[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Proposed Rules]
[Pages 60372-60412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8568]
[[Page 60371]]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 217 and 218
Railroad Operating Rules: Program of Operational Tests and
Inspections; Railroad Operating Practices: Handling Equipment, Switches
and Derails; Proposed Rule
Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 /
Proposed Rules
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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 Derails
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Human factors are the leading cause of train accidents,
accounting for 38 percent of the total in 2005. Human factors also
contribute to employee injuries. The proposed rule would 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. Furthermore, this rulemaking is
intended to supplant the need for Emergency Order 24, which requires
special handling, instruction and testing of railroad operating rules
pertaining to hand-operated main track switches in non-signaled
territory.
DATES: Written comments must be received by December 11, 2006. Comments
received after that date will be considered to the extent possible
without incurring additional expense or delay.
FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to November 13, 2006, one will be scheduled
and FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.
ADDRESSES: Comments: Comments related to Docket No. FRA 2006-25267, may
be submitted by any of the following methods:
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m.
and 5 p.m. Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov including any personal information. Please
see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of
this document for Privacy Act information related to any submitted
comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to PL-401 on
the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except
Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of Safety Assurance and
Compliance, FRA, 1120 Vermont Avenue, NW., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler,
Senior Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont
Avenue, NW., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Background and Authority
II. Proceedings to Date
A. Increase in Human Factor Caused Accidents and Non-compliance
B. Accident at Graniteville, SC and Safety Advisory 2005-01
C. Emergency Order No. 24
D. FRA's Action Plan For Addressing Critical Railroad Safety
Issues
E. Railroad Safety Advisory Committee (RSAC) Overview
F. Establishment of Railroad Operating Rules Working Group
G. Development of the NPRM
III. Remote Control Operations
A. Background
B. Situational Awareness
C. Technology Aided Point Protection
IV. Section-by-Section Analysis
V. 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. Privacy Act
VI. List of Subjects
I. Background and Authority
The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C.
20103, provides that, ``[t]he Secretary of Transportation, as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970''. The Secretary's responsibility under this provision
and the balance of the railroad safety laws have been delegated to the
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of
operating rules and practices, FRA has traditionally pursued a very
conservative course of regulation, relying upon the industry to
implement suitable railroad operating rules and mandating in the
broadest of ways that employees be ``instructed'' in their requirements
and that railroads create and administer programs of operational tests
and inspections to verify rules compliance. This approach was based on
several factors, including a recognition of the strong interest the
railroads have in avoiding costly accidents and personal injuries, the
limited resources available to FRA to directly enforce railroad
operating rules, and the apparent success of management and employees
in accomplishing most work in a safe manner.
Over the years, however, it became necessary to ``Federalize''
certain requirements, either to remedy perceived shortcomings in the
railroads' rules or to emphasize the importance of compliance and to
provide FRA a more direct means of promoting compliance. These actions,
which in most cases were preceded or followed by statutory mandates,
included adoption of rules governing--
Blue Signal Protection for employees working on, under or
between railroad rolling stock (49 CFR part 218, subpart B);
Railroad Communications (49 CFR part 220);
Prohibition of Tampering with Safety Devices (49 CFR part
218, subpart D); and
Control of Alcohol and Drug Use in Railroad Operations (49
CFR part 219); In addition, FRA has adopted requirements for
Qualification and Certification of Locomotive Engineers (49 CFR part
240) that directly prohibit contravention of certain specified
operating rules and practices.
[[Page 60373]]
FRA believes these programs of regulation contribute positively to
railroad safety, in part because they contribute significantly to good
discipline among affected employees.
FRA is not specifically required by statute to issue a regulation
on the subjects covered by this proposed rule. However, FRA believes
that establishing greater accountability for implementation of sound
operating rules is necessary for safety. FRA is initiating this
rulemaking because it has recognized that human factor train accidents
comprise the largest single category of train accident causes and
because existing regulations have proven inadequate to achieve a
significant further reduction in their numbers or severity. Moreover,
the current situation in the railroad industry, which is characterized
by strong market demand, extensive hiring of new employees, and rapid
attrition of older employees now becoming eligible for retirement,
demands a more substantial framework of regulations to help ensure that
operational necessity will not overwhelm systems of safeguards relied
upon to maintain good discipline.
The theme of this proposed rule is accountability. It embodies both
a broad strategy intended to promote better administration of railroad
programs, on the one hand, and a highly targeted strategy designed to
improve compliance with railroad operating rules addressing three
critical subject matters, on the other. Within this framework, FRA
would take responsibility to set out certain requirements heretofore
left to private action and for monitoring compliance with those
requirements through appropriate inspections and audits. Railroad
management would be more accountable for putting in place appropriate
rules, instructions, and programs of operational tests. Railroad
supervisors would be accountable for doing their part to administer
operational tests and establish appropriate expectations with respect
to rules compliance. Railroad employees would be accountable for
complying with specified operating rules, and they would enjoy a right
of challenge should they be instructed to take actions that, in good
faith, they believe would violate the rules. It is intended that this
framework of accountability promote good discipline, prevent train
accidents, and reduce serious injuries to railroad employees.
In this SUPPLEMENTARY INFORMATION section, FRA provides a detailed
explanation of the growing number of accidents, the severity of some of
those accidents, the agency's prior actions, the approach proposed and
some discussion of alternatives. In certain instances, FRA specifically
requests commenters to offer suggestions or provide information for
FRA's consideration prior to a final rule. Of course, FRA would
appreciate comments on any aspect of this proposed rule.
II. Proceedings to Date
A. Increase in Human Factor Caused Accidents and Non-compliance
FRA has grown steadily more concerned over the past few years as
the frequency of human factor caused accidents has increased. When
these accidents are reported, the reporting railroad is required to
cite the causes of the accident. In the case of a human factor caused
accident, an employee or employees are typically associated with a
failure to abide by one or more railroad operating rules. Over the past
few years, FRA inspectors have simultaneously observed a substantial
increase in non-compliance with those railroad operating rules that are
frequently cited as the primary or secondary causes to these types of
accidents.
Accidents caused by mishandling of equipment, switches and derails
rose from 370 to 640 per year from the years 1997 to 2004--an increase
of 42 percent. The greatest causes of these accidents as identified by
the railroads were (1) switch improperly lined and (2) absence of
employee on, at or ahead of a shoving movement. These two issues alone
account for over 60 percent of all accidents caused annually by
employees mishandling of equipment, switches and derails.
A grouping of four other causes saw steady increases from 133 per
year in 1997 to 213 per year in 2004--a cumulative increase of 37
percent; these causes are (1) failure to control a shoving movement,
(2) switch previously run through, (3) cars left foul and (4) failure
to apply or remove a derail. Two additional causes of accidents, (1)
switch not latched or locked and (2) car(s) shoved out and left out of
clear, were the cited cause of only 10 accidents in 1997 and 40
accidents in 2004.
While the accident data shows significant increases in these areas,
the data collected by FRA during inspections suggests that the number
of accidents could easily increase at an even greater rate. FRA
inspection data shows that non-compliance related to mishandling of
equipment, switches and derails rose from 319 to 2,954 per year from
the years 2000 to 2004--a nine-fold increase. The most common areas of
human factor non-compliance were (1) employee failed to observe switch
points for obstruction before throwing switch; (2) employee failed to
ensure all switches involved with a movement were properly lined; (3)
employee failed to ensure switches were latched or locked; (4) employee
failed to ensure switches were properly lined before movement began;
and (5) employee left equipment fouling adjacent track.
Several other related issues of non-compliance also saw substantial
increases, although the overall number of incidents found by FRA was
lower than the top five. These additional areas of non-compliance are:
(1) Employee left derail improperly lined (on or off); (2) absence of
employee on, at, or ahead of shoving movement; (3) employee failed to
ensure train or engine was stopped in the clear; (4) employee failed to
ensure switches were properly lined after being used; (5) employee
failed to reapply hasp before making move over switch (if equipped);
(6) employee failed to relock the switch after use; and (7) one or more
employees failed to position themselves so that they could constantly
look in the direction of movement.
Some non-compliance data applies particularly to human factor
mistakes FRA noted during inspections of operations involving remotely
controlled locomotives. FRA assigned non-compliance codes to identify
the following problems specifically associated with these remote
control operations: (1) Employee operated equipment while out of
operator's range of vision; (2) employee failed to provide point
protection, locomotive leading; and (3) employee failed to provide
point protection, car leading. In 2004, the first year that FRA
collected data under those codes, FRA inspectors recorded 29 instances
of non-compliance with the railroad's operating rules underlying the
three codes. In 2005, the number of instances of non-compliance with
those same codes recorded by FRA inspectors increased to 92.
B. Accident at Graniteville, SC and Safety Advisory 2005-01
Although the increasing number of human factor caused accidents
impacted the railroad industry and its employees, a catastrophic
accident that occurred at Graniteville, South Carolina on January 6,
2005, catapulted the issue into the national spotlight. As the National
Transportation Safety Board (NTSB) described in its report NTSB/RAR-05/
04, PB2005-916304 (Nov. 29, 2005), that accident occurred when Norfolk
Southern Railway Company
[[Page 60374]]
(NS) freight train 192, while traveling in non-signaled territory at
about 47 miles per hour (mph), encountered an improperly lined switch
that diverted the train from the main track onto an industry track,
where it struck an unoccupied, parked train (NS train P22). The
collision derailed both locomotives and 16 of the 42 freight cars of
train 192, as well as the locomotive and 1 of the 2 cars of train P22.
Among the derailed cars from train 192 were three tank cars containing
chlorine, one of which was breached, releasing chlorine gas. The train
engineer and eight other people died as a result of chlorine gas
inhalation. About 554 people complaining of respiratory difficulties
were taken to local hospitals. Of these, 75 were admitted for
treatment. Because of the chlorine release, about 5,400 people within a
1-mile radius of the derailment site were evacuated for several days.
Total property damages exceeded $6.9 million. The total monetized
damages were much higher than that, with one estimate ranging as high
as $125 million. NTSB determined that the probable cause of the
collision was the failure of the crew of NS train P22 to return a main
track switch to the normal position after the crew completed work at an
industry.
The crew's failure violated railroad operating rules but did not
violate any Federal requirement. NS Operating Rule 104, in effect at
the time, placed primary responsibility with the employee handling the
switch and other crewmembers were secondarily responsible if they were
in place to observe the switch's position. NTSB/RAR-05/04 at 8. In
addition, NTSB concluded that NS rules required a job briefing which
``would likely have included a discussion of the switches and
specifically who was responsible for ensuring that they were properly
positioned [and that] [h]ad such a briefing taken place, the relining
of the switch might not have been overlooked.'' Id. at 44. FRA concurs
that the lack of intra-crew communication regarding the switch's
position was particularly significant at the time the crew was
preparing to leave the site. Id. at 8-9.
Four days after the Graniteville accident (and coincidentally, two
days after a similar accident at Bieber, California with serious, but
not catastrophic consequences), FRA responded by issuing Safety
Advisory 2005-01, ``Position of Switches in Non-Signaled Territory.''
70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an
opportunity for the agency to inform the industry and the general
public regarding a safety issue, to articulate agency policy, and to
make recommendations. FRA explained in the safety advisory that ``[a]
review of FRA's accident/incident data shows that, overall, the safety
of rail transportation continues to improve. However, FRA has
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of
railroad employees to return manual (hand-operated) main track switches
to their normal position, i.e., usually lined for the main track, after
use. As a result, rather than continuing their intended movement on the
main track, trains approaching these switches in a facing-point
direction were unexpectedly diverted from the main track onto the
diverging route, and consequently derailed.''
Safety Advisory 2005-1 strongly urged all railroads to immediately
adopt and comply with five recommendations that were intended to
strengthen, clarify and re-emphasize railroad operating rules so as to
ensure that all main track switches are returned to their normal
position after use. The recommendations emphasized communication both
with the dispatcher and other crewmembers. FRA recommended that
crewmembers complete and sign a railroad-created Switch Position
Awareness Form (SPAF). Proper completion of a SPAF was expected to
trigger specific communication relevant to critical elements of the
tasks to be performed. Additional training and railroad oversight were
also recommended.
C. Emergency Order No. 24
Safety Advisory 2005-1 did not have the long-term effect that FRA
hoped it would. The Safety Advisory was intended to allow the industry
itself a chance to clamp down on the frequency and severity of one
subset of human factor accidents, i.e., those accidents involving hand-
operated main track switches in non-signaled territory. FRA credits the
Safety Advisory with contributing to a nearly six-month respite from
this type of accident, from January 12 through July 6, 2005, but
following this respite there was a sharp increase in serious accidents.
