[Federal Register Volume 59, Number 161 (Monday, August 22, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-20457] [[Page Unknown]] [Federal Register: August 22, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 217 and 220 [FRA Docket No. RSOR-12, Notice No. 3] Railroad Operating Rules and Radio Standards and Procedures RIN 2130-AA76 AGENCY: Federal Railroad Administration (FRA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: FRA is amending its Railroad Operating Rules and its Radio Standards and Procedures by removing requirements that railroads file their operational testing programs, operating rules instruction programs, annual summaries on operational tests and inspections, and their radio rules with the Federal Railroad Administrator and by substituting requirements that railroads retain such records and make them available to FRA representatives during normal business hours. FRA is also amending the Railroad Operating Rules by eliminating the requirement that Class III railroads file their operating rules, timetables, and timetable special instructions with the Federal Railroad Administrator. In addition, FRA is making technical changes to require railroads to record specific information when conducting operational tests and inspections of their employees. Finally, FRA is changing the Railroad Operating Rules and the Radio Standards and Procedures so as to allow retention of certain records by ``electronic recordkeeping'' (i.e., retention of a computer record in lieu of a paper record). These amendments are intended to eliminate nonessential reporting requirements while enabling FRA to review meaningful data to determine the safety of a railroad's operations. EFFECTIVE DATE: The rule becomes effective on November 21, 1994. FOR FURTHER INFORMATION CONTACT: Jon Kaplan, Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 20590 (telephone: (202) 366-0635) or Dennis R. Yachechak, Railroad Safety Specialist, Office of Safety, FRA, 400 Seventh Street, SW., Washington, DC 20590 (telephone: (202) 366-504). SUPPLEMENTARY INFORMATION: On October 19, 1992, FRA published a Notice of Proposed Rulemaking (``NPRM'') on amendments to its Railroad Operating Rules (49 CFR Part 217) and Radio Standards and Procedures (49 CFR Part 220). 57 FR 47603 (1992). FRA proposed to remove requirements that railroads file their respective operating rules, radio rules, operational testing programs, operating rules instruction programs, and annual summaries on operational tests and inspections with FRA in Washington, D.C. and to substitute requirements that railroads retain these records and make them available upon request for inspection by FRA personnel during regular business hours. FRA believed that these proposed amendments, if adopted, would remove nonessential filing and reporting requirements while concurrently reducing the burden borne by the railroads in paperwork and mailing expenses. FRA received written comments on the proposal from seven entities and conducted a public hearing at the request of one. The public hearing was held in Washington, DC, on December 14, 1992, at which four organizations were represented. As a result of these comments and further analysis of the amendments proposed, FRA now publishes its final rule. FRA recognizes the importance of a railroad's operating rules and its radio rules for moving trains and other pieces of rolling equipment safely. The requirements promulgated in the final rule take this factor into account by balancing FRA's interest in reviewing pertinent documents against the railroads' interest in reducing their paperwork burden. The final rule reflects reconsideration of the proposals announced in the NPRM. In the interest of reducing certain paperwork requirements, FRA has adopted certain proposed revisions to the regulations. FRA has also authorized railroads to retain information electronically so long as the railroads satisfy the stated conditions. Nevertheless, FRA has retained the filing requirements prescribed in existing Sec. 217.7 for Class I railroads and Class II railroads. See Interstate Commerce Commission (``ICC'') regulations at 49 CFR Part 1201 and ICC General Instructions 1-1. FRA has determined that its headquarters office, located in Washington, DC, needs to continue receiving copies of the operating rules of national and regional railroads to remain apprised of such rules. Finally, FRA believes that operational test and inspection records require more specific data elements. FRA has concluded that the newly identified data points serve to clarify the existing information requirements by defining the individual sources comprising each operational test and inspection. See Section-by-Section Analysis for details. Discussion of Comments and Conclusions FRA received written comments from the American Public Transit Association, Association of American Railroads (``AAR''), The American Short Line Railroad Association (``ASLRA''), Consolidated Rail Corporation (``Conrail''), New Jersey Transit Rail Operations, Union Pacific Railroad Company, and United Transportation Union (``UTU''). At the public hearing held December 14, 1992, four organizations participated: the Railway Labor Executives' Association (``RLEA''), the Brotherhood of Locomotive Engineers (``BLE''), AAR, and Conrail. The discussions that follow examine the issues raised by the commenters and analyze the reasons behind the adoption of the final rule. 1. Whether FRA should abolish requirements that railroads file their operating rules, radio rules, and certain other documents with FRA. Two unions representing railroad employees objected to the proposal that railroads merely retain their operating rules, programs of operational tests and inspections, programs of instruction on operating rules, and annual summaries. The UTU declared that FRA was abdicating its responsibility of reviewing the documents for regulatory compliance. The UTU alleged that requiring the relocation of records to the railroad's system headquarters and division headquarters would vest FRA's field inspectors with total enforcement responsibility and that, consequently, document inspection would be entirely discretionary and no longer an integral part of FRA's safety assessment of a railroad. In other words, the UTU claimed, FRA was sending a message that administering the operating rules regulations was no longer a priority. The BLE echoed the UTU's concerns, stating that the removal of agency review at the headquarters level represented a priority shift by FRA to no longer monitor a railroad's compliance with its operating rules or operational testing and inspection program (i.e., efficiency