 

proposed requirement in that FRA has 

added that when an employee visually 

determines that hand-operated switches 

are properly lined for the intended route 

that the employee also visually 

determine that ‘‘no equipment is fouling 

the switches.’’ If there is rolling 

equipment close by, an employee may 

have to identify the clearance points to 

determine whether the equipment is in 

fact fouling or it is safe to operate over 

the switch. See § 218.101. For example, 

if an employee can see that the switch 

is properly lined from the locomotive 

cab but is not absolutely certain that 

rolling equipment is in the clear, this 

rule prohibits movement over the 

switch until a proper determination can 

be made; in this example, the situation 

will likely require that the movement be 

stopped and a crew member get off the 

locomotive or train to determine the 

clearance points. If there is another 

method to safely determine the 

clearance points, e.g., if the rail is 

marked, then the requirement may be 

satisfied by this alternative method for 

determining the clearance points. FRA 

is not requiring that an employee 

disembark from a movement in all 

instances to determine clearance points, 

but is instead requiring that employees 

act responsibly when making this visual 

determination. 

The issues addressed by proposed 

paragraphs (b)(5) and (b)(6) have been 

addressed by redesignated paragraph 

(b)(6). Paragraph (b)(5) had proposed a 

requirement that if the switch or derail 

is equipped with a lock, hook or latch, 

it must be in the hasp, before making 

movements in either direction over the 

switch. Proposed paragraph (b)(6) 

referred to physically testing a handoperated switch or derail’s lock to 

ensure it is secured. FRA stated in the 

proposed section-by-section analysis, 

and we restate here that this regulation 

does not require switches to be 

equipped with locks, hooks or latches. 

FRA’s intention remains that employees 

must ensure that the switch is secured 

from unintentional movement of the 

switch points before making movements 

in either direction over the switch. 

Rather than confuse the requirements by 


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getting into the tedium of explaining 

how to lock, hook, or latch when FRA 

does not even require such securement 

devices, FRA has decided to set forth a 

rule that distinguishes the securement 

with a lock, hook, or latch from the 

securement of the switch from 

unintentional movement over it. For 

example, some switches do not have 

locks, hooks, or latches but are 

considered secure from unintentional 

movement when the switch handle is 

rotated down parallel to the ground. If 

the requirement in paragraph (b)(6) is 

followed, it should prevent derailments 

and accidental misalignments caused by 

the switch points moving under 

equipment. 

FRA has also added the phrase ‘‘after 

operating a switch’’ to clarify that the 

requirement in paragraph (b)(6) does not 

apply to an employee who is merely 

verifying the position of a handoperated switch, as opposed to actually 

operating the position of such a switch. 

Operations would be significantly 

delayed if every time a train crew 

needed to verify the position of a handoperated switch it would also have to 

ensure that the switch is secure from 

unintentional movement of the switch 

points. Such a requirement would 

require that the train be stopped prior to 

movement over the switch, and a 

crewmember disembark to check the 

switch. It is reasonable to expect that 

the last employee who operated the 

switch ensured that the switch was 

properly secured. If certain types of 

switches are found to regularly fail to 

protect against unintentional 

movements, FRA will consider whether 

to initiate a rulemaking then. 

A new requirement has been added to 

paragraph (b)(7). The final rule adds the 

prohibition of operating the switch 

while rolling and on-track maintenanceof-way equipment is fouling the switch. 

FRA overlooked this straightforward 

prohibition in the NPRM, although the 

NPRM arguably covered the issue 

through other proposed requirements. 

See §§ 218.101(c) and 218.103(d). 

However, following the fatal accident of 

a remote control operator riding the side 

of a car on August 30, 2007, in BNSF’s 

Mormon Yard in Stockton, California, 

FRA realized that, from an enforcement 

perspective, neither of these other 

requirements explicitly covered an 

employee who operated a switch when 

someone else left equipment fouling the 

switch. (Although FRA’s investigation 

of the Morman Yard accident is ongoing, preliminary information indicates 

that a crew left some cars fouling a 

crossover switch, and the crossover 

switch was later lined for the crossover 

by one member of a remote control crew 

without moving the fouling cars. The 

other remote control crewmember, 

while riding the side of a car, operated 

through the crossover and was struck 

and killed by the static fouling 

equipment.) By adding this prohibition 

to the final rule, each railroad employee 

who operates or verifies the position of 

hand-operated switches will be required 

to ensure that before a switch is 

operated or verified, and a movement 

over the switch is initiated, the 

employee is responsible for checking 

that equipment is not fouling the 

switch, whether or not the employee 

had left the equipment fouling. 

Paragraph (b)(7) has also been 

amended for clarification purposes. The 

proposed requirement stated that an 

employee shall ‘‘ensure that switches 

are not operated while the equipment is 

standing or moving over a switch.’’ The 

final rule requires that an operating/ 

verifying employee shall ensure that a 

switch is not operated while rolling and 

on-track maintenance-of-way equipment 

is fouling the switch, or standing or 

moving over the switch. Thus, in 

addition to the added prohibition 

previously discussed, the final rule 

clarifies what it meant by ‘‘equipment.’’

The reason for this rule is that operating 

a switch under a moving train or while 

rolling and on-track maintenance-ofway equipment is standing over it is an 

obvious recipe for disaster but 

apparently occurs with enough 

frequency that a requirement is 

necessary to discourage taking this risk. 

The NPRM contained a related proposed 

requirement that several commenters 

believed was ambiguous, and BMWED 

described as unnecessary. Given the 

retention of the requirement in 

paragraph (b)(7), we agree with the 

comments. This related proposed 

requirement was found in paragraph (f) 

of the NPRM. Proposed paragraph (f) 

mirrored an operating rule many 

railroads have which requires an 

employee, who has lined a handoperated switch to let equipment enter 

or leave the main track, to stand at least 

20 feet from that switch until the 

movement is complete. Upon further 

reflection, FRA believes the proposed 

paragraph (f) is not practical to comply 

with and enforce in all situations due to 

physical restrictions. 

Under paragraph (b)(8), it is required 

that after operating a switch, an 

employee ensure that each switch , 

when not in use, is locked, hooked, or 

latched, if so equipped. This means that 

if the switch is equipped with a latch or 

hook, it must be applied and secured 

after it is operated. For locks, this means 

the lock is in the hasp, and the lock is 

locked. If it is a latch or hook, the latch 

or hook must be in the hasp. For 

purposes of this section, ‘‘not in use’’

means that there is either no crew or 

equipment in the vicinity of the switch 

or there is a crew in the vicinity of the 

switch but the crew has no intention of 

using the switch. FRA has also added 

the phrase ‘‘after operating a switch’’ to 

clarify that the requirement in 

paragraph (b)(8) does not apply to an 

employee who is merely verifying the 

position of a hand-operated switch, as 

opposed to actually operating the 

position of such a switch. 

Proposed paragraph (d) has been 

redesignated as paragraph (c). This 

paragraph requires that when rolling 

and on-track maintenance-of-way 

equipment has entered a track, 

approaching a hand-operated switch not 

lined for its intended movement, it shall 

not foul a track (see definition of ‘‘foul 

or fouling a track’’ in this subpart) until 

the switch is properly lined for the 

intended movement. If the switch is 

intended to be trailed through, such as 

with a spring switch, or a yard type 

switch commonly referred to as a 

‘‘rubber switch,’’ a ‘‘run-through 

switch,’’ or a ‘‘variable switch,’’

movement shall not trail through the 

switch until the route is seen to be clear 

or the equipment has been granted 

movement authority by the employee in 

charge of that track segment or switch. 

Additionally, if a train, rolling 

equipment or on-track maintenance-ofway equipment is closely approaching a 

switch and an employee observes a 

conflicting movement also closely 

approaching the switch, the track with 

the approaching conflicting movement 

shall not be fouled. 

Proposed paragraph (e) has been 

redesignated as paragraph (d). Paragraph 

(d) specifies that when rolling and ontrack maintenance-of-way equipment 

has entered a track, it is required that 

the hand-operated switch to that track 

shall not be lined away from the track 

until that equipment has passed the 

‘‘clearance point’’ (as defined in this 

subpart) of that track. If complied with, 

this requirement will prevent an 

employee from operating a switch while 

equipment is fouling it, directly on it, or 

in close proximity to it. The purpose of 

this requirement is to prevent injuries 

and accidents caused by improper 

operation of switches. Injuries should be 

reduced by this requirement because 

when switches are operated with 

equipment fouling a switch, or directly 

on a switch, a switch can be hard to 

operate or may be put under tension 

such that when an employee begins to 

operate the switch handle, it may move 

unexpectedly; thus, back injuries and 

other muscle strains may be reduced. In 


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addition, accidents may be reduced as 

employees will not be allowed to 

operate switches under tension, i.e., 

when cars are on a switch. 

Section 218.105 Additional 

Operational Requirements for HandOperated Main Track Switches 

As explained in the section-by-section 

analysis to § 218.103, FRA has divided 

proposed § 218.103 into several sections 

so that the requirements will be easier 

to follow and be in a more logical order. 

The requirements found in this section 

were derived from proposed § 218.103. 

The requirement proposed in 

paragraph (a) has been revised, but the 

reasons behind the requirement remains 

the same. The reasons behind this 

paragraph are to ensure that (1) each 

railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The purpose for 

requiring that each railroad, railroad 

officer, supervisor, and employee shall 

be considered in violation of this 

section when a railroad operating rule 

that complies with this section is 

violated is so that FRA has the authority 

to enforce this regulation as opposed to 

merely requiring that each railroad 

maintain and have in effect such a rule. 

Proposed § 218.103(c)(1) titled ‘‘Handoperated Main Track Switches’’ has 

been redesignated as § 218.105(b) and 

retitled ‘‘Designating switch position,’’

but has otherwise remained unchanged. 

This paragraph provides regulatory 

authority over the hand-operated main 

track switches so that FRA regulates the 

positioning of all such switches. In 

contrast, FRA only prescribes 

requirements for hand-operated main 

track switches in non-signaled territory 

in EO 24. 

The rule specifies that each railroad 

will retain discretion regarding the 

normal position of a hand-operated 

main track switch. Generally, railroad 

operating rules pertaining to the 

operation of switches provide that the 

normal position for a main track switch 

is lined and locked for movement on the 

main track when not in use. The 

purpose of this rule is so that trains 

traveling on main track will not be 

inadvertently diverted onto another 

track. (Of course, this can be avoided if 

all trains were required to approach all 

main track switches prepared to stop, 

but that requirement would impose a 

substantial burden on railroads under 

most circumstances and would also 

introduce other safety concerns.) 

Railroads may designate a different 

position as normal, as some operations 

may be more efficient with a handoperated main track switch’s ‘‘normal’’

position designated in what would 

otherwise be referred to as the ‘‘reverse’’

position. No matter what position a 

railroad designates as the normal 

position of each hand-operated main 

track switch, the requirement is for such 

designations to be made in writing. The 

railroad may designate the normal 

position of the switch in its operating 

rules, system special instructions, 

timetables, general orders, or any other 

written documentation that will provide 

adequate notice to employees operating 

and verifying hand-operated main track 

switches. 

FRA is unaware of any railroads that 

do not require locking of main track 

switches as a safeguard against 

unauthorized use. Paragraph (b) requires 

that employees operating and verifying 

hand-operated main track switches 

should pay careful attention to ensure 

that these switches, when not in use, are 

lined and locked in that position except 

under two circumstances. The first 

circumstance under which the 

employee does not need to return the 

switch to the designated normal 

position occurs when the train 

dispatcher directs otherwise; thus, the 

train dispatcher, with movement control 

over that main track segment, directs the 

crew using the switch to leave the 

switch in other than the normal 

position. The dispatcher would then be 

responsible for the switch and must 

follow railroad operating procedures for 

the necessary protection of the switch. 

Such ‘‘necessary protection’’ entails that 

the dispatcher take steps to ensure that 

the next train crew approaching the 

switch has a track warrant informing 

that the switch has been left reversed. In 

some instances, the dispatcher will need 

to make a note in a log of train 

movements, or other similar document, 

to ensure that subsequent dispatchers 

have access to the reversed switch 

information. The second circumstance 

under which the employee does not 

need to return the switch to the 

designated normal position occurs when 

the switch is left in the charge of a 

crewmember of another train, a 

switchtender, or a roadway worker in 

charge. Paragraph (b)(2) should be an 

alternative safe procedure because these 

other employees will likewise be 

individually responsible for the safe and 

proper operation of that hand-operated 

main track switch; the employees 

performing these jobs shall be qualified 

on operating switches and verifying 

switch position according to this 

subpart, so there should be no inherent 

problems with the transfer of 

responsibility for the switch. Regardless 

of the position of the switch when the 

train dispatcher directs otherwise or the 

switch is left in the charge of another 

qualified employee, it must still be 

locked, hooked or latched, if so 

equipped, when not in use, as required 

by § 218.103(b)(8). 

Just in case there is any confusion that 

the operation of a hand-operated main 

track switch is a function requiring job 

briefings, paragraph (c), formerly 

proposed § 218.103(i)(3), sets forth the 

requirements for such briefings where 

employees should be engaging in 

meaningful communication. Thus, in 

paragraph (c)(1), FRA specifically 

requires that before a train leaves the 

location where any hand-operated main 

track switch was operated, all 

crewmembers shall have verbal 

communication to confirm the position 

of the switch. Similarly, paragraph (c)(2) 

addresses that communication amongst 

employees is vital when roadway 

workers are working within the same 

work limits and operate hand-operated 

main track switches. Thus, when any 

roadway work group is working under 

the protections of the specified form of 

working limits, any employee who 

operates a hand-operated main track 

switch within such limits shall do so 

under the direction of the roadway 

worker in charge. Further, it is required 

that the employee operating the handoperated main track switch shall report 

to the roadway worker in charge the 

position of all hand-operated main track 

switches the employee has operated to 

the roadway worker in charge prior to 

the expiration of the authority limits. 