Three serious accidents over a 28-day period were the catalyst for
FRA issuing an emergency order: Emergency Order No. 24 (EO 24); Docket
No. FRA-2005-22796, Notice 1, 70 FR 61496, 61498 (Oct. 24, 2005). The
three accidents cited in EO 24 resulted in fatal injuries to one
railroad employee, non-fatal injuries to eight railroad employees, an
evacuation of civilians, and railroad property damage of approximately
two million dollars. Furthermore, each of these accidents could have
been far worse, as each had the potential for additional deaths,
injuries, property damage or environmental damage. Two of the accidents
could have involved catastrophic releases of hazardous materials as
these materials were present in at least one of the train consists that
collided.
FRA is authorized to issue emergency orders where an unsafe
condition or practice ``causes an emergency situation involving a
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may
immediately impose ``restrictions and prohibitions * * * that may be
necessary to abate the situation.'' Id.
EO 24 was necessary because FRA could not secure compliance with
these important railroad operating rules without additional action. FRA
considered issuing another Safety Advisory, but that might at best only
provide another temporary respite. The issuance of EO 24 was ``intended
to accomplish what the Safety Advisory could not: Implement safety
practices that will abate the emergency until FRA can complete
rulemaking''. 70 FR at 61498. FRA further concluded that ``reliance
solely on employee compliance with railroad operating rules related to
the operation of hand-operated main track switches in non-signaled
territory, without a Federal enforcement mechanism, is inadequate to
protect the public safety.'' 70 FR at 61499. Thus, EO 24 supplied FRA
with such an enforcement mechanism without the delay that is usually
incurred through rulemaking.
EO 24 is built on the foundation of FRA's regulations, at 49 CFR
part 217, which requires each railroad to instruct its employees on the
meaning and application of its code of operating rules, and to
periodically test its employees to determine their level of compliance.
With regard to hand-operated switches in non-signaled territory, EO 24
requires that each railroad (1) instruct its employees, (2) allow only
qualified employees to operate and verify switches, (3) require
employees to confirm switch positions with the dispatcher prior to
releasing the limits of a main track authority, (4) develop a Switch
Position Awareness Form for employees to complete when operating
switches, (5) require employees to conduct job briefings at important
intervals, (6) require intra-crew communication of switch positions
after a switch is operated, (7) enhance its program of operational
tests and inspections under 49 CFR part 217, and (8) distribute copies
of EO 24, and retain proof of distribution, to all
[[Page 60375]]
employees affected. Minor clarifying amendments were made to EO 24 in a
second notice, but the overarching requirements remained unchanged from
the first notice. 70 FR 71183 (Nov. 25, 2005).
D. FRA's Action Plan for Addressing Critical Railroad Safety Issues
Prior to the Graniteville accident, FRA had developed and
implemented procedures to focus agency resources on critical railroad
safety issues. Such procedures were appropriate even though the
industry's overall safety record had improved over the last decade and
most safety trends were moving in the right direction. FRA recognizes
that significant train accidents continue to occur, and the train
accident rate has not shown substantive improvement in recent years.
Several months after the Graniteville accident, an action plan was
published. FRA acknowledged in the plan that ``recent train accidents
have highlighted specific issues that need prompt government and
industry attention''. Action Plan at 1 (published on FRA's Web site at
http://www.fra.dot.gov/).
In the plan, FRA introduced its basic principles to address
critical railroad safety issues. One basic principle is that FRA's
safety program is increasingly guided by careful analysis of accident,
inspection, and other safety data. Another basic principle is that FRA
attempts to direct both its regulatory and compliance efforts toward
those areas involving the highest safety risks. The plan is intended to
be proactive in that it will target the most frequent, highest risk
causes of accidents.
FRA identified ``reducing human factor accidents'' as one of the
major areas in which the agency planned initiatives. In fact, the plan
discusses this issue first because it constitutes the largest category
of train accidents, accounting for 38 percent of all train accidents
over the last five years, and human factor accidents are growing in
number. Furthermore, FRA's plan takes aim at reducing human factor
accidents because in recent years most of the serious events involving
train collisions or derailments resulting in release of hazardous
materials, or harm to rail passengers, have been caused by human
factors or track problems.
FRA's analysis of train accident data has revealed that a small
number of particular kinds of human errors are accounting for an
inordinate number of human factor accidents. For example, the eight
human factor causes involving mishandling equipment, switches and
derails that FRA is addressing in this proposed rule accounted for
nearly 48 percent of all human factor accidents in 2004; these eight
causes, which resulted in accidents causing over $113 million in
damages to railroad property from 2001-2005, can be grouped into three
basic areas of railroad operations: (1) Operating switches and derails;
(2) leaving equipment out to foul; and, (3) the failure to protect
shoving or pushing movements. In addition, FRA allows any railroad to
identify the cause of an accident in general terms when the railroad is
unsure of exactly which of the more specific human factor cause codes
apply. Without in-depth analysis of each accident that was reported by
railroads using these generic human factor cause codes, it is
impossible to know how many of these accidents should be attributable
to mistakes involving the operation of switches and derails, leaving
equipment out to foul, or the failure to protect shoving or pushing
movements; it is likely, however, that some portion of this additional
2.5 percent of all human factor accidents in 2004 are attributable to
mistakes involving these three basic areas of railroad operations.
Thus, this proposal is geared to address approximately half of all
human factor caused accidents on all classes of track.
Of the 118 human factor causes that are tracked, the leading cause
was improperly lined switches, which alone accounted for more than 16
percent of human factor accidents in 2004. The next two leading causes
were shoving cars without a person on the front of the movement to
monitor conditions ahead, i.e., lack of point protection, and shoving
cars with point protection but still resulting in a failure to control
the movement; these two shoving-related causes together accounted for
17.6 percent of human factor accidents in 2004. The remaining five
causes addressed in this proposed rule account for nearly 14 percent of
the total number of accident causes; these causes involve leaving cars
in a position that fouls an adjacent track, operating over a switch
previously run through, a failure to apply or remove a derail, a
failure to latch or lock a switch, and a failure to determine before
shoving, that the track is clear ahead of the movement. The two catch-
all general causes that might be cited when a railroad believes one or
more related causes may apply or is unsure of the exact cause are: (1)
other general switching rules and; (2) other train operation/human
factors.
The human factor causes that FRA is attempting to address with this
proposal are of a type that involve non-compliance with established
railroad operating rules related to fundamental railroad operations. In
each case, compliance can be objectively and conclusively determined.
For example, it can be definitively determined whether switches are
properly lined, locked, latched or had been previously run through. It
can be determined whether a shoving movement was made without point
protection or without the signals or instructions necessary to control
the movement. Similarly, it can be determined whether a car is left
fouling a track such that it is causing an unsafe operating condition,
or whether the track is clear ahead for a shoving movement. Finally, it
can also be determined with certainty whether there has been a failure
to apply or remove a derail.
The top human factor causes that FRA is choosing not to address
with this proposal are already regulated, to some extent, or would be
significantly more difficult to regulate. For example, several human
factor causes relate to the failure to apply a sufficient number of
hand brakes; that issue is already covered by regulation at 49 CFR
232.103(n). Speeding issues, including restricted speed, are regulated
to discourage clearly excessive speeding by imposing revocation periods
or civil penalties for locomotive engineer violators. 49 CFR
240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for
regulating a train handling issue, such as a locomotive engineer's
improper use of an independent brake or air brakes to prevent excess
buff or slack action, can pose difficulties as train handling is an
area where locomotive engineers exercise discretion. 58 FR 18982, 18992
(Apr. 9, 1993) (describing in section-by-section analysis why FRA
amended the qualification and certification of locomotive engineer's
rule to require revocation only when there is a failure to conduct
certain brake tests as opposed to the more general, original
requirement to revoke for ``failure to adhere to procedures for the
safe use of train or engine brakes''. 56 FR 28228, 28259 (June 19,
1991)). Likewise, the operating conditions related to improper coupling
are too numerous to easily address through regulation, and
determination of responsibility related to train handling and train
make-up involves often complex technical issues that are still subject
to study. (See Safe Placement of Train Cars, Report to the Senate
Committee on Science, Commerce and Transportation and the House
Committee on Transportation and Infrastructure, June 2005), published
at http://www.fra.dot.gov).
Developing close call data. As part of its mission to improve
railroad safety,
[[Page 60376]]
FRA is sponsoring the Confidential Close Call Reporting System
Demonstration Project to demonstrate the effectiveness of a
confidential close call reporting system for the railroad industry.
``Close calls'' in this context are unsafe events that do not result in
a reportable accident but very well could have. In other industries
such as aviation, implementation of close call reporting systems that
shield the reporting employee from discipline (and the employer from
punitive sanctions levied by the regulator) have contributed to major
reductions in accidents. In March of 2005, FRA completed an overarching
memorandum of understanding with railroad labor organizations and
management to develop pilot programs to document close calls.
Participating railroads will be expected to develop corrective actions
to address the problems that may be revealed. The aggregate data may
prove useful in FRA's decision-making concerning regulatory and other
options to promote a reduction in human factor caused accidents.
However, the project has not yet produced sufficient data to consider
in this proposed rule.
E. Railroad Safety Advisory Committee (RSAC) Overview
In March 1996, FRA established RSAC, which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major customer groups,
including railroads, labor organizations, suppliers and manufacturers,
and other interested parties. A list of member groups follows:
American Association of Private Railroad Car Owners (AAPRCO);
American Association of State Highway & Transportation Officials
(AASHTO);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation Association (HSGTA);
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC); and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.
Effective May 2006, the following additional members have been
added to the Committee:
Transportation Security Administration;
American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.
When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The task force then provides that information to the
working group for consideration. If a working group comes to unanimous
consensus on recommendations for action, the package is presented to
the full RSAC for a vote. If the proposal is accepted by a simple
majority of RSAC, the proposal is formally recommended to FRA. FRA then
determines what action to take on the recommendation. Because FRA staff
play an active role at the working group level in discussing the issues
and options and in drafting the language of the consensus proposal, FRA
is often favorably inclined toward the RSAC recommendation. However,
FRA is in no way bound to follow the recommendation, and the agency
exercises its independent judgment on whether the recommended rule
achieves the agency's regulatory goal, is soundly supported, and is in
accordance with policy and legal requirements. Often, FRA varies in
some respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on recommendations for
action, FRA moves ahead to resolve the issue through traditional
rulemaking proceedings.
F. Establishment of Railroad Operating Rules Working Group
On April 14, 2005, FRA held a Human Factors Workshop which convened
members of RSAC for the purpose of developing a task statement to be
presented at the next RSAC meeting. FRA explained that current
regulations do not address compliance with the relevant operating rules
that cause the preponderance of human factor accidents. The agency
expressed a desire to standardize and adopt these rules as Federal
requirements with greater accountability being the goal. It was also
raised that training and qualification programs should be included as
part of the task because employee compliance is certainly directly
related to how well employees are instructed and tested. FRA suggested
that one area of consideration was to improve its regulations (49 CFR
part 217) which require each railroad to instruct its employees on the
meaning and application of its code of operating rules, and to
periodically test its employees to determine their level of compliance.
Many participants expressed a preference for non-regulatory action.
On May 18, 2005, the RSAC accepted a task statement and agreed to
establish the Railroad Operating Rules Working Group whose overall
purpose was to recommend to the full committee how to reduce the number
of human factor caused train accidents/incidents and related employee
injuries. The working group held eight two-day conferences, one per
month from July 2005 through February 2006. The vast majority of the
[[Page 60377]]
time at these meetings involved review of an FRA document suggesting
language that could form the basis of proposed regulatory text. This
exercise was extremely beneficial as participants were able to fully
strengthen the proposal.
FRA clearly benefitted from the participation of the working group
in detailed review of railroad operating rules and practices;
unfortunately, the RSAC participants were unable to reach a consensus
for making formal recommendations. Typically, FRA gives great deference
to RSAC's recommendations when proposing a rule, although the agency is
not bound to adopt such recommendations. Here, where RSAC was unable to
make formal recommendations, FRA is, of course, not bound by FRA's
proposal within the RSAC working group process. However, FRA has sought
to carry forward the elements of the discussion draft that had
benefitted from thoughtful comment by Working Group members. FRA
developed a greater appreciation for the nuances of each of the
railroad operating rules and practices discussed; and, armed with that
additional insight, FRA has sought to put forth a reasonable proposal
that reflects real world railroading.
