[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Rules and Regulations]
[Pages 33888-33902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1354]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 217 and 218
[Docket No. FRA-2006-25267]
RIN 2130-AB76
Railroad Operating Rules: Program of Operational Tests and
Inspections; Railroad Operating Practices: Handling Equipment, Switches
and Fixed Derails
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; response to petitions for reconsideration.
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SUMMARY: This document responds to four petitions for reconsideration
of FRA's final rule which was published on February 13, 2008. The rule
mandated certain changes to a railroad's program of operational tests
and inspections and mandated new requirements for the handling of
equipment, switches, and fixed derails.
DATES: This regulation is effective on June 16, 2008.
FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of Safety Assurance and
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler,
Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Background
II. Major Issues Raised by Petitions
A. Implementation Dates
B. Shove Lights
C. Individual Liability and Enforcement
D. Good Faith Challenge
E. The Point Protection Technology Standard for Remote Control
Zones
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Act of 1995
G. Energy Impact
H. Public Proceedings
I. Privacy Act
I. Background
On May 18, 2005, the FRA's Railroad Safety Advisory Committee
(RSAC) accepted a task statement and agreed to establish the Railroad
Operating Rules Working Group (Working Group) whose overall purpose was
to recommend to the full committee how to reduce the number of human
factor caused train accidents/incidents and related employee injuries.
After consideration of the Working Group's recommendations, FRA
published a Notice of Proposed Rulemaking (NPRM) on October 12, 2006 to
establish greater accountability on the part of railroad management for
administration of railroad programs of operational tests and
inspections, and greater accountability on the part of railroad
supervisors and employees for compliance with those railroad operating
rules that are responsible for approximately half of the train
accidents related to human factors. See 71 FR 60372. FRA received
written comment on the NPRM as well as advice from its Working Group in
preparing a final rule, which was published on February 13, 2008. See
73 FR 8442.
Following publication of the final rule, parties filed petitions
seeking FRA's reconsideration of the rule's requirements. These
petitions principally related to the following subject areas: the
implementation dates; shove lights; the need for individual liability
and enforcement; good faith challenge procedures; the point protection
technology standard for remote control locomotive operations; and FRA's
rulemaking authority.
This document responds to all the issues raised in the petitions
for reconsideration except the issue pertaining to FRA's rulemaking
authority which is being addressed in a separate letter to that
specific petitioner. FRA will make that response part of the public
docket related to this proceeding. The amendments contained in this
document in response to the petitions for reconsideration generally
clarify the requirements currently contained in the final rule or allow
for greater flexibility in complying with the rule, and are within the
scope of the issues and
[[Page 33889]]
options discussed, considered, or raised in the NPRM.
The specific issues and recommendations raised by the petitioners,
and FRA's response to those petitions, are discussed below. The
discussion will aid the regulated community in understanding the
requirements of the rule.
II. Major Issues Raised by Petitions
A. Implementation Dates
Petitioner Concern: Dates Do Not Provide Sufficient Time To Comply
The Association of American Railroads (AAR) and the American Public
Transportation Association (APTA) each submitted a petition for
reconsideration requesting delays for the implementation of training
and program deadlines found in 49 CFR 217.9 and 218.95. AAR is a trade
association whose membership includes freight railroads that operate 72
percent of the line-haul mileage, employ 92 percent of the workers, and
account for 95 percent of the freight revenue of all railroads in the
United States. AAR's membership also includes passenger railroads that
operate intercity passenger trains and provide commuter rail service.
APTA's members include commuter railroads. The National Railroad
Passenger Corporation (Amtrak) is a member of both AAR and APTA.
AAR and APTA raised similar concerns and requested the same action.
Both associations requested that each implementation date contained in
49 CFR 217.9 and 218.95 be extended by six months.
Both petitions for reconsideration explained that railroads will
need to overcome certain obstacles to establish a program of
operational tests and inspections under 49 CFR 217.9. For example, AAR
stated that the recent amendments to this section require each railroad
to conduct specific types of periodic reviews and that some railroads
have not been using any formal periodic reviews. In addition, those
railroads implementing periodic reviews for the first time will need
time to craft and implement a carefully thought out and worthwhile
program. AAR also pointed out that oversight of the program will
require a recordkeeping system that will aid in implementation and
tracking compliance and that it is unaware of any railroad having such
a recordkeeping system currently in place. Similarly, APTA stated that
four months is not enough time for passenger railroads to review
accident/incident records, determine which operating rules require
particular emphasis in the testing and inspection program, develop the
additional testing and inspection procedures, and qualify railroad
testing officers on how to properly conduct the tests and inspections.
APTA emphasized that passenger railroads are requesting additional time
to do the job right rather than just quickly.
Both associations raised concerns with the requirements in Sec.
217.9(b) that pertain to qualifying railroad testing officers and
keeping written records documenting each railroad testing officer's
qualification. APTA pointed out that the requirements pertaining to
railroad testing officers are new, and implied that each railroad would
need to expend additional resources to confirm that each railroad
testing officer is qualified and to maintain records supporting each
qualification decision. AAR stated that the July 1, 2008 deadline for
implementing paragraph (b) is unrealistic because it does not provide a
railroad with sufficient time to qualify supervisors on the new
requirements. AAR also suggested that many railroads will want to
maintain an electronic recordkeeping system for tracking the
qualifications of supervisors; and the applicability deadline of July
1, 2008 does not provide sufficient time to establish a new
recordkeeping system. AAR also disliked FRA's suggestion that ``if a
railroad has not previously kept a record of whether an officer is
qualified on the operational testing program, that the railroad create
a short survey which would allow an officer to acknowledge whether the
officer considers himself/herself qualified on the various aspects of
the program, as well as qualified (either through experience or prior
instruction, training, and examination) on the various types of tests
and inspections that the officer may be asked to conduct.'' 73 FR 8457.
AAR asserts that if training took place before the establishment of a
recordkeeping system, FRA and a railroad could be reliant on oral
testimony, which could well result in controversial enforcement
citations. Implied in AAR's concern is that some railroad testing
officers may believe they know how to conduct certain tests or
inspections, but the officer's ability to conduct a particular test or
inspection has not been confirmed by the railroad. Consequently, AAR is
concerned that a railroad testing officer that exaggerates his or her
abilities could potentially subject a railroad to liability if the
officer were to conduct an improper test. See Sec. 217.9(b)(1).
Both AAR and APTA are members of RSAC and were told by FRA that the
agency's goal was to publish the final rule by the fall of 2007. APTA
states that had FRA published the rule in the fall of 2007, its members
could have complied with the training in the 2008 training cycle. AAR
and APTA both requested that FRA consider that a consequence of
publishing the final rule in the first quarter of 2008 was that the
vast majority of railroads that typically conduct the bulk of training
during the first quarter of the year are now thwarted from doing so.
Both associations argued that it would be too difficult to alter
training programs by July 1, 2008 pursuant to Sec. 218.95(a) because
new training course material is usually developed in the second half of
the year. Railroads primarily allocate the first quarter of each year
to training employees, but often that training continues into the
second quarter. The trainers are typically the same people employed to
revise the training programs in the second half of the year. Thus, it
would be difficult for the railroads to finish the training already
planned for 2008 while revising the training required by the final
rule. AAR and APTA also argued that it would be difficult and costly to
qualify employees in accordance with 49 CFR part 218, subpart F, by
January 1, 2009 because employees are not as available as they are
during the first quarter of the year due to personal and business
obligations.
FRA's Response
When FRA published the final rule, the agency did not fully
appreciate the difficulties most railroads would face in trying to
comply with the implementation dates. FRA was under the impression that
it was providing a sufficient amount of time for a railroad to comply
and that the implementation dates would not be controversial. FRA
understood that by publishing the rule in mid-February, each railroad
would need to qualify its employees and supervisors, as well as
implement the new and revised programs outside of the railroads regular
schedule for such actions. FRA perceived the actions needed for
compliance to be not that much different than existing railroad
programs relating to operating rules.
Now that FRA has reviewed AAR and APTA's petitions for
reconsideration, we agree with the associations that delayed
implementation is warranted for the reasons expressed in the petitions.
It is important that each railroad effectively qualify its railroad
testing officers and implement a meaningful program of tests and
inspections under 49 CFR 217.9. The associations are certainly correct
that
[[Page 33890]]
ensuring railroad testing officers are qualified is an important aspect
of the revised section and that keeping accurate records of the
qualifications of each railroad testing officer is an integral
component of that requirement. Thus, FRA is granting AAR and APTA's
requests to amend the applicability dates in 49 CFR 217.9, the
logistics of which are described in the section-by-section analysis for
that section.
FRA also agrees with AAR and APTA's requests to amend the
applicability dates in 49 CFR 218.95. The associations' petitions for
reconsideration helped FRA understand the full extent of the burden the
final rule will place on each railroad. FRA certainly prefers providing
each railroad with the additional time it needs to fully implement 49
CFR part 218, subpart F than have a situation where many railroad
programs are put together so quickly that the programs contain mistakes
or fall short in some way, or training is rushed to the extent that
employees do not fully understand the operating rules and the
importance of them. Thus, FRA is granting AAR and APTA's requests to
amend the applicability dates in 49 CFR 218.95, the logistics of which
are described in the section-by-section analysis for that section.