In some roadway work group 

situations, a roadway worker may be 

instructed during a job briefing to 

convey switch position information to 

an employee who is not the roadway 

worker in charge. In this alternative 

situation, the contact person is acting as 

an intermediary between the employee 

operating the switch and the roadway 

worker in charge. This intermediary 

person is commonly referred to as an 

‘‘employee in charge.’’ The rule permits 

the employee in charge to pass on the 

switch position information from the 

employee operating the switch to the 

roadway worker in charge without 

firsthand verification of the switch 


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8486 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

position. The important aspect of this 

requirement is that the work group 

members are communicating the switch 

position and not who conveys the 

information. The allowance of this 

option reflects the reality of current 

operations. 

A recurring concern raised by the 

labor organizations was that some 

railroads permit a maintenance-of-way 

employee to operate a hand-operated 

main track switch in non-signaled 

territory, typically for purposes of 

servicing the switch, without contacting 

the dispatcher or the crewmembers of 

any potentially on-coming trains. The 

concerns regarding this practice 

centered on whether appropriate 

protection was being afforded to oncoming trains that potentially could be 

diverted from the main track if the 

employee servicing the switch was 

unable to restore the switch to the 

normal position prior to the train’s 

arrival. BMWED questioned whether it 

made sense to require strict 

communication requirements to verify 

the position of switches prior to the 

expiration of exclusive track occupancy 

authority but not require any 

communication under this other 

circumstance. FRA views these 

situations as completely different as the 

former applies to job briefings among a 

roadway worker group, not a 

communication with a dispatcher or 

control operator as BMWED is arguing 

for in the latter. BMWED was also 

concerned with the liability the rule 

would have for the employee who failed 

to restore a switch being serviced if a 

train came along. With regard to the 

liability issue, FRA has not added any 

regulatory requirement for such an 

employee servicing a switch and thus 

the employee’s liability is unaffected by 

this rule. 

FRA’s decision not to require an 

employee servicing a switch to 

communicate with the dispatcher or 

control operator is based on several 

factors. One of the biggest factors is that 

FRA learned of this practice through 

discussions with the RSAC working 

group but could not find any data to 

support that this practice has been a 

problem or cause of accidents/incidents. 

It is FRA’s understanding that this is a 

practice mainly on the western railroads 

where employees can often see oncoming trains great distances away. In 

the situations where employees may not 

be able to easily view an on-coming 

train, it is a common practice for a 

maintenance-of-way employee to 

contact a dispatcher or control operator 

in order to obtain a sense of when the 

next train is likely to come along. An 

employee working under such 

conditions would likely maintain a high 

level of situational awareness to oncoming trains as the employee 

understands that he or she is providing 

his or her own protection, and the 

information obtained is not always 

accurate. FRA is concerned with 

promulgating a requirement that the 

employee contact the dispatcher or 

control operator in every instance as the 

formality of making that communication 

mandatory could lead maintenance-ofway employees to develop a false sense 

of safety when true block protection is 

not being provided. 

Unless a switch is broken, it should 

take seconds, not minutes, to operate a 

switch back to normal if a train is 

known to be approaching. FRA assumes 

that a maintenance-of-way employee 

who realizes that a switch is broken, as 

opposed to needing some oil or routine 

maintenance, would immediately 

contact a dispatcher or control operator 

in order to obtain the authority to set up 

working limits or other adequate 

protection that would allow the 

employee the time to repair the switch. 

Certainly, FRA would not expect 

railroads to permit the servicing of a 

switch when heavy train traffic is 

expected. FRA would also expect 

railroads to coordinate such work when 

train schedules are available and 

adequate time for such service can be 

planned. Although FRA is not 

implementing any regulations on this 

issue, we recommend that railroads 

implement procedures to safeguard 

employees and trains when a switch 

requires servicing. 

Proposed § 218.103(c)(2) has been 

redesignated as § 218.105(d). This 

paragraph requires that in non-signaled 

territory, before an employee releases 

the limits of a main track authority and 

a hand-operated switch is used to clear 

the main track, and, prior to departing 

the switch’s location, certain conditions 

be met. An employee is prohibited from 

releasing the limits after departing the 

switch’s location so that the employee 

who has any question about the 

condition of the switch has access to 

verifying its condition. This 

requirement is intended to prevent an 

employee from releasing the limits 

while located in the yard office or while 

traveling away from the switch’s 

location in a taxi. 

In paragraph (d)(1), the first proposed 

condition that must be met is that the 

employee releasing the limits, after 

conducting a job briefing in accordance 

with this subpart, must report to the 

train dispatcher that the hand-operated 

main track switch has been restored to 

its normal position and locked, unless 

the train dispatcher directs that the 

hand-operated main track switch be left 

lined and locked in the reverse position. 

The reference to another paragraph in 

this section is intended to remind the 

employee releasing the limits that before 

a train, train crew, or maintenance-ofway employee leaves the location where 

any hand-operated main track switch 

was operated, all crewmembers and 

maintenance-of-way employees shall 

have a verbal communication to confirm 

the position of the switch. Soon after 

this job briefing, it is time to call the 

dispatcher and confirm the same 

information that should have been 

included in the train crew or 

maintenance-of-way employees’ job 

briefing. If the train dispatcher wants 

the employee to leave the switch in the 

reverse position, this communication is 

the train dispatcher’s opportunity to 

inform the employee of such a request. 

It is required that the employee and 

dispatcher confirm with each other the 

switch position and that the switch is 

locked so that there is little chance that 

any trespasser with a key or bolt cutters 

could tamper with the switch. As in 

paragraph (b)(1), a train dispatcher who 

directs that the switch be left in the 

reverse position must provide the 

protection necessary to ensure that the 

subsequent train crew or operator of ontrack equipment that will approach the 

switch has a track warrant informing 

them of the switch’s reverse position. 

Again, such ‘‘necessary protection’’

entails that the dispatcher take steps to 

ensure that the next train crew or 

operator of on-track equipment 

approaching the switch has a track 

warrant informing that the switch has 

been left reversed. In some instances, 

the dispatcher will need to make a note 

in a log of train movements or other 

similar document to ensure that 

subsequent dispatchers have access to 

the reversed switch information. 

Paragraphs (d)(2) and (3) detail two 

more conditions that must be met when 

main track authority limits are being 

prepared for release. The second 

condition is that if the employee’s 

report of the switch position is correct, 

i.e., matches the operating rule or 

dispatcher’s direction, the train 

dispatcher shall repeat the reported 

switch position information to the 

employee releasing the limits and ask 

whether the repeated information is 

correct. Typically, railroad procedures 

require the train dispatcher to ask 

whether ‘‘that is correct’’ with regard to 

confirming this type of information, so 

the regulation is intended to reflect 

those commonly used procedures. The 

third condition is that the employee 

releasing the limits then confirm that 


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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8487 

this information is correct with the train 

dispatcher. Railroads and employees 

who currently release such limits 

should recognize that these 

requirements follow the traditional rules 

of such release. The purpose of the 

dispatcher and employee repeating the 

switch’s condition is so that both 

employees can confirm that the other is 

repeating the correct information 

regarding the position of the switch and 

that it is locked. 

The rule retains the requirement in 

EO 24 that an employee releasing the 

limits of a main track authority in nonsignaled territory communicate with the 

train dispatcher that all hand-operated 

main track switches operated have been 

restored to their normal position, unless 

the train dispatcher directs otherwise, 

but only to the extent that the switches 

are at the location where the limits are 

being released. With the elimination of 

a SPAF, it would be difficult for an 

employee to recall the condition of any 

particular hand-operated main track 

switch operated and there would likely 

be a reaction for an employee to believe 

he or she left all such switches in proper 

position—without much opportunity to 

double-check the condition of those 

faraway switches at that time. As 

mentioned previously, accidents often 

occur where the limits are being 

released and that is why the rule has 

placed emphasis on addressing the 

problem at those locations. The 

switches located at the point of release 

of the limits should be readily 

accessible for any employee who is 

unsure of the condition the switch was 

last left in. The rule also adds the 

requirement that the employee report 

that the switch has been locked; locking 

of the main track switch should prevent 

easy access to unauthorized users. 

The requirements in paragraph (d) 

carry over certain employee/dispatcher 

communication requirements from EO 

24 that provide additional checks to 

ensure that hand-operated main track 

switches are left properly lined and 

locked. The requirement is carefully 

tailored to address the switches at the 

location being released because FRA has 

determined that many of the accidents 

are occurring at that location. As several 

comments were received in response to 

EO 24 regarding an equivalent 

requirement carried over in paragraph 

(d), it should be helpful to describe 

what FRA means by the term ‘‘releasing 

the limits of a main track authority.’’

The term means releasing all or a 

portion of the limits (i.e., rolling up the 

limits) of an existing main track 

authority. 

Section 218.107 Additional 

Operational Requirements for HandOperated Crossover Switches 

As explained in the section-by-section 

analysis to § 218.103, FRA has broken 

up proposed § 218.103 into several 

sections so that the requirements will be 

easier to follow and be in a more logical 

order. The requirements found in this 

section were derived from proposed 

§ 218.103. 

The requirement proposed in 

paragraph (a) has been revised, but the 

reasons behind the requirement remain 

the same. The reasons behind this 

paragraph are to ensure that (1) each 

railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The purpose for 

requiring that each railroad, railroad 

officer, supervisor, and employee shall 

be considered in violation of this 

section when a railroad operating rule 

that complies with this section is 

violated is so that FRA has the authority 

to enforce this regulation as opposed to 

merely requiring that each railroad 

maintain and have in effect such a rule. 

Paragraph (b) was formerly proposed 

§ 218.103(g)(1). This paragraph sets 

forth the general rule that both handoperated switches of a crossover shall be 

properly lined before equipment begins 

a crossover movement. Properly lined 

means that switches at both ends of the 

crossover are lined for the crossover 

movement. As train crews expect 

crossover switches to be properly lined, 

i.e., in correspondence (see definition of 

‘‘correspondence of crossover 

switches’’), an accident can easily occur 

when crossover switches are out of 

correspondence. A related concern that 

is addressed by this paragraph is what 

to do when equipment is traversing a 

crossover; the rule requires that all 

equipment be clear of both ends of the 

crossover before restoring the switches 

to the normal position. If employees 

apply a railroad operating rule that 

incorporates this rule, the requirement 

should prevent the unintentional 

running through of crossover switches 

or unintentional movements onto 

another track that could potentially 

strike other rolling equipment. 

Paragraph (c) was formerly proposed 

§ 218.103(g)(2). This paragraph 

identifies four exceptions to the general 

rule that hand-operated crossover 

switches should be in correspondence. 

The reason for the exceptions is that 

each operation is safe or safer with the 

crossover switches out of 

correspondence than in correspondence. 

That is, each exception identifies a 

situation in which employees on the 

track are protected by diverting trains 

and equipment without slowing down 

operations. 

FRA is aware that some 

configurations of crossover switches are 

quite complicated, typically due to the 

location of adjacent or adjoining tracks 

and other attendant switches. Railroads 

should address these complicated 

configurations of crossover switches 

when employees are instructed on the 

physical characteristics of the territory. 

Without proper instruction on how to 

apply a railroad’s operating rule for 

correspondence of crossover switches, it 

will be difficult to hold employees 

accountable. However, railroads can be 

held accountable if employees do not 

properly apply such an operating rule 

and lack of instruction is one of the 

causes. Of course, if a railroad provided 

instruction but a violation was 

committed due to the complexities of 

the crossover configuration, FRA will 

exercise discretion regarding whether 

any enforcement action is necessary. 

Paragraph (c)(1)(i) was formerly 

proposed § 218.103(g)(2)(i)(A). This 

paragraph permits mechanical 

department workers to line one end of 

a crossover away from the track under 

blue signal protection to allow workers 

on, under, or between rolling 

equipment. See 49 CFR 218.27. 

Similarly, paragraph (c)(1)(ii), formerly 

proposed § 218.103(g)(2)(i)(B), permits 

providing track protection for roadway 

workers on track that is considered 

‘‘inaccessible’’ under § 214.327 of this 

chapter. Paragraph (c)(1)(iii), formerly 

proposed § 218.103(g)(2)(i)(C), permits 

those railroads that have the technology, 

in traffic control system (TCS) territory 

to allow a signal maintainer to perform 

maintenance, testing or inspection of 

the switch at only one end of a 

crossover while continuing to operate 

trains over the other crossover switch. 

FRA does not have any evidence to 

suggest this exception is an unsafe 

practice. Finally, the fourth exception, 

found in paragraph (c)(1)(iv), which was 

formerly proposed at the end of 

proposed paragraph (g)(1), recognizes 

that a safe operation is probable during 

continuous switching operations where 


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only one crew is using both tracks 

connected by the crossover. 

FRA has eliminated the stated 

requirement in proposed 

§ 218.103(g)(2)(ii) that crossover 

switches shall be immediately restored 

to correspondence after the protection 

afforded by one of the four exceptions 

in paragraph (c) is no longer required. 

After further consideration, FRA 

concluded that this requirement is 

implicit and it would be redundant to 

state it. If one of the paragraph (c) 

exceptions no longer applies, the 

general rule in paragraph (b) must be 

complied with—meaning that both 

hand-operated switches of a crossover 

shall be properly lined before rolling 

and on-track maintenance-of-way 

equipment begins a crossover 

movement. 

Section 218.109 Hand-Operated Fixed 

Derails 

As explained in the section-by-section 

analysis to § 218.103, FRA has broken 

up proposed § 218.103 into several 

sections so that the requirements will be 

easier to follow and be in a more logical 

order. The requirements found in this 

section were derived from proposed 

§ 218.103. 