G. Development of the NPRM
EO 24 illuminated the problems associated with mishandling of hand-
operated main track switches in non-signaled territory. While there may
be more than one cause that contributes to non-compliance with the
operating rules, accidents could be prevented by strict employee
compliance with those rules. Accidents involving this type of switch
often occur when the employee operating the switch loses focus on the
task at hand. In an effort to refocus the attention of employees who
operate switches, EO 24's seven sections can be boiled down to three
major components: (1) Instruction, (2) communication and (3)
verification through testing. FRA's proposed rule incorporates these
three major components but with a broader application.
Instruction. It is fundamental that an employee cannot be expected
to properly abide by operating rules without proper instruction,
especially when those operating rules have been amended. To that end,
EO 24 provides an outline for essential initial instruction and
periodic instruction. Likewise, FRA proposes enhanced instruction,
training and examination, i.e., qualification, for employees on the
relevant operating rules, pertaining to handling equipment, switches
and derails.
Communication. FRA agrees with the general principle that mistakes
can be prevented or corrected by proper communication. Communication
prevents non-compliance and accidents because it generally is how
people working together know what each of them is doing. For example,
EO 24 stressed the importance of communication by requiring job
briefings at certain crucial intervals: Before work is begun, each time
a work plan is changed, and at completion of the work. Such regular job
briefings ensure that employees working together understand the task
they are intending to perform and exactly what role is expected of them
and their colleagues. Through proper job briefings, employees can
prevent some mishaps and contain others from worsening a bad situation.
For these reasons, FRA proposes a job briefing component to this
rulemaking.
In the background section of EO 24, FRA described a recurrent
scenario of non-compliance where a train crew's mistake in leaving a
main track switch lined for movement to an auxiliary track was the last
act or omission that resulted in an accident; and yet these types of
accidents are preventable through reliable communication of the actual
switch position. This scenario ``occurs when a train crew has exclusive
authority to occupy a specific track segment until they release it for
other movements and [yet] that train crew goes off duty without lining
and locking a hand-operated main track switch in its normal position''.
70 FR at 61497. It is unfortunate that FRA has to clarify that the
communication be reliable and accurately reflect the switch position,
but some accident investigations have revealed employees whose actions
implied more of an interest in quitting work for the day than taking
the safe route to verify a switch's position and whether it was
properly locked. FRA's proposal retains EO 24's emphasis on intra-crew
communication or intra-roadway worker group communication. See 70 FR at
61499-50 and Sec. 218.103.
Perhaps the most controversial aspect of EO 24 is the requirement
that employees operating hand-operated main track switches in non-
signaled territory complete a Switch Position Awareness Form (SPAF).
The SPAF requirement is controversial because it creates a paperwork
burden for employees and railroads. Switches may be lined and locked
properly, but a violation of EO 24 may occur for merely failing to fill
out a single component on the form. Critics of the form may not
appreciate that FRA's intention for requiring a SPAF is to create a
contemporaneous communication that reminds the employee of the
importance of properly lining and locking such main track switches.
In the case of a train crew, the contemporaneous communication
created by the SPAF is twofold: (1) The SPAF itself is a written
communication that reminds the employee operating the switch to keep
track of the switch's position and (2) another crewmember, typically
the locomotive engineer, serves as a secondary reminder to the employee
operating the switch because that other crewmember is also required to
request information as to the switch's alignment. As FRA clarified in
EO 24's second notice, it is immaterial how crewmembers communicate,
e.g., whether in-person, by radio, by hand signals, or other effective
means, as long as the communication takes place. 70 FR 71186 and 71188.
By requiring both the SPAF and the intra-crew communication, FRA is
requiring some redundancy, i.e., two communication reminders to
properly line and lock such switches in the case of a train.
For purposes of EO 24, the paperwork burden and the redundancy in
communication created by the introduction of the SPAF was acceptable.
The very sharp increase in collisions, deaths and injuries resulting
from improperly lined main track switches required FRA to take decisive
action. Prior to EO 24, many railroads had already adopted the use of a
SPAF voluntarily as a best practice suggested in Safety Advisory 2005-
1. However, the inclusion of a SPAF in EO 24 does not bind the agency
to forever require it; and the proposed rulemaking suggests an
alternative approach that does not include it.
FRA decided not to propose requiring a SPAF in this proposed rule
because the comprehensive communication requirements contained in
proposed Sec. 218.103, titled ``Hand-operated Switches and Derails'',
creates a direct enforcement mechanism that makes enforcement through a
SPAF redundant. For example, the proposal includes a requirement that
all crewmembers verbally confirm the position of a hand-operated main
track switch that was operated by any crewmember of that train before
it leaves the location of the switch. See Sec. 218.103(i)(3)(i).
Likewise, the proposed rule would require that upon the expiration of
exclusive track occupancy authority for roadway workers, roadway
workers who operate hand-operated main track switches report the
position of any such switches operated to the roadway worker in charge.
See Sec. 218.103(i)(3)(ii).
NTSB also ``does not believe that * * * the use of forms [such as a
SPAF]
[[Page 60378]]
is sufficient to prevent recurrences of accidents such as the one at
Graniteville.'' NTSB/RAR-05/04 at 45. In support of this position, NTSB
cites to the example of railroads that require train crews to record
signal indications as they are encountered en route in order to lessen
the chance that a traffic control signal will be missed or
misinterpreted by a crew. Meanwhile, NTSB states that it ``has
investigated a number of accidents in which such forms, although
required and used, did not prevent crews from missing signals and
causing accidents.'' Id.
Although NTSB does not support the use of a SPAF, it did express
agreement with the emergency order in two respects. That is, NTSB
supported EO 24's requirements directing that job briefings be held at
the completion of work and that a train crewmember who repositions a
hand-operated main track switch in non-signaled territory communicate
with the engineer regarding the switch position. In support of this
position, NTSB explains that ``a comprehensive safety briefing was not
held before the work at Graniteville [and] [h]ad such a briefing been
held before and, more importantly, after the work (as required by the
FRA emergency order), the accident might have been avoided.'' Id. at
46. As stated previously, FRA proposes to retain these two aspects from
the emergency order in its rule.
The EO 24 requirements for employees releasing the limits of a main
track authority in non-signaled territory to communicate with the train
dispatcher have, for the most part, carried over to this proposed rule
and been strengthened. The proposed rule retains the requirement in EO
24 that an employee releasing the limits of a main track authority in
non-signaled territory communicate with the train dispatcher that all
hand-operated main track switches operated have been restored to their
normal position, unless the train dispatcher directs otherwise, but
only to the extent that the switches are at the location where the
limits are being released. 70 FR at 61499 and Sec. 218.103(c)(2). With
the proposed elimination of a SPAF, it would be difficult for an
employee to recall the condition of any particular hand-operated main
track switch operated and there would likely be a reaction for an
employee to believe he or she left all such switches in proper
position--without much opportunity to double-check the condition of
those faraway switches at that time. As mentioned previously, accidents
often occur where the limits are being released and that is why the
proposed rule has placed emphasis on addressing the problem prior to
departing the train's location. The switches located at the point of
release of the limits should be readily accessible for any employee who
is unsure of the condition the switch was last left in. The proposed
rule also adds the requirement that the employee report that the switch
has been locked; locking of the main track switch should prevent easy
access to unauthorized users.
Hand-in-hand with the EO 24 requirement that the employee contact
the dispatcher to release main track authority in non-signaled
territory is the corresponding requirement in EO 24 for train
dispatchers; that is, EO 24 requires that the train dispatcher must
also confirm the switch positions with the employee releasing the
limits before clearing the limits of the authority and confirm that the
SPAF was initialed as required. The proposed rule also requires the
train dispatcher to verify the switch position information with the
employee and the requirement for the dispatcher to confirm that the
switch is locked in the intended position by repeating to the employee
releasing the limits the report of the switch position and asking
whether that is correct. The proposed rule also strengthens the current
requirement in EO 24 by requiring that the employee then confirm this
information with the train dispatcher.
FRA would appreciate comments that include descriptions of ``close
calls'' in which the additional employee/dispatcher communications
required in EO 24 prevented hand-operated main track switches from
being left improperly lined or unlocked. Any other comments regarding
such required communication between employees and dispatchers would be
appreciated.
Verification through testing. The third major component of EO 24's
requirements involves the verification of compliance through testing.
FRA's regulations, at 49 CFR part 217, require each railroad to
instruct its employees on the meaning and application of its code of
operating rules, and to periodically test its employees to determine
their level of compliance. Compliance with railroad operating rules is
critical, especially when technology does not provide a fail safe
option.
Most railroads have excellent written programs of operational tests
and inspections, but FRA has identified weaknesses in the oversight and
implementation of nearly all of these programs. For example, some
railroad testing officers lack the competency to perform operational
tests and inspections. Likewise, some railroads do not perform
operational tests that address the root cause of human factor
accidents, while others view the requirement as a numbers-generating
exercise, and consequently conduct relatively few meaningful tests.
That is, while it may be important that employees come to work with the
proper equipment (and FRA considers that a basic requirement which, of
course, must be satisfied), FRA's concern is that not enough
verification testing is occurring on the operating rules most likely to
cause accidents, including but not limited to rules addressing handling
of switches.
FRA's verification through testing and inspection requirements in
EO 24 are narrowly focused on those operating rules involving the
operation of hand-operated main track switches in non-signaled
territory. The purpose of this narrow focus was to create a special
obligation for only those types of rules violations that were causing
the emergency situation. FRA still believes compliance with these types
of rules should be verified. The proposed rule would replace EO 24's
requirements and add requirements for verification of testing on a
broader number of operating rules directly related to the root cause of
human factor accidents; that is, the proposed rule would require
testing of all the rules related to proposed part 218, subpart F, not
just those rules related to hand-operated main track switches in non-
signaled territory.
The proposed rule would also amend sections 217.4 and 217.9 to
require competency of railroad testing officers. In FRA's view, it is
unfathomable that railroad testing officers would be allowed to conduct
tests and inspections without proper instruction, on-the-job training,
and some kind of written examination or observation to determine that
the person is qualified to do the testing; however, Federal regulations
currently do not require that railroad testing officers be qualified in
such a manner. Railroads should already be shouldering this burden
without Federal requirements so we do not view this as a substantial
burden; instead, we view the qualification of railroad testing officers
as a necessary expense of operating a railroad.
Furthermore, railroad officers that test for non-compliance are
typically the same officers who are in charge of operations. In that
regard, a railroad officer, who is knowledgeable of Federal
requirements and the government's enforcement authority over individual
officers, should be discouraged from ordering an employee to violate
any operating rule inconsistent with
[[Page 60379]]
proposed part 218, subpart F. In other words, if all railroad testing
officers on a particular railroad are properly qualified, it will be
more difficult for railroad officers to accept inconsistency in the
application of operating rules.
FRA proposes amending Sec. 217.9 to require railroads to focus
programs of operational tests and inspections ``on those operating
rules that cause or are likely to cause the most accidents or
incidents''. See Sec. 217.9(c)(1). Except for the smallest freight
railroads, FRA proposes that each railroad conduct one or more reviews
of operational tests and inspections that should help guide each
railroad in its implementation of its program. The monthly, quarterly,
and six-month reviews for freight railroads, as well as the reviews for
passenger railroads, in proposed Sec. 217.9(e) would formalize a best
practice from some of the largest and safest railroads nation-wide. The
proposed reviews are intended to ensure that each railroad is
conducting tests and inspections directed at the causes of human factor
train accidents and employee casualties. Each program would be
specifically required to include appropriate tests and inspections
addressing the rules dealing with handling of switches, leaving
equipment in the clear, and protecting the point of the shove.
Structured tests or observations permit railroads to find employees
that need additional training or who may benefit from a reminder that
it is not acceptable to take shortcuts that violate the operating
rules.
Furthermore, the proposal to amend the program of operational tests
and inspections, by emphasizing its purpose to focus on operating rules
violations that cause accidents, should cut down on the disparity
between the few instances of non-compliance found by many railroads
with the many instances of non-compliance found through FRA inspections
on the same railroads (see discussion in ``Increase In Human Factor
Caused Accidents and Non-compliance''). While railroads have
universally done an acceptable job of taking corrective action
following an accident, railroads have not done as well in consistently
testing for the variety of operating rules, at a variety of locations,
and at different times of the day, in order to meet FRA's expectations
for an effective testing and inspection program. Accidents and
incidents of non-compliance should be prevented by the proposed
formalization of the process of verification through testing and FRA's
proposed ability to inspect each railroad's program of operational
tests and inspections, as well as its records.