B. Shove Lights
AAR Petition
AAR's petition requested reconsideration of FRA's decision to
exclude shove lights as an acceptable technological alternative to
visually protecting the point pursuant to the requirements in 49 CFR
218.99(b)(3)(i) unless either: (1) The track is completely circuited to
indicate occupancy; or, (2) a visual determination is made that the
track is clear to the beginning of the circuited section of the track.
73 FR 8478. Shove lights are lights that are sequentially circuited on
the ends of departure tracks in classification yards to indicate a
shoving movement's approach to the opposite end of a track. There are a
variety of different shove light arrangements, some using a single
aspect/light and others using multiple aspects that have the ability to
provide greater information regarding how much room is left in the
circuited portion of the track. At some locations, radio messages are
generated, instead of lights, to indicate when the cars being shoved
have reached the bonded or circuited section of track.
AAR acknowledges that ``since shove lights or radios technically
provide protection only for the length of the bonded track, not the
entire length of the departure track, they arguably do not provide the
equivalent of direct visual observation.'' Despite this acknowledgment,
AAR's petition requests that FRA reconsider the shove light issue as a
permitted operational exception under Sec. 218.99(e). AAR makes two
arguments in support of permitting shove lights and radio signal
arrangements. One argument is that there is no evidence that the use of
shove lights has caused accidents or injuries despite having been used
for over thirty years. A second argument is that a prohibition on shove
lights and radio arrangements creates an increased risk of injuries and
thus does not justify the prohibition. AAR attributes the potential for
an increase in injuries to the risks employees would need to take to
visually determine the departure track is clear. For example, an
employee who undertakes the riding of a long shove move or chooses to
walk along the track would be at risk of a slip and fall injury due to
the need to mount and dismount equipment or the need to walk
carefully--especially in inclement weather. Another added risk to
riding the shove move or walking the track is the danger posed by the
close proximity to other tracks, i.e., close clearances. An employee
riding a shove move where there are close clearances is at risk of
being struck by equipment on an adjacent track.
Joint Labor Petition Response Opposing AAR's Petition
A joint response to AAR's petition was filed by the presidents of
six labor organizations (Joint Labor Petition): the American Train
Dispatchers Association (ATDA); the Brotherhood of Locomotive Engineers
and Trainmen, a division of the Rail Conference of the International
Brotherhood of Teamsters (BLET); the Brotherhood of Maintenance of Way
Employes Division of the Rail Conference of the International
Brotherhood of Teamsters (BMWED); the Brotherhood of Railway Carmen
Division of the Transportation Communications International Union
(BRC); the Brotherhood of Railroad Signalmen (BRS); and the United
Transportation Union (UTU). These labor organizations represent over
140,000 railroad workers engaged in train and engine service, train
dispatching operations, equipment inspection, maintenance and repair,
roadway worker activities, and signal construction, maintenance and
repair. The Transportation Trades Department, AFL-CIO (TTD) filed a
separate comment in support of the Joint Labor Petition.
The Joint Labor Petition opposes AAR's request for reconsideration
of the shove light exception. This opposition is based on the fact that
the track, unless completely circuited, will not be determined to be
clear. The Joint Labor Petition points out that the final rule permits
technology to substitute for a direct visual determination and thus one
option is for a railroad to add additional indicator circuits. FRA
notes that the Joint Labor Petition did not respond to AAR's assertions
that there is no evidence that the use of shove lights has caused
accidents or injuries despite having been used for over thirty years
and that a prohibition on shove lights and radio arrangements creates
an increased risk of injuries that does not justify the prohibition.
The Joint Labor Petition argues that AAR seeks to institutionalize a
practice that is dangerous and will lead to an increase in accidents,
incidents, and injuries, but the response does not elaborate on this
conclusion.
FRA's Response
In response to AAR's petition, and after considering the Joint
Labor Petition's comments, FRA has decided to grant AAR's petition for
reconsideration in part and deny it in part. FRA agrees to add an
operational exception under Sec. 218.99(e)(5) for shoving or pushing
movements made in the direction of the circuited end of a designated
departure track equipped with a shove light system under certain
specified conditions. The operational exception and the specified
conditions are described in the section-by-section analysis. Many
railroads with existing shove light systems should find that few
changes, if any, will be necessary to comply with the requirements for
the exception in new paragraph (e)(5).
After publication of the final rule, FRA received feedback that
some railroads were disappointed with FRA's position on shove lights.
As the issue did not initiate much discussion during the Working Group
meetings, FRA had not compiled much information on it. In anticipation
that a petition for reconsideration on the shove light issue might be
filed, FRA conducted a review of shove light systems utilized by the
major railroads.
Between February 25 and March 21, 2008, FRA reviewed procedures and
observed operations on departure tracks with shove light systems
throughout the country. FRA surveyed the major railroads to find out
where shove lights were used and received information that five of the
seven major railroads used shove light systems at thirty-four major
classification yards in seventeen states.
[[Page 33891]]
FRA confirmed through inspections that the railroads did not utilize
shove light systems at any other major yard. The thirty-four yards
contained a total of 356 departure tracks equipped with shove lights.
Only seven of the thirty-four yards were found to provide point
protection by having the departure tracks entirely circuited or by
using cameras to determine that the track is clear. Thus, FRA focused
its attention on whether the remaining twenty-seven yards that did not
already meet FRA's new requirement for point protection under Sec.
218.99(b)(3) were safe operations nonetheless.
For instance, FRA conducted a review of accident/incident data that
supports AAR's position that departure tracks that use shove light
systems are reasonably safe operations. FRA reviewed data for the
twenty-seven departure yard operations that utilize shove lights for
the twenty-six month period from January 2006 through February 2008.
The total number of tracks available for use as departure tracks at
these twenty-seven yards is 291. FRA's review included railroad records
of all reportable and accountable rail equipment accidents/incidents,
and thus FRA's review included minor incidents that would not have met
FRA's reportable threshold for an accident/incident. See 49 CFR 225.5
(defining ``accident/incident'' and ``accountable rail equipment
accident/incident''); 225.19 (defining the three groups of railroad
accidents/incidents that are reportable); and 225.21(i) (requiring that
a record of initial rail equipment accidents/incidents be completed and
maintained). If FRA's review had included only reportable accidents/
incidents, and not accountable rail equipment accidents/incidents, the
scope of the review would have been significantly more limited and
would not have included derailments and collisions that caused minor
damage to track or on-track equipment.
The records revealed that eighteen of the twenty-seven departure
yard operations, i.e., 67 percent of the yards, did not have any human
factor caused reportable or accountable rail equipment accidents/
incidents during the twenty-six month period, and only one yard had
recorded more than two accidents/incidents. Nine departure yard
operations recorded a total of nineteen human factor caused reportable
or accountable rail equipment accidents/incidents during the review
period. Although FRA did not conduct investigations to determine
whether the primary cause listed by each railroad is accurate, the
records suggest that five of these nineteen accidents/incidents would
not have been prevented through compliance with the point protection
requirement of Sec. 218.99(b)(3) or any of the requirements in 49 CFR
part 218, subpart F; i.e., four accidents/incidents were caused by some
form of train handling error and one accident/incident was caused by a
remote control operator's failure to hear a radio transmission to stop
the movement. In addition, five accidents/incidents were caused by
either improperly lining, locking, or latching switches, which are
concerns addressed by requirements found in subpart F. Thus, FRA finds
that, during the twenty-six month review period, only nine human factor
caused reportable or accountable rail equipment accidents/incidents
might have been prevented through compliance with point protection
requirements rather than relying on shove light systems and attendant
procedures.
FRA found fair to good illumination throughout the departure yard
tracks, particularly at the entry and departure ends of each track. The
circuited portion of the departure tracks ranged from 150 feet to a
little over 500 feet, with an average of 360 feet.
At all twenty-seven yards, non-visual procedures were in place that
provided yardmasters with a high degree of confidence with respect to
the status of any of the departure tracks. One procedure common to all
twenty-seven yards included a ``turn-over'' report, i.e., a job
briefing, given verbally from one yardmaster to the next, based on the
information logged on a written turn-over sheet. In addition to the
turnover report, at many yards, the yardmaster had access to a computer
generated inventory allowing the yardmaster to monitor each car from
the moment it arrived onto the receiving yard tracks. Many of these
yardmasters were also able to track by computer the movements of each
car through the yard complex. Some yardmasters also received
information about each transfer job that brought cars from the
classification yard to the departure yard. At some yards, railroads
instituted standard instructions that required any car cut-off a
departing train to be left on the circuited section of the track on
which it was to be placed. Thus, if a car was left on the circuited
section of track, a person observing the shove light would know that
some equipment was left there and would be required to take appropriate
action to determine what was left on the departure track prior to
initiating a shoving or pushing movement. Meanwhile, other yards
maintained similar instructions that any car to be cut-off a departing
train must be left as close as possible to the end of the track
opposite the circuited end of the departure track without fouling
another track. This instruction permitted the person directing the
movement to readily observe that the track was not clear and to take
appropriate action to protect the shoving or pushing movement.