FRA has also clarified in the title to 

this subpart, the purpose and scope 

section, and in § 218.109, that this 

subpart applies to ‘‘fixed’’ derails. In the 

NPRM, FRA did not distinguish 

between the two general types of 

derails, i.e., fixed and portable. FRA is 

using the term ‘‘fixed derails’’ to 

contrast it with derails that are portable. 

Portable, or temporary, derails can 

easily be transported and applied at 

different locations throughout the day in 

order to protect workers and equipment 

as needed. Fixed, or permanent, derails 

cannot be easily transported because 

they are typically affixed to the track 

structure in some manner. Fixed derails 

are normally found prior to entering a 

locomotive servicing area or car shop 

repair area, where they are used to 

protect workers in those areas from 

encroachment by unauthorized 

movements of rolling equipment, and 

on most industry tracks at or near the 

switch connecting with the main track. 

By clarifying that this subpart and 

section applies to fixed derails, FRA is 

providing up front notification that this 

subpart does not apply to the operation 

of portable derails. 

During the nearly four and a half year 

period from January 2003 through May 

2007, 154 accidents/incidents were 

reported by railroads to have been 

caused, either primarily or secondarily, 

by a person’s failure to apply or remove 

a derail. Only 3 of these 154 accidents 

were reported as caused by a failure to 

apply or remove a portable derail and 

thus 98% of the reportable accidents/ 

incidents were caused by the 

misapplication of the railroad’s 

operating rules for fixed derails. As the 

primary reason for issuing this rule is to 

reduce accidents/incidents attributed to 

human factor causes, this rule’s focus on 

reducing accidents/incidents attributed 

to mishandling fixed derails is 

appropriately targeted. 

The requirement proposed in 

paragraph (a)(1) has been revised, but 

the reasons behind the requirement 

remains the same. The reasons behind 

this paragraph are to ensure that (1) 

each railroad adopt and comply with an 

operating rule which complies with the 

requirements of this section; and (2) 

when any person including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

be considered to have violated the 

requirements of this section. The NPRM 

was not intended to mean, but could 

possibly have read, that each person 

was only to uphold and comply with 

the railroad’s operating rule and not the 

regulation itself. The purpose for 

requiring that each railroad, railroad 

officer, supervisor, and employee shall 

be considered in violation of this 

section when a railroad operating rule 

that complies with this section is 

violated is so that FRA has the authority 

to enforce this regulation as opposed to 

merely requiring that each railroad 

maintain and have in effect such a rule. 

Paragraph (a)(2) carries over the 

proposed requirement from § 218.103 

that each railroad specify minimum 

requirements for an adequate job 

briefing concerning hand-operated fixed 

derails. The requirement is for each 

railroad to have its own rules and 

procedures governing the minimum 

requirements for a satisfactory job 

briefing, which to FRA’s knowledge, 

nearly all railroads already do. It is 

essential that employees working 

together know exactly what each 

person’s role is in the operation, what 

the methods of operation and protection 

will be, and the order in which 

segments of the job are to be 

accomplished. With such knowledge, 

one employee could recognize the 

mistakes of another and correct them 

before any operating rule violation or 

serious accident occurred. 

Paragraph (b) derives from proposed 

§ 218.103(h). This paragraph sets forth 

the general rules for hand-operated 

fixed derails. Paragraph (b)(1) requires 

that the normal position of fixed derails 

is in the derailing position; but, a 

railroad may specify in its operating 

rules or special instructions that the 

normal position of a fixed derail is in 

the non-derailing position. Paragraph 

(b)(2) requires that fixed derails shall be 

kept in the derailing position whether or 

not any rolling or on-track maintenanceof-way equipment is on the tracks they 

protect, except as provided in paragraph 

(b)(1) or when changed to permit 

movement. Thus, the general rule 

requires that the fixed derails be 

returned to the derailing position once 

the movement is complete while the 

rule still allows for the flexibility of a 

railroad to designate otherwise or an 

exception in paragraph (b)(1) to apply in 

less common circumstances. If fixed 

derails are being used for protection of 

workers using blue signals, these rules 

would not be applicable as FRA already 

has other regulations governing derails 

in that circumstance. See 49 CFR part 

218, subpart B. 

The entire purpose of a derail, 

whether fixed or portable, is to protect 

something or someone. Derails are 

typically used to prevent equipment 

from rolling out onto main tracks in 

front of trains. They are also used to 

protect workers who are on a track to 

repair track or equipment. Derails may 

be placed in addition to warnings 

provided by signs, flags, gates, and 

notices in timetables and special 

instructions; thus, derails protect 

employees when other employees 

operating equipment or a train fail to 

heed these other warnings, or 

unattended equipment rolls freely. 

Although a properly applied derail that 

stops equipment or a train has served its 

purpose, FRA prohibits movements over 

a fixed derail in the derailing position 

under paragraph (b)(3). Paragraph (b)(3) 

will permit FRA to take enforcement 

action when a railroad or person causes 

a movement to be made over a derail in 

the derailing position. As the typical 

situation involving movement over a 

derail occurs at low speeds and does not 

result in serious injuries or excessive 

damage to railroad property, the 

industry has accepted, in FRA’s view, 

too much tolerance for this type of 

incident. Consequently, while FRA 

plans to use its enforcement discretion, 

the purpose of this requirement is to 

reverse the permissive culture of the 

railroad industry that has accepted 

operating over a derail. 

Paragraph (c) derives from 

§ 218.103(b) and (h)(3). This paragraph 

addresses the same type of list of 

requirements that FRA is requiring for 

hand-operated switches, but applies 

them to hand-operated fixed derails. For 

instance, paragraph (c)(1) requires that 


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employees operating or verifying the 

position of a fixed derail shall conduct 

job briefings before work is begun, each 

time a work plan is changed, and at 

completion of the work. It is essential 

that employees performing these tasks 

communicate with one another at key 

intervals to prevent error free operations 

over derails. Paragraph (c)(2) requires 

that employees operating or verifying 

the position of a fixed derail shall be 

qualified on the railroad’s operating 

rules relating to the operation of the 

derail. In FRA’s view, it seems intuitive 

that a railroad cannot expect an 

employee to know how to properly 

operate or verify the position of a handoperated fixed derail without qualifying 

the employee. Once qualified, an 

employee will be held individually 

responsible for the position of the derail 

in use; for the purpose of paragraphs 

(c)(3) and (c)(6), a fixed derail is 

considered ‘‘in use’’ if a movement is 

either operating over the derail, or 

continuously or intermittently operating 

over the derail while it is in the nonderailing position. Paragraph (c)(6) 

addresses that employees operating or 

verifying the position of a fixed derail 

shall ensure that when not in use, 

derails are locked, hooked, or latched in 

the normal position if so equipped. As 

FRA mentioned in the analysis to 

§ 218.103, FRA’s rule does not require 

switch or derail targets, latches, locks or 

hooks; however, if a switch or derail is 

equipped with any of these devices, 

FRA requires that the employees check 

that these devices are properly placed or 

correspond as intended. If the derail is 

so equipped, it shall be locked in the 

normal position regardless of whether 

the normal position is designated by the 

railroad as in the derailing position or 

non-derailing position. 

Appendix D to Part 218—Requirements 

and Considerations for Implementing 

Technology Aided Point Protection 

In the preamble to the NPRM, FRA 

restated its policy on using technology, 

such as cameras and monitors, to assist 

crews in providing point protection 

during shoving or pushing movements. 

The NPRM was the first proposed 

regulatory provision on this subject, 

and, in addition to the preamble 

discussion, the issue was also directly 

raised by proposed § 218.99(b)(2)(i). 

FRA received some comments on this 

policy and it was discussed with the 

RSAC working group. Generally 

speaking, the railroads wanted to 

continue using such technology without 

seeing any need for further regulation; 

meanwhile, the labor organizations were 

concerned that without adequate 

safeguards, i.e., regulations, the use of 

such technology posed too many 

questions related to adequate 

functionality and reliability. After 

further consideration, FRA has 

concluded that implementing the policy 

as mandatory requirements is necessary 

to assure Federal, State and local 

governments, that adequate safeguards 

are in place to protect the general 

public. 

The first section of appendix D 

addresses the general requirements and 

considerations for all point protection 

aided by technology. One of the big 

concerns with not having a qualified 

employee protecting the point is 

determining that the technology, and 

the procedures for its use, provide an 

equivalent level of protection to that of 

a direct visual determination by a 

crewmember or other qualified 

employee properly positioned to make 

the observation. To do that, a person 

must be properly qualified. FRA has 

addressed the qualifications issue by 

carrying over from the proposed rule, in 

§ 218.95(a)(2), the requirement that each 

railroad must qualify employees ‘‘in any 

technology (and related procedures) 

necessary to accomplish work subject to 

the particular requirements, actions 

required by the employee to enable and 

use the system, means to detect 

malfunctioning of equipment or 

deviations from proper procedures, 

actions to be taken when malfunctions 

or deviations are detected, and 

information needed to prevent 

unintentional interference with the 

proper functioning of such technology.’’

In summary, the rule requires 

employees to be qualified on proper use 

of the technology and what to do when 

the technology does not work as 

intended. Most malfunctions of the 

technology should be detectable, and 

result in abandoning the use of the 

technology for determining point 

protection until the malfunction can be 

corrected. 

Although each railroad will retain 

some flexibility in implementing 

technological aids to provide point 

protection, the stated requirements and 

considerations will provide FRA with 

the ability to more quickly and directly 

enforce a change if a railroad attempts 

to implement a setup that does not 

adequately address all of the factual 

circumstances noted for consideration. 

For instance, a railroad shall not permit 

a camera/monitor setup that utilizes a 

black and white monitor that does not 

allow the person viewing the monitor to 

adequately determine a signal 

indication for the shoving or pushing 

movement. Similarly, FRA could take 

enforcement action against a railroad or 

individual for using a camera/monitor 

setup during severe weather conditions 

that did not permit adequate camera 

views of whether a crossing’s gates were 

down or the track is, in fact, clear of 

equipment. Another consideration 

before implementing technology aided 

point protection is who will be allowed 

to view the monitor and assist the crew; 

thus, FRA will consider enforcement 

action if employees do not conduct 

adequate job briefings or maintain 

adequate lines of communication 

between the employee controlling the 

movement and the employee viewing 

the monitor. 

It is also worth mentioning that each 

railroad shall ensure that the technology 

provides ‘‘real time coverage,’’ i.e., a 

view without any delay that could 

impact the safety of the operation and 

provide less protection than that of a 

direct visual determination. With that 

regard, we are concerned with internet 

or web-based monitoring systems that 

do not provide a direct feed to the 

monitor and could potentially be 

delayed by routing through a third party 

server or other internet portal. Although 

FRA is not prohibiting such web-based 

monitoring systems, additional 

safeguards would need to be employed 

in order to ensure that real time 

coverage can be obtained and the setup 

relied upon. 

The second section of appendix D 

specifies additional requirements for the 

scenario in which remote control 

locomotive operations will be using 

technology aided point protection at 

highway-rail grade crossings, pedestrian 

crossings, and yard access crossings. All 

of the general requirements and 

considerations of the first section are 

also applicable to these remote control 

operations over grade crossings except 

that there should be less of a chance of 

a communication problem as FRA is 

instituting a new requirement that the 

remote control operator controlling the 

movement shall be the only person 

permitted to view the monitor during 

such operations. As the appendix 

explains, the purpose of this new 

requirement is to protect the general 

public, which is at greater risk of being 

struck by equipment at the crossings 

specified than employees qualified to 

operate in a yard environment. If the 

remote control operator controlling the 

movement is viewing the monitor, that 

operator should be able to react more 

quickly if a vehicle or pedestrian enters 

the crossing being viewed than if the 

information first had to be relayed by 

another person. Shaving a few precious 

seconds off the reaction time by 

eliminating the need for the relaying of 

information may be enough to mitigate 

the severity of an accident. FRA realizes 


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that the few railroads using this 

technology prior to implementation of 

this rule will each likely need to amend 

any relevant operating rules or 

procedures. As many of these operations 

involve two crewmembers who have the 

ability to control the movement, 

complying with this requirement should 

not be significantly burdensome. In fact, 

this requirement may cut down on the 

odd practice of having one remote 

control operator/crewmember 

controlling the movement when a 

second, equally capable operator/ 

crewmember is in the best possible 

position to view the equipment ahead of 

the movement. 

FRA has converted the policy 

statement published in the NPRM into 

a list of mandatory requirements for 

remote control locomotive operations 

utilizing camera/monitor setups at the 

types of crossings specified. The list has 

been altered slightly to rephrase each 

item as a mandatory requirement. The 

first requirement, to have a Crossing 

Diagnostic Team evaluate the crossing, 

is arguably the most important. Each 

railroad cannot be permitted to setup 

remote cameras at crossings for use by 

remote control operators without 

consulting FRA, and relevant State and 

local government officials. All types of 

information related to the safety of the 

crossing would need evaluation prior to 

deciding whether technology could be 

used safely at that crossing and 

determining exactly what modifications 

are necessary to ensure the operation is 

safe. Because we are requiring the 

expertise of a diagnostic team, FRA is 

permitting the diagnostic team to 

conclude that some or all of 

requirements 2, 4, 5, and 6 do not need 

to be complied with when a crossing is 

equipped with supplemental safety 

devices that prevent motorists from 

driving around lowered gates; however, 

the diagnostic team cannot waive the 

requirement that the remote control 

operator controlling the movement be 

the person viewing the monitor 

(requirement number 3), nor the 

requirement that the railroad notify the 

Associate Administrator for Safety in 

writing when this type of protection has 

been installed and activated at a 

crossing (requirement number 7). This 

latter requirement to contact FRA in 

writing has been added to ensure that 

FRA grade crossing specialists and 

signal inspectors can be made aware of 

when these setups have been activated 

and, thus, may begin monitoring the 

safety of such operations. 