Finally, FRA emphasizes that it intends to retain an enforcement
mechanism, as it did in EO 24, because prior reliance on the railroad
to ensure employee compliance with railroad operating rules without a
Federal enforcement mechanism has repeatedly proven to be inadequate to
protect the public and employee safety. Under current regulations, FRA
has been able to effectively intervene in railroad operating rules
compliance issues (apart from those already codified as obligations
under existing regulations) only indirectly, through use of substantial
resources, and in the case of exceptionally pervasive non-compliance.
The system of accountability provided for in this proposed rule will,
by contrast, encourage railroad management to prevent a lessening of
oversight or decline in compliance by reviewing safety performance in
detail, assisting individual employees to acquire habits of work that
are consistent with safety by permitting them to challenge directions
that could cause them to cut corners, and permitting individual FRA
inspectors to more persuasively seek corrective action early in the
process of deteriorating rules compliance.
While FRA intends to retain an enforcement mechanism, there may be
instances where an employee realizes that he or she violated an
operating rule but is afraid of the consequences of reporting the
error--even when such reporting would have the potential to prevent an
accident or injury to other workers or innocent bystanders. NTSB
addressed this point in its report on the Graniteville accident when it
stated that a ``significant civil penalty may have an unintended impact
on safety under some circumstances. That is, an employee who, after
leaving a work site, realizes that a switch has been left improperly
lined may be made more reluctant than in the past to immediately report
the error to train dispatchers. The threat of the severe fine may
prompt the employee to attempt a remedy (such as returning later to
reline the switch) before the mistake can become known. As happened in
the September 2005 fatal collision in Shepherd, Texas, such action on
the part of the employee could contribute to an accident that might
otherwise have been avoidable.'' NTSB/RAR-05/04 at 46. As FRA would
certainly not want a regulation to discourage an employee from
reporting or correcting a potentially hazardous situation, we would
appreciate any suggestions for processes which could avoid a
disincentive to report unsafe conditions. One concept FRA is
considering for the final rule is to require each railroad to have a
reporting program whereby FRA would agree not to use reports submitted
to the railroad under the safety self-reporting program (or information
derived therefrom) in any enforcement action except information
concerning accidents or criminal offenses which are wholly excluded
from the program. This concept is in use by the Federal Aviation
Administration (FAA) for providing relief from penalties for pilots who
report unsafe actions or conditions through the Aviation Safety Action
Program, described in Advisory Circular 120-66B, and the Aviation
Safety Reporting Program described in Advisory Circular 00-46D--
Aviation Safety Reporting Program and referred to in 14 CFR 91.25. FRA
would like comment on whether programs similar to the two FAA programs
could be adopted by FRA to avoid adverse incentives.
III. Remote Control Operations
A. Background
Remote control devices have been used to operate locomotives at
various locations in the United States for many years, primarily within
certain industrial sites. Railroads in Canada have made extensive use
of remote control locomotives for more than a decade. FRA began
investigating remote control operations in 1994 and held its first
public hearing on the subject in February 1995 to gather information
and examine the safety issues relating to this new technology. On July
19, 2000, FRA held a technical conference in which all interested
parties, including rail unions, remote control systems suppliers, and
railroad industry representatives, shared their views and described
their experiences with remote control operations. This meeting was
extremely beneficial to FRA in developing its subsequent Safety
Advisory.
On February 14, 2001, the FRA published recommended guidelines for
conducting remote control locomotive operations. See 66 FR 10340,
Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing
these recommendations, FRA sought to identify a set of ``best
practices'' to guide the rail industry when implementing this
technology. As this is an emerging technology, FRA believes this
approach serves the railroad industry by providing flexibility to both
manufacturers designing the equipment and to railroads in their
different operations, while reinforcing the importance of complying
with all existing railroad safety regulations. All
[[Page 60380]]
of the major railroads have adopted these recommendations, with only
slight modifications to suit their individual requirements.
Regarding the enforcement of Federal regulations as they apply to
remote control locomotive operations, the Safety Advisory explains
that: ``although compliance with this Safety Advisory is voluntary,
nothing in this Safety Advisory is meant to relieve a railroad from
compliance with all existing railroad safety regulations [and]
[t]herefore, when procedures required by regulation are cited in this
Safety Advisory, compliance is mandatory''. Id. at 10343. For example,
the Safety Advisory clearly states that ``each person operating an RCL
[remote control locomotive] must be certified and qualified in
accordance with 49 CFR part 240 [FRA's locomotive engineer rule] if
conventional operation of a locomotive under the same circumstances
would require certification under that regulation''. Id. at 10344.
In November 2001, all six major railroads submitted to FRA their
training programs for remote control operators as required by part 240.
Since that initial filing, several railroads have made changes to their
remote control training programs at FRA's request. FRA is closely
monitoring this training and making additional suggestions for
improvement on individual railroads as they become necessary. These
training programs currently require a minimum of two weeks classroom
and hands-on training for railroad workers who were previously
qualified on the railroad's operating and safety rules. Federal
regulations require that locomotive engineers be trained and certified
to perform the most demanding type of service they will be called upon
to perform. Thus, a remote control operator who will only be called
upon to perform switching duties using a remote control locomotive
would not need to be trained to operate a locomotive on main track from
the control stand of the cab.
In addition to the required training, the regulations require
railroads to conduct skills performance testing of remote control
operators that is comparable to the testing required of any other
locomotive engineer performing the same type of work. Federal
regulations also hold remote control operators responsible for
compliance with the same types of railroad operating rules and
practices that other locomotive engineers are required to comply with
in order to retain certification. See 49 CFR 240.117. Any alleged non-
compliance triggers an investigation and review process. If a violation
is found, the remote control operator will be prohibited from operating
a locomotive on any railroad in the United States for a minimum of 15
days to a maximum of three years. The length of the prohibition (or
revocation of the certificate) depends on whether the person was found
to have committed other violations within the previous three years and
whether the railroad, using its discretion, determined that the person
had completed any necessary remedial training.
Furthermore, FRA addressed the current Federal locomotive
inspection requirements and the application of those requirements to
remote control locomotive technology. For example, the Safety Advisory
states that the remote control locomotive ``system must be included as
part of the calendar day inspection required by 49 CFR 229.21, since
this equipment becomes an appurtenance to the locomotive''. Id. at
10344 (emphasis added). Another example of a mandatory requirement
mentioned in the Safety Advisory is that the remote control locomotive
``system components that interface with the mechanical devices of the
locomotive, e.g., air pressure monitoring devices, pressure switches,
speed sensors, etc., should be inspected and calibrated as often as
necessary, but not less than the locomotive's periodic (92-day)
inspection''. Id. (emphasis added); see 49 CFR 229.23. Thus, the Safety
Advisory reiterated that existing Federal regulations require
inspection of the remote control locomotive equipment.
Although some aspects of this proposed rule pertains to main track
operations where remote control locomotive operations rarely occur,
most of the problems this proposal is intended to address are found
equally in conventional and remote control locomotive yard switching
operations. As FRA reported to Congress earlier this year, ``RCL [i.e.,
remote control locomotive] and conventional train accident rates were
virtually identical for those major railroads that made extensive use
of both types of operations''. ``Final Report--Safety of Remote Control
Locomotive Operations'' (``Final Report'') (March 2006) (published on
FRA's Web site at http://www.fra.dot.gov/). The current remote control
locomotive technology is best used for yard switching operations and is
primarily used for that purpose. See Final Report at 15-17.
The proposed rule would continue FRA's policy of implementing
minimum requirements for safe remote control locomotive operations
within the confines of railroad operating rules having broad
applicability. As previously explained, FRA has found existing rules
adequate to accommodate safe remote control locomotive operations
without the need to draft a rule narrowly focused on remote control
locomotive operations. See Docket No. FRA-2000-8422 (found at http://dms.dot.gov/) ( denying a request for initiation of a rulemaking to
solely address remote control locomotive issues). That said, after
identifying certain characteristics of remote control locomotive
shoving or pushing operations, FRA is proposing one requirement that
pertains to remote control locomotive operations; that requirement
addresses the problem of lack of situational awareness. See Sec.
218.99(c). FRA also recognizes the relatively new use of permanently
installed cameras in yards or at grade crossings which permit an
employee to provide point protection without being physically present.
Although it is possible for this technology to be used in conventional
operations, e.g., by a yardmaster for a train crew, we believe it is
more often used for remote control locomotive operations. See Sec.
218.99(b)(2). The following background on these two issues should
illuminate them further.
B. Situational Awareness
In FRA's recent report to Congress, the agency identified the
potential for a reduction in a remote control operator's situational
awareness as one of four human factor issues that warrant close
attention as remote control locomotive technology continues to evolve.
See Final Report at 24-26. A locomotive engineer, including a remote
control operator, who is located in the cab of a controlling locomotive
has a greater situational awareness than a remote control operator
located on the ground. A remote control operator located on the ground
may also be more easily distracted by conflicting movements or other
physical dangers caused by continuously moving about the yard than a
person located in a locomotive cab. Also, a remote control operator on
the ground may forget, or may not know, the locomotive orientation
(i.e., the particular direction the remote control locomotive is
heading) due to his or her location away from the remote control
locomotive, and thus may initiate a movement in the wrong direction.
Similarly, a defective or misaligned switch could cause a movement to
diverge onto a connecting track unintentionally and go unnoticed if the
remote control crewmembers are not observing the direction of
[[Page 60381]]
movement. Apparently, the latter is what happened on December 7, 2003,
on the Union Pacific Railroad in San Antonio, Texas, when a remote
control locomotive operator, while switching, was struck and killed by
his locomotive at the west end of UP's East yard. The employee had
reversed one end of a crossover switch and was walking toward the other
end of the crossover switch to line it when he was struck from behind
by the remote control locomotive. The employee had started the remote
control locomotive moving as he was walking toward the other end of the
crossover. See Final Report at 90. This move was initiated after the
employee pushed a button to realign a power-assisted switch, but likely
did not wait at the switch machine to confirm visually that the points
had moved to the correct position. NTSB/RAB-06/02 at 9. In addition to
lack of adequate railroad oversight of the misaligned power-assisted
switch, NTSB concluded that the probable cause of this accident was the
employee's ``inattentiveness to the location of the locomotives and the
switch position''. NTSB/RAB-06/02 at 11. Certainly, this
inattentiveness is another way to describe a lack of situational
awareness.
As many railroads were not eager to invest in remote control
technology until after FRA issued its Safety Advisory 2001-01, there is
limited data and few studies completed detailing the safety
implications of remote control operations; however, among the few
studies that have been completed, situational awareness has arisen as a
recurring theme. For example, in a study funded by FRA, an
independently conducted root cause analysis of six remote control
locomotive-involved accidents/incidents that occurred in 2006, found
that the loss of situational awareness was a major factor in five of
the accidents/incidents analyzed. Human Factors Root Cause Analysis of
Accidents/Incidents Involving Remote Control Locomotive Operations (May
2006) (DOT/FRA/ORD-06/05) (published on FRA's Web site at http://www.fra.dot.gov/downloads/Research/ord0605.pdf). Further analysis
suggests that remote control locomotive technology facilitated this
loss of awareness in four of these five accidents/incidents by enabling
remote control operators to control their cuts of cars away (i.e.,
remotely) from the point of movement. Additionally, four probable
contributing factors were related to one or more remote control
operator's control of a movement from a physical location away from the
remote control locomotive and/or cut of cars. Consequently, the
independent contractor who performed the root cause analysis identified
the loss of remote control operator situational awareness as one of
only four critical safety issues identified. See Final Report at 85-90.
FRA also sponsored the same independent contractor to undertake a
study based on focus group sessions with remote control operators.
These sessions provided a forum to gather information about operator
experiences with remote control locomotive operations, to identify
safety issues, lessons learned, and best practices from those who are
most familiar with remote control locomotive operations and equipment.
Focus groups also provided a means to solicit suggestions on how to
improve remote control locomotive operations. One of the themes
identified was that situational awareness can be lost when the remote
control operator is not in the immediate vicinity of the remote control
locomotive. Among the recommended practices from the focus groups were
the suggestions to standardize operating practices and to require
remote control operators to protect the point at all times. See Final
Report at 79-85.