The descriptions of these different non-visual procedures is not
intended to be an exhaustive list of all the types of procedures that
have been or could be implemented. FRA is describing these types of
procedures because our recent review suggests that having these types
of procedures help establish a reliable means of determining track
occupancy. As each departure yard may have its own set of safety
concerns and already established procedures, FRA is not requiring that
all railroads adopt a particular set of non-visual procedures. However,
as these types of procedures contribute to the overall safety record of
departure tracks utilizing shove lights, the final rule contains a
requirement that the types of procedures which provide for a reliable
means of determining track occupancy prior to commencing a shoving or
pushing movement must be adopted in writing so that yardmasters and
other employees can fully understand the operation. See Sec.
218.99(e)(5)(iii).
FRA's observations revealed that shove light systems can maintain
an acceptable degree of safety. Our review suggests that, in addition
to the establishment of non-visual procedures, several factors
collectively promote a safe operation. For instance, there is a
relatively small number of moves onto and off of the departure tracks.
Compared to other yard operations, there is typically less danger on
departure tracks with shove light systems in that fewer switches are
operated in the departure yard and there are no free rolling cars.
Furthermore, FRA noticed that each of the twenty-seven departure yards
were well supervised by either a yardmaster or other qualified
employee.
FRA's observations at the twenty-seven departure yards with shove
light systems also revealed that some of the departure tracks evaluated
have close clearances that could potentially pose a risk of an accident
or injury to a rail employee attempting to make a visual determination
that the departure track is clear. FRA found five of the departure
yards had at least some tracks with close clearances that pose a
significant potential risk of an injury to an employee protecting the
point. While some departure yards had tracks with
[[Page 33892]]
very good clearances, most tracks were found to have normal
clearances--which could still pose injury hazards due to the amount of
clearance. Furthermore, it could be difficult for an employee riding
the point of the move to see that a derail is applied and that employee
could be seriously injured if the movement were to operate over the
derail. In addition, FRA noted that departure tracks were generally
long yard tracks. The length of the departure tracks is a factor in
deciding whether to allow shove light systems to be used in lieu of
point protection because employees would probably walk or ride the side
of a car to provide point protection and lengthy departure tracks would
expose employees to injury risk for a longer period than if the tracks
were shorter. In conclusion, FRA's observations corroborated AAR's
assertion that if employees were required to provide point protection
by riding the side of a car or walking along the departure tracks,
there would be an increased risk of injuries.
FRA is granting AAR's petition for reconsideration in part, and
will allow a shove light system under certain conditions to substitute
for point protection, because the recent accident/incident histories at
eighteen out of the twenty-seven major railroad departure yards have
been excellent. FRA's decision is not based on AAR's concern that
employees need to be protected from the dangers posed by protecting the
point where there are close clearances. FRA believes that the risks of
employees suffering injuries could be avoided greatly if more departure
tracks equipped with shove light systems were either completely
circuited or had cameras added that could be remotely viewed to
determine the track is clear. In fact, FRA found five major railroad
departure yards that maintain such cameras and two major railroad
departure yards that maintain shove light systems with completely
circuited departure tracks. Although FRA is promulgating an operational
exception for shove light systems, we encourage each railroad to
consider installing cameras or fully circuiting the departure tracks--
especially in departure yards where non-compliance with yard procedures
adopted under Sec. 218.99(e)(5)(iii) are found on a regular basis.
Meanwhile, FRA has concluded that under certain conditions, a shove
light system is a safe operation. Therefore, a railroad may utilize a
shove light system, under the conditions specified in Sec.
218.99(e)(5), as an alternative to having a qualified employee make a
visual determination that the departure track is clear.
FRA is, however, denying that portion of AAR's petition that
requests the inclusion of shove warning systems that rely solely on
radio signal warnings because radio signals offer a lower level of
safety to that of a shove light system. One of the essential conditions
considered in partially granting AAR's petition allowing shove light
systems to substitute for a qualified employee visually determining the
track is clear, is that the shove light system must be demonstrated to
be failsafe. Shove warning systems that rely solely on radio signal
warnings are not considered failsafe and FRA is skeptical that a system
based on radio signals alone can ever be made failsafe.
Radio signal based shove systems are designed to send radio signal
warnings when the movement is occupying the circuited track. The radio
warning typically states how much room is left in the departure track
for the shoving or pushing movement by indicating a number of car
lengths. If the shoving or pushing movement has not reached the
circuited end of the departure track, the system will be silent. Thus,
the train crewmember or other qualified employee listening to the radio
and directing the move will interpret silence to mean the track is
clear to continue the shoving or pushing movement. Silence may not
always mean that the movement is not occupying the circuited end of the
track. For example, the radio may be silent because it is
malfunctioning. A radio may be silent if its battery is expired. Also,
a person listening to a radio may not hear a radio warning for a
variety of reasons including, but not limited to, a weak transmission
signal; static; the radio's volume is too low; or, a radio signal is
blocked by a competing transmission because it is not broadcast on a
dedicated channel. Finally, unlike shove light systems which remain
continuously illuminated until the circuited section of track is
occupied, FRA observed that the radio signal based shove system does
not continuously send radio warnings that help monitor the departure
end of the track once the movement has completely occupied the
circuited section of track.
FRA might be willing to reconsider this decision or grant a waiver
for a shove warning system that relies solely on radio signal warnings
if it can be demonstrated to be failsafe. However, given the logistical
hurdles of arranging such a system, it would probably be easier to
switch to a shove light system or add some kind of light component to
the existing radio signal based shove system. As FRA found only one
major railroad departure yard that solely used radio signals as a shove
system, FRA does not anticipate that this denial decision will have any
significant impact on that railroad or on the industry.
C. Individual Liability and Enforcement
1. Petitioner Concern: Accident Data Does Not Support Individual Civil
Penalties
The Joint Labor Petition requested reconsideration of the willful
civil penalties published in the penalty schedule at 49 CFR part 218,
app. A and the need for individual liability for willful violations;
TTD's comment supported the Joint Labor Petition. The Joint Labor
Petition analyzed the accident data showing that there has been a
reduction in both the raw number of accidents/incidents and the
corresponding rates for the period 2005 through 2007 that exceeded the
increase for the period 2000 through 2004. Based on the analysis of
that data, the Joint Labor Petition concludes that ``[w]hile
Petitioners concur that discipline--on the part of both our members and
their supervisors--is an essential element in rule compliance, our
analysis of FRA's data establishes beyond question that the spikes in
the number of human factor accidents/incidents and the frequency with
which they occurred were not due to any industry-wide breakdown in
rules compliance discipline.'' Thus, on this first issue, the petition
contends that the empirical basis no longer exists for FRA's decision
to include individual liability for civil penalties in the final rule.
FRA's Response
The labor filing is a model of railroad safety scholarship,
describing in broad strokes the major changes in the industry that, in
the view of the writers, may have influenced safety trends. The
resulting explanations attempt to fit safety data within a multi-factor
analysis and lay the foundation for the requested relief. The history
of a major industry is complex; and this proceeding is not the proper
venue to agree or disagree about such theorems, however interesting
that discussion might be.
Rather, it is necessary to state that the central premise of the
joint labor filing is incorrect, because it is not FRA actions that
invoke the potential for civil penalty sanctions. Rather, civil penalty
sanctions are a statutorily-imposed consequence of regulatory non-
compliance. 49 U.S.C. 21301. Labor
[[Page 33893]]
organizations have been among the more strenuous advocates of strong
civil penalties as an answer to non-compliance by railroads and rail
contractors, and even if FRA were at liberty to provide blanket
immunity from statutory sanctions, there is nothing in the filing to
support the conclusion that such sanctions would be less successful in
influencing the intentional actions of individual employees than the
unintentional or intentional actions of railroads and rail contractors.
Indeed, individual employees are already accountable for personal
compliance with a significant number of FRA regulations; and FRA is
satisfied that the deterrent effect associated with the availability of
a monetary sanction is helpful in preventing accidents that might occur
through sloth or knowing reckless behavior. FRA has seldom found it
necessary to invoke these sanctions against individuals, and in many
cases where such action has been taken the targets have been railroad
officers, rather than rank and file employees.
Whether or not one subscribes to the proposition that penalties are
necessary, giving the subject rules the status of Federal law should
without question promote awareness among officers and employees
regarding their responsibilities to one another and to the public. The
labor filing (at page 5) acknowledges that ``a more substantial
framework of regulations'' (FRA's phrase) should be helpful in
maintaining discipline during the current period of change in the
railroad industry. The potential for civil penalties follows
automatically, based on congressional action.
Although FRA agrees with the Joint Labor Petition that the number
of human factor incidents has declined over the past few years, we do
not agree that this trend diminishes the need for a regulation
containing the potential to demand payment of civil money penalties
from individuals for willful violations. There are a variety of reasons
for the recent downward trend including, but not limited to, FRA's
focus on the increase in human factor caused accidents/incidents from
2000 through 2004 in the RSAC and Working Group meetings. By bringing
this issue to the railroad industry's attention, railroads have placed
increased emphasis on compliance with the operating rules FRA expressed
an intention to consider regulating. Focused compliance reviews by FRA
and aggressive, direct contacts with responsible railroad operating
officers have no doubt contributed to this good result. Historically,
FRA has noted previous positive trends after raising a safety concern
with the industry, but prior to promulgation of a regulation. These
trend lines do not always continue positively, and, without a
regulation, FRA would be left with fewer options if accidents/incidents
were to suddenly increase. Further, it would be fundamentally wrong to
assume that major additional advances in the safety of railroad
operations are not achievable. Rules compliance requires clear and
unambiguous rules and procedures, common expectations for compliance
that are modeled by line supervisors, excellent training, and regular
verification that rules and procedures are being followed. This is the
foundation for acceptable safety performance, and on that foundation
can be built truly outstanding safety performance if the culture of the
organization and the processes in place support open and productive
communication to identify hazards, enhance crew performance, and refine
work processes. FRA appreciates that this regulation cannot construct
the entire edifice, but it can and must provide the foundation.