If a railroad implemented a remote 

camera setup to be used by a remote 

control operation at a highway-rail 

grade crossing, pedestrian crossing, or 

yard access crossing prior to April 14, 

2008, i.e., the effective date of this final 

rule, the railroad may continue to use 

that setup without a new crossing 

diagnostic team evaluation as long as a 

diagnostic team was previously used to 

make the necessary determinations. 

However, even if a diagnostic team was 

used prior to that date, compliance is 

required with the other requirements 

unless specified by a diagnostic team. 

As FRA explains in its conclusion, we 

expect that technology will develop and 

improve over time. The use of new 

technology is typically driven by 

efficiencies achieved, of which safety 

may only be one component. 

Meanwhile, FRA cannot always keep up 

with the latest technologies without 

notification and we have a duty to 

determine whether a new technology to 

aid point protection provides an 

equivalent level of protection to that of 

a direct visual determination. Thus, 

FRA is requiring that railroads wishing 

to utilize the latest technologies contact 

the Associate Administrator for Safety 

in writing prior to implementation. 

VI. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule 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). FRA has 

prepared and placed in the docket a 

regulatory evaluation addressing the 

economic impact of this final rule. 

Document inspection and copying 

facilities are available at the Docket 

Management Facility: U.S. Department 

of Transportation, 1200 New Jersey 

Avenue, SE., West Building Ground 

Floor, Room W12–140, Washington, DC 

20590–0001. Access to the docket may 

also be obtained electronically through 

the Federal eRulemaking Portal at 

http://www.regulations.gov. Photocopies 

may also be obtained by submitting a 

written request to the FRA Docket Clerk 

at Office of Chief Counsel, Stop 10, 

Federal Railroad Administration, 1120 

Vermont Avenue, NW., Washington, DC 

20590; please refer to Docket No. FRA–

2005–23080. 

FRA analyzed the foregoing final rule 

and found that there will be relatively 

little change in the burden upon 

railroads, however, the FRA believes 

that much greater compliance with rules 

which are almost identical to what the 

railroads have promulgated as their own 

operating rules will likely result in a 

reduction in human factor accidents, 

especially those human factors causes 

most directly targeted by the 

rulemaking. FRA believes that most 

railroads can achieve average reductions 

of 35% in these accidents, because there 

is one Class I railroad with better than 

average compliance with its own 

operating rules which routinely has 

human factor accident rates 35% below 

the industry average. The costs of the 

foregoing are minimal, because most of 

the procedures mandated are already 

incorporated in the railroads’ own 

operating rules. The biggest costs will be 

related to publication of changed 

language, and management of the 

operating rules programs. The rule 

would have even less impact on small 

entities, as they are excused from most 

of the burdens which regulate 

management of their operating rules 

testing programs. The final rule would 

generate twenty-year discounted 

benefits of $191,189,965, and twentyyear discounted costs of $20,756,051, 

for a twenty-year discounted net benefit 

of $170,433,914, if the assumptions in 

this analysis are correct. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act (5 

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

13272 require a review of proposed and 

final rules to assess their impact on 

small entities. FRA has prepared and 

placed in the docket an Analysis of 

Impact on Small Entities (AISE) that 

assesses the small entity impact of this 

final rule. Document inspection and 

copying facilities are available at the 

Docket Management Facility: U.S. 

Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. Access to 

the docket may also be obtained 

electronically through the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. Photocopies may 

also be obtained by submitting a written 

request to the FRA Docket Clerk at 

Office of Chief Counsel, Stop 10, 

Federal Railroad Administration, 1120 

Vermont Avenue, NW., Washington, DC 

20590; please refer to Docket No. FRA–

2005–23080. 

FRA notes that the impact on small 

entities have been considered 

throughout the development of this final 

rule both internally and through 

consultation within the RSAC forum, as 

described in Section II of this preamble. 

After the Railroad Operating Rules 

Working Group failed to reach a 

consensus recommendation, FRA 

reported the Working Group’s unofficial 

areas of agreement and disagreement to 

the RSAC. 


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The AISE developed in connection 

with this final rule concludes that this 

proposal would not have a significant 

economic impact on a substantial 

number of small entities. Thus, FRA 

certifies that this final rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act or Executive Order 13272. 

C. Paperwork Reduction Act 

The information collection 

requirements in this 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 amendment ......... 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 hours .......................... 37,856 1,892,800 

—Written records of 

officer testing 

qualifications.

687 Railroads ................ 4,732 records ................ 2 minutes ...................... 158 1 0 

—Written program 

of operational 

tests/inspections.

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

—Amendments to 

operational tests/ 

insp. programs.

55 Railroads .................. 165 amendments .......... 1.92 hours ..................... 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 1 0 

—Officer designations & Six Month 

reviews.

687 Railroads ................ 37 designations + 74 reviews.5 seconds + 1 hour ....... 74 1 0 

—Passenger Railroads: Officer 

designations & 

Six-Month reviews.

20 Railroads .................. 20 designations + 34 reviews.5 seconds + 1 hour ....... 34 1 0 

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


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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 

tests/inspections.

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

217.11—Program of Instruction on Operating 

Rules: 

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

—Current copy of 

employee periodic instruction 

prog.

20 New Railroads ......... 20 programs .................. 8 hours .......................... 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 empl. rcds ......... 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 Procedures.

687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 1 0 

—Copies to employees of good 

faith procedures.

687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 1 0 

—Copies of amendments to good 

faith procedures.

687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 1 0 

—Good faith challenges to railroad 

directives.

98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 1 0 

—Resolution of 

challenges.

687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 1 0 

—Direct order to 

proceed procedures: Immediate 

review by railroad 

testing officer/employer.

687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 1 0 

—Documentation of 

employee protests to direct 

order.

687 Railroads ................ 10 protest docs ............. 15 minutes .................... 3 1 0 

—Copies of protest 

documentation.

687 Railroads ................ 20 copies ...................... 1 minute ........................ .33 1 0 

—Further review by 

designated railroad officer.

687 Railroads ................ 3 reviews ....................... 15 minutes .................... 1 1 0 

—Employee requested written 

verification decisions.

687 Railroads ................ 10 written 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 

218.97—Good Faith 

Challenge Procedures 

687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 1 0 

—Copies to employees of good 

faith procedures.

687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 1 0 


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CFR Section—49 CFR Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

Total annual burden cost 

—Copies of amendments to good 

faith procedures.

687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 1 0 

—Good faith challenges to railroad 

directives.

98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 1 0 

—Resolution of 

challenges.

687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 1 0 

—Direct order to 

proceed procedures: Immediate 

review by railroad 

testing officer/employer.

687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 1 0 

218.99—Shoving or 

Pushing Movements: 

—Required operating rule compliant with this section.687 Railroads ................ 687 rule modific ............ 1 hour ............................ 687 1 0 

—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/communications.1 minute ........................ 14,600 642,400 

—Operational exceptions: Dispatcher permitted 

movements that 

are verified.

6,000 RR Dispatchers .. 30,000 verified/permitted 

movements.

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

218.101—Leaving Rolling and On-Track 

Maintenance-of-Way 

Equipment in the 

Clear: 

—Operating Rule 

that Complies 

with this section.

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

3.

30 minutes .................... 344 1 0 

218.103—Hand-Operated Switches and 

Derails: 

—Operating Rule 

that Complies 

with this section.

687 Railroads ................ 687 amended op. rules 60 minutes .................... 687 1 0 

—Minimum requirements for adequate job briefing.632 Railroads ................ 632 modif rules ............. 60 minutes .................... 632 1 0 

—Actual job briefings conducted 

by employees operating hand-operated main track 

switches.

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


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CFR Section—49 CFR Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

Total annual burden cost 

218.105—Additional Job 

Briefings for hand-operated main track 

switches.

687 Railroads ................ 60,000 briefings ............ 1 minute ........................ 1,000 1 0 

—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 1 0 

—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 1 0 

218.109—Hand-operated fixed derails—

Job briefings.

687 Railroads ................ 562,500 brfngs .............. 30 seconds ................... 4,688 234,400 

1 Incl. RIA. 

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 Gina 

Christodoulou at 202–493–6139, or via 

e-mail at robert.brogan@dot.gov or 

gina.christodoulou@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 a rule with preemptive effect. 

Subject to a limited exception for 

essentially local safety hazards, its 

requirements will establish a uniform 

Federal safety standard that must be 

met, and State requirements covering 

the same subject are displaced, whether 

those standards are in the form of State 

statutes, regulations, local ordinances, 

or other forms of state law, including 

State common law. Preemption is 

addressed in §§ 217.2 and 218.4, both 

titled ‘‘Preemptive effect.’’ As stated in 

the corresponding preamble language 

for §§ 217.2 and 218.4, section 20106 of 

Title 49 of the United States Code 

provides that all regulations prescribed 

by the Secretary related to railroad 

safety preempt any State law, 

regulation, or order covering the same 

subject matter, except a provision 

necessary to eliminate or reduce an 

essentially local safety 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 final rule in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA notes that the above factors 

have been considered throughout the 

development of this NPRM both 

internally and through consultation 

within the RSAC forum, as described in 

Section II of this preamble. After the 

Railroad Operating Rules Working 

Group failed to reach a consensus 

recommendation, FRA reported the 

Working Group’s unofficial areas of 

agreement and disagreement to the 

RSAC. The RSAC has as permanent 

voting members two organizations 

representing State and local interests: 

AASHTO and ASRSM. The RSAC 

regularly provides recommendations to 

the FRA Administrator for solutions to 


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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8495 

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. 

It should be noted that on April 27, 

2005, FRA received from the State of 

California a petition for rulemaking on 

the subject of remote control operations 

referred to in the SUPPLEMENTARY

INFORMATION section as ‘‘Technology 

Aided Point Protection.’’ The petition 

requested that FRA initiate a rulemaking 

‘‘to formally approve and establish rules 

affecting RCL [i.e., remote control 

locomotive] operations by railroads over 

public highway-rail at-grade crossings.’’

California’s petition did not raise an 

issue regarding preemption. On October 

27, 2005, FRA denied California’s 

rulemaking petition because it was 

procedurally deficient and it did not 

include sufficient information upon 

which to base a rulemaking proceeding. 

See Docket No. FRA–2005–21094 

(found at http://dms.dot.gov/). 

Nevertheless, this final rule contains 

specific provisions of the kind requested 

in the California petition. 

For the foregoing reasons, FRA 

believes that this final rule is in 

accordance with the principles and 

criteria contained in Executive Order 

13132. 

E. Environmental Impact 

FRA has evaluated this final rule 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 final rule 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. The final rule 

would not result in the expenditure, in 

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

in any one year, and thus preparation of 

such a statement is not required. 

G. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

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

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

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

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule 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. 

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 217.2 is added to read as 

follows: 

§ 217.2 Preemptive effect. 

Normal State negligence standards 

apply where there is no Federal action 

covering the subject matter. Under 49 

U.S.C. 20106 (section 20106), issuance 

of the regulations in this part preempts 

any State law, regulation, or order 

covering the same subject matter, except 

an additional or more stringent law, 

regulation, or order that is necessary to 

eliminate or reduce an essentially local 

railroad safety or railroad security 

hazard; that is not incompatible with a 

law, regulation, or order of the United 

States Government; and that does not 

unreasonably burden interstate 

commerce. Section 20106 permits State 

tort actions arising from events or 

activities occurring on or after January 

18, 2002, for the following: violation of 

the Federal standard of care established 

by regulation or order issued by the 

Secretary of Transportation (with 

respect to railroad safety, such as these 

regulations) or the Secretary of 

Homeland Security (with respect to 

railroad security); a party’s violation of, 

or failure to comply with, its own plan, 

rule, or standard that it created pursuant 

to a regulation or order issued by either 

of the two Secretaries; and a party’s 

violation of a State standard that is 

necessary to eliminate or reduce an 

essentially local safety or security 

hazard, is not incompatible with a law, 

regulation, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. Nothing in 

section 20106 creates a Federal cause of 

action on behalf of an injured party or 


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8496 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

confers Federal question jurisdiction for 

such State law causes of action. 

■ 3. Section 217.4 is amended by adding 

the following definitions of Associate 

Administrator for Safety, FRA, and 

Qualified in alphabetical order to read 

as follows: 

§ 217.4 Definitions. 

* * * * * 

Associate Administrator for Safety 

means the Associate Administrator for 

Safety of the Federal Railroad 

Administration or that person’s delegate 

as designated in writing. 

* * * * * 

FRA means the Federal Railroad 

Administration. 

Qualified means that a person has 

successfully completed all instruction, 

training, and examination programs 

required by the railroad and this part 

and that the person, therefore, has 

actual knowledge or may reasonably be 

expected to have knowledge of the 

subject on which the person is expected 

to be competent. 

* * * * * 

■ 4. Section 217.9 is revised to read as 

follows: 

§ 217.9 Program of operational tests and 

inspections; recordkeeping. 

(a) Requirement to conduct 

operational tests and inspections. Each 

railroad to which this part applies shall 

periodically conduct operational tests 

and inspections to determine the extent 

of compliance with its code of operating 

rules, timetables, and timetable special 

instructions, specifically including tests 

and inspections sufficient to verify 

compliance with the requirements of 

subpart F of part 218 of this chapter, in 

accordance with a written program as 

required by paragraph (c) of this section. 

(b) Railroad and railroad testing 

officer responsibilities. The 

requirements of this paragraph are 

applicable on or after July 1, 2008. 

(1) Each railroad officer who conducts 

operational tests and inspections 

(railroad testing officer) shall: 

(i) Be qualified on the railroad’s 

operating rules in accordance with 

§ 217.11 of this part; 

(ii) Be qualified on the operational 

testing and inspection program 

requirements and procedures relevant to 

the testing and inspections the officer 

will conduct; 

(iii) Receive appropriate field training, 

as necessary to achieve proficiency, on 

each operational test or inspection that 

the officer is authorized to conduct; and 

(iv) Conduct operational tests and 

inspections in accordance with the 

railroad’s program of operational tests 

and inspections. 