The Brotherhood of Locomotive Engineers and Trainmen (BLET)
sponsored a study by Dr. Frederick C. Gamst, a private consultant
specializing in railroading, and Mr. George A. Gavalla, a private
consultant and former FRA Associate Administrator for Safety. ``Hazard
Survey of Remote Control Locomotive Operations on the General System of
Railroads in the United States'' (``BLET Study'') (The BLET Study is
available in the docket for this NPRM). The BLET Study is based on
anecdotal information supplied by railroad workers and officers who
voluntarily self-reported their thoughts and experiences concerning
their interactions with remote control operations. All of the self-
reporting was done in writing and mainly via the Internet in its
various forms of communication (i.e., e-mails, bulletin-boards, weblog,
etc.). The study catalogues the myriad experiences, complaints, and
ideas that were recorded by Dr. Gamst over three years beginning in
January 2002. The anecdotal information collected by Dr. Gamst reflects
the same general themes identified in the focus group study sponsored
by FRA and described in the preceding paragraph. As in FRA's sponsored
focus group study, the information Dr. Gamst collected is not
statistically sampled to be representative of all remote control
operators in the U.S. or Canada. While the main drawback to these types
of studies is that the researchers do not attempt to validate any
statements made by employees, as participation is often premised on the
condition that employees remain anonymous, the collection of individual
opinions and perceptions taken as a whole are useful in identifying
problems associated with remote control operations. Like the FRA's
sponsored studies, the BLET's sponsored study also identified perceived
problems associated with a remote control crew not observing the
direction of movement. Specifically, the BLET study raised the issue as
the reason why a remote control operator might keep shoving or pulling
after a movement derailed or collided with an obstruction. Id. at 60-
62.
C. Technology Aided Point Protection
Although railroading is now one of the nation's older forms of
mechanized transportation, equipment, components and operations all
have evolved through new and improved technologies. Installing cameras
in yards so that a location could be remotely monitored from somewhere
else has become a railroading reality as cameras have become smaller,
less expensive, and have increased resolution. It is possible to set up
these cameras and monitors so that they provide at least an equivalent
level of safety to that of an employee protecting the point. The
proposed rule would permit such an operation to substitute for an
employee's direct visual determination where the technology provides an
equivalent level of protection to that of a direct visual
determination. See Sec. 218.99(b)(2)(i).
The substitution of such technology for a direct visual
determination is dependent on many factors. Each particular situation
will have its own particular factual circumstances that must be
considered in determining whether an equivalent level of safety can be
met. For instance, with regard to the basic camera set-up, a railroad
will need to consider whether an operator must see in color (largely a
necessity if viewing signals), the width of the angle of view, the size
and location of the monitor, whether the technology is for day-time use
only, and whether its use should be limited to fair weather conditions.
However, under all circumstances, the monitor must display sufficient
information to enable the viewer to make a determination that the track
ahead of the move is clear and properly lined.
There is also the consideration of whether the person viewing the
monitor is the locomotive engineer, remote control operator, other
crewmember or
[[Page 60382]]
other person, such as a yardmaster. If the monitor is not being viewed
by the operator who is controlling the movement, then, there must be a
clear understanding and channel of communication between the operator
and the employee who is viewing the monitor--as the latter would be
protecting the movement. Providing an equivalent level of protection to
that of a direct visual determination requires a thorough job briefing
in which there is an understanding of who is observing the movement,
what is the observer's range of vision, at what locomotive speed can
the observation be made and how information will be conveyed to the
operator/engineer, if that person is not the one viewing the monitor.
These camera/monitor set-ups will require railroads to implement
attendant procedures and qualify each employee who will be utilizing
the technology. These issues are further developed in the section-by-
section analysis for Sec. 218.99(b)(2)(i).
The issue of reliance on non-crewmembers to carry out some remote
control locomotive operator crew functions was raised in the focus
group study sponsored by FRA and summarized in the Final Report. The
remote control operators that made up the focus groups had indicated
that there were occasions in which a non-crewmember, generally a
yardmaster, would provide point protection, line switches, or check the
status of a derail for a remote control crew. When this was allowed,
several potential problems could result. First, there is great
potential for an error in communication or a misunderstanding between
the non-crewmember and the crewmembers regarding the activity or status
of equipment. Further, a yardmaster who is occupied with his or her
other responsibilities might not give the task the attention it
deserves, or could be distracted and give an incorrect answer to a
question by a remote control crewmember (e.g., ``is the move lined?'').
The result could be that the task does not get completed or there is an
error in task execution. Further, the remote control crew might not
have any alternative way of determining that there is a problem with
the point protection provided by the non-crewmember until it is too
late. See Final Report at 82. Similar issues were raised in the BLET
Study. BLET Study at 44.
In FRA's Final Report, the agency addressed the issue of utilizing
remote cameras for remote control locomotive operations to protect the
point at highway-rail grade crossings in lieu of direct visual
determinations. See Final Report at 13-15. Railroad operating rules
currently permit a movement to travel over a crossing without the
physical presence of a crewmember if a crossing is equipped with gates,
if it can be determined that the gates are in the fully lowered
position, and if the crossing is clear of vehicles and pedestrians. One
major railroad has begun using a remote camera system at several
crossings to make the required determinations. The railroad believes
that crossing protection rules can be observed using this system. The
conditions FRA presented in its report to Congress are repeated here as
FRA would appreciate comments addressing whether these conditions
should remain permissive or should be made mandatory.
FRA believes the use of remote camera protection at highway-rail
grade crossings offers an equivalent means of safety provided the
following recommendations are adopted:
1. Before camera-assisted remote control locomotive operations are
permitted at highway-rail grade crossings, a Crossing Diagnostic Team
should evaluate the crossing. The diagnostic team should have
representatives from the railroad, FRA, the State department of
transportation (or another State agency having jurisdiction over the
highway-rail grade crossing), and local government authorities. The
diagnostic team should evaluate the suitability of each crossing for
remote camera operations. Among the factors it should consider are the
following: the average daily traffic counts; the number of highway
lanes; highway speed limits; the number of railroad tracks; the volume
of school bus, transit bus, emergency vehicle, large truck, and
hazardous materials traffic over the crossing; the minimum remote
control locomotive operator sight distances of roadway approaches to
the crossing; and other relevant factors that could affect the safety
of the crossing. The diagnostic team should also consider the
appropriate number of cameras and appropriate camera angles needed to
provide for the remote operation of remote control locomotives over the
crossing.
2. Remote cameras should only be used at crossings equipped with
warning lights, gates, and constant warning and motion sensor devices.
3. The cameras should be arranged to give the remote control
locomotive operator a view of the rail approaches to the crossing from
each direction to accurately judge the locomotive's proximity to the
crossing.
4. The cameras should be arranged to give the remote control
locomotive operator a clear view to determine the speed and driver
behavior (e.g., driving erratically) of any approaching motor vehicles.
5. Either the camera resolution should be sufficient to determine
whether the flashing lights and gates are working as intended or the
crossing should be equipped with a remote health monitoring system that
is capable of notifying the remote control locomotive operators
immediately if the flashing lights and gates are not working as
intended.
6. The railroad should notify local FRA offices when this type of
protection has been installed and activated at a crossing to ensure
that FRA grade crossing specialists and signal inspectors can monitor
these operations.
Final Report at 14-15
It is possible that not all of the above recommendations would be
necessary at highway-rail grade crossings equipped with supplemental
safety devices that prevent motorists from driving around lowered
gates. A diagnostic team, however, should make such determinations. FRA
also recognizes that camera-assisted remote operation of remote control
locomotives may not be a viable alternative at all highway-rail grade
crossings.
IV. Section-by-Section Analysis
PART 217--[AMENDED]
Section 217.2 Preemptive Effect
This section informs the public of FRA's intention and views on the
preemptive effect of the rule. The preemptive effect of this rule is
broad, as its purpose is to create a uniform national standard. Section
20106 of Title 49 of the United States Code provides that all
regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard that is not incompatible with a Federal
law, regulation, or order and that does not unreasonably burden
interstate commerce. Exceptions would be rare. In general, 49 U.S.C.
20106 will preempt any State law--whether statutory or common law--and
any State regulation, rule, or order, that concerns the same subject
matter as the regulations in this rule.
Section 217.4 Definitions
FRA proposes to add a definition of Associate Administrator for
Safety to this section that is consistent with other definitions of
this term in this chapter.
[[Page 60383]]
The purpose of including this definition is to identify a proposed
official who would have the authority to require amendments to programs
of operational tests and inspections.
FRA proposes to add a definition of qualified to this section. The
need for this definition arose from the proposed new requirements for
railroad testing officers in Sec. 217.9. As further explained in the
analysis for that section, it is not acceptable for a railroad testing
officer to be monitoring or instructing employees without being
instructed, trained and examined, i.e., qualified, on the railroad's
operating rules and the tests the officer is expected to perform; thus,
FRA proposes to require such qualification. It is proposed that a
person cannot be qualified unless he or she has successfully completed
all ``instruction, training and examination'' programs required by both
the railroad and this part.
The definition is modeled after the definition used in Sec. 240.7
in this chapter and should have the same meaning despite some slight
differences. The phrase ``training and testing'' has been replaced by
``instruction, training and examination'' to more thoroughly reflect
the educational aspects of the requirements for a qualified person. The
proposed definition does not contain the word ``appropriate'' prior to
the educational aspects so as to emphasize that the educational aspects
of qualifying a person are mandatory, not discretionary. A word choice
was made to substitute the term ``successfully completed'' for the word
``passed''. The definition proposed for part 217 is the same definition
proposed for part 218, subpart F.
Section 217.9 Program of Operational Tests and Inspections;
Recordkeeping
FRA is amending and adding paragraphs to this section. Although not
every existing paragraph is being amended, FRA is reprinting the entire
section to make it easier for readers to follow.
FRA is proposing an amendment to paragraph (a) which would clarify
that the requirement to conduct operational tests and inspections
specifically include tests and inspections sufficient to verify
compliance with the requirements of subpart F of part 218 of this
chapter. In this NPRM, FRA has identified certain operating rules with
which non-compliance has led to an increase in human factor caused
accidents. Proposed subpart F of part 218 requires that each railroad
have in effect certain operating rules and that each railroad officer,
supervisor and employee uphold and comply with those rules. As the
operating rules identified in proposed subpart F of part 218 are
designed to address the most frequently caused human factor accidents,
FRA's proposed amendment to paragraph (a) addresses that railroads will
specifically need to test and inspect for these proposed requirements
in order to be in compliance with this section. The program's increased
focus on human factor caused accident prevention should direct
awareness to the related operating rules and correlate with a decrease
in such accidents.
Paragraph (b) would be added to this section to establish new
responsibilities for both railroads and those officers on the railroads
who conduct operational tests and inspections, i.e., railroad testing
officers. FRA inspections and investigations have revealed railroad
testing officers who lack the fundamental knowledge to perform adequate
tests and inspections. In order for these officers to be able to do a
proper job, they must know the railroad's operating rules, how the
tests they will conduct fit into the railroad's testing program, and
how to conduct a proper test. Experience helps and field training can
substitute for the lack of experience if needed to achieve proficiency.
Of course, not every railroad testing officer has experience conducting
every type of test, or needs to; however, a railroad testing officer
should not be conducting a test on a rule the officer is unfamiliar
with or without having been trained on how to conduct a proper test for
the rule to be tested. A test that is incompetently executed should not
count towards compliance with a railroad's program of operational tests
and inspections. Finally, this paragraph requires written records
documenting that each railroad testing officer was properly qualified
and that such records be made available to FRA upon request.
FRA proposes to move current paragraph (b) to (c), add two new
requirements and make a few minor amendments to remove obsolete dates.
Regarding the two new requirements, FRA proposes a scheme that will
require each railroad, to which this part applies, to amend the
existing program of operational tests and inspections with the intended
purpose of requiring railroads to do a better job of focusing their
tests and inspections on those types of operating rules that either
cause the most human factor caused accidents nation-wide or are
identified as problematic on the particular railroad's division or
system. At a minimum, FRA expects railroads to test and inspect for
those operating rules identified as problematic in the quarterly or six
month reviews, i.e., those operating rules violations that have
recently caused accidents or incidents on the division or system-wide.