testing program). The purpose of these regulations was to afford FRA headquarters the opportunity to analyze the data from the submitted documents. FRA needed to review incidents where railroad employees violated their employers' operating rules to determine whether these violations compromised railroad safety. The AAR, however, fully endorsed FRA's proposals to eliminate filing. The AAR saw the filing of operating rules and related documents as unnecessary, burdensome, and serving no safety objective. Furthermore, the AAR noted that the railroad divisions comprising each railroad's system already provide the regulatory documents that FRA field inspectors request for review. Requiring relocation of these records to offices that are visited by FRA field personnel would facilitate document accessibility and retrieval. The ASLRA also supported an end to the filing requirements. The ASLRA commented that these amendments would improve efficiency and economy for the short line railroads and would promote review by inspectors familiar with a railroad's operations. Three Class I railroads agreed that these measures would relieve burdensome requirements of photocopying and mailing these documents. Although FRA proposed redesignating the locations of these records, FRA has reconsidered the impact this measure would have on enforcement, accident investigation, and other functions. A railroad's operating rules and timetables are valuable resources that are used by personnel of all disciplines in FRA's headquarters Office of Safety. For example, at FRA headquarters, these documents are reviewed in conjunction with accident reports filed at headquarters under 49 CFR Part 225 by the railroad. The railroads' rules and timetables are also consulted during FRA headquarters' analysis of draft accident investigation reports submitted by FRA field personnel. By maintaining a copy of the operating rules and timetables of major railroads, FRA retains its ability to determine whether the operating rules themselves, or violations of them, contributed to an accident. Retaining immediate access to these documents in Washington, DC, provides FRA's headquarters office with an efficient means to identify unsafe or inadequate procedures and to recommend practices that will ensure protection of train movements. FRA believes that ensuring safe train and other movements requires each Class I railroad, Class II railroad, the National Railroad Passenger Corporation (Amtrak), and each railroad providing commuter service in a metropolitan or suburban area to continue filing its operating rules, timetables, and timetable special instructions with FRA. These railroads conduct extensive operations, all of which are governed by their operating rules. FRA's interest in reviewing these documents outweighs the burdens imposed on the railroads to continue filing these records. Therefore, FRA retains the existing filing requirements for these railroads. In order to ensure that the rules FRA is reviewing are current, each railroad subject to this requirement must submit its operating rules, timetables, and timetable special instructions to FRA by December 21, 1994, and must submit each subsequent amendment to these operating rules, timetables, and timetable special instructions issued after November 21, 1994, to FRA within 30 days after it is issued. On the other hand, FRA believes that the regulations on the operational testing programs, operating rules instruction programs, operational test and inspection records (i.e., efficiency tests), and radio rules can be effectively enforced from the field. These records are better utilized by FRA's regional personnel to monitor a railroad's compliance with the regulatory requirements. The field staff are best situated to observe a railroad's operations and determine whether the operational testing programs, operating rules instruction programs, operational test and inspections records, and radio rules are accurate and current. Additionally, the field inspectors can examine the operational test and inspection results in evaluating an employee's performance of his or her duties in accordance with a railroad's rules and instructions. FRA therefore adopts the proposal requiring railroads to retain their programs of operational tests and inspections, programs of instruction on railroad operating rules, records of operational tests and inspections (including annual summaries on operational tests and inspections), and radio rules at the designated locations provided. 2. Whether the three-year record retention requirements proposed in the NPRM for operational testing programs and annual summaries of operational tests and inspections will enhance railroad safety. The NPRM proposed requiring railroads to retain their operational testing programs under Sec. 217.9 and annual summaries of operational tests and inspections under Sec. 217.13(a)-(c) for three calendar years. FRA received comments supporting and opposing this proposal. The California Legislative Board of the UTU advocated record retention, but argued that this information should be retained for a minimum of five years. The BLE recommended that operational tests and inspections be retained for only six months to one year. Both the UTU and BLE stated that record retention would enable FRA to accurately assess a railroad's history of safe operations by examining this collected data. The unions believed that FRA could gain a wider perspective on a railroad's results of its operational tests and inspections and thereby target potential hazards in operating rules application, understanding, and compliance. The railroads generally disagreed with the unions. One railroad urged FRA to modify its proposed retention requirement from three years to one year. Likewise, the AAR and ASLRA concurred with this recommendation. Specifically, the ASLRA claimed that the proposed three-year record retention requirement was superfluous given the recordkeeping requirements already imposed on railroads under the Locomotive Engineer Qualification and Certification regulations (49 CFR Part 240). FRA disputes the ASLRA's judgment that these proposed requirements are duplicative. Part 240 addresses only locomotive engineers (persons who operate locomotives), but to ensure the safe movement of railroad equipment, railroads also routinely test conductors, operators, dispatchers, and maintenance-of-way personnel. All of these employees are, at one time or another, placed in situations or conditions that require knowledge and execution of a railroad's operating rules. Therefore, FRA believes that maximizing safety requires each railroad to retain its program of operational tests and inspections for all employees covered by its operating rules. FRA has concluded that a thorough analysis of a railroad's operating procedures requires adopting the proposal as stated. Accordingly, all railroads must retain their operational testing programs and annual summaries on operational tests and inspections for three calendar years. FRA believes that trend analysis of this data will serve as an effective tool to assess a railroad's regulatory compliance. Inspectors can better recognize patterns of rules noncompliance and efforts railroads have made to remedy safety problems uncovered by previous tests. The results of these tests may be used as a barometer to measure the safety of a railroad and determine whether its level of compliance is improving, deteriorating, or remaining steady. 