(2) Written records documenting 

qualification of each railroad testing 

officer shall be retained at the railroad’s 

system headquarters and at the division 

headquarters for each division where 

the officer is assigned and shall be made 

available to representatives of the FRA 

for inspection and copying during 

normal business hours. 

(c) Written program of operational 

tests and inspections. Every railroad 

shall have a written program of 

operational tests and inspections in 

effect. New railroads shall have such a 

program within 30 days of commencing 

rail operations. The program shall—

(1) Provide for operational testing and 

inspection under the various operating 

conditions on the railroad. As of July 1, 

2008, the program must 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; 

(2) Require a minimum number of 

tests and inspections per year covering 

the requirements of part 218, subpart F 

of this chapter; 

(3) Describe each type of operational 

test and inspection required, including 

the means and procedures used to carry 

it out; 

(4) State the purpose of each type of 

operational test and inspection; 

(5) State, according to operating 

divisions where applicable, the 

frequency with which each type of 

operational test and inspection is to be 

conducted; 

(6) As of July 1, 2008, 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 officers 

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. 

(7) Include a schedule for making the 

program fully operative within 210 days 

after it begins. 

(d) Records. (1) Each railroad to 

which this part applies shall keep a 

record of the date, time, place, and 

result of each operational test and 

inspection that was performed in 

accordance with its program. Each 

record shall specify the officer 

administering the test and inspection 

and each employee tested. These 

records shall be retained at the system 

headquarters and at each division 

headquarters where the tests and 

inspections are conducted for one 

calendar year after the end of the 

calendar year to which they relate. 

These records shall be made available to 

representatives of the FRA for 

inspection and copying during normal 

business hours. 

(2) Each railroad shall retain one copy 

of its current program for periodic 

performance of the operational tests and 

inspections required by paragraph (a) of 

this section and one copy of each 

subsequent amendment to such 

program. These records shall be retained 

at the system headquarters and at each 

division headquarters where the tests 

and inspections are conducted for three 

calendar years after the end of the 

calendar year to which they relate. 

These records shall be made available to 

representatives of the FRA for 

inspection and copying during normal 

business hours. 

(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 effective July 1, 2008 and to 

all other railroads subject to this 

paragraph effective January 1, 2009. 

(1) Reviews by railroads other than 

passenger railroads. Each railroad to 

which this part applies shall conduct 

periodic reviews and analyses as 

provided in this paragraph and shall 

retain, at each division headquarters, 

where applicable, and at its system 

headquarters, one copy of the following 

written reviews, provided however that 

this requirement does not apply to 

either a railroad with less than 400,000 

total employee work hours annually or 

a passenger railroad subject to 

paragraph (e)(2) of this section. 

(i) Quarterly review. The designated 

officer of each division headquarters, or 

system headquarters, if no division 

headquarters exists, shall conduct a 

written quarterly review of the accident/ 

incident data, the results of prior 

operational tests and inspections, and 

other pertinent safety data for that 

division or system to identify the 

relevant operating rules related to those 

accidents/incidents that occurred 

during the quarter. The review shall also 

include the name of each railroad 

testing officer, the number of tests and 

inspections conducted by each officer, 

and whether the officer conducted the 

minimum number of each type of test or 


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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8497 

inspection required by the railroad’s 

program. Based upon the results of that 

review, the designated officer shall 

make any necessary adjustments to the 

tests and inspections required of 

railroad officers for the subsequent 

period(s). Quarterly reviews and 

adjustments shall be completed no later 

than 30 days after the quarter has ended. 

(ii) Six month review. The designated 

officer of each system headquarters 

office responsible for development and 

administration of the program of 

operational tests and inspections shall 

conduct a review of the program of 

operational tests and inspections on a 

six month basis to ensure that it is being 

utilized as intended, that the quarterly 

reviews provided for in this paragraph 

have been properly completed, that 

appropriate adjustments have been 

made to the distribution of tests and 

inspections required, and that the 

railroad testing officers are 

appropriately directing their efforts. Six 

month reviews shall be completed no 

later than 60 days after the review 

period has ended. 

(2) Reviews by passenger railroads. 

Not less than once every six months, the 

designated officer(s) of the National 

Railroad Passenger Corporation and of 

each railroad providing commuter 

service in a metropolitan or suburban 

area shall conduct periodic reviews and 

analyses as provided in this paragraph 

and shall retain, at each division 

headquarters, where applicable, and at 

its system headquarters, one copy of the 

reviews. Each such review shall be 

completed within 30 days of the close 

of the period. The designated officer(s) 

shall conduct a written review of: 

(i) The operational testing and 

inspection data for each division, if any, 

or the system to determine compliance 

by the railroad testing officers with its 

program of operational tests and 

inspections required by paragraph (c) of 

this section. At a minimum, this review 

shall include the name of each railroad 

testing officer, the number of tests and 

inspections conducted by each officer, 

and whether the officer conducted the 

minimum number of each type of test or 

inspection required by the railroad’s 

program; 

(ii) Accident/incident data, the results 

of prior operational tests and 

inspections, and other pertinent safety 

data for each division, if any, or the 

system to identify the relevant operating 

rules related to those accidents/ 

incidents that occurred during the 

period. Based upon the results of that 

review, the designated officer(s) shall 

make any necessary adjustments to the 

tests and inspections required of 

railroad officers for the subsequent 

period(s); and 

(iii) Implementation of the program of 

operational tests and inspections from a 

system perspective, to ensure that it is 

being utilized as intended, that the other 

reviews provided for in this paragraph 

have been properly completed, that 

appropriate adjustments have been 

made to the distribution of tests and 

inspections required, and that the 

railroad testing officers are 

appropriately directing their efforts. 

(3) Records retention. The records of 

periodic reviews required in paragraphs 

(e)(1) and (e)(2) of this section shall be 

retained for a period of one year after 

the end of the calendar year to which 

they relate and shall be made available 

to representatives of FRA for inspection 

and copying during normal business 

hours. 

(f) Annual summary of operational 

tests and inspections. Before March 1 of 

each calendar year, each railroad to 

which this part applies, except for a 

railroad with less than 400,000 total 

employee work hours annually, shall 

retain, at each of its division 

headquarters and at the system 

headquarters of the railroad, one copy of 

a written summary of the following with 

respect to its previous calendar year 

activities: The number, type, and result 

of each operational test and inspection, 

stated according to operating divisions 

where applicable, that was conducted as 

required by paragraphs (a) and (c) of this 

section. These records shall be retained 

for three calendar years after the end of 

the calendar year to which they relate 

and shall be made available to 

representatives of the FRA for 

inspection and copying during normal 

business hours. 

(g) Electronic recordkeeping. Each 

railroad to which this part applies is 

authorized to retain by electronic 

recordkeeping the information 

prescribed in this section, provided that 

all of the following conditions are met: 

(1) The railroad adequately limits and 

controls accessibility to such 

information retained in its electronic 

database system and identifies those 

individuals who have such access; 

(2) The railroad has a terminal at the 

system headquarters and at each 

division headquarters; 

(3) Each such terminal has a computer 

(i.e., monitor, central processing unit, 

and keyboard) and either a facsimile 

machine or a printer connected to the 

computer to retrieve and produce 

information in a usable format for 

immediate review by FRA 

representatives; 

(4) The railroad has a designated 

representative who is authorized to 

authenticate retrieved information from 

the electronic system as true and 

accurate copies of the electronically 

kept records; and 

(5) The railroad provides 

representatives of the FRA with 

immediate access to these records for 

inspection and copying during normal 

business hours and provides printouts 

of such records upon request. 

(h) Upon review of the program of 

operational tests and inspections 

required by this section, the Associate 

Administrator for Safety may, for cause 

stated, disapprove the program. 

Notification of such disapproval shall be 

made in writing and specify the basis 

for the disapproval decision. If the 

Associate Administrator for Safety 

disapproves the program, 

(1) The railroad has 35 days from the 

date of the written notification of such 

disapproval to: 

(i) Amend its program and submit it 

to the Associate Administrator for 

Safety for approval; or 

(ii) Provide a written response in 

support of the program to the Associate 

Administrator for Safety, who informs 

the railroad of FRA’s final decision in 

writing; and 

(2) A failure to submit the program 

with the necessary revisions to the 

Associate Administrator for Safety in 

accordance with this paragraph will be 

considered a failure to implement a 

program under this part. 

■ 5. Section 217.11(c) is revised to read 

as follows: 

§ 217.11 Program of instruction on 

operating rules; recordkeeping; electronic 

recordkeeping. 

* * * * * 

(c) Each railroad to which this part 

applies is authorized to retain by 

electronic recordkeeping its program for 

periodic instruction of its employees on 

operating rules provided that the 

requirements stated in § 217.9(g)(1) 

through (5) of this part are satisfied. 

■ 6. Appendix A to part 217 is amended 

by revising the entry for § 217.9 to read 

as follows: 


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APPENDIX A TO PART 217—SCHEDULE OF CIVIL PENALTIES

Section Violation Willful violation 

* * * * * * * 

217.9 Operational tests and inspections: 

(a) Failure to implement a program .......................................................................................................... $9,500–12,500 $13,000–16,000 

(b) Railroad and railroad testing officer responsibilities: 

(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in accordance with program .................................................................................................................. 9,500 13,000 

(2) Records ........................................................................................................................................ 7,500 11,000 

(c) Record of program; program incomplete ............................................................................................ 7,500–12,500 11,000–16,000 

(d) Records of individual tests and inspections ....................................................................................... 7,500 ............................

(e) Failure to retain copy of or conduct: 

(1)(i) Quarterly review ........................................................................................................................ 9,500 13,000 

(1)(ii) and (2) Six month review ......................................................................................................... 9,500 13,000 

(3) Records ........................................................................................................................................ 7,500 11,000 

(f) Annual summary .................................................................................................................................. 7,500 11,000 

(h) Failure to timely or appropriately amend program after disapproval .................................................. 9,500–12,500 13,000–16,000 

* * * * * * * 

PART 218—[AMENDED] 

■ 7. 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. 

■ 8. Section 218.4 is added to read as 

follows: 

§ 218.4 Preemptive effect. 

Normal State negligence standards 

apply where there is no Federal action 

covering the subject matter. Under 49 

U.S.C. 20106 (section 20106), issuance 

of the regulations in this part preempts 

any State law, regulation, or order 

covering the same subject matter, except 

an additional or more stringent law, 

regulation, or order that is necessary to 

eliminate or reduce an essentially local 

railroad safety or railroad security 

hazard; that is not incompatible with a 

law, regulation, or order of the United 

States Government; and that does not 

unreasonably burden interstate 

commerce. Section 20106 permits State 

tort actions arising from events or 

activities occurring on or after January 

18, 2002, for the following: Violation of 

the Federal standard of care established 

by regulation or order issued the 

Secretary of Transportation (with 

respect to railroad safety, such as these 

regulations) or the Secretary of 

Homeland Security (with respect to 

railroad security); a party’s violation of, 

or failure to comply with, its own plan, 

rule, or standard that it created pursuant 

to a regulation or order issued by either 

of the two Secretaries; and a party’s 

violation of a State standard that is 

necessary to eliminate or reduce an 

essentially local safety or security 

hazard, is not incompatible with a law, 

regulation, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. Nothing in 

section 20106 creates a Federal cause of 

action on behalf of an injured party or 

confers Federal question jurisdiction for 

such State law causes of action. 

■ 9. Section 218.5 is amended by 

revising the definitions of Flagman’s 

signals and Locomotive to read as 

follows: 

§ 218.5 Definitions. 

* * * * * 

Flagman’s signals means a red flag by 

day and a white light at night, and 

fusees as prescribed in the railroad’s 

operating rules. 

* * * * * 

Locomotive means, except for 

purposes of subpart F of this part, a selfpropelled unit of equipment designed 

for moving other railroad rolling 

equipment in revenue service including 

a self-propelled unit designed to carry 

freight or passenger traffic, or both, and 

may consist of one or more units 

operated from a single control. 

* * * * * 

■ 10. Section 218.37 is amended by 

revising paragraphs (a)(1)(iii) and 

(a)(1)(iv) to read as follows: 

§ 218.37 Flag protection. 

(a) * * * 

(1) * * * 

(iii) When a train stops on main track, 

flag protection against following trains 

on the same track must be provided as 

follows: A crew member with flagman’s 

signals must immediately go back at 

least the distance prescribed by 

timetable or other instructions for the 

territory and display one lighted fusee. 

The crew member may then return onehalf of the distance to the crew 

member’s train where the crew member 

must remain until the crew member has 

stopped the approaching train or is 

recalled. When recalled, the crew 

member must leave one lighted fusee 

and while returning to the crew 

member’s train, the crew member must 

also place single lighted fusees at 

intervals that do not exceed the burning 

time of the fusee. When the train 

departs, a crew member must leave one 

lighted fusee and until the train resumes 

speed not less than one-half the 

maximum authorized speed (including 

slow order limits) in that territory, the 

crew member must drop off single 

lighted fusees at intervals that do not 

exceed the burning time of the fusee. 

(iv) When required by the railroad’s 

operating rules, a forward crew member 

with flagman’s signals must protect the 

front of the crew member’s train against 

opposing movements by immediately 

going forward at least the distance 

prescribed by timetable or other 

instructions for the territory, displaying 

one lighted fusee, and remaining at that 

location until recalled. 

* * * * * 

■ 11. Add new subpart F to part 218 to 

read as follows: 

Subpart F—Handling Equipment, Switches, 

and Fixed Derails 

Sec. 

218.91 Purpose and scope. 

218.93 Definitions. 

218.95 Instruction, training, and 

examination. 