As FRA has statutory authority to issue penalties against
individuals for willful violations, FRA would retain this authority
even if it deleted the willful penalties in the schedule of civil
penalties (which section 49 U.S.C. 21301(a)(2) directs us to provide).
As FRA explained in its ``Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws'' found at 49 CFR part
209, app. A, the Rail Safety Improvement Act of 1988 (see 49 U.S.C
21304) made individuals liable for willful violations of the Federal
railroad safety statutes that FRA enforces under delegation from the
Secretary of Transportation. See 49 CFR 1.49(c), (d), (f), (g), and
(m). In that published policy statement, FRA explains how the agency
intends to decide if an individual has acted willfully and how it will
consider whether enforcement action is warranted against an individual.
In the preamble to the final rule, FRA also explained that it did not
single this regulation out for individual liability enforcement, but
that ``[e]ach of FRA's rail safety regulations permit enforcement
against any person who violates a regulatory requirement or causes the
violation of any requirement.'' 73 FR 8452-53. The publishing of the
schedule amounts are merely meant to provide guidance as to FRA's
policy in predictable situations, not to bind FRA from using the full
range of penalty authority where extraordinary circumstances warrant
it. FRA will continue to exercise appropriate discretion with regard to
individual liability enforcement matters as it does in all civil
penalty matters cited against railroads.
2. Petitioner Concern: Individual Liability Produces a Chilling Effect
on Safety
The Joint Labor Petition's second request in this area was that FRA
should eliminate the willful civil penalties published in the penalty
schedule at 49 CFR part 218, app. A and FRA should not seek civil
penalty enforcement against individuals under 49 CFR part 218. The
petitioner contends that individual liability produces a chilling
effect that will diminish, rather than enhance, safety. The Joint Labor
Petition disagreed with FRA's position that an employee would have an
incentive to self-report noncompliance because such self-reporting
would likely be considered a reason for FRA to exercise its enforcement
discretion not to take enforcement action against the individual.
Instead, the Joint Labor Petition focused on FRA's statement that
``[s]elf-reporting is not * * * a defense to a potential individual
liability action, and self-reporting does not absolutely preclude FRA
from taking enforcement action against an individual.'' 73 FR 8453. The
Joint Labor Petition concludes that an employee has a disincentive to
self-report as the employee is likely to face a railroad disciplinary
sanction and an FRA civil penalty.
FRA's Response
In FRA's view, the Joint Labor Petition did not acknowledge FRA's
caveat that ``FRA would consider self-reporting a strong reason for
mitigation of the civil penalty, disqualification order, or other
enforcement remedy.'' 73 FR 8453. The flip side of that argument is
also true in that FRA would consider the failure to self-report non-
compliance immediately after the non-compliance is discovered to be an
aggravating factor justifying a higher penalty or longer period of
disqualification. In the preamble, FRA emphasized that when each
railroad instructs its employees on its operating rules, it should
emphasize this incentive to self-report. FRA continues to encourage
each railroad to reconsider its own discipline policy so that it does
not discourage self-reporting of inadvertent noncompliance. For
example, FRA continues to fund and promote the Confidential Close Call
Reporting System Demonstration Project, which permits participating
employees to self-report certain types of
[[Page 33894]]
non-compliance without fear of railroad discipline or FRA enforcement.
FRA believes that by encouraging self-reporting, an analysis of the
data may reveal the identification of accident precursors or suggest
ways to reduce the likelihood of future non-complying incidents that
have the potential to cause accidents/incidents.
FRA also expects that most individuals would self-report because it
is the safe course of action. An individual who chooses not to self-
report after realizing he or she failed to comply with an important
operating rule is likely to be putting him or her self, or colleagues,
at risk of serious injury or death. Thus, FRA would expect that
individuals who discover their own non-compliance would find the risks
associated with choosing not to self-report far worse than the
potential of being disciplined or fined for failing to comply,
especially if the risk of a more severe disciplinary action or greater
penalty is likely for a violation discovered and not immediately
reported.
The Joint Labor Petition also raised the issue that an innocent
employee could be held liable for a civil penalty under the final rule
if the employee was the last person recorded as handling a switch that
was later found misaligned. The petition explained that it might be
possible, on some railroads, for a roadway worker to manipulate main
track switches in non-signaled territory without track authority or
permission from the train dispatcher or control operator. The petition
stated that FRA could end up enforcing a civil penalty against the
wrong individual, and thus FRA should not cite individuals for civil
penalties. FRA's response is that this issue raises an evidentiary
proof matter and a concern FRA will need to address on a case-by-case
basis. However, FRA does not view this issue as a reason to completely
forgo the agency's statutory authority to cite individuals for civil
penalties.
In the conclusion section of the Joint Labor Petition, the petition
suggests that FRA forgo the agency's statutory authority to cite
individuals for civil penalties in favor of FRA's disqualification
procedures. See 49 CFR part 209, subpart D. The petition argued that
disqualifying an individual from performing safety sensitive service is
a ``more than sufficient means available to enforce [part 218,] subpart
F'' and that ``there is neither a sound basis, nor a public interest,
in the creation of individual liability for civil penalties.'' We
disagree. These are two different enforcement mechanisms and there may
be instances where a disqualification is not warranted, and the less
drastic response of a reasonable civil penalty is more appropriate. For
instance, there may be instances where a person has a long work history
of complying with operating rules but is found to have committed a
willful violation one time. In these instances, it is likely more
appropriate to demand a one-time civil penalty and allow the person to
continue working in safety sensitive service than to initiate
disqualification proceedings. In other circumstances, a person with or
without a good history of compliance may be found to have committed a
willful violation but there are aggravating circumstances that suggest
the more extreme penalty of disqualification is unwarranted. Thus, in
order to permit FRA to consider the appropriate enforcement mechanism
and to provide maximum flexibility in its enforcement actions, FRA is
denying the Joint Labor Petition's requests to eliminate the willful
civil penalties published in the penalty schedule at 49 CFR part 218,
app. A and for FRA to pledge not to seek civil penalty enforcement
against individuals under 49 CFR part 218, subpart F.
D. Good Faith Challenge
1. Request To Eliminate Provision
AAR's petition for reconsideration requests that FRA reconsider the
need for any good faith challenge regulation. See 49 CFR 218.97.
According to AAR, employees have statutory protection under 49 U.S.C.
20109 against retaliation for refusing to comply with a directive to
violate a Federal regulation and thus it is puzzling why FRA is
promulgating a regulation which has the potential to interfere
significantly with railroad operations. In addition, AAR objects to a
good faith challenge regulation because the final rule did not
adequately create a record for suspecting that employees have been, or
will be, asked to engage in tasks that violate Federal regulations or
these types of railroad operating rules. The Joint Labor Petition and
TTD's comment disagreed with AAR's position on this issue.
FRA's Position
FRA disagrees with AAR and finds that there is a need for the good
faith challenge regulation. The driving force for much of the final
rule was the data showing significant increases in human factor caused
accidents, and the high number of violations FRA found when it
conducted inspections and investigations related to certain human
factor cause codes. Prior to the effective date of the final rule, each
railroad maintained similar operating rules governing the safe
operation of shoving or pushing movements, leaving cars out to foul,
and handling switches and fixed derails; meanwhile, over the first five
years of this decade, human factor caused accidents accounted for 38
percent of all train accidents, and, in 2004, violations of the
operating rules required in 49 CFR part 218, subpart F accounted for
nearly 48 percent of all human factor accidents. Considering the
mandatory nature of these railroad operating rules, it seems that there
has been a high disregard for them either intentionally or
unintentionally. Although we agree that FRA did not cite to specific
examples of intentional non-compliance with railroad operating rules,
FRA is aware of the pressure to occasionally shortcut an operating rule
in order to maintain or increase production. FRA's awareness is derived
from inspections and investigations, as well as shared experiences from
FRA personnel who have previously worked for one or more railroads. The
good faith challenge procedures are intended to empower employees who
choose to abide by the railroad's operating rules but are either
intentionally or unintentionally given a non-complying directive. The
procedures are necessary to ensure that employees may challenge
potentially non-complying directives immediately while the statutory
protections in 49 U.S.C. 20109 primarily protect an employee from
retaliation for refusing to comply with non-complying directives. Thus,
the good faith challenge regulation has a different purpose than the
statutory protections.