3. Whether FRA's proposal requiring railroads to retain their operating rules, radio rules, operational testing programs, operating rules instruction programs, and annual summaries on operational tests and inspections at the system headquarters and all division headquarters is overly burdensome. The proposed rule identified two locations where railroads were required to retain pertinent rules and programs: division headquarters and system headquarters. The NPRM proposed that railroads would retain their operating rules and Radio Standards and Procedures paperwork at all of their division headquarters and at the system headquarters. See proposed Secs. 217.7-217.13 (introductory text). FRA believed that most railroads already maintained copies of these records at these locations and that, therefore, FRA's enforcement personnel would be able to effectively and efficiently enforce Parts 217 and 220 by visiting any one of these sites. This proposal prompted a number of parties to comment on its usefulness. Four commenters argued that requiring the railroads to retain the pertinent documents at their system headquarters and at all of their division headquarters would impose additional administrative costs with no offsetting safety benefits. Two organizations suggested that the operational testing programs and annual summaries be retained only at the railroad's system headquarters. Another two parties recommended that each railroad's division headquarters retain only information that applies to operations within that geographical division. FRA agrees with the commenters that the proposal was overbroad in scope. The final rule departs from the NPRM by requiring that each division headquarters retain only those documents that the division applies and enforces (e.g., operational testing programs and operating rules instruction programs). Likewise, each division headquarters must retain the records of operational tests and inspections conducted by that division. The proposal that each railroad retain its operational testing program, operating rules instruction program, and annual summaries on operational tests and inspections (for railroads with 400,000 or more total manhours) at the system headquarters has been adopted unchanged. FRA assumes that railroads with extensive operations conduct operational tests and inspections at all division headquarters. Railroad safety requires that all employees responsible for train operations comply with a railroad's operating rules governing train movements over a territory. Therefore, under final rule Sec. 217.9(d), railroads with 400,000 or more total manhours will be required to retain their annual summaries on operational tests and inspections records at their system headquarters and at each of their division headquarters. Although two parties asked that the regulation be amended to require railroads to retain all of their annual summaries only at the system headquarters level, FRA believes that this data must also be available at all division headquarters in order for inspectors to determine the extent of rules compliance in other divisions and system- wide. This requirement will not impose any further burdens on the railroads because, as one commenter noted, the railroads already maintain copies of these documents at the division level and provide copies for FRA inspectors upon request. FRA believes that effective inspections of annual summaries are best served by examining these records at a railroad's division headquarters and system headquarters. 4. Whether FRA should permit electronic retention of documents. The NPRM never addressed this issue specifically. However, the proposal's emphasis on deregulation encouraged several parties to recommend that FRA allow railroads to retain records and reports by electronic recordkeeping. Both the written and oral comments stressed the cost savings that computer filing would provide to railroads. Requiring railroads to retain the information in paper form would impose additional administrative and storage costs. Computer storage of these documents would also enable the railroads to immediately update any amendments to their operational testing programs and operating rules instruction programs. Moreover, one commenter argued that retaining ``hard copies'' that contained historical data could create confusion in the offices that utilize the information. After reviewing the written comments and the transcript of the public hearing, FRA agrees with the commenters that electronic retention is a practical alternative for railroads to comply with the regulatory recordkeeping requirements. FRA thus authorizes railroads to retain their operational testing programs, operational test and inspection records (including annual summaries), and instruction programs on operating rules by electronic recordkeeping provided that certain conditions are met to safeguard the data entered and stored in a computer system. These stipulations are stated in Sec. 217.9(e) and explained in the Section-by-Section Analysis. Railroads that elect to use electronic data processing systems to store their operating rules information must be certain that proper security measures are implemented to ensure the integrity of the documents retrieved for inspection. Moreover, the information produced by computer must be organized in a usable format to afford FRA inspectors complete access to the records. FRA believes that electronic record retention is a viable option for the railroads provided that FRA's monitoring activities to measure compliance remain unimpeded. Section-by-Section Analysis The final rule contains substantial revisions to the proposal to amend the Railroad Operating Rules and the Radio Standards and Procedures (49 CFR Parts 217 and 220) in response to the written comments received, the testimony at the public hearing, and further review and reflection within FRA. Where terms or paragraphs in the final rule differ from those in the NPRM, the final rule provides designations or citations to reflect these amendments. 