218.97 Good faith challenge procedures. 

218.99 Shoving or pushing movements. 

218.101 Leaving rolling and on-track 

maintenance-of-way equipment in the 

clear. 

218.103 Hand-operated switches, including 

crossover switches. 

218.105 Additional operational 

requirements for hand-operated main 

track switches. 

218.107 Additional operational 

requirements for hand-operated 

crossover switches. 

218.109 Hand-operated fixed derails. 


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Subpart F—Handling Equipment, 

Switches, and Fixed Derails 

§ 218.91 Purpose and scope. 

(a) The purpose of this subpart is to 

prevent accidents and casualties that 

can result from the mishandling of 

equipment, switches, and fixed derails. 

(b) This subpart prescribes minimum 

operating rule requirements for the 

handling of equipment, switches, and 

fixed derails. Each railroad may 

prescribe additional or more stringent 

requirements in its operating rules, 

timetables, timetable special 

instructions, and other instructions. 

§ 218.93 Definitions. 

As used in this subpart—

Associate Administrator for Safety 

means the Associate Administrator for 

Safety of the Federal Railroad 

Administration or that person’s delegate 

as designated in writing. 

Clearance point means the location 

near a turnout beyond which it is unsafe 

for passage on an adjacent track(s). 

Where a person is permitted by a 

railroad’s operating rules to ride the side 

of a car, a clearance point shall 

accommodate a person riding the side of 

a car. 

Correspondence of crossover switches 

means both crossover switches are lined 

for the crossover or both are lined for 

the straight tracks. 

Crossover means, for purposes of this 

subpart only, a track connection 

between two adjacent, but not 

necessarily parallel, tracks, consisting of 

two switches, which is intended to be 

used primarily for the purpose of 

crossing over from one track to another. 

Employee means an individual who is 

engaged or compensated by a railroad or 

by a contractor to a railroad to perform 

any of the duties defined in this subpart. 

Foul or fouling a track means rolling 

equipment or on-track maintenance-ofway equipment is located such that the 

end of the equipment is between the 

clearance point and the switch points 

leading to the track on which the 

equipment is standing. 

FRA means the Federal Railroad 

Administration. 

Hand-operated switch means any type 

of switch when operated by manual 

manipulation. For purposes of this 

subpart, a hand-operated switch does 

not include switches operated by push 

button or radio control when such 

switch is protected by distant switch 

indicators, switch point indicators, or 

other visual or audio verification that 

the switch points are lined for the 

intended route and fit properly. 

Highway-rail grade crossing means, 

for purposes of this subpart only, an atgrade crossing where a public highway, 

road, street, or private roadway, 

including associated sidewalks and 

pathways, crosses one or more railroad 

tracks at grade, and is identified by a 

U.S. DOT National Highway-Rail Grade 

Crossing Inventory Number, or is 

marked by crossbucks, stop signs, or 

other appropriate signage indicating the 

presence of an at-grade crossing. 

Industry track means a switching 

track, or series of tracks, serving the 

needs of a commercial industry other 

than a railroad. 

Lite locomotive consist means two or 

more locomotive units coupled without 

cars attached, regardless of whether the 

locomotive units are connected so that 

they may be operated from a single 

control stand. 

Locomotive means, for purposes of 

this subpart only, a piece of on-track 

equipment (other than specialized 

roadway maintenance equipment or a 

dual purpose vehicle operating in 

accordance with § 240.104(a)(2) of this 

chapter): 

(1) With one or more propelling 

motors designed for moving other 

equipment; 

(2) With one or more propelling 

motors designed to carry freight or 

passenger traffic or both; or 

(3) Without propelling motors but 

with one or more control stands. 

Pedestrian crossing means a separate 

designated sidewalk or pathway where 

pedestrians, but not vehicles, cross 

railroad tracks. Sidewalk crossings 

contiguous with, or separate but 

adjacent to, highway-rail grade 

crossings, are presumed to be part of the 

highway-rail grade crossings and are not 

considered pedestrian crossings. 

Qualified means that a person has 

successfully completed all instruction, 

training, and examination programs 

required by the railroad and this subpart 

and that the person, therefore, has 

actual knowledge or may reasonably be 

expected to have knowledge of the 

subject on which the person is expected 

to be competent. 

Remote control operator means a 

locomotive engineer, as defined in 

§ 240.7 of this chapter, certified by a 

railroad to operate remote control 

locomotives pursuant to § 240.107 of 

this chapter. 

Remote control zone means one or 

more tracks within defined limits 

designated in the timetable special 

instructions, or other railroad 

publication, within which remote 

control locomotives, under certain 

circumstances specified in this part, 

may be operated without an employee 

assigned to protect the pull-out end of 

the remote control movement, i.e., the 

end on which the locomotive is located. 

Roadway maintenance activity means 

any work limited to the duties 

prescribed for a roadway worker by 

definition in this section, including 

movement of on-track maintenance-ofway equipment other than locomotives. 

Roadway worker means any employee 

of a railroad, or of a contractor to a 

railroad, whose duties include 

inspection, construction, maintenance 

or repair of railroad track, bridges, 

roadway, signal and communication 

systems, electric traction systems, 

roadway facilities or roadway 

maintenance machinery on or near track 

or with the potential of fouling a track, 

and flagmen and watchmen/lookouts as 

defined in § 214.7 of this chapter. 

Roadway worker in charge means a 

roadway worker who is qualified in 

accordance with § 214.353 of this 

chapter for the purpose of establishing 

on-track safety for roadway work 

groups. 

Siding means an auxiliary track, 

adjacent and connected to a main track, 

used for meeting or passing trains. 

Signaled siding means a siding within 

traffic control system (TCS) territory or 

within interlocking limits where a 

signal indication authorizes the siding’s 

use. 

Switchtender means a qualified 

employee assigned to handle switches at 

a specific location. 

Track is clear means: 

(1) The portion of the track to be used 

for the intended movement is 

unoccupied by rolling equipment, ontrack maintenance-of-way equipment, 

and conflicting on-track movements; 

(2) Intervening public highway-rail 

grade crossings, private highway-rail 

grade crossings outside the physical 

confines of a railroad yard, pedestrian 

crossings outside of the physical 

confines of a railroad yard, and yard 

access crossings are protected as 

follows: 

(i) Crossing gates are in the fully 

lowered position, and are not known to 

be malfunctioning; or 

(ii) A designated and qualified 

employee is stationed at the crossing 

and has the ability to communicate with 

trains; or 

(iii) At crossings equipped only with 

flashing lights or passive warning 

devices, when it is clearly seen that no 

traffic is approaching or stopped at the 

crossing and the leading end of the 

movement over the crossing does not 

exceed 15 miles per hour; 

(3) Intervening switches and fixed 

derails are properly lined for the 

intended movement; and 


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(4) The portion of the track to be used 

for the intended movement has 

sufficient room to contain the rolling 

equipment being shoved or pushed. 

Yard access crossing means a private 

highway-rail grade crossing that is 

located within the physical confines of 

a railroad yard and is either: 

(1) Open to unrestricted public access; 

or 

(2) Open to persons other than 

railroad employees going about their 

normal duties, e.g., business guests or 

family members. 

§ 218.95 Instruction, training, and 

examination. 

(a) Program. Effective July 1, 2008, 

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. 

(1) The written program of 

instruction, training, and examination 

shall address the requirements of this 

subpart, as well as consequences of 

noncompliance. 

(2) The written program of 

instruction, training, and examination 

shall include procedures addressing 

how the railroad qualifies employees in 

any technology necessary to accomplish 

work subject to the requirements of this 

subpart. Such procedures shall include, 

but are not limited to, those which 

explain: 

(i) The purpose for using the 

technology; 

(ii) How an employee will be 

expected to use the technology; 

(iii) How to detect malfunctioning 

equipment or deviations from proper 

procedures; 

(iv) How to respond when equipment 

malfunctions or deviations from proper 

procedures are detected; and 

(v) How to prevent unintentional 

interference with the proper functioning 

of the technology. 

(3) Implementation schedule for 

employees, generally. Each employee 

performing duties subject to the 

requirements in this subpart shall be 

initially qualified prior to January 1, 

2009. 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. 

(4) After January 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. 

(5) The records of successful 

completion of instruction, examination 

and training required by this section 

shall document qualification of 

employees under this subpart. 

(b) Written records documenting 

successful completion of instruction, 

training, and examination of each 

employee required by this subpart shall 

be retained at its system headquarters 

and at the division headquarters for 

each division where the employee is 

assigned for three calendar years after 

the end of the calendar year to which 

they relate and made available to 

representatives of the FRA for 

inspection and copying during normal 

business hours. Each railroad to which 

this part applies is authorized to retain 

a program, or any records maintained to 

prove compliance with such a program, 

by electronic recordkeeping in 

accordance with §§ 217.9(g) and 

217.11(c) of this chapter. 

(c) Upon review of the program of 

instruction, training, and examination 

required by this section, the Associate 

Administrator for Safety may, for cause 

stated, disapprove the program. 

Notification of such disapproval shall be 

made in writing and specify the basis 

for the disapproval decision. If the 

Associate Administrator for Safety 

disapproves the program, 

(1) The railroad has 35 days from the 

date of the written notification of such 

disapproval to: 

(i) Amend its program and submit it 

to the Associate Administrator for 

Safety for approval; or 

(ii) Provide a written response in 

support of the program to the Associate 

Administrator for Safety, who informs 

the railroad of FRA’s final decision in 

writing; and 

(2) A failure to submit the program 

with the necessary revisions to the 

Associate Administrator for Safety in 

accordance with this paragraph will be 

considered a failure to implement a 

program under this part. 

§ 218.97 Good faith challenge procedures. 

(a) Employee Responsibility. An 

employee shall inform the railroad or 

employer whenever the employee 

makes a good faith determination that 

the employee has been directed to either 

take actions that would violate FRA 

regulations regarding the handling of 

equipment, switches, and fixed derails 

as required by this subpart, or to take 

actions that would violate the railroad’s 

operating rules implementing the 

requirements of this subpart. 

(b) General procedures. Each railroad 

or employer is responsible for the 

training of and compliance by its 

employees with the requirements of this 

subpart. 

(1) Each railroad or employer shall 

adopt and implement written 

procedures which guarantee each 

employee the right to challenge in good 

faith whether the procedures that will 

be used to accomplish a specific task 

comply with the requirements of this 

subpart or any operating rule relied 

upon to fulfill the requirements of this 

subpart. Each railroad or employer’s 

written procedures shall provide for 

prompt and equitable resolution of 

challenges made in accordance with this 

subpart. 

(2) The written procedures required 

by this section shall indicate that the 

good faith challenge described in 

paragraph (b)(1) of this section is not 

intended to abridge any rights or 

remedies available to the employee 

under a collective bargaining agreement, 

or any Federal law including, but not 

limited to, 29 U.S.C. 651 et seq., 6 

U.S.C. 1142, or 49 U.S.C. 20109. 

(3) Each affected employee shall be 

instructed on the written procedures 

required by this paragraph as part of the 

training prescribed by § 217.11 of this 

chapter. 

(4) A copy of the current written 

procedures shall be provided to each 

affected employee and made available 

for inspection and copying by 

representatives of the FRA during 

normal business hours. 

(c) The written procedures shall—

(1) Grant each employee the right to 

challenge any directive which, based on 

the employee’s good faith 

determination, would cause the 

employee to violate any requirement of 

this subpart or any operating rule relied 

upon to fulfill the requirements of this 

subpart; 

(2) Provide that the railroad or 

employer shall not require the 

challenging employee to comply with 

the directive until the challenge 

resulting from the good faith 

determination is resolved; 

(3) Provide that the railroad or 

employer may require the challenging 

employee to perform tasks unrelated to 

the challenge until the challenge is 

resolved; 


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(4) Provide that the railroad or 

employer may direct an employee, other 

than the challenging employee, to 

perform the challenged task prior to the 

challenge being resolved as long as this 

other employee is informed of the 

challenge and does not also make a good 

faith determination that the challenged 

task would violate FRA regulations 

regarding the handling of equipment, 

switches, and fixed derails as required 

in this subpart, or a railroad’s operating 

rules implementing the requirements of 

this subpart; 

(5) Provide that a challenge may be 

resolved by: 

(i) A railroad or employer officer’s 

acceptance of the employee’s request; 

(ii) An employee’s acceptance of the 

directive; 

(iii) An employee’s agreement to a 

compromise solution acceptable to the 

person issuing the directive; or 

(iv) As further determined under 

paragraph (d) of this section. 

(d) In the event that the challenge 

cannot be resolved because the person 

issuing the directive determines that the 

employee’s challenge has not been made 

in good faith or there is no reasonable 

alternative to the direct order, the 

written procedures shall: 

(1) Provide for immediate review by at 

least one officer of the railroad or 

employer, except for each railroad with 

less than 400,000 total employee work 

hours annually. This immediate review 

shall: 

(i) Not be conducted by the person 

issuing the challenged directive, or that 

person’s subordinate; and 

(ii) Provide that a challenge may be 

resolved by using the same options 

available for resolving the challenge as 

the initial officer as well as the option 

described in paragraph (d)(2) of this 

section, except that the reviewing 

officer’s decision shall not be subject to 

further immediate review, unless 

provided for in the railroad’s or 

employer’s written procedures; 

(2) Provide that if the officer making 

the railroad’s or employer’s final 

decision concludes that the challenged 

directive would not cause the employee 

to violate any requirement of this 

subpart or the railroad’s or employer’s 

operating rule relied upon to fulfill the 

requirements of this subpart and directs 

the employee to perform the challenged 

directive, the officer shall further 

explain to the employee that Federal 

law may protect the employee from 

retaliation if the employee refuses to do 

the work and if the employee’s refusal 

is a lawful, good faith act; 

(3) Provide that the employee be 

afforded an opportunity to document 

electronically or in writing any protest 

to the railroad or employer’s final 

decision before the tour of duty is 

complete. The employee shall be 

afforded the opportunity to retain a 

copy of the protest; 

(4) Provide that the employee, upon 

written request, has a right to further 

review by a designated railroad or 

employer officer, within 30 days after 

the expiration of the month during 

which the challenge occurred, for the 

purpose of verifying the proper 

application of the regulation, law, 

procedure or rule in question. The 

verification decision shall be made in 

writing to the employee. 