2. Request To Amend Provision
In the alternative, AAR's petition for reconsideration requests
that FRA amend the good faith challenge procedures required by 49 CFR
218.97 so that they more closely resemble the roadway worker good faith
challenge provisions. AAR states that FRA has departed from past
precedent by issuing good faith challenge procedures that are different
from those required for roadway workers. In AAR's view, the roadway
worker regulations are clear and easily implemented, while the
procedures in Sec. 218.97 are complex and could result in delaying
railroad operations. For example, AAR states that there may be
situations when a supervisor and employee cannot resolve a challenge,
and a suitable railroad officer is not available to provide for
immediate review under paragraph (d)(1). (It appears that AAR might
also be asking FRA to reconsider or make an exception to the immediate
review required in paragraph (d)(1) for any
[[Page 33895]]
railroad regardless of size.) The Joint Labor Petition disagreed with
AAR's position on this issue.
FRA's Response
FRA acknowledges that when it first began discussing this issue
with the RSAC Working Group, FRA suggested that good faith challenge
procedures similar to those promulgated for roadway workers might be
appropriate. Discussions within the Working Group, especially with
members representing labor organizations, revealed that roadway workers
generally share a more cooperative working relationship with their
supervisors than operating employees do with yardmasters, trainmasters
and their other railroad officer supervisors. A supervisor of roadway
workers is likely to be out at the work site and may share in the
danger if the work gang is not adequately protected because the group
failed to comply with a rule. A railroad officer supervising operating
employees will likely not be at risk of injury to himself/herself
through the issuance of a non-complying order but may be putting the
operating employees executing the order, or other employees in the
vicinity of the operation, in peril. For these reasons, a different
approach, permitting a good faith challenge, is necessary.
With regard to the request that FRA should eliminate the
requirement for immediate review under Sec. 218.97(d)(1), FRA is
denying the request. Any railroad with 400,000 or more total employee
work hours annually should employ at least one railroad officer who can
be on call in case a challenge requires immediate review. Each railroad
should consider whether to address in its program the issues of who can
be contacted and what protocol should be followed if the person issuing
the challenged directive has difficulty finding an officer suitable for
immediate review. FRA suggests that AAR ask its members to voluntarily
keep track of problems associated with implementing the good faith
challenge procedures so that it can be raised as a future task for the
RSAC or in a future petition for rulemaking.
3. Implementation in Joint Operations
After publication of the final rule, FRA met with labor
organizations and railroad associations to discuss issues related to
implementation. During those meetings, several parties raised the fact
that the rule does not address how the good faith challenge is required
to be implemented in joint operations territory. For example, FRA has
been asked what happens if employees from Railroad 1 are
directed to perform a shoving or pushing movement in a yard on Railroad
2 and the employees believe they are being asked to violate a
rule because the point is not being properly protected. FRA has been
asked which railroad's good faith challenge procedures apply, and if
Railroad 2's procedures apply, then are Railroad 1's
employees required to be trained on Railroad 2's procedures.
FRA's Response
FRA acknowledges that the rule is silent on these issues.
Generally, we would expect that the host railroad, i.e., Railroad
2 in the example, would want to maintain control of challenges
made on its property and would therefore provide all reviews required.
Although we expect quite a bit of uniformity among railroads, railroads
who operate in joint operations will need to ensure that its employees
know which railroad's procedures apply and what those procedures
require. Meanwhile, as the rule is silent on this issue, we would not
object to railroads engaged in joint operations making other
arrangements as long as those arrangements are explained to its
employees during the required training and provided for in its
procedures. In conclusion, unless otherwise specified in a railroad's
procedures, the host railroad's procedures will apply and it will be
the host railroad's obligation to provide review of the alleged non-
complying order and to maintain a record when necessary.
E. The Point Protection Technology Standard for Remote Control Zones
Requests for Clarification
AAR's petition explains that Sec. 218.99(c)(2) provides that if
technology is relied on to provide pull-out protection by preventing
the movement from exceeding the limits of a remote control zone, the
technology must be demonstrated to be failsafe or provide suitable
redundancy. AAR does not object to the regulatory text. Instead, AAR's
petition for reconsideration raises the question of whether a
particular discussion in the preamble regarding the point protection
technology standard for remote control zones is intended to be a
requirement.
AAR is concerned that the preamble language will be read as a
requirement. The preamble states that ``[w]hen determining whether the
technology, such as transponders backed up by a global positioning
system (GPS) with a facility database is acceptable, FRA finds that 49
CFR part 236, subpart H and the corresponding appendix C to part 236
(``Safety Assurance Criteria and Processes'') contains appropriate
safety analysis principles.'' 73 FR 8479. AAR requests confirmation
that the preamble reference to the safety analysis principles is meant
to illustrate one way of determining if a technology is acceptable and
the citation to part 236 is not meant to be a requirement. (Presumably,
if FRA disagrees with AAR's understanding, AAR's petition is meant to
request an amendment to this section as AAR implies that it objects to
this reference if it is a requirement.).
The Joint Labor Petition responded to AAR's petition. First, the
Joint Labor Petition points out that the final rule preamble contained
an error when it stated that no comments were received in response to
the NPRM concerning this issue. BLET specifically responded to FRA's
request for comments by recommending that (1) the technologies used to
``fence'' remote control zones should be at least fail-safe and (2) to
the extent that any of these technologies are not currently in use,
they should be required to meet the criteria for processor-based signal
and train control systems found in 49 CFR part 236, subpart H. The
Joint Labor Petition reiterated BLET's recommendations and stated that
remote control zone pull-out protection technology is, by definition, a
train control system.
FRA's Response
FRA agrees with AAR that the preamble language reference to 49 CFR
part 236, subpart H is intended to illustrate one way of determining if
a technology is acceptable and the citation to part 236 is not meant to
be a requirement.
In response to the Joint Labor Petition, FRA offers the following
clarification. First, FRA wishes to thank BLET for reminding FRA that
BLET had commented on the NPRM preamble language. Second, although FRA
has provided that remote control zone pull-out protection technology
must be demonstrated to be failsafe or provide suitable redundancy to
prevent unsafe failure, a result consistent with the general approach
of 49 CFR part 236, subpart H, FRA does not believe that this is the
appropriate forum within which to determine the formal applicability of
part 236. Although pullout protection arrangements are provided to
restrict the movement of rolling equipment, they are not employed to
authorize to control train movements; accordingly, using traditional
interpretations they would not fall within the concept of a train
control system. Nor do they resemble in function block signal systems.
FRA is
[[Page 33896]]
aware of views of some that a variety of innovative technologies that
perform functions analogous to traditional signal and train control
systems should be regulated under part 236; however, FRA strongly
believes that such issues should not be addressed piecemeal.
Accordingly, FRA declines in this forum to assert the applicability of
part 236 to systems used to prevent shoving movements from exceeding
the intended boundaries.
Based on the discussion contained above, FRA is not amending the
regulatory text as suggested in either AAR's petition or the Joint
Labor Petition.
III. Section-by-Section Analysis
Part 217--[AMENDED]
Section 217.9 Program of Operational Tests and Inspections;
Recordkeeping
FRA is amending four paragraphs of this section to delay certain
applicability dates. In the preamble section titled ``Implementation
Dates,'' FRA explains the basis for amending each of these compliance
deadlines. In summary, FRA considered the petitions which suggested
that, due to the routine most railroads use to schedule training during
the first quarter of each calendar year, many railroads might have
rushed through implementation merely to meet the deadline without
regard for the program's likely effectiveness. FRA is amending the
applicability dates in this section because we would prefer to provide
each railroad with a reasonable opportunity to come into compliance
with an effective amended program of operational tests and inspections,
rather than to have compliance that is technically timely but
ineffective.
The introductory text of paragraph (b) is amended to make the
requirements contained in this paragraph (b) applicable beginning
January 1, 2009. As the applicability date was previously July 1, 2008,
the amendment extends the deadline for compliance by six months.
Paragraph (c)(1) requires the program to provide for operational
testing and inspection under the various operating conditions on the
railroad. The applicability date of this paragraph has been amended, so
that on or after January 1, 2009, each railroad shall be required to
amend its program to ``address with particular emphasis those operating
rules that cause or are likely to cause the most accidents or
incidents, such as those accidents or incidents identified in the
quarterly reviews, six month reviews, and the annual summaries as
required under paragraphs (e) and (f) of this section, as applicable.''
As the applicability date was previously July 1, 2008, the amendment
extends the deadline for compliance by six months.
Paragraph (c)(6) requires the program show the railroad's
designation of an officer to manage the program at each level of
responsibility (division or system, as applicable). The applicability
date of this paragraph has been amended, so that compliance with it is
not required until January 1, 2009. As the applicability date was
previously July 1, 2008, the amendment extends the deadline for
compliance by six months.
Paragraph (e) requires each railroad to do reviews of its program
of operational tests and inspections at certain specified periodic
intervals. There are two applicability dates in introductory paragraph
(e) and both dates have been amended to provide railroads with
additional time to comply. Introductory paragraph (e) is amended so
that the requirements in paragraph (e) apply to each Class I railroad
and the National Railroad Passenger Corporation beginning April 1,
2009, and to all other railroads subject to this paragraph beginning
July 1, 2009. Thus, each Class I railroad and the National Railroad
Passenger Corporation are being provided an additional ten months to
comply with the requirements in paragraph (e) and all other railroads
subject to this paragraph are being provided an additional six months
to comply.