1. Definitions. In new Sec. 217.4, definitions of ``Class I,'' ``Class II,'' and ``Class III'' railroads are included to explain the classifications by which regulatory requirements are assigned. The definitions of ``division headquarters'' and ``system headquarters'' have been discussed earlier in this preamble. 2. Operating rules; filing and recordkeeping. Section 217.7 contains the filing and recordkeeping requirements with regard to operating rules, timetables, and timetable special instructions. Paragraph (a) provides that Class I railroads, Class II railroads, the National Railroad Passenger Corporation (Amtrak), and railroads providing commuter service in a metropolitan or suburban area must continue to file their operating rules, timetables, and timetable special instructions with the Federal Railroad Administrator. The deadline for filing these documents is November 21, 1994. Most railroads are in compliance with FRA's existing provisions concerning such filings. For such railroads, it is not FRA's intent that another copy of already filed material be given to the agency. If a railroad currently has its documents on file with the agency, FRA will deem that railroad to be in compliance with this section, if the documents are in effect on November 21, 1994. (In other words, if previously filed documents are still in effect on November 21, 1994, then a railroad has complied with the new provision, having filed before December 21, 1994.) Paragraph (b) provides that railroads subject to the filing requirements must also submit to FRA a copy of any amendment to these documents issued after November 21, 1994, within 30 days after it is issued. Under paragraph (c), Class III railroads and all other railroads subject to this part but not subject to paragraphs (a) and (b) of this section must retain one copy of their current operating rules, timetables, and timetable special instructions at their respective system headquarters. These documents must be made available to FRA representatives for inspection and photocopying during normal business hours. 3. Program of operational tests and inspections; recordkeeping; annual summary on operational tests and inspections; electronic recordkeeping. Proposed amendments to Sec. 217.9 called for railroads to retain one copy of their operational test and inspection programs at all division headquarters and at the system headquarters. The final rule adopts this proposal with some significant modifications. Proposed paragraph (a) is adopted unchanged, with one exception: A railroad must now conduct its operational tests and inspections in accordance with a program that it retains. Paragraph (b) also departs from the proposed text. After November 21, 1994, a railroad must retain one copy of its current program of operational tests and inspections. The program must be updated with any subsequent amendments. These programs must be retained at the system headquarters of the railroad and at the division headquarters for each division where the tests prescribed in the program are conducted (i.e., the records availability may be division specific). In other words, if certain tests are not conducted in a certain division, that division headquarters need not retain a copy of the program prescribing those particular tests. The operational testing program must be made available to FRA representatives for inspection and photocopying during normal business hours and must be retained for three calendar years following the end of the year to which it relates. The criteria requirements stated in existing Sec. 217.9(b) (1)-(4) and (6) remain unchanged, and a conforming change is made to paragraph (b)(5): deletion of the reference to a program ``filed with'' FRA. Under final rule paragraph (b)(5), a railroad must begin conducting operational tests and inspections within 30 days after November 21, 1994 or the date of commencing operations, whichever is later. This requirement will not affect railroads that are currently in operation, given that the existing regulations already require railroads to begin their programs within 30 days after they file their operational testing programs. Redesignated Sec. 217.9(c) (formerly Sec. 217.9(d)) requires a railroad to keep a record of the date, time, place, and result of each operational test and inspection that was performed in accordance with its program. Each record must identify the officer administering the operational test and inspection and each employee tested. These requirements clarify the information requirements provided under existing Sec. 217.9(d) by identifying specific data points each record must provide. These revisions will promote the examination of relevant information from captured data sources, enabling FRA to determine the effectiveness of a railroad's operational testing program. The operational test and inspection records must be retained for one calendar year after the end of the year to which they relate at the system headquarters of the railroad and at the division headquarters for each division where the tests are conducted (i.e., the records availability may be division specific). Additionally, railroads must make their operational test and inspection records available to FRA representatives for inspection and photocopying during normal business hours. FRA has decided to organize all provisions in Part 217 pertaining to operational tests and inspections under Sec. 217.9; therefore, Sec. 217.13 introductory text and paragraphs (a) through (c) are removed and redesignated as Sec. 217.9(d). New paragraph (d) requires railroads with 400,000 or more total manhours per year to compile an ``annual summary'' recounting the number, type, and result of each operational test and inspection conducted, stated according to operating divisions where applicable, which are the same requirements as provided under existing Sec. 217.13(b). The summaries should be indexed in a well organized format to facilitate efficient and manageable review. FRA has also concluded that annual compilations of the total number of train miles and of the rate at which the railroad conducts operational tests and inspections provide limited useful information; therefore, these existing requirements are removed from the final rule. These compilations, redesignated ``annual summaries on operational tests and inspections,'' must be made available at each division headquarters and at the system headquarters by March 1 