(e) Recordkeeping and record 

retention. (1) A copy of the written 

procedures required by this section 

shall be retained at the employer or 

railroad’s system headquarters and at 

each division headquarters, and made 

available to representatives of the FRA 

for inspection and copying during 

normal business hours. 

(2) A copy of any written good faith 

challenge verification decision, made in 

accordance with paragraph (d)(4) of this 

section, shall be retained at the 

employer or railroad’s system 

headquarters and at the division 

headquarters to which the employee 

was working when the challenge was 

initiated, and made available to 

representatives of the FRA for 

inspection and copying during normal 

business hours for at least one calendar 

year after expiration of the year during 

which the decision was issued. 

(3) Each employer or railroad to 

which this subpart applies is authorized 

to retain by electronic recordkeeping the 

information prescribed in this subpart 

in accordance with the electronic 

recordkeeping standards set forth in 

§ 217.9(g)(1) through (5) of this chapter. 

§ 218.99 Shoving or pushing movements. 

(a)(1) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(2) The following requirements for 

shoving or pushing movements do not 

apply to rolling equipment intentionally 

shoved or pushed to permit the rolling 

equipment to roll without power 

attached, i.e., free rolling equipment, 

during switching activities known as 

kicking, humping, or dropping cars. 

(b) General movement 

requirements.—(1) Job briefing. Rolling 

equipment shall not be shoved or 

pushed until the locomotive engineer 

participating in the move has been 

briefed by the employee who will direct 

the move. The job briefing shall include 

the means of communication to be used 

between the locomotive engineer and 

the employee directing the move and 

how point protection will be provided. 

(2) No unrelated tasks. During the 

shoving or pushing movement, the 

employee directing the movement shall 

not engage in any task unrelated to the 

oversight of the shoving or pushing 

movement. 

(3) Point protection. When rolling 

equipment or a lite locomotive consist 

is shoved or pushed, point protection 

shall be provided by a crewmember or 

other qualified employee by: 

(i) Visually determining that the track 

is clear. The determination that the 

track is clear may be made with the aid 

of monitored cameras or other 

technological means, provided that it 

and the procedures for use provide an 

equivalent level of protection to that of 

a direct visual determination by a 

crewmember or other qualified 

employee properly positioned to make 

the observation as prescribed in this 

section and appendix D to this part; and 

(ii) Giving signals or instructions 

necessary to control the movement. 

(c) Additional requirements for 

remote control movements. All remote 

control movements are considered 

shoving or pushing movements, except 

when the remote control operator 

controlling the movement is riding the 

leading end of the leading locomotive in 

a position to visually determine 

conditions in the direction of 

movement. In addition to the other 

requirements of this section, 

(1) When initiating a remote control 

shoving or pushing movement: 

(i) The remote control operator shall 

visually determine the direction the 

equipment moves; or 

(ii) A member of the crew shall 

visually determine the direction the 

equipment moves and confirm the 

direction with the remote control 

operator. If no confirmation is received, 

the movement shall be immediately 

stopped; and 

(2) If technology is relied upon, 

whether primarily or as a safeguard, to 

provide pull-out protection by 

preventing the movement from 

exceeding the limits of a remote control 

zone, the technology shall be 

demonstrated 

(i) To be failsafe; or 

(ii) To provide suitable redundancy to 

prevent unsafe failure. 

(d) Remote control zone, exception to 

track is clear requirements. After an 


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initial track is clear determination has 

been made in an activated remote 

control zone, it is not necessary to make 

a new determination prior to each 

subsequent shoving or pushing 

movement provided that: 

(1) The controlling locomotive of the 

remote control movement is on the 

leading end in the direction of 

movement, i.e., the movement occurs on 

the pull-out end; 

(2) The remote control zone is not 

jointly occupied; and 

(3) The initial determination was 

made by a crewmember of either: 

(i) The remote control crew; 

(ii) A relieved remote control crew 

who has transferred the remote control 

zone directly to the relieving crew; or 

(iii) The last jointly occupying crew 

who directly communicates, i.e., not 

through a third party, to a remote 

control crewmember that the remote 

control zone is no longer jointly 

occupied and meets the requirements 

for track is clear. 

(e) Operational exceptions. A railroad 

does not need to comply with 

paragraphs (b) through (d) of this 

section in the following circumstances: 

(1) Push-pull operations when 

operated from the leading end in the 

direction of movement, i.e., push mode; 

(2) Shoving or pushing operations 

with manned helper locomotives or 

distributed power locomotives assisting 

a train when the train is being operated 

from the leading end in the direction of 

movement; 

(3) During the performance of 

roadway maintenance activity under the 

direct control of a roadway worker 

performing work in accordance with 

railroad operating rules specific to 

roadway workers; or 

(4) When the leading end of a shoving 

movement is on a main track or signaled 

siding, under the following conditions: 

(i) The train dispatcher gives 

authority or permission to make the 

movement and verifies that: 

(A) Another movement or work 

authority is not in effect within the 

same or overlapping limits unless 

conflicting movements are protected; 

and 

(B) A main track is not removed from 

service by a work authority within the 

same or overlapping limits; 

(ii) Movement is limited to the train’s 

authority; 

(iii) Movement shall not be made into 

or within yard limits, restricted limits, 

drawbridges, or work authority limits; 

(iv) Movement shall not enter or foul 

a highway-rail grade crossing or 

pedestrian crossing except when: 

(A) Crossing gates are in the fully 

lowered position; or 

(B) A designated and qualified 

employee is stationed at the crossing 

and has the ability to communicate with 

trains; or 

(C) At crossings equipped only with 

flashing lights or passive warning 

devices, when it is clearly seen that no 

traffic is approaching or stopped at the 

crossing and the leading end of the 

movement over the crossing does not 

exceed 15 miles per hour; and 

(v) Movement shall not be made into 

or within interlocking limits or 

controlled point limits unless the 

following conditions are met: 

(A) The signal governing movement is 

more favorable than restricting aspect; 

(B) Each signal governing movement 

into and through interlocking limits or 

controlled point limits shall be 

continuously observed by a member of 

that crew who is in a position to 

determine that the train’s movement has 

occupied the circuit controlling that 

signal as evidenced by that signal 

assuming its most restrictive aspect; and 

(C) The movement does not exceed 

the train’s length. 

§ 218.101 Leaving rolling and on-track 

maintenance-of-way equipment in the clear. 

(a) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(b) Rolling and on-track maintenanceof-way equipment shall not be left 

where it will foul a connecting track 

unless: 

(1) The equipment is standing on a 

main track and a siding track switch 

that the equipment is fouling is lined for 

the main track on which the equipment 

is standing; or 

(2) The equipment is standing on a 

siding and a main track switch that the 

equipment is fouling is lined for the 

siding on which the equipment is 

standing; or 

(3) The equipment is standing on a 

yard switching lead track, and the yard 

track switch that the equipment is 

fouling is lined for the yard switching 

lead track on which the equipment is 

standing; or 

(4) The equipment is on an industry 

track beyond the clearance point of the 

switch leading to the industry. 

(c) Each railroad shall implement 

procedures that enable employees to 

identify clearance points and a means to 

identify locations where clearance 

points will not permit a person to safely 

ride on the side of a car. 

§ 218.103 Hand-operated switches, 

including crossover switches. 

(a)(1) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(2) Each railroad shall specify 

minimum requirements necessary for an 

adequate job briefing. 

(b) General. Employees operating or 

verifying the position of a handoperated switch shall: 

(1) Conduct job briefings, before work 

is begun, each time a work plan is 

changed, and at completion of the work; 

(2) Be qualified on the railroad’s 

operating rules relating to the operation 

of the switch; 

(3) Be individually responsible for the 

position of the switch in use; 

(4) Visually determine that switches 

are properly lined for the intended route 

and that no equipment is fouling the 

switches; 

(5) Visually determine that the points 

fit properly and the target, if so 

equipped, corresponds with the switch’s 

position; 

(6) After operating a switch and before 

making movements in either direction 

over the switch, ensure that the switch 

is secured from unintentional 

movement of the switch points; 

(7) Ensure that a switch is not 

operated while rolling and on-track 

maintenance-of-way equipment is 

fouling the switch, or standing or 

moving over the switch; and 

(8) After operating a switch, ensure 

that when not in use, each switch is 

locked, hooked, or latched, if so 

equipped. 

(c) Rolling and on-track maintenanceof-way equipment shall not foul a track 

until all hand-operated switches 

connected with the movement are 

properly lined, or in the case of handoperated switches designed and 

permitted to be trailed through, until the 

intended route is seen to be clear or the 

train has been granted movement 

authority. When a conflicting movement 

is approaching a hand-operated switch, 

the track shall not be fouled or the 

switch operated. 

(d) When rolling and on-track 

maintenance-of-way equipment has 

entered a track, the hand-operated 

switch to that track shall not be lined 


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away from the track until the equipment 

has passed the clearance point of the 

track. 

§ 218.105 Additional operational 

requirements for hand-operated main track 

switches. 

(a) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(b) Designating switch position. The 

normal position of a hand-operated 

main track switch shall be designated by 

the railroad in writing and the switch 

shall be lined and locked in that 

position when not in use except when: 

(1) The train dispatcher directs 

otherwise with respect to the position of 

a hand-operated main track switch and 

the necessary protection is provided; or 

(2) The hand-operated switch is left in 

the charge of a crewmember of another 

train, a switchtender, or a roadway 

worker in charge. 

(c) Additional job briefing 

requirements for hand-operated main 

track switches. 

(1) Before a train or a train crew 

leaves the location where any handoperated main track switch was 

operated, all crewmembers shall have 

verbal communication to confirm the 

position of the switch. 

(2) In the case of exclusive track 

occupancy authority established under 

§ 214.321, foul time under § 214.323, or 

train coordination under § 214.325, 

when a roadway worker qualified to 

operate hand-operated main track 

switches is granted permission by the 

roadway worker in charge to occupy or 

otherwise use the limits of the exclusive 

track occupancy, such employee 

receiving permission to occupy the 

working limits shall report the position 

of any such switches operated upon 

expiration of the authority limits to the 

roadway worker in charge or to a 

designated intermediary employee who 

shall convey the switch position to the 

roadway worker in charge. 

(d) Releasing Authority Limits. In nonsignaled territory, before an employee 

releases the limits of a main track 

authority and a hand-operated switch is 

used to clear the main track, and, prior 

to departing the switch’s location, the 

following conditions are required: 

(1) The employee releasing the limits, 

after conducting a job briefing in 

accordance with this subpart, shall 

report to the train dispatcher that the 

hand-operated main track switch has 

been restored to its normal position and 

locked, unless the train dispatcher 

directs that the hand-operated main 

track switch be left lined and locked in 

the reverse position and the necessary 

protection is provided; 

(2) If the report of the switch position 

is correct, the train dispatcher shall 

repeat the reported switch position 

information to the employee releasing 

the limits and ask whether that is 

correct; and 

(3) The employee releasing the limits 

shall then confirm to the train 

dispatcher that this information is 

correct. 

§ 218.107 Additional operational 

requirements for hand-operated crossover 

switches. 

(a) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(b) Hand-operated crossover switches, 

generally. Both hand-operated switches 

of a crossover shall be properly lined 

before rolling and on-track 

maintenance-of-way equipment begins a 

crossover movement. A crossover 

movement shall be completed before 

either hand-operated crossover switch is 

restored to normal position. 

(c) Correspondence of hand-operated 

crossover switches. Hand-operated 

crossover switches shall be left in 

corresponding position except when: 

(1) Used to provide blue signal 

protection under § 218.27 of this part; or 

(2) Used for inaccessible track 

protection under § 214.327 of this 

chapter; or 

(3) Performing maintenance, testing or 

inspection of crossover switches in 

traffic control system (TCS) territory; or 

(4) One crew is using both tracks 

connected by the crossover during 

continuous switching operations. 

§ 218.109 Hand-operated fixed derails. 

(a)(1) Each railroad shall adopt and 

comply with an operating rule which 

complies with the requirements of this 

section. When any person including, but 

not limited to, each railroad, railroad 

officer, supervisor, and employee 

violates any requirement of an operating 

rule which complies with the 

requirements of this section, that person 

shall be considered to have violated the 

requirements of this section. 

(2) Each railroad shall specify 

minimum requirements necessary for an 

adequate job briefing. 

(b) General. (1) The normal position 

of fixed derails is in the derailing 

position except as provided in part 218, 

subpart B of this chapter, or the 

railroad’s operating rules or special 

instructions. 

(2) Fixed derails shall be kept in the 

derailing position whether or not any 

rolling and on-track maintenance-ofway equipment is on the tracks they 

protect, except as provided in paragraph 

(b)(1) of this section or when changed to 

permit movement. 

(3) Movement must not be made over 

a fixed derail in the derailing position. 

(c) Employees operating or verifying 

the position of a fixed derail shall: 

(1) Conduct job briefings, before work 

is begun, each time a work plan is 

changed, and at completion of the work; 

(2) Be qualified on the railroad’s 

operating rules relating to the operation 

of the derail; 

(3) Be individually responsible for the 

position of the derail in use; 

(4) Determine that the target, if so 

equipped, corresponds with the derail’s 

position; 

(5) Determine that the derail is 

secured by: 

(i) Placing the throw lever in the latch 

stand, if so equipped; 

(ii) Placing the lock or hook in the 

hasp, if so equipped; and 

(iii) Testing such latches, locks or 

hooks; and 

(6) Ensure that when not in use, 

derails are locked, hooked, or latched in 

the normal position if so equipped. 