We also expect railroads to regularly spot-check for compliance with
those operating rules that lead to accidents and incidents nation-wide,
even if the railroad has not specifically encountered any recent
incidents. As mentioned in the SUPPLEMENTARY INFORMATION section under
``Development of the NPRM'', the verification through testing process
does not always work well because during some periods of disruption
related to organizational or personnel changes, some railroads do not
perform operational tests that address the root cause of human factor
accidents. At worst, administration of the program may be reduced to a
numbers-generating exercise, and consequently on portions of the
railroad officers may conduct relatively few meaningful tests. Clearly,
FRA intends for the program of operational tests and inspections to be
meaningful and the proposed amendments are intended to forcefully move
lagging railroads to produce more meaningful tests and inspections.
Proposed paragraph (c)(1) would require that not only shall
railroads ``provide for operational testing and inspection under the
various operating conditions on the railroad'', as is currently
required, but that such tests and inspections place ``particular
emphasis on those operating rules that cause or are likely to cause the
most accidents or incidents, such as those accidents or incidents
identified in the quarterly reviews, six month reviews, and the annual
summaries as required under paragraphs (e) and (f), as applicable''.
Thus, if the proposal were finalized, FRA would expect that each
railroad would conduct a significant number of tests and inspections
directed at addressing localized problems with compliance, such as
those identified on a division, problems identified on a system-wide
basis, and leading causes of human factor caused accidents nation-wide,
such as those identified through this proposed rule.
In order to gain some specificity in each railroad's program,
paragraph (c)(1) also proposes ``a minimum number of tests per year
that cover the requirements of part 218, subpart F of this chapter''.
FRA is reluctant to state a percentage or specific number per number of
employee work hours as each railroad may have particular operating
rules it wishes to emphasize to a greater degree than the next;
however, the objective in including this language is to encourage
sufficient testing in these critical areas to verify good compliance
[[Page 60384]]
by railroad operating employees and to help establish the expectation
that there will be compliance with those rules. FRA would be critical
of a program that placed the majority of its emphasis on enforcing
operating rules that are not leading causes of accidents/incidents. The
proposed requirement for a specific minimum number of such tests per
year follows from such a requirement imposed in EO 24, albeit EO 24
covered a smaller subset of the operating rules FRA is proposing to
cover in part 218, subpart F.
Paragraph (c)(5) proposes a new requirement that the program show
the railroad's designation of an officer to manage the program at each
level of responsibility (division or system, as applicable). The
officer may be designated either by name or job title, as long as the
designation clearly identifies a responsible person that FRA can
contact in case FRA wishes to audit the program. It is proposed that
the officer should also have oversight responsibility to ensure that
the program is being implemented properly across each division and
system-wide. FRA's expectation is that this officer will at least
manage the program to ensure that the overall direction of the program
is sound. This designated officer would be expected to take an active
role in ensuring that divisions and the entire system are meeting
program requirements and ordering changes when expectations are not
met. To the degree that a system-level officer can identify a division
or a specific railroad testing officer that is failing to appropriately
direct efforts, the designated officer would be expected to take
corrective action. The designated officer should be making adjustments
to the implementation of the program based on any reviews that might be
required in proposed paragraph (e), as well as the annual summary
produced in accordance with current paragraph (d), which is now
proposed paragraph (f).
Additionally, current paragraph (b), which is proposed paragraph
(c), would be amended by removing all references to ``[o]n or after
November 21, 1994'' as this date is now obsolete. Current paragraph
(b)(6) would be moved to proposed paragraph (c)(7) without any
amendments. Current paragraph (c) would be moved to paragraph (d) but
without any revisions to the text.
Proposed paragraph (e) would add requirements for periodic reviews
for any railroad with at least 400,000 total employee work hours
annually. FRA has decided to exclude freight railroads that have less
than 400,000 total employee work hours annually because only 135
smaller railroads that meet this criterion reported any human factor
caused rail accidents, and of those 135 that reported such accidents,
only 20 railroads reported five (5) or more human factor caused rail
accidents during the years 2002 through 2005. During this four year
period, these 135 smaller railroads experienced 334 human factor caused
rail accidents amounting to 7 percent of all human factor caused rail
accidents. It should also be considered that there are almost 600
smaller railroads that fit this criterion and yet only 135 reported any
human factor caused rail accidents at all. On that basis, FRA proposes
excepting the smallest railroads, based on the less than 400,000
employee work hours threshold, from the monthly and quarterly reviews.
Of course, if FRA accumulates evidence to suggest that railroads with
less than 400,000 employee work hours are experiencing a significant
number of human factor caused accidents, FRA will reconsider its
position.
Similarly, Amtrak and the railroads providing commuter service in a
metropolitan or suburban area also experience a relatively low number
of human factor caused rail accidents compared to the freight railroads
with greater than 400,000 employee work hours annually. During the
years 2002-2004, Amtrak and the commuter railroads experienced a total
of 270 accidents attributed to human factor causes. At a meeting held
with members of the American Public Transportation Association (APTA)
on April 27, 2006, (notes of this meeting are in the docket of this
proceeding) APTA explained that many of its member railroads do not
keep accident/incident data and/or operational testing data
electronically and, thus, conducting periodic reviews greater than
annually would create a substantial burden for those railroads that
couldn't simply run a report from a computer. In addition, APTA members
reminded FRA that a commuter railroad's budget is dependant on the
generosity of local and State governments, which may not want to
upgrade computers and software which would permit quicker and more
efficient accident/incident reviews. Passenger railroads are generally
more stable in their organizations and experience greater continuity
with respect to staffing at the line officer level (where many problems
often develop).
With regard to six month reviews, however, there is a definite
benefit for Amtrak and the commuter railroads to conduct a thorough
system level review to achieve some degree of accountability.
Meaningful reviews should help drive proper implementation of the
program of operational tests and inspections--thus driving down the
number of accidents/incidents attributable to human factors. However,
we would appreciate comments directed toward perceived weaknesses in
this proposed rule and any alternatives for achieving similar
accountability. The APTA delegation also raised the issue of time
required for implementation; and FRA requests comment on that issue in
light of the consolidated six month review proposed. FRA is not
inclined to except even the smallest commuter railroads from the
requirement that reviews be conducted, because in FRA's experience no
railroad is free from the risk that good discipline will erode over
time, and the consequences of a passenger train accident can be very
serious indeed.
For the major freight railroads, the proposed monthly review and
quarterly review would be developed and conducted at the division level
unless no division headquarters, or its equivalent, exists. Most larger
railroads have created division headquarters (see existing definition
in Sec. 217.4 of this part) to manage portions of the railroad and,
certainly, railroads that have divisions do so because it is more
efficient. That is, it is easier for an officer at a division
headquarters to know what safety issues are problematic in his or her
division than an officer of a large railroad at the system level.
In paragraph (e)(1)(i), a monthly review is proposed for each
division or system depending on whether the freight railroad is large
enough to maintain divisions. The proposed monthly review is not
expected to be an onerous task. It is merely a quick written tally of
the number of tests performed by each railroad testing officer,
including the railroad operating rules tested for, and a determination
made whether the monthly tally shows adherence to the written program
of operational tests and inspections. When monthly reviews reveal non-
compliance with the program, FRA expects railroads to take corrective
action to regain compliance. The designated railroad officer in
paragraph (c)(5) may or may not be the officer who performs the monthly
review, but this designated railroad officer would be required to
ensure that the monthly review is properly completed.
The quarterly review proposed for freight railroads in paragraph
(e)(1)(ii) is expected to be considerably more comprehensive than the
proposed monthly review. It should include all the information
collected in the
[[Page 60385]]
monthly reviews as well as the types of information specified in the
paragraph, i.e., ``review of the [railroad's] accident/incident data,
the results of prior operational tests and inspections, and other
pertinent safety data for that division or system to identify the
relevant operating rules related to those accidents/incidents that
occurred during the quarter''. The focus of the quarterly review is to
identify those operating rules which pose the greatest risk of being
violated--which should then be targeted for regular tests and
inspections. That is why FRA proposes that based upon the results of
the quarterly review, the designated officer shall make any necessary
adjustments to the tests and inspections required of railroad officers
for the subsequent period. The proposed quarterly review must be in
writing and include the data upon which any conclusions are based.
FRA expects that in order to conduct a meaningful quarterly review,
each railroad will review accident/incident data, operational test
data, and other pertinent data. For example, a railroad should identify
the relevant facts for each category of data. The relevant facts are
usually covered if a railroad can answer the questions signifying who,
what, where, when, why, and how often. For accident/incident data,
these questions would involve identifying all the employees involved in
the accident/incident, a description of the accident/incident, the
location where it occurred, the time it occurred, the root cause and
any secondary causes, and whether the division or system has suffered
this type of accident/incident often, sometimes or never. For
operational test data, the issues include identifying the railroad
testing officer(s) responsible for the particular location, whether the
testing officers are testing for the operating rules responsible for
any recent accidents/incidents, whether the testing officers conducted
any tests where any recent accidents/incidents occurred, whether the
testing officers are testing during the hours of highest incident
rates, whether any railroad officers are briefing the employees as to
the root or secondary causes and the fact that the railroad will be
testing for compliance, and how often the officers are conducting any
follow-up testing and job briefings.
FRA believes there are at least five other types of pertinent
safety data that should be included in a proper quarterly review. One,
if FRA has conducted any recent inspections, the railroad should check
whether its officers' tests reflect FRA's findings. Two, if an employee
is involved in an accident/incident, the employee's safety record may
provide insight. Three, the railroad should determine if there is any
correlation between the training or experience of the local railroad
testing officers and the locations where accidents/incidents have
occurred. Four, a railroad should similarly consider the extent to
which employee experience plays a part in any given accident/incident.
Fifth, a railroad's review should consider whether any operational
conditions have recently changed that increased the likelihood of
either non-compliance with the operating rules or accidents/incidents.
Special attention to all these details in the quarterly or six month
review, as applicable, should lead a railroad to meaningful application
of its written program of operational tests and inspections with a
greater potential for driving down the frequency and severity of
accidents/incidents.
Although it would be best if quarterly reviews were completed
immediately following the end of each quarter, FRA proposes that 30
days should be a sufficient period in which to require its completion.
FRA originally considered requiring the quarterly review in half that
time but railroads participating at a Railroad Operating Rules Working
Group meeting suggested that additional time would be needed for those
railroads that do not maintain their safety data electronically. For
those railroads that keep records electronically, FRA expects quarterly
reviews to take place contemporaneously with the conclusion of the
quarter--although the proposed requirement will be a generous 30 days
post-quarter. Regardless of how long it takes to complete the quarterly
review, each division or system should be prepared to redirect its
railroad testing officers in order to appropriately react to any
accidents/incidents of non-compliance during the previous quarter. Even
where a division or system has had a particularly safe quarter,
railroad testing officers should be instructed to adjust the way in
which they are conducting their tests so that employees cannot easily
anticipate the types of tests to be conducted, nor the dates and
locations of such tests.
In proposed paragraph (e)(1)(iii) and (e)(2), six month reviews are
only proposed for each Class I railroad, the National Railroad
Passenger Corporation (commonly known as ``Amtrak''), and each railroad
providing commuter service in a metropolitan or suburban area. The
basis for the proposal is that the identified freight railroads are so
large that each would benefit from an officer, likely at the system
headquarters, who is identifiable by name or job title, who will
oversee whether each division, line or segment is complying with the
program of operational tests and inspections. It is expected that such
an officer would have the authority to intervene in division, line or
segment operations to the extent that this officer could order changes
to the way divisions are implementing the program. The purpose for such
intervention would be to require certain types of operational tests or
inspections based on observations made system-wide that may not be
apparent to each designated division officer armed only with data from
his or her own division.
In the case of Amtrak and the commuter railroads, the requirements
in paragraph (e)(2), demand reviews equivalent to those for the freight
railroads in paragraph (e)(1), but require all the reviews to take
place at least every six months. Of course, these are proposed minimum
requirements and passenger railroads are free to initiate more frequent
reviews. For example, proposed paragraph (e)(2)(i) describes a review
that is equivalent to the proposed review for freight railroads on a
monthly basis and certainly passenger railroads may perform that review
on a monthly basis as well. Proposed paragraph (e)(2)(ii) describes a
review that is equivalent to the proposed review for freight railroads
on a quarterly basis, yet, again, passenger railroads would be required
to perform that review at least every six months. Proposed paragraph
(e)(2)(iii) describes a review that is to be completed at least once
every six months and is the equivalent of the six month review proposed
for freight railroads. As it is proposed that the passenger railroads
conduct the same reviews as the freight railroad with the exception of
the timing of those reviews, the prior section-by-section analysis
description for each review is applicable here.