Part 218--[AMENDED]
Section 218.93 Definitions
A definition of departure track is added to this section because
this term is used in added paragraph (e)(5) to Sec. 218.99. A
departure track is a track located in a classification yard where
rolling equipment is placed and made ready for an outgoing train
movement. Thus, a departure track is typically the last type of track
that cars will be on in the yard before the cars are completely
assembled as a train and are ready to leave the confines of the
classification yard. The ``classification yard'' is a term used to
describe the greater yard area that contains, but is not limited to,
run-through tracks, van yard tracks that are used for trailers on flat
cars or containers on flat cars (tofc/cofc), car repair tracks,
locomotive servicing tracks, repair-in-place (rip) tracks, receiving
tracks, bowl or classification tracks, and departure tracks. Some
railroads have added shove light systems to departure tracks to aid
train crews shoving or pushing large cuts of cars onto departure
tracks; i.e., a person observing the shove light will be notified when
the circuited end of the track is occupied without actually viewing the
circuited end of the track.
Section 218.95 Instruction, Training, and Examination
Paragraph (a) requires that each railroad maintain a written
program that will qualify its employees for compliance with operating
rules implementing the requirements of this subpart to the extent these
requirements are pertinent to the employee's duties. FRA is amending
this paragraph to require establishment and continued maintenance of
the program beginning no later than January 1, 2009. As the
applicability date was previously July 1, 2008, the amendment extends
the deadline for compliance by six months.
Paragraphs (a)(3) and (a)(4) are also being amended to provide
additional time to implement this subpart. Paragraph (a)(3) is amended
to require that each employee performing duties subject to the
requirements in this subpart shall be initially qualified prior to July
1, 2009. As the applicability date for paragraph (a)(3) was previously
January 1, 2009, the amendment extends the deadline for compliance by
six months. Paragraph (a)(3) is also amended by eliminating the
requirement that ``employees hired between April 14, 2008 and January
1, 2009, and all employees thereafter required to perform duties
subject to the requirements in this subpart shall be qualified before
performing duties subject to the requirements in this subpart.'' The
elimination of this requirement follows from the decision to delay
implementation of the program in paragraph (a) to January 1, 2009. The
program implementation date is being delayed so that railroads will
have time to adequately prepare a written program of training. As FRA
has accepted AAR and APTA's reasons for delaying implementation of the
program, it seems logical to provide railroads additional time to train
both the employees hired prior to the effective date of the rule as
well as the newly hired employees.
Similarly, the applicability date in paragraph (a)(4) is amended to
require that, beginning July 1, 2009, no employee shall perform work
requiring compliance with the operating rules implementing the
requirements of this subpart unless qualified on these rules within the
previous three years. As the applicability date for paragraph (a)(4)
was previously January 1, 2009, the amendment extends the deadline for
compliance by six months. Thus, as of July 1, 2009, each employee
performing work subject to this subpart is required
[[Page 33897]]
to be qualified regardless of when the employee was hired.
Section 218.99 Shoving or Pushing Movements
Paragraph (e)(5) is added to permit each railroad the option of
using a shove light system in lieu of point protection under 49 CFR
218.99(b)(3), as long as certain specified conditions are met. In
section II. B. of the preamble, titled ``Shove Lights,'' FRA explains
why it is permitting railroads to choose this option. In summary, FRA
reviewed initial rail equipment accident/incident records over a recent
twenty-six month period that suggested railroads have safely conducted
shoving or pushing movements on departure tracks that utilize shove
light systems without a point protection requirement. FRA conducted
observations of 34 locations where shove light or radio systems were in
operation and found that certain best practices increased the
likelihood that the operation could be conducted safely. FRA has
promulgated the best practices into requirements that allow a railroad
to exercise this operational exception. In addition, FRA has determined
that systems based on radio signals alone are not as safe as those that
contain a visual display. Consequently, the operational exception uses
the term ``shove light system'' which is intended to descriptively
exclude the use of a radio system that does not utilize a light.
Paragraph (e)(5)(i) requires that the shove light system is
demonstrated to be failsafe. The safety concern is that, without a
specific requirement, some railroads might try to implement technology
that is not demonstrated to be safe and therefore provides a false
sense of protection to rail employees. Fortunately, most shove light
arrangements appear to utilize traditional signal circuits which by
design fail safe. (For analogous requirements applicable to track
circuits and occupancy display in block signal territory see, e.g., 49
CFR 236.5, 236.51.) Although the present rule in no way dictates the
technology employed, it does require that it be failsafe in operation.
(For principles pertinent to evaluating innovative detection
technologies, see Appendix C to part 236.) In order to demonstrate that
the system is failsafe, FRA would expect that when the system is not
working properly, it would produce the least favorable aspect--
indicating that the movement should immediately be stopped or, if not
yet begun, not started.
Paragraph (e)(5)(ii) requires that the shove light system be
arranged to display a less favorable aspect when the circuited section
of the track is occupied. If the shove light system has only a single
light, the light will turn off, i.e., go dark, when the circuited
section of the track is occupied. If the shove light system has
multiple lights or a single light with the ability to display multiple
aspects or colors, the light will turn from a favorable aspect to a
less favorable aspect when the circuit is first occupied, and later
turn to a more restrictive aspect as the circuited track reaches full
occupancy. Of course, shove light systems with multiple lights may
simply go from a favorable aspect, e.g., green, to a less favorable
aspect, e.g., red, in order to meet the requirement of this paragraph.
Paragraph (e)(5)(iii) requires that written procedures be adopted
and complied with that provide for a reliable means of determining
track occupancy prior to commencing a shoving or pushing movement. The
preamble section titled ``Shove Lights'' contains a description of
various procedures many railroads have already established for
departure tracks within departure yards equipped with shove light
systems. The establishment of procedures is a way to create a uniform
method of leaving a car or cut of cars on a departure track safely,
thus permitting the yardmaster or next crew entering to know that the
entire length of a particular departure track is not clear. Some
railroads may choose to institute procedures that aid in tracking cars,
either in writing, computer inventory, GPS tracking, or other
electronic tracking. FRA is not requiring that all railroads must adopt
and comply with a particular set of procedures. However, FRA believes
these types of procedures contribute to the overall safety record of
departure tracks utilizing shove lights and that such procedures must
be established in writing so that all employees working in the
departure yard can be expected to fully understand the operation. When
FRA conducts inspections of these departure yards, we intend to review
these procedures to ensure that any particular procedure, or lack
thereof, does not create an undue safety risk and that the departure
yard operation utilizing the shove light system is managed in a safe
manner.
Paragraph (e)(5)(iv) requires that the departure track be
designated in writing. This is an important requirement because it is
an exception to providing point protection and it is therefore
imperative that employees know specifically on which tracks the
exception applies. FRA is promulgating this requirement even though we
are unaware of shove light systems being installed on other than
designated departure tracks. The requirement in this paragraph is
intended to prevent a railroad from installing shove lights on yard
tracks that are not departure tracks and attempting to circumvent the
point protection requirements under paragraph (b)(3) of this section.
Paragraph (e)(5)(v) requires that the track be under the exclusive
and continuous control of a yardmaster or other qualified employee.
FRA's recent observations of departure tracks at major railroad
classification yards, described above, found that a universal best
practice is to have an employee, typically a yardmaster, who controls
all movements in and out of the departure tracks. Without such an
employee, there would likely not be any person who would be tracking
movements into or out of the departure tracks, and there would not be
anyone who could reliably relay information to train crewmembers who
need to know the status of a particular departure track.
The operational exception in paragraph (e)(5) differs from the
other numbered exceptions in paragraph (e) because, although
introductory paragraph (e) states that ``[a] railroad does not need to
comply with paragraphs (b) through (d) of this section in the following
circumstances,'' the rule excepting shove lights does include some
requirements within paragraphs (b) through (d). For instance, paragraph
(e)(5)(vi) requires that ``[t]he train crewmember or other qualified
employee directing the shoving or pushing movement complies with the
general movement requirements contained in paragraphs (b)(1) and(b)(2)
of this section.'' Thus, even though a shove light system may be used,
this paragraph requires that employees conduct a proper job briefing
under paragraph (b)(1) and that the employee directing the movement not
engage in any task unrelated to the oversight of the shoving or pushing
movement under paragraph (b)(2). Similarly, paragraph (e)(5)(vii)
requires that ``[a]ll remote control shoving or pushing movements
comply with the requirements contained in paragraph (c)(1) of this
section.'' Hence, remote control operations utilizing shove lights are
not excused from the requirement that either the remote control
operator or a crewmember visually determine the direction the equipment
moves, and, in the case of a crewmember making the observation, that
the operator is promptly informed before continuing the movement.
Paragraph (e)(5)(viii) requires that the shove light system be
continuously illuminated when the circuited section of the track is
unoccupied. FRA is including this requirement to ensure
[[Page 33898]]
that the employee observing the shove light is always viewing a lit
aspect when the circuited section of the track is unoccupied. To allow
otherwise would mean that a shove light system with a single aspect
shove light could remain dark until it lit up when the circuited
section of the track is occupied. Such an arrangement would not be
failsafe if the light bulb failed. In arranging a failsafe system,
railroads that utilize a multiple aspect shove light system will need
to address each possible scenario for one or more light bulb or aspect
failures. If the system has multiple aspects and a bulb or aspect
failed, an employee viewing the shove light should be able to tell that
the system is not continuously illuminating a proper aspect. If the
system fails to continuously illuminate, the operational exception
under paragraph (e)(5) would no longer be available and the movement
would be required to stop immediately. Thus, the safest course of
action is required when there is a technological failure such as the
system fails to continuously illuminate.