■ 12. Appendix A to part 218 is 

amended by adding entries for subpart 

F, consisting of §§ 218.95, 218.97, 

218.99, 218.101, 218.103, 218.105, 

218.107 and 218.109, to read as follows: 


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APPENDIX A TO PART 218—SCHEDULE OF CIVIL PENALTIES

Section Violation Willful violation 

* * * * * * * 

Subpart F—Handling Equipment, Switches and Derails: 218.95 Instruction, Training, and Examination: 

(a) Program ............................................................................................................................................... 9,500–12,500 13,000–16,000 

(b) Records ............................................................................................................................................... 7,500 11,000 

(c) Failure to timely or appropriately amend program after disapproval .................................................. 9,500–12,500 13,000–16,000 

218.97 Good Faith Challenge Procedures: 

(a) Employee Responsibility Failure ......................................................................................................... ............................ 5,000 

(b) through (d) Failure to adopt or implement procedures ....................................................................... 7,500 ............................

218.99 Shoving or Pushing Movements: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................

(b) Failure to conduct job briefing, use a qualified employee, or establish proper protection ................. 7,500–9,500 11,000–13,000 

(c) Failure to observe equipment direction ............................................................................................... 9,500 13,000 

(d) Failure to properly establish point protection within a remote control zone ....................................... 9,500 13,000 

(e) Failure to abide by operational exception requirements .................................................................... 9,500 13,000 

218.101 Leaving Equipment in the Clear: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................

(b) Equipment left improperly fouling ....................................................................................................... 9,500 13,000 

(c) Failure to implement procedures for identifying clearance points ...................................................... 9,500 13,000 

218.103 Hand-operated switches, including crossover switches: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................

(b) through (d) Railroad and employee failures ....................................................................................... 7,500 ............................

218.105 Additional operational requirements for hand-operated main track switches: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................

(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000 

(d) Failure to properly release authority limits .......................................................................................... 12,500 ............................

218.107 Additional operational requirements for hand-operated crossover switches: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................

(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000 

218.109 Hand-operated fixed derails: 

(a) Failure to implement required operating rule ...................................................................................... 9,500 13,000 

(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000 

■ 13. Appendix D to Part 218 is added 

to read as follows: 

Appendix D to Part 218—Requirements 

and Considerations for Implementing 

Technology Aided Point Protection 

Introduction 

This appendix provides further 

explanation and requirements for exercising 

the option to provide point protection with 

the aid of technology as permitted in 

§ 218.99(b)(3)(i). The regulation permits the 

visual determination necessary to provide 

point protection, i.e., a determination that the 

track is clear, for a shoving or pushing 

movement to ‘‘be made with the aid of 

monitored cameras or other technological 

means, provided that it and the procedures 

for use provide an equivalent level of 

protection to that of a direct visual 

determination by a crewmember or other 

qualified employee properly positioned to 

make the observation as prescribed in this 

section and appendix D to this part.’’ This 

appendix addresses the general requirements 

and considerations for all technology aided 

point protection as well as specific additional 

requirements for those operations involving 

remote control operations at public highwayrail grade crossings, private highway-rail 

grade crossings outside the physical confines 

of a railroad yard, pedestrian crossings 

outside the physical confines of a railroad 

yard, and yard Access Crossings. 

I. General Requirements and Considerations 

A. Although railroading is now one of the 

nation’s older forms of mechanized 

transportation, equipment, components and 

operations all have evolved through new and 

improved technologies. Installing cameras in 

yards so that a location could be remotely 

monitored from somewhere else has become 

a railroading reality as cameras have become 

smaller, less expensive, and have increased 

resolution. It is possible to set up these 

cameras and monitors so that they provide at 

least an equivalent level of safety to that of 

an employee protecting the point. Part 218, 

subpart F permits such an operation to 

substitute for an employee’s direct visual 

determination where the technology provides 

an equivalent level of protection to that of a 

direct visual determination. See 

§ 218.99(b)(3)(i). Of course, to provide an 

equivalent level of protection, an employee 

needs to be properly qualified (see 

§ 218.95(a)(2)) and the technology must work 

as intended. Most malfunctions of the 

technology should be detectable, and result 

in abandoning the use of the technology for 

determining point protection until the 

malfunction can be corrected. 

B. The substitution of such technology for 

a direct visual determination is dependent on 

many factors. Each situation will have its 

own particular factual circumstances that 

shall require consideration in determining 

whether an equivalent level of safety can be 

achieved. For instance, with regard to the 

basic camera setup, a railroad shall consider 

whether an operator must see in color 

(largely a necessity if viewing signals), the 

width of the angle of view, the size and 

location of the monitor, whether the 

technology is for day-time use only, and 

whether its use should be limited to fair 

weather conditions. However, under all 

circumstances, the monitor shall display 

sufficient information to enable the viewer to 

make a determination that the track ahead of 

the shoving or pushing move is clear 

pursuant to the definition of ‘‘track is clear’’

in § 218.93. 

C. Each railroad that chooses to implement 

such camera/monitor setups shall implement 

attendant procedures and qualify each 

employee who will be utilizing the 

technology. Railroads shall ensure that any 

monitored camera has sufficient resolution 

and real time coverage to provide protection 

equal to a direct visual determination. See 

§ 218.99(b)(3)(i). Concerning attendant 

procedures, one such procedure may be for 

an employee viewing a monitor to 

communicate updates to the locomotive 

engineer or controlling crewmember at 

appropriate intervals. FRA equates the 

employee monitoring the camera to the 

employee controlling the movement who 

must not engage in any task unrelated to the 

oversight of the movement; thus, each 

railroad utilizing such cameras shall 

implement attendant procedures limiting any 

of the monitoring employee’s ancillary duties 

that might distract from the employee’s 

ability to visually determine that the track is 

clear and provide continuous communication 

to the employee controlling the movement. 

D. There is also the consideration of 

whether the person viewing the monitor is 


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the locomotive engineer, remote control 

operator, other crewmember or other 

qualified person, such as a yardmaster. If the 

monitor is not being viewed by the operator 

who is controlling the movement, then, there 

shall be a clear understanding and channel 

of communication between the operator and 

the employee who is viewing the monitor—

as the latter would be protecting the 

movement. Providing an equivalent level of 

protection to that of a direct visual 

determination requires a thorough job 

briefing in which there is an understanding 

of who is observing the movement, what is 

the observer’s range of vision, at what 

locomotive speed can the observation be 

made and how information will be conveyed 

to the operator/engineer, if that person is not 

the one viewing the monitor. 

E. There may be occasions when a railroad 

finds it advantageous to use a noncrewmember, e.g., a yardmaster, to provide 

point protection, line switches, or check the 

status of a derail for a remote control crew; 

however, several potential problems may 

result when non-crewmembers are used to 

carry out some crewmember functions. Of 

foremost concern is the great potential for an 

error in communication or a 

misunderstanding between the noncrewmember and the crewmembers regarding 

the activity or status of equipment. A 

yardmaster who is occupied with his or her 

other responsibilities might not give the task 

the attention it deserves, or could be 

distracted and give an incorrect answer to a 

question by a crewmember (e.g., ‘‘is the move 

lined?’’). The result could be that the task 

does not get completed or there is an error 

in task execution. Further, the crewmembers 

might not have any alternative way of 

determining that there is a problem with the 

point protection provided by the noncrewmember until it is too late. 

Consequently, to the extent they will be 

called upon to perform these duties, each 

railroad shall include yardmasters and other 

non-crewmembers in any operating rule 

promulgated in accordance with 

§ 218.99(b)(2). 

II. Additional Requirements for Remote 

Control Locomotive Operations at HighwayRail Grade Crossings, Pedestrian Crossings, 

and Yard Access Crossings 

A. In addition to the general requirements 

and considerations for all technology aided 

point protection in lieu of direct visual 

determinations, additional requirements are 

necessary to address concerns specific to the 

use of camera/monitor setups for remote 

control locomotive operations to protect the 

point at highway-rail grade crossings, 

pedestrian crossings, and yard access 

crossings. Railroad operating rules currently 

permit a movement to travel over a crossing 

without the physical presence of a 

crewmember if a crossing is equipped with 

gates, if it can be determined that the gates 

are in the fully lowered position, and if the 

crossing is clear of vehicles and pedestrians. 

Remote control movements at highway-rail 

grade crossings, pedestrian crossings, and 

yard access crossings that utilize camera/ 

monitor setups pose a greater direct risk to 

members of the general public than yard 

movements utilizing camera/monitor setups 

to check whether a track is clear. In addition, 

such setups can rapidly develop problems 

with motor vehicles and pedestrians 

unaccustomed to railroad operating rules and 

procedures. For these reasons, additional 

safeguards are necessary. 

B. In consideration of the dangers posed by 

the use of camera/monitor setups for remote 

control locomotive operations at highway-rail 

grade crossings, pedestrian crossings, and 

yard access crossings, the following 

procedures shall be complied with in order 

to establish an equivalent means of safety in 

accordance with § 218.99(b)(3)(i): 

1. Before camera-assisted remote control 

locomotive operations are permitted at 

highway-rail grade crossings, pedestrian 

crossings, and yard access crossings, a 

Crossing Diagnostic Team shall evaluate the 

crossing. The diagnostic team shall have 

representatives from the railroad, FRA, the 

State department of transportation (or 

another State agency having jurisdiction over 

the highway-rail grade crossing, pedestrian 

crossing, or yard access crossing), and local 

government authorities. The diagnostic team 

shall evaluate the suitability of each crossing 

for remote camera operations. Among the 

factors it shall consider are the following: the 

average annual daily traffic counts; the 

number of highway lanes; highway speed 

limits; the presence of adjacent signalized 

highway intersections; the number of railroad 

tracks; the angle of the roadway intersection; 

the volume of school bus, transit bus, 

emergency vehicle, commercial motor 

vehicle, and hazardous materials traffic over 

the crossing; the minimum remote control 

locomotive operator sight distances of 

roadway approaches to the crossing; and 

other relevant factors that could affect the 

safety of the crossing. The diagnostic team 

shall also consider the appropriate number of 

cameras and appropriate camera angles 

needed to provide for the remote operation 

of remote control locomotives over the 

crossing. The diagnostic team shall agree to 

a written diagnostic evaluation summary of 

the factors considered and shall provide the 

railroad with agreed upon parameters by 

which the camera-assisted remote control 

operation may continue in operation if the 

factors required for suitability change; thus, 

any change in the factors considered by the 

diagnostic team outside of the acceptable 

parameters shall require the railroad to 

receive a revised evaluation approval from a 

diagnostic team before continuing any such 

operation. In addition, any of the Federal, 

State, or local governmental authorities may 

trigger review of a prior evaluation approval 

at any time there is a question of the 

suitability of the operation. It is possible that, 

of the requirements listed below, 

requirements numbered 2, 4, 5, and 6 would 

be unnecessary at highway-rail grade 

crossings or yard access crossings equipped 

with approved supplemental safety devices 

(see 49 CFR part 222, app. A) that prevent 

motorists from driving around lowered gates; 

under such circumstances, the diagnostic 

team shall make such determinations. If a 

Crossing Diagnostic Team, as described in 

this paragraph, evaluated a crossing for the 

factors described herein, prior to April 14, 

2008, another diagnostic team evaluation is 

not required to comply with this rule; 

however, the requirements listed below shall 

still apply to any such remotely controlled 

movements over that crossing. 

2. Camera-assisted remote control 

locomotive operations shall only be 

permitted at crossings equipped with 

flashing lights, gates, and constant warning 

time train detection systems where 

appropriate, based on train speeds. 

3. A crewmember or other qualified 

employee shall not view the monitor in place 

of the remote control operator, as is 

permitted for other shoving or pushing 

movements. See § 218.99(b)(3). For purposes 

of remote control locomotive operations with 

camera/monitor setups to protect the point at 

highway-rail grade crossings, pedestrian 

crossings, and yard access crossings, the 

remote control operator controlling the 

movement shall view the monitor during 

such operations. 

4. The cameras shall be arranged to give 

the remote control locomotive operator 

controlling the movement a view of the rail 

approaches to the crossing from each 

direction so that the operator can accurately 

judge the end of the movement’s proximity 

to the crossing. 

5. The cameras shall be arranged to give 

the remote control locomotive operator a 

clear view to determine the speed and driver 

behavior (e.g., driving erratically) of any 

approaching motor vehicles. 

6. Either the camera resolution shall be 

sufficient to determine whether the flashing 

lights and gates are working as intended or 

the crossing shall be equipped with a remote 

health monitoring system that is capable of 

notifying the remote control locomotive 

operator immediately if the flashing lights 

and gates are not working as intended. 

7. The railroad shall notify the Associate 

Administrator for Safety in writing when this 

type of protection has been installed and 

activated at a crossing. 

III. Conclusion 

The technology used to aid point 

protection will undoubtedly develop and 

improve over time. FRA encourages the use 

and development of this technology as is 

evidenced by the option in this rule to utilize 

such technology. Meanwhile, as a regulating 

body, FRA cannot determine whether a new 

technology to aid point protection provides 

an equivalent level of protection to that of a 

direct visual determination unless we are 

made aware of the new technology. 

Consequently, aside from the camera/monitor 

setups described in this appendix, each 

railroad that intends to implement a 

technology used to aid point protection shall 

notify the Associate Administrator for Safety 

in writing of the technology to be used prior 

to implementation. 

Issued in Washington, DC, on January 29, 

2008. 

Joseph H. Boardman, 

Administrator. 

[FR Doc. E8–1933 Filed 2–12–08; 8:45 am] 

BILLING CODE 4910–06–P 


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