Because FRA needs to be assured that each railroad is complying
with any required reviews, the proposal requires that the reviews be
retained for one year after the end of the calendar year to which they
relate and shall be made available to FRA upon request. FRA's proposal
also encourages railroads to store these records electronically as long
as they can be produced upon request.
FRA questions whether current paragraph (d), which we propose to
move to paragraph (f), would add any additional benefit given the
proposed new requirements. That is, FRA would expect that the quarterly
and six month reviews proposed in paragraph (e) would require greater
analysis than the current data collection exercise that is described by
the paragraph requiring the
[[Page 60386]]
annual summary. Thus, FRA is considering whether to incorporate the
data collection requirements from the annual summary into the six month
report and do away with the annual summary as a separate exercise
altogether. FRA would appreciate comments on this issue.
Current paragraph (d) is proposed to move to paragraph (f) and
contains two amendments. One amendment is merely to change the term
``manhours'' to ``employee work hours'' as the latter is gender
neutral. The second amendment would clarify that this requirement does
not apply to ``a railroad with less than 400,000 total'' employee work
hours annually, as the current rule accidentally fails to include the
qualification of the time period.
Current paragraph (e) is proposed to move to paragraph (g) with one
amendment. The current rule specifies that the railroad maintain a
``desk-top'' computer upon which the railroad can retrieve data. As
laptop and notebook computers have become more common, and their
computing abilities now rival desk-top models, there is no reason to
restrict railroads from using any computer to retrieve records for FRA
under this section.
Proposed paragraph (h) would clarify that railroads and individuals
can be liable for falsifying or deliberately mutilating records
required by this section. FRA would have civil penalty authority, and
the Federal government could prosecute these types of acts under
criminal statutes, whether or not this paragraph is included in a final
rule. See, e.g., 49 U.S.C. 21311. However, at this juncture, FRA has
decided to include this paragraph as a reminder to railroads and
individuals, and as a placeholder for the addition of penalties in
Appendix A to part 217--Schedule of Civil Penalties.
Paragraph (i) proposes that FRA have some specific oversight
mechanism for disapproving a railroad's program of operational tests
and inspections. It also proposes minimum procedures and structure for
the review process. The proposal would require that the Associate
Administrator for Safety only disapprove programs required by this
section for cause stated. As the disapproval decision is made for
cause, it is significant for the railroad to understand exactly why FRA
is disapproving the program; thus, FRA proposes that its notification
of such disapproval be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program, it is proposed that the railroad be provided
an opportunity of not less than 30 days to respond and to provide
written and/or oral submissions in support of the program. It will be
up to the Associate Administrator for Safety to grant additional time
to respond in the rare instances that the railroad requests more than
30 days. The Associate Administrator for Safety shall render a final
decision in writing and the railroad shall be provided not less than 30
days to amend the program in accordance with the Associate
Administrator for Safety's decision. Again, on a case-by-case basis, it
is proposed that the Associate Administrator for Safety may provide a
railroad with additional time to correct a disapproved program.
Although enforcement action is always discretionary, FRA believes that
enforcement action is warranted when a railroad fails to appropriately
and timely amend its program.
The approach in proposed paragraph (i) recognizes that FRA will
want to review such written programs during audits or investigations
and that FRA should have the authority to request changes to the
program if it does not meet the minimum requirements of this rule. The
oversight authority vests with the Associate Administrator for Safety.
Although FRA would have authority to review in detail each railroad's
program, FRA does not intend to have each railroad submit its program
for review and explicit approval. Rather, FRA intends to review the
programs of the major railroads over a multi-year cycle to determine if
they are effective. Please note that the proposal is for the Associate
Administrator for Safety to render a final decision in writing. FRA
solicits comments regarding the need for further appeals within FRA.
Although not contained in this proposal, FRA solicits comments as
to whether the final rule should require each railroad to instruct its
employees on operating rules at least once every three years. FRA has
decided to propose a requirement that only requires such periodic
instruction as it applies to those operating rules that would be
required by part 218, subpart F instead of all railroad operating
rules. See Sec. 218.95(a)(5). As periodic training of operating rules
is already occurring on the vast majority of railroads, FRA's proposal
in part 218, subpart F is focused on those operating rules that cause
the most accidents. Adding a more general requirement would likely
improve safety for railroads which conduct few operating rules classes
and we would appreciate comments regarding the costs and benefits of
such a minimum requirement.
PART 218--[AMENDED]
Section 218.4 Preemptive Effect
This section informs the public of FRA's intention and views on the
preemptive effect of the rule. The preemptive effect of this rule is
broad, as its purpose is to create a uniform national standard. Section
20106 of Title 49 of the United States Code provides that all
regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard that is not incompatible with a Federal
law, regulation, or order and that does not unreasonably burden
interstate commerce. Exceptions would be rare. In general, 49 U.S.C.
20106 will preempt any State law--whether statutory or common law--and
any State regulation, rule, or order, that concerns the same subject
matter as the regulations in this rule.
Section 218.5 Definitions
FRA is proposing an amendment to the definition of flagman's
signals in order to eliminate a reference to ``torpedoes''. Torpedoes
are antiquated signaling devices which have fallen into disuse in the
industry. Likewise, we are proposing amendments to Sec. 218.37 which
refers to this definition and the placing of torpedoes when providing
flag protection.
Section 218.37 Flag Protection
FRA is proposing to eliminate references to ``torpedoes'' as these
are antiquated signaling devices which have fallen into disuse in the
industry. The current rule requires each railroad to have in effect an
operating rule which complies with this section, and thus contains
references to the use of torpedoes, even though the railroad could meet
other flagging requirements without ever needing to carry or use
torpedoes. In this section, there are two paragraphs that reference
torpedoes. Paragraph (a)(1)(iii) currently states, in part, that
``[w]hen a train stops on main track, flag protection against following
trains on the same track must be provided as follows: A crew member
with flagman's signals must immediately go back at least the distance
prescribed by timetable or other instructions for the territory, place
at least two torpedoes on the rail at least 100 feet apart and display
one lighted fusee''. The language in italics is proposed for deletion.
Paragraph (a)(1)(iv) currently states that ``[w]hen required by the
railroad's operating
[[Page 60387]]
rules, a forward crew member with flagman's signals must protect the
front of his train against opposing movements by immediately going
forward at least the distance prescribed by timetable or other
instructions for the territory placing at least two torpedoes on the
rail at least 100 feet apart, displaying one lighted fusee, and
remaining at that location until recalled''. Again, the language in
italics is proposed for deletion. Elimination of the references to
torpedoes does not eliminate the requirement that each railroad have in
effect an operating rule that complies with the requirements in this
section.
Subpart F--Handling Equipment, Switches and Derails
Section 218.91 Purpose and Scope
As previously explained in the SUPPLEMENTARY INFORMATION, FRA has
identified that non-compliance with a small number of railroad
operating rules has caused an inordinate percentage of total human
factor caused accidents. FRA's purpose is first to establish clear and
unambiguous procedures that will provide for the safety of railroad
employees and the public. In the RSAC Working Group discussions that
preceded the preparation of this proposed rule, FRA noted significant
variation in basic safety procedures followed on participating
railroads. Although some variation is necessary to address local
conditions, the presence of extensive joint operations in the railroad
industry makes it essential that certain common procedures apply. Joint
operations are not new to the railroad industry, as evidenced by the
historic role of terminal companies. However, the practice has more
recently expanded through mergers and consequent awards of trackage
rights and through the creation of hundreds of small railroads that are
often provided access to larger railroad's facilities to facilitate
efficient interchange of cars.
In order to support compliance with operating rules, it is
essential that they be consistent, commonly understood, and applied in
a predictable manner. Further, it must be understood that the rules may
not be circumvented at the whim of a supervisor or employee to hasten
completion of the work. The rules in this proposed subpart are intended
to support these purposes.
In addition, making these rules mandatory from a Federal standpoint
implies an enforcement mechanism to discourage non-compliance.
FRA proposes to standardize this small number of railroad operating
rules by establishing minimum requirements. The minimum requirements
proposed are based on accepted best practices and rules currently in
use. Of course, railroads may choose to prescribe additional or more
stringent requirements.
Section 218.93 Definitions
The definitions proposed in this section only have applicability to
this subpart so it should be easier for the reader to locate each
definition in this section rather than in subpart A--General, Sec.
218.5.
FRA proposes several definitions that are consistent with other
definitions of these terms in this chapter. These terms are Associate
Administrator for Safety, controlled siding, employee, highway-rail
grade crossing, locomotive, pedestrian crossing, qualified, and roadway
worker. In an effort to be as clear as possible, FRA is including
definitions of these terms in this subpart for the benefit of anyone
unfamiliar with these terms.
FRA proposes adding a definition for clearance point because this
term is necessary to describe an important concept that is used several
times in this subpart. The definition of ``clearance point'' means the
location near a turnout beyond which it is unsafe for passage by
equipment or a person riding the side of a car on an adjacent track.
While clearance points may be identified by marks on the rail, signs,
or other visible identifiers, these points are often referring to an
approximate location that will need to be deduced by an employee. FRA
proposes that railroads implement procedures for identifying such
approximate locations and for waiting to line hand-operated switches
away until equipment that has entered the track has passed this point.
See Sec. Sec. 218.101(c) and 218.103(e). Without a definition of
clearance point, it would be difficult to define what is meant by
``foul or fouling a track''. Through the proper identification of
clearance points, employees can avoid collisions and personal injury to
other employees riding the sides of cars.
FRA proposes a definition for correspondence of crossover switches
that should be familiar to people working in the railroad industry.
When straight tracks are connected so that rolling equipment may travel
or ``cross over'' from one straight track to another, the equipment
must pass over switches that control movement into the crossover track;
these are the crossover switches. When both crossover switches are
lined for the crossover, the crossover switches are in correspondence
because the rolling equipment may cross over from one parallel track to
another without running through either of the crossover switches.
However, if one crossover switch is lined for the crossover and the
other is lined for the straight track, the latter switch is lined
against a train movement exiting the crossover track and thus is deemed
out of correspondence. Similarly, if both crossover switches are lined
for the straight track, the switches are considered in correspondence
because no trains on the straight tracks should be diverted through a
misaligned switch and potentially into another train or other rolling
equipment.
FRA proposes adding a definition for foul or fouling a track
because this term is necessary to describe an important concept that is
used several times in this subpart. Foul or fouling a track means
rolling equipment or on-track maintenance-of-way equipment is located
such that any part of the equipment is between the clearance point and
the switch point leading to the track on which the equipment is
standing. In other words, when equipment is left standing on a track in
such a manner that a movement on an adjacent track would collide with
it, i.e., ``fouling a track,'' the potential for an accident is great.
Equipment, or a person riding a side of a car, on adjacent track could
strike the fouling equipment. This type of accident is usually a side-
swipe type accident and the severity of the accident depends on the
factors involved; e.g., the factors determining severity include, but
are not limited to, the speed of the moving equipment, the type of
equipment struck, the contents of the cars struck, whether a person was
riding a car and whether an occupied locomotive struck the equipment.
The issue of foul or fouling a track is addressed in Sec. 218.101,
where it is proposed that certain scenarios of fouling are avoidable
and thus should be prohibited.
FRA proposes a broad definition for hand-operated switch to
identify any type of switch when operated by manual manipulation,
including when operated by a push button or radio control, when such
switch is not protected by distant switch indicators, switch point
indicators or other visual or audio verification that the switch points
are lined for the intended route and fit properly. The definition
includes all switches which are normally operated by manual
manipulation of the switch lever. In this proposed rule, FRA has used
the term ``hand-operated'' to characterize the types of switches
normally operated by conductors, brakemen and switchmen whether or not
there is some electronic aspect to the operation of the switch.
Maintenance-of-way and mechanical
[[Page 60388]]
employees also have occasion to operate these switches. For lack of
better terminology, we are characterizing these other types of switches
as ``hand-operated'' even though a push button or radio control may be
used to throw the switch; for these types of switches, the ``manual
manipulation'' aspect is that the employee is required to throw the
switch and the electronic aspect of the switch manipulation is
primarily an option for avoiding personal injuries due to the throwing
of a switch lever. FRA reserves the right to include provisions in the
final rule to address these and related issues concerning power-
assisted switches. FRA does not intend to address issues related to
power-assisted switches operated from central consoles, whether within
or outside of signaled territory, when so operated. Finally, the
proposed requirements set forth for hand-operated switches in Sec.