IV. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This action has been evaluated in accordance with existing policies
and procedures, and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures (44 FR 11034;
Feb. 26, 1979). The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are
not considered significant because they generally clarify requirements
currently contained in the final rule or allow for greater flexibility
in complying with the rule. These amendments, additions, and
clarifications will have a minimal net effect on FRA's original
analysis of the costs and benefits associated with the final rule.
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA certifies that this action is not
expected to have a significant economic impact on a substantial number
of small entities under the Regulatory Flexibility Act or Executive
Order 13272. Because the amendments contained in this document
generally clarify requirements currently contained in the final rule or
allow for greater flexibility in complying with the rule, FRA has
concluded that there are no substantial economic impacts on small units
of government, businesses, or other organizations resulting from this
action.
C. Paperwork Reduction Act
The information collection requirements in the agency's response to
petitions of reconsideration of this final rule have been submitted for
approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections
that contain the new information collection requirements and the
estimated time to fulfill each requirement are as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual burden Total annual burden
CFR Section--49 CFR Respondent universe responses response hours cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.7--Operating Rules; Filing and
Recordkeeping:
--Filing rules, timetables, 1 New Railroad....... 1 submission......... 1 hour............... 1.................... $43
and special instructions.
--Amendments to operating 55 Railroads......... 165 amendments....... 20 minutes........... 55................... 2,365
rules, timetables, and
timetable special
instructions by Class I,
Class II, Amtrak, and
Commuter Railroads.
--Class III and Other 20 New Railroads..... 20 submissions....... 55 minutes........... 18................... 774
Railroads: Copy of Current
Operating Rules, Timetables,
and Special Instructions.
--Class III Railroads: 632 Railroads........ 1,896 amendments..... 15 minutes........... 474.................. 20,382
Amendments to operating rules.
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.9--Program of Operational
Tests:
--Railroad and railroad 687 Railroads........ 4,732 training 8.................... 37,856............... 1,892,800
officer testing sessions.
responsibilities: Field
Training.
--Written records of officer 687 Railroads........ 4,732 records........ 2 minutes............ 158.................. 0 (Incl. RIA)
testing qualifications.
--Written program of 20 New Railroads..... 20 programs.......... 9.92................. 198.................. 8,514
operational tests/inspections.
--Amendments to operational 55 Railroads......... 165 amendments....... 1.92................. 317.................. 13,631
tests/insp. programs.
--Records of individual tests/ 687 Railroads........ 9,180,000 rcds....... 5 minutes............ 765,000.............. 38,250,000
inspections.
--Review of tests/inspections/ 687 Railroads........ 37 reviews........... 1 hour............... 37................... 0 (Incl. RIA)
adjustments to the program of
operational tests--Quarterly
reviews.
--Officer designations & Six 687 Railroads........ 37 designations + 74 5 seconds + 1 hour... 74................... 0 (Incl. RIA)
Month reviews. reviews.
--Passenger Railroads: Officer 20 Railroads......... 20 designation + 34 5 seconds + 1 hour... 34................... 0 (Incl. RIA)
designations & Six-month reviews.
reviews.
--Records retention: Periodic 687 Railroads........ 589 review rcds...... 1 minute............. 10................... 0 (Incl. RIA)
reviews.
[[Page 33899]]
--Annual summary on 37 Railroads......... 37 summary rcds...... 61 minutes........... 38................... 1,634
operational rests/
inspections--Summary records.
--FRA disapproval of 687 Railroads........ 20 responses......... 1 hour............... 20................... 1,460
operational testing/insp.
program: Railroad response to
disapproval.
--Amended programs as a result 687 Railroads........ 20 amended........... 30................... 10................... 730
of FRA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.11--Program of Instructions on
Operating Rules
--Railroads instructions of 687 Railroads........ 130,000 instr. 8.................... 1,040,000............ 52,000,000
employees. employees.
--Current copy of employee 20 New Railroads..... 20 programs.......... 8.................... 160.................. 6,880
periodic instruction prog.
--Amendments to current 687 Railroads........ 220 amendments....... .92 hour............. 202.................. 8,686
employee instruction prog.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.95--Instruction, Training, and
Examination:
--Records of instruction, 687 Railroads........ 98,000 records....... 5 minutes............ 8,167................ 351,181
training, examination.
--FRA disapproval of program: 687 Railroads........ 50 submissions....... 1 hour............... 50................... 2,150
Railroad responses.
--Amended programs............ 687 Railroads........ 20 amended docs...... 30 minutes........... 10................... 730
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.97--Good Faith Challenge 687 Railroads........ 687 procedures....... 2 hours.............. 1,374................ 0 (Incl. RIA)
Procedure:
--Copies to employees of good 687 Railroads........ 130,000 copies....... 6 minutes............ 13,000............... 0 (Incl. RIA)
faith procedures.
--Copies of amendments to good 687 Railroads........ 130,000 copies....... 3 minutes............ 6,500................ 0 (Incl. RIA)
faith procedures.
--Good faith challenges to 98,000 employees..... 15 challenges........ 10 minutes........... 3.................... 0 (RIA)
railroad directives.
--Resolution of challenges.... 687 Railroads........ 15 responses......... 5 minutes............ 1.................... 0 (RIA)
--Direct order to proceed 687 Railroads........ 5 reviews............ 15 minutes........... 1.................... 0 (RIA)
procedures: Immediate review
by railroad testing officer/
employer.
--Documentation of employee 687 Railroads........ 10 protest docs...... 15 minutes........... 3.................... 0 (RIA)
protests to direct order.
--Copies of protest 687 Railroads........ 20 copies............ 1 minute............. .33.................. 0 (RIA)
documentation.
--Further review by designated 687 Railroads........ 3 reviews............ 15 minutes........... 1.................... 0 (RIA)
railroad officer.
--Employee requested written 687 Railroads........ 10 decisions......... 10 minutes........... 2.................... 88
verification decisions.
--Recordkeeping/Retention-- 687 Railroads........ 760 copies........... 5 minutes............ 63................... 2,709
Copies of written procedures.
--Copies of good faith 687 Railroads........ 20 copies............ 5 minutes............ 2.................... 86
challenge verification
decisions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.99--Shoving or Pushing
Movements:
--Required operating rule 687 Railroads........ 687 rule modific..... 1 hour............... 687.................. 0 (Incl. RIA)
compliant with this section.
--General Movement 100,000 RR employees. 60,000 briefings..... 1 minute............. 1,000................ 50,000
Requirements: Job briefings.
--Point Protection: Visual 100,000 RR employees. 87,600,000 deter/ 1 minute............. 2,920,000............ 128,480,000
determination of clear track instructions +
and corresponding signals or 87,600,000 signals.
instructions.
--Remote Control Movements: 100,000 RR employees. 876,000 confirm...... 1 minute............. 14,600............... 642,400
Confirmations by Crew.
--Remote Control zone, 100,000 RR employees. 876,000 deter/ 1 minute............. 14,600............... 642,400
exceptions to point communication.
protection: Determination/
Communication track is clear.
--Operational exceptions:
--Dispatcher permitted 6,000 RR Dispatchers. 30,000 permitted 1 minute............. 500.................. 22,000
movements that are verified. movements.
[NEW REQUIREMENTS]
[[Page 33900]]
--Written procedures that are 687 Railroads........ 41 procedures........ 30 minutes........... 42................... 903
adopted/complied with to
determinutee track occupancy
prior to shoving/pushing
movement.
--The track is designated in 687 Railroads........ 41 designated track 30 minutes........... 42................... 903
writing. locations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.101--Leaving Equipment in the
Clear:
--Operating Rule that Complies 687 Railroads........ 687 amended op. rules 30 minutes........... 344.................. 0 (Incl. RIA)
with this section.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.103--Hand-Operated Switches
and Derails:
--Operating Rule that Complies 687 Railroads........ 687 amended op. rules 60 minutes........... 687.................. 0 (Incl. RIA)
with this section.
--Minimum requirements for 632 Railroads........ 632 modif rules...... 60 minutes........... 632.................. 0 (RIA)
adequate job briefing.
--Actual job briefings 632 Railroads........ 1,125,000 brfngs..... 1 minute............. 18,750............... 825,000
conducted by employees
operating hand-operated main
track switches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.105--Additional Job Briefings 687 Railroads........ 60,000 briefings..... 1 minute............. 1,000................ 0 (Incl. RIA)
for hand-operated main track
switches:
--Exclusive track occupancy: 687 Railroads........ 100,000 reports + 1 minute............. 3,334................ 0 (RIA)
Report of position of main 100,000 convey.
track switches and conveyance
of switch position.
--Releasing authority limits: 6,000 RR Dispatchers. 60,000 reports + 30 sec. + 5 sec...... 583.................. 0 (Incl. RIA)
Acknowledgments and verbal 60,000 confirm.
confirmations of hand-
operated main track switches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.109--Hand-operated fixed 687 Railroads........ 562,500 brfngs....... 30 seconds........... 4,688................ 234,400
derails--Job.