of each calendar year. Such annual summaries are required to be retained at these locations for three calendar years after the end of the year to which they relate and made available to FRA representatives for inspection and photocopying during normal business hours. New Sec. 217.9(e) authorizes railroads to retain their operational testing programs, operational test and inspection records, and annual summaries on operational tests and inspections by electronic recordkeeping, subject to conditions stated in that provision. This provision provides an alternative for railroads retaining certain information as required in the regulations. Each participating railroad must have the essential components of a computer system (i.e., a desk-top computer and either a facsimile machine or a printer connected to the computer to retrieve and produce records for immediate review). The material retrieved in hard copy form must contain relevant information organized in a usable format to render the data completely understandable. The documents must be made available for FRA inspection during normal business hours, which FRA interprets as the time, any day of the week, when railroads conduct their regular business transactions. Nevertheless, FRA reserves the right to review and examine the documents prepared in accordance with the Railroad Operating Rules and Radio Standards and Procedures regulations at any reasonable time if situations warrant. Additionally, each railroad must provide adequate security measures to limit employee access to its electronic data processing system and must prescribe who can create, modify, or delete data from the data base. Although FRA does not identify the management position capable of instituting changes in the data base, each railroad must indicate the source authorized to make such changes. Each railroad must also designate who will be authorized to authenticate the hard copies produced from the electronic format. In short, each railroad electing to electronically retain its records must ensure the integrity of the information and prevent possible tampering of data, enabling FRA to fully execute its enforcement responsibilities. 4. Program of instruction on operating rules; recordkeeping; electronic recordkeeping. Section 217.11 is revised to require that a railroad retain a copy of its instruction program on operating rules instead of filing a copy with the Federal Railroad Administrator. Paragraph (a), which mandates periodic instruction of employees whose activities are governed by the railroad's operating rules in accordance with a written program, remains unchanged, with the exception that the system headquarters of the railroad is to retain a copy of the entire instruction program and that the division headquarters for each division where an employee is instructed is to retain all portions of the copy of the program that the division applies and enforces. (In other words, the records availability at the division headquarters may be division specific.) Paragraph (b) mandates that after November 21, 1994, or 30 days before commencing operations, whichever is later, a railroad must make one copy of its current program and one copy of any subsequent revision available to FRA for inspection and photocopying during normal business hours. Paragraph (c) is added to authorize a railroad to retain by electronic recordkeeping its instruction program on operating rules, provided that certain conditions specified in Sec. 217.9(e) (1)-(5) are met. 5. Annual report on enforcement of part 219; information collection requirements. The requirements formerly provided under Sec. 217.13(d), ``Annual report on enforcement of part 219,'' have been transferred to part 219 with the final rule publication of 49 CFR Sec. 219.803. See final rule at 58 FR 68235 (1993). Because existing Sec. 217.13 (a)-(c) is redesignated as Sec. 217.9(d), Sec. 217.13 is removed and existing Sec. 217.15, ``Information collection requirements,'' is redesignated as Sec. 217.13. The removal of existing Sec. 217.13 eliminates the information collection requirements provided under existing Sec. 217.15(b)(4), redesignated Sec. 217.13(b)(4), which is, therefore, removed. 6. Definitions. Section 220.5 is amended by adding paragraphs (d) and (e), which define ``division headquarters'' and ``system headquarters.'' These terms also appear in Sec. 217.4 and are discussed previously in the preamble. 7. Railroad operating rules; radio communications; recordkeeping. Section 220.21(b) is amended by requiring railroads subject to Part 220 to retain one copy of their current radio operating rules and any subsequent revisions at the locations prescribed in newly added subparagraphs (1) and (2). Subparagraph (1) provides that Class I railroads, Class II railroads, the National Railroad Passenger Corporation, and railroads providing commuter service in a metropolitan or suburban area must retain their radio rules at all division headquarters and at the system headquarters. Under subparagraph (2), Class III railroads and all other railroads subject to this part but not subject to subparagraph (1) are required to retain their radio rules at their respective system headquarters. These records are required to be made available to FRA representatives for inspection and photocopying during normal business hours. Regulatory Impact Executive Order 12866 and DOT Regulatory Policies This final rule has been evaluated in accordance with existing regulatory policies. The regulatory document is considered to be a nonsignificant regulatory action under E.O. 12866 and is a nonsignificant rule under Sec. 5(a)(4) of DOT Regulatory Policies and Procedures [44 FR 11034, February 26, 1979] because it eliminates nonessential reporting requirements while maintaining a high level of safety. FRA has prepared and placed in the rulemaking docket a regulatory evaluation addressing the economic impact of this rule. A copy of the regulatory evaluation may be reviewed and copied in Room 8201, 400 Seventh Street, S.W., Washington, D.C. 20590. In its regulatory analysis, FRA found that railroads will derive several benefits with the implementation of this rule. First, the final rule eliminates or narrows the applicability of various requirements that railroads reproduce and mail to FRA certain records and reports of operating rules and practices, thereby reducing administrative and postage expenses. Although certain railroads will still have to submit particular documents to FRA, the final rule removes most processing and handling expenditures associated with filing the paperwork requirements under existing Part 217. Second, the final rule reduces