218.103 are unnecessary when an employee can verify that the switch
points are lined for the intended route and fit properly, which can be
accomplished without observing the switch points in the case where the
switch is protected by distant switch indicators, switch point
indicators or other visual or audio verification. For example, the two
types of indicators provide a visual indication of the switch alignment
and other electronic advancements are capable of sending a message to a
receiver indicating the switch's alignment such that a visual check by
an employee to determine that the switch is properly aligned would be
redundant after receiving an electronic message that has already served
that purpose.
FRA proposes adding a definition of qualified which is identical to
the definition proposed for 49 CFR 217.4 in this notice. It is proposed
that a person cannot be qualified unless he or she has successfully
completed all ``instruction, training and examination'' programs
required by both the railroad and this subpart. Where FRA specifies
that a qualified employee is to do the work, it is because we want some
assurance that the person either has actual knowledge, or may
reasonably be expected to have knowledge, such that there is no
question the person should be able to do the work in accordance with
the railroad's operating rules. It is imperative that only employees
who have been qualified should do such work that the proposed rule
restricts to qualified employees because a railroad that allows
unqualified employees to do such work is increasing the likelihood of
an accident/incident.
FRA proposes a definition for remote control operator merely to aid
in the clarification of shoving or pushing movement requirements
involving remote control operations versus the requirements for
conventional operations. Remote control operators are ``locomotive
engineers'' per FRA's regulations found at 49 CFR part 240. Traditional
engineers, i.e., those persons qualified to operate conventional
locomotives, may be trained on remote control equipment--and are thus
qualified for remote control operations; in that situation, the term
remote control operator applies to the conventional engineer. Hence,
the term ``remote control operator'' is not limited to those persons
who only are certified to operate remote control locomotives but to
anyone certified to operate such locomotives. The industry uses the
shorthanded term ``remote control operator'' to refer to ``remote
control locomotive operators;'' unless FRA receives comments to the
contrary, we trust that no one is confused by the dropping of the
reference to ``locomotives'' in the terminology.
FRA proposes a definition for remote control zone in order to
permit a shoving or pushing operation that is safe and yet protected
differently from conventional shoving or pushing operations. This zone
is a term adopted by railroads that designate one or more segments of
track, typically in a yard, where remote control operations can safely
switch cars without point protection. Point protection is unnecessary
because other safeguards are put in place. Although the location for a
remote control zone may be permanent, the proposed regulation would
require certain conditions to be met each time a zone is used for its
intended purpose of allowing an operation without an employee assigned
to protect the leading end in the direction of movement, i.e., the
pull-out end, of the remote control movement. See Sec. 218.99(d).
FRA has noticed some confusion over the ``remote control zone''
terminology, and that it might help to distinguish it from a ``remote
control area.'' A ``zone'' is an integral part of remote control
operations, whereas an ``area'' describes for informational purposes
only a location within which remote control operations occur and does
not directly affect such operations. The ``area'' is usually created by
putting up signs to warn employees working in the vicinity that moving
locomotives may be unmanned. The ``area'' is typically larger than the
``zone'' as it covers anywhere the remote control operation could take
place. It is important to create these areas so that employees are
warned to use care in moving around the yard with the knowledge that
using hand signals to convey a message to a moving locomotive may be in
vain as there may not be an engineer in the cab to see them. Thus,
these terms do not mean the same thing and should not be used
interchangeably.
FRA proposes a definition for roadway maintenance activity to
distinguish between those duties prescribed for roadway workers,
including movement of on-track maintenance-of-way equipment other than
locomotives, and other types of duties that a roadway worker may
perform which are not so limited. In other words, a person designated a
``roadway worker'' may engage in an activity that is not a ``roadway
maintenance activity.'' This term is used to describe an exception to
the general shoving and pushing requirements. Incidentally, FRA
proposes using the term ``on-track maintenance-of-way equipment'' to
distinguish between other types of maintenance-of-way equipment that
may be left adjacent to a track--as opposed to ``on-track.''
FRA proposes a definition for roadway worker in charge in order to
provide a generic title to the roadway worker who is in charge of a
roadway work group. The designation of such a worker enables FRA to
propose leaving main track switches in such a person's charge as well
as being the conduit for switch alignment information when other
workers in the group have operated switches. The communication among
group members is similar in importance to the communication that is
required between train crewmembers. FRA intends this term to have the
same general usage as in subpart C of 49 CFR part 214.
FRA proposes a definition for switchtender because a few railroads
still utilize a worker with responsibilities for lining specific
switches for trains and a person with this position is not a
crewmember. FRA proposes a definition for this term because we want to
acknowledge that this type of worker may be qualified to operate
switches, so switches can be safely left in a switchtender's charge.
FRA has not defined ``switchtender'' in order to suggest that railroads
create such positions or that there is any sort of requirement to
employ switchtenders.
FRA proposes a definition for the term track is clear to describe a
checklist of conditions which must be visually determined before a
shoving or pushing movement may be initiated or continue. The visual
determination must be made by a qualified employee who is typically a
crewmember. If the four conditions for determining that the
[[Page 60389]]
track is clear are met, then if an accident occurs, it is unlikely to
be the fault of the person making the determination. That is, when the
portion of the track to be used is clear there should not be any
rolling equipment, on-track maintenance-of-way equipment or conflicting
movements that could collide with the shoving or pushing movement;
there should be no intervening motor-vehicles or pedestrians to strike
as all highway-rail grade crossings should be protected; there should
be no intervening switches or derails to run through or over as they
should all be properly lined for the intended movement; and, the
shoving or pushing movement should not accidentally place cars on a
connecting track if the portion of the track has sufficient room to
contain the equipment being shoved or pushed.
Within the definition of track is clear are the proposed conditions
for determining that intervening highway-rail grade crossings and
pedestrian crossings are protected. As shoving or pushing movements
typically occur without a locomotive engineer in a locomotive leading
the movement, it is vital to protect crossings to prevent easily
avoidable accidents. The proposed rule considers the crossing protected
if a crossing has working crossing gates and the gates are in the fully
lowered position. Whether or not there are working gates, a crossing
may be protected by stationing a designated and qualified employee at
the crossing who has the ability to communicate with trains. A third
proposed option for protecting a crossing would only be available when
crossings are equipped only with flashing lights or passive warning
devices; in that situation, it is proposed that the crossing would be
considered protected when it is clearly seen that no traffic is
approaching or stopped at the crossing and the leading end of the
movement over the crossing does not exceed 15 miles per hour.
Section 218.95 Instruction, Training and Examination
In paragraph (a), FRA proposes that each railroad maintain a
written program that will qualify its employees for compliance with
operating rules implementing the requirements of this subpart to the
extent these requirements are pertinent to the employee's duties. Thus,
the pool of employees that would need to be covered by the proposed
program are those employees involved in shoving or pushing operations,
remote control operations, and any operation where equipment might be
left fouling a connecting track--as well as any employee that may be
required to operate hand-operated switches and derails. The written
program may be a stand-alone program or consolidated with the program
of instruction required under Sec. 217.11 of this chapter. FRA
anticipates that most railroads would choose to consolidate this
program with the part 217 requirement. Although FRA encourages the
efficiencies consolidation is sure to bring, FRA's expectation is that,
if the proposed rule is implemented, the consolidated written program
will sufficiently stress the requirements of this subpart.
Proposed paragraphs (a)(1) and (a)(2) provide more details
regarding what should be included in the written program. Paragraph
(a)(1) would require that the program include instruction on
consequences of non-compliance, i.e., that FRA can take enforcement
action through civil penalties or disqualification from safety
sensitive service. See 49 CFR part 209, subpart D--Disqualification
Procedures. Paragraph (a)(2) proposes that the written program address
the need to qualify employees on all aspects of the technology the
employees will be utilizing when complying with the operating rules
that would be required by this subpart. For example, employees may be
expected to operate a variety of hand-operated switches and must be
taught how to properly operate them as well as what to do if a
malfunction or deviation is detected.
Paragraphs (a)(3) and (a)(4) address the implementation schedule
for this subpart. Paragraph (a)(3) states that after 12 months from the
publication date of the final rule, employees performing duties subject
to these requirements shall be qualified per the minimum requirements
in this subpart. However, it is further proposed under paragraph (a)(3)
that employees who are hired during the 12 months following the
publication date of the final rule would not be provided such a grace
period; instead, it would be expected that new hires would receive the
proper qualification training before being allowed to perform duties
subject to the requirements of this subpart. Furthermore, under
proposed paragraph (a)(4), after 12 months from the publication date of
the final rule, FRA proposes no further grace period and that employees
receive recurrence training at least every three years; FRA proposes
this three year window because it is a standard industry practice to
re-qualify employees on operating rules at least every three years.
Finally, pursuant to paragraph (a)(5), FRA proposes that the record for
each employee shall document qualification of employees under this
subpart by including any records of required instruction, examination
and training.
This section does not make specific reference to qualification of
employees on the territory where they will be working, but it is
implicit that this must be done where necessary to provide the
knowledge required to comply with the subject rules. During the RSAC
discussions, labor representatives asked for a more explicit
recognition of this requirement. However, it was not immediately
obvious to FRA personnel how this concept should be applied in the
subpart F context. Unfortunately, time available to develop this issue
in the RSAC Working Group was limited. Accordingly, FRA requests any
further comment that is appropriate to develop this issue and reserves
the right to include appropriate language in the final rule.
In paragraph (b), FRA proposes that qualification records required
by this subpart be retained at a railroad's system headquarters and at
the division headquarters, if any, where the employee is assigned. This
will enable FRA to quickly obtain such qualification records upon
request. FRA has not proposed a retention schedule for these records as
we believe the proposed section mandates that at a minimum: (1) Records
must be kept for each employee qualified and (2) when an employee is
requalified, there is no longer a need for a railroad to retain the old
record as it has been superceded by the new one.
Proposed paragraph (c) provides a mechanism for FRA to review and
disapprove of a railroad's written program required under paragraph
(a). It also proposes minimum procedures and structure to the review
process. The proposal would require that the Associate Administrator
for Safety only disapprove programs of instruction, training and
examination required by this section for cause stated. As the
disapproval decision is made for cause, it is significant for the
railroad to understand exactly why FRA is disapproving the program;
thus, FRA proposes that its notification of such disapproval be made in
writing and specify the basis for the disapproval decision. If the
Associate Administrator for Safety disapproves the program, it is
proposed that the railroad be provided an opportunity of not less than
30 days to respond and to provide written and/or oral submissions in
support of the program. It will be up to the Associate Administrator
for Safety to grant additional time to respond in the rare instances
that the railroad requests more than 30 days. The Associate
Administrator for Safety shall render a
[[Page 60390]]
final decision in writing and the railroad shall be provided not less
than 30 days to amend the program in accordance with the Associate
Administrator for Safety's decision. Again, on a case-by-case basis, it
is proposed that the Associate Administrator for Safety may provide a
railroad with additional time to correct a disapproved program.
Although enforcement action is always discretionary, FRA believes that
enforcement action is warranted when a railroad fails to appropriately
and timely amend its program.
The approach in proposed paragraph (c) recognizes that FRA will
want to review such written programs during audits or investigations
and that FRA should have the authority to request changes to the
program if it does not meet the minimum requirements of this rule. The
oversight authority vests with the Associate Administrator for Safety.
Although FRA would have authority to review in detail each railroad's
program, FRA does not intend to have each railroad submit its program
for review and explicit approval. Rather, FRA intends to review the
qualification programs of the major railroads over a multi-year cycle,
in connection with review of the overall program of operating rules, to
determine if they are effective. Among the factors that would be
considered would be the extent to which the program was founded on
appropriate task analysis, the completeness of the curriculum, the
types of instructional methods, appropriateness of written and other
tests, criteria for successful completion, and--most importantly--the
ability of employees said to be qualified to apply the rules in
practical situations.
The proposal is for the Associate Administrator for Safety to
render a final decision in writing. FRA solicits comments regarding the
need for further appeals within FRA. Finally, FRA solicits comments
regarding whether proposed paragraph (c) should instead be moved to
Sec. 217.11 of this chapter in order to give the Associate
Administrator for Safety explicit review over a railroad's entire
program of instruction on operating rules