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292 or Ms. Nakia Poston at
202-493-6073, or via e-mail at [email protected] or
[email protected].
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: [email protected].
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
D. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with Federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the proposed regulation. Where a regulation
has Federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
This is an action with preemptive effect. Subject to a limited
exception for essentially local safety hazards, its requirements will
establish a uniform Federal safety standard that must be met, and State
requirements covering the same subject are displaced, whether those
standards are in the form of State statutes, regulations, local
ordinances, or other forms of state law, including State common law.
Preemption is addressed in Sec. Sec. 217.2 and 218.4, both titled
``Preemptive effect.'' As stated in the corresponding preamble language
for Sec. Sec. 217.2 and 218.4 in the original final rule, section
20106 of Title 49 of the United States Code provides that all
[[Page 33901]]
regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety or security hazard that is not incompatible
with a Federal law, regulation, or order and that does not unreasonably
burden interstate commerce. This is consistent with past practice at
FRA, and within the Department of Transportation.
FRA has analyzed this action in accordance with the principles and
criteria contained in Executive Order 13132. FRA notes that the above
factors have been considered throughout the development of this
rulemaking both internally and through consultation within the RSAC
forum, as described in Section I of this preamble. After the Railroad
Operating Rules Working Group failed to reach a consensus
recommendation on the NPRM, FRA reported the Working Group's unofficial
areas of agreement and disagreement to the RSAC. After publication of
the NPRM, FRA permitted the Working Group to meet and discuss the
comments received; some consensus on the comments was derived and
forwarded to the RSAC where it was ratified as a recommendation to the
FRA. The RSAC has as permanent voting members two organizations
representing State and local interests: AASHTO and ASRSM. The RSAC
regularly provides recommendations to the FRA Administrator for
solutions to regulatory issues that reflect significant input from its
State members. To date, FRA has received no indication of concerns
about the Federalism implications of this rulemaking from these
representatives or from any other representative. States and other
governments were afforded opportunity to consult by virtue of the NPRM
and comment period, and the agency's procedures permitting petitions
for reconsideration.
For the foregoing reasons, FRA believes that this action is in
accordance with the principles and criteria contained in Executive
Order 13132.
E. Environmental Impact
FRA has evaluated this action in accordance with its ``Procedures
for Considering Environmental Impacts'' (FRA's Procedures) (64 FR
28545, May 26, 1999) as required by the National Environmental Policy
Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and related regulatory requirements. FRA has determined that
this action is not a major FRA action (requiring the preparation of an
environmental impact statement or environmental assessment) because it
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. In
accordance with section 4(c) and (e) of FRA's Procedures, the agency
has further concluded that no extraordinary circumstances exist with
respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this final
rule is not a major Federal action significantly affecting the quality
of the human environment.
F. Unfunded Mandates Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) currently $128,100,000 in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. This action would not result in the
expenditure, in the aggregate, of $128,100,000 or more in any one year,
and thus preparation of such a statement is not required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this action in accordance with Executive
Order 13211. FRA has determined that this action is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this regulatory action is
not a ``significant energy action'' within the meaning of Executive
Order 13211.
H. Public Proceedings
FRA has not provided additional notice and request for public
comment prior to making the amendments contained in this rule. FRA
concluded that such notice and comment were impractical, unnecessary
and contrary to the public interest since FRA is, for the most part,
only making minor technical changes in response to requests for
reconsideration of issues that were previously the subject of detailed
notice and extensive comment in the development of the initial final
rule in this proceeding.
Certain of the amendments are so critical to the effective
implementation of this rule that the delay that a notice and comment
period would cause would clearly be contrary to the public interest in
railroad safety. For example, the amendments delaying certain
implementation of the rule need to go into effect immediately or some
of the implementation dates in the initial final rule would go into
effect before the amendments would. If the amendments were not allowed
to go into effect immediately, many railroads would be rushing to
develop and implement training and testing programs, and the quality of
the programs and the training would suffer. In addition, an exemption
or relief from a restriction is provided by allowing railroads to
utilize existing shove light systems without establishing point
protection. If this exemption is not immediately placed in effect, some
railroads may require an employee to ride the side of a car or walk
along a departure track equipped with shove lights, thereby increasing
the employee's risk of an injury. Under these circumstances, FRA has
concluded that the rule may be made effective immediately. 5 U.S.C.
553(d).
I. Privacy Act
Anyone is able to search the electronic form of all comments or
petitions for reconsideration received into any of FRA's dockets by the
name of the individual submitting the comment or petition for
reconsideration (or signing the comment or petition for
[[Page 33902]]
reconsideration, if submitted on behalf of an association, business,
labor union, etc.). You may review DOT's complete Privacy Act Statement
in the Federal Register published on April 11, 2000 (65 FR 19477-78),
or you may visit http://DocketsInfo.dot.gov.
List of Subjects
49 CFR Part 217
Penalties, Railroad safety, and Reporting and recordkeeping
requirements.
49 CFR Part 218
Occupational safety and health, Penalties, Railroad employees,
Railroad safety, and Reporting and recordkeeping requirements.
The Final Rule
0
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]
0
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.
0
2. Section 217.9 is amended by revising the introductory text of
paragraph (b), paragraphs (c)(1), (c)(6), and the introductory text of
paragraph (e) to read as follows:
Sec. 217.9 Program of operational tests and inspections;
recordkeeping.
* * * * *
(b) Railroad and railroad testing officer responsibilities. The
requirements of this paragraph (b) are applicable beginning January 1,
2009.
* * * * *
(c) * * *
(1) Provide for operational testing and inspection under the
various operating conditions on the railroad. As of January 1, 2009,
the program shall address with particular emphasis those operating
rules that cause or are likely to cause the most accidents or
incidents, such as those accidents or incidents identified in the
quarterly reviews, six month reviews, and the annual summaries as
required under paragraphs (e) and (f) of this section, as applicable;
* * * * *
(6) As of January 1, 2009, identify the officer(s) by name, job
title, and, division or system, who shall be responsible for ensuring
that the program of operational tests and inspections is properly
implemented. The responsibilities of such officer(s) shall include, but
not be limited to, ensuring that the railroad's testing officers are
directing their efforts in an appropriate manner to reduce accidents/
incidents and that all required reviews and summaries are completed. A
railroad with divisions shall identify at least one officer at the
system headquarters who is responsible for overseeing the entire
program and the implementation by each division.
* * * * *
(e) Reviews of tests and inspections and adjustments to the program
of operational tests. This paragraph (e) shall apply to each Class I
railroad and the National Railroad Passenger Corporation beginning
April 1, 2009 and to all other railroads subject to this paragraph
beginning July 1, 2009.
* * * * *
PART 218--[AMENDED]
0
3. The authority citation for part 218 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.
0
4. Section 218.93 is amended by adding a definition of ``departure
track'' in alphabetical order to read as follows:
Sec. 218.93 Definitions.
* * * * *
Departure track means a track located in a classification yard
where rolling equipment is placed and made ready for an outgoing train
movement.
* * * * *
0
5. Section 218.95 is amended by revising the introductory text of
paragraph (a), and paragraphs (a)(3) and (a)(4) to read as follows:
Sec. 218.95 Instruction, training, and examination.
(a) Program. Beginning January 1, 2009, each railroad shall
maintain a written program of instruction, training, and examination of
employees for compliance with operating rules implementing the
requirements of this subpart to the extent these requirements are
pertinent to the employee's duties. If all requirements of this subpart
are satisfied, a railroad may consolidate any portion of the
instruction, training or examination required by this subpart with the
program of instruction required under Sec. 217.11 of this chapter. An
employee who successfully completes all instruction, training, and
examination required by this written program shall be considered
qualified.
* * * * *
(3) Implementation schedule for employees, generally. Each employee
performing duties subject to the requirements in this subpart shall be
initially qualified prior to July 1, 2009.
(4) Beginning July 1, 2009, no employee shall perform work
requiring compliance with the operating rules implementing the
requirements of this subpart unless qualified on these rules within the
previous three years.
* * * * *
0
6. Section 218.99 is amended by adding a new paragraph (e)(5) to read
as follows:
Sec. 218.99 Shoving or pushing movements.
* * * * *
(e) * * *
(5) Shoving or pushing movements made in the direction of the
circuited end of a designated departure track equipped with a shove
light system, if all of the following conditions are met:
(i) The shove light system is demonstrated to be failsafe;
(ii) The shove light system is arranged to display a less favorable
aspect when the circuited section of the track is occupied;
(iii) Written procedures are adopted and complied with that provide
for a reliable means of determining track occupancy prior to commencing
a shoving or pushing movement;
(iv) The track is designated in writing;
(v) The track is under the exclusive and continuous control of a
yardmaster or other qualified employee;
(vi) The train crewmember or other qualified employee directing the
shoving or pushing movement complies with the general movement
requirements contained in paragraphs (b)(1) and (b)(2) of this section;
(vii) All remote control shoving or pushing movements comply with
the requirements contained in paragraph (c)(1) of this section; and
(viii) The shove light system is continuously illuminated when the
circuited section of the track is unoccupied.
Issued in Washington, DC on June 10, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. 08-1354 Filed 6-11-08; 11:24 am]
BILLING CODE 4910-06-P