Federal government labor costs necessary to examine, organize, and compile the information since most of the records will be retained at the appropriate railroad offices. Finally, railroads will be permitted to retain required information in an electronic format, thereby reducing storage and overhead costs and facilitating access to selected records. The regulatory evaluation does not quantify the reduction in costs available to railroads electing to exercise this option; therefore, this analysis does not reflect the economic benefits gained from electronic recordkeeping. FRA estimates that, over a twenty-year period, this rule will cost the railroad industry a total of $786. The cost to the railroads to comply with this rule is about $311 for the first year and $25 for every year thereafter. This cost burden is attributed to the changes in recordkeeping requirements provided in the rule. The total benefits of this rule over a twenty-year period amount to about $449,628 for reduced labor, copying, and postage costs in both the railroad industry and government sector. In the first year, the savings are estimated to be $22,432 and $22,484 for each subsequent year. The benefits will be about 447.52 times the costs. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. Sec. 601 et seq.) requires a review of rules to assess their impact on small entities. In reviewing the economic impact of the rule, FRA concluded that it will not have any measurable impact on small entities. There are no direct or indirect economic impacts for small units of government, businesses, or other organizations. Therefore, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the provisions of the Regulatory Flexibility Act. Paperwork Reduction Act The final rule contains information collection requirements. FRA is submitting these information collection requirements to the Office of Management and Budget for approval in accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. Secs. 3501 et seq.) FRA has endeavored to minimize the paperwork burden associated with this rule. The regulatory provisions that contain information collection requirements and the estimated time necessary to fulfill these requirements are as follows: ---------------------------------------------------------------------------------------------------------------- Estimated Section Brief description time (hours) ---------------------------------------------------------------------------------------------------------------- 217.7(a).................... Filing one copy of a railroad's operating rules, timetables, and 1 timetable special instructions with FRA. Note: Railroads may inform FRA in writing that the latest operating rules, timetables, and timetable special instructions filed with FRA remain currently in effect. The estimated time to prepare the letter is 30 minutes. Section 217.7(a)-(b) applies only to Class I railroads, Class II railroads, National Railroad Passenger Corporation (Amtrak), and commuter railroads. 217.7(b).................... Filing one copy of each amendment to a railroad's operating rules, .33 timetables, and timetable special instructions with FRA. 217.7(c).................... Retaining one copy of a railroad's operating rules, timetables, and .92 timetable special instructions at the railroad's system headquarters. Note: Section 217.7(c) applies only to Class III railroads. 217.7(c).................... Retaining one copy of each amendment to a railroad's operating .25 rules, timetables, and timetable special instructions at the railroad's system headquarters. 217.9(b).................... Preparing and making one copy of a railroad's program for periodic 9.92 performance of operational tests and inspections. The program must be retained at the railroad's system headquarters and all applicable division headquarters. 217.9(b).................... Preparing and making one copy of each amendment to a railroad's 1.92 program for periodic performance of operational tests and inspections. The amendments must be retained at the railroad's system headquarters and all applicable division headquarters. 217.9(c).................... Conducting operational tests and inspections and recording the .25 results thereof. The records must be retained at the railroad's system headquarters and all applicable division headquarters. 217.9(d).................... Compiling information and preparing the railroad's annual summary on 7 operational tests and inspections. The annual summary must be retained at the railroad's system headquarters and all division headquarters. Note: Section 217.9(d) applies only to railroads with 400,000 or more manhours 217.11(b)................... Preparing and making one copy of a railroad's program of instruction 9.92 on operating rules. The program must be retained at the railroad's system headquarters and all applicable division headquarters. 217.11(b)................... Preparing and making one copy of each amendment to a railroad's .92 program of instruction on operating rules. The amendments must be retained at the railroad's system headquarters and all applicable division headquarters. 220.21(b)................... Retaining one copy of a railroad's operating rules with respect to (*) radio communications. The radio rules, and any subsequent amendments thereto, must be retained at the railroad's system headquarters and all division headquarters (Class I railroads, Class II railroads, Amtrak, and commuter railroads) and system headquarters (Class III railroads). ---------------------------------------------------------------------------------------------------------------- *Although Sec. 220.21(b) requires railroads to collect certain information, FRA assumes that most railroads prepare their radio rules in conjunction with their operating rules as required by Sec. 217.7. Therefore, FRA believes that the radio rules requirements will not impose any additional burden on the railroad industry than what is already required under Sec. 217.7. The estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and reviewing the collection of information. FRA solicits comments on the accuracy of the estimates, the utility of the information, and other methods that might be less burdensome to obtain this information. Persons desiring to comment regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, should submit their views in writing to: Ms. Gloria Swanson, Office of Safety, RRS-21, Federal Railroad Administration, 400 Seventh Street, S.W., Room 8301, Washington, D.C. 20590; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, ATTN: Desk Officer for FRA (OMB No. 2130- 0035), New Executive Office Building, 726 Jackson Place, N.W., Room 3201, Washington, D.C. 20503. Copies of any such comments should also be submitted to the Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590. Environmental Impact FRA has evaluated this final rule in accordance with its procedures for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act and related directives. This final rule meets the criteria that establish this as a non-major action for environmental purposes. Federalism Implications This action has been analyzed in accordance with the principles and criteria contained in Executive Order 12612, and it has been determined that the final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. List of Subjects 49 CFR Part 217 Railroad operating rules, Railroad safety, Penalties, Reporting and recordkeeping requirements. 49 CFR Part 220 Radio standards and procedures, Railroad operating rules, Radio communications, Reporting and recordkeeping requirements. The Final Rules In consideration of the foregoing, part 217, title 49, Code of Federal Regulations is amended to read as follows: PART 217--[AMENDED] 1. The authority citation for Part 217 is revised to read as follows: Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304, 21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L. 103-272 (1994); and 49 CFR 1.49(m). 2. Section 217.4 is added to read as follows: Sec. 217.4 Definitions. As used in this part-- Class I, Class II, and Class III have the meaning assigned by regulations of the Interstate Commerce Commission (49 CFR part 1201; General Instructions 1-1), as those regulations may be revised and applied by order of the Commission (including modifications in class thresholds based revenue deflator adjustments). Division headquarters means the location designated by the railroad where a high-level operating manager (e.g., a superintendent, division manager, or equivalent), who has jurisdiction over a portion of the railroad, has an office. System headquarters means the location designated by the railroad as the general office for the railroad system. 3. Section 217.7 is revised to read as follows: Sec. 217.7 Operating rules; filing and recordkeeping. (a) On or before December 21, 1994, each Class I railroad, Class II railroad, the National Railroad Passenger Corporation, and each railroad providing commuter service in a metropolitan or suburban area that is in operation on November 21, 1994, shall file with the Federal Railroad Administrator, Washington, DC 20590, one copy of its code of operating rules, timetables, and timetable special instructions which were in effect on November 21, 1994. Each Class I railroad, each Class II railroad, and each railroad providing commuter service in a metropolitan or suburban area that commences operations after November 21, 1994, shall file with the Administrator one copy of its code of operating rules, timetables, and timetable special instructions before it commences operations. (b) After November 21, 1994, each Class I railroad, each Class II railroad, the National Railroad Passenger Corporation, and each railroad providing commuter service in a metropolitan or suburban area shall file each new amendment to its code of operating rules, each new timetable, and each new timetable special instruction with the Federal Railroad Administrator within 30 days after it is issued. (c) On or after November 21, 1994, each Class III railroad and any other railroad subject to this part but not subject to paragraphs (a) and (b) of this section shall keep one copy of its current code of operating rules, timetables, and timetable special instructions and one copy of each subsequent amendment to its code of operating rules, each new timetable, and each new timetable special instruction, at its system headquarters, and shall make such records available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. 4. Section 217.9 is amended by revising paragraphs (a), (b) introductory text, (b)(5), (c) and (d), and adding paragraph (e) to read as follows: Sec. 217.9 Program of operational tests and inspections; recordkeeping; annual summary on operational tests and inspections; electronic recordkeeping. (a) Requirement to conduct operational tests and inspections. Each railroad to which this part applies shall periodically conduct operational tests and inspections to determine the extent of compliance with its code of operating rules, timetables, and timetable special instructions in accordance with a written program retained at its system headquarters and at the division headquarters for each division where the tests are conducted. (b) Written program of operational tests and inspections. On or after November 21, 1994, or 30 days before commencing operations, whichever is later, each railroad to which this part applies shall retain one copy of its current program for periodic performance of the operational tests and inspections required by paragraph (a) of this section and one copy of each subsequent amendment to such program. These records shall be retained at the system headquarters of the railroad and at the division headquarters for each division where the tests are conducted, for three calendar years after the end of the calendar year to which they relate. These records shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. The program shall--* * * (5) Begin within 30 days after November 21, 1994, or the date of commencing operations, whichever is later; and * * * * * (c) Records of individual tests and inspections. Each railroad to which this part applies shall keep a record of the date, time, place, and result of each operational test and inspection that was performed in accordance with its program. Each record shall specify the officer administering the test and inspection and each employee tested. These records shall be retained at the system headquarters of the railroad and at the division headquarters for each division where the tests are conducted for one calendar year after the end of the calendar year to which they relate. These records shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. (d) Annual summary on operational tests and inspections. Before March 1 of each calendar year, each railroad to which this part applies, except for a railroad with less than 400,000 total manhours, shall retain, at each of its division headquarters and at the system headquarters of the railroad, one copy of a written summary of the following with respect to its previous year's activities: The number, type, and result of each operational test and inspection, stated according to operating divisions where applicable, that was conducted as required by paragraphs (a) and (b) of this section. These records shall be retained for three calendar years after the end of the calendar year to which they relate and shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. (e) Electronic recordkeeping. Each railroad to which this part applies is authorized to retain by electronic recordkeeping the information prescribed in paragraphs (b) through (d) of this section, provided that all of the following conditions are met: (1) The railroad adequately limits and controls accessibility to such information retained in its electronic database system and identifies those individuals who have such access; (2) The railroad has a terminal at the system headquarters and at each division headquarters; (3) Each such terminal has a desk-top computer (i.e., monitor, central processing unit, and keyboard) and either a facsimile machine or a printer connected to the computer to retrieve and produce information in a usable format for immediate review by FRA representatives; (4) The railroad has a designated representative who is authorized to authenticate retrieved information from the electronic system as true and accurate copies of the electronically kept records; and (5) The railroad provides representatives of the Federal Railroad Administration with immediate access to these records for inspection and copying during normal business hours and provides printouts of such records upon request. 5. Section 217.11 is amended by revising the heading and by revising paragraphs (a), (b) introductory text, (b)(4), and (c) to read as follows: Sec. 217.11 Program of instruction on operating rules; recordkeeping; electronic recordkeeping. (a) To ensure that each railroad employee whose activities are governed by the railroad's operating rules understands those rules, each railroad to which this part applies shall periodically instruct each such employee on the meaning and application of the railroad's operating rules in accordance with a written program retained at its system headquarters and at the division headquarters for each division where the employee is instructed. (b) On or after November 21, 1994, or 30 days before commencing operations, whichever is later, each railroad to which this part applies shall retain one copy of its current program for the periodic instruction of its employees as required by paragraph (a) of this section and one copy of each subsequent amendment to that program. The system headquarters of the railroad shall retain one copy of all these records; the division headquarters for each division where the employees are instructed shall retain one copy of all portions of these records that the division applies and enforces. These records shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. This program shall--* * * (4) Begin within 30 days after November 21, 1994, or the date of commencing operations, whichever is later; and * * * * * (c) Each railroad to which this part applies is authorized to retain by electronic recordkeeping its program for periodic instruction of its employees on operating rules provided that the requirements stated in Sec. 217.9(e)(1) through (5) of this part are satisfied. 6. Section 217.13, ``Annual report,'' is removed, and Sec. 217.15, ``Information collection,'' is redesignated as Sec. 217.13. 7. Redesignated Sec. 217.13 is amended by removing paragraph (b)(4). 8. Appendix A to Part 217 is revised to read as follows: Appendix A to Part 217--Schedule Of Civil Penalties1 ------------------------------------------------------------------------ Willful Section Violation violation ------------------------------------------------------------------------ 217.7 Operating rules: (a)........................................... $2,500 $5,000 (b)........................................... $2,000 $5,000 (c)........................................... $2,500 $5,000 217.9 Operational tests and inspections: (a) Program................................... $5,000 $7,500 (b) Record of program......................... 2,500 $5,000 (c) Record of tests and inspections........... $5,000 $7,500 (d) Annual summary............................ $5,000 $7,500 217.11 Program of instruction on operating rules: (a)........................................... $5,000 $7,500 (b)........................................... $2,500 $5,000 ------------------------------------------------------------------------ 1A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $20,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. In consideration of the foregoing, part 220, title 49, Code of Federal Regulations is amended to read as follows: PART 220--[AMENDED] 1. The authority citation for Part 220 is revised to read as follows: Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304, 21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L. 103-272 (1994); and 49 CFR 1.49(m). 2. In Sec. 220.5, paragraphs (d) and (e) are added to read as follows: Sec. 220.5 Definitions. * * * * * (d) Division headquarters means the location designated by the railroad where a high-level operating manager (e.g., a superintendent, division manager, or equivalent), who has jurisdiction over a portion of the railroad, has an office. (e) System headquarters means the location designated by the railroad as the general office for the railroad system. 3. Section 220.21 is amended by revising the heading and paragraph (b) to read as follows: Sec. 220.21 Railroad operating rules; radio communications; recordkeeping. * * * * * (b) On or after November 21, 1994, or 30 days before commencing to use radio communications in connection with railroad operations, whichever is later, each railroad shall retain one copy of its current operating rules with respect to radio communications, and of each amendment to these rules, at the locations prescribed in paragraphs (b) (1) and (2) of this section. These records shall be made available to representatives of the Federal Railroad Administration for inspection and copying during normal business hours. (1) Each Class I railroad, each Class II railroad, the National Railroad Passenger Corporation, and each railroad providing commuter service in a metropolitan or suburban area shall retain such rules at each of its division headquarters and at the system headquarters of the railroad; and (2) Each Class III railroad and any other railroad subject to this part but not subject to paragraph (b)(1) of this section shall retain such rules at the system headquarters of the railroad. Issued in Washington, D.C. on August 12, 1994. Jolene M. Molitoris, Administrator, Federal Railroad Administration. [FR Doc. 94-20457 Filed 8-19-94; 8:45 am] BILLING CODE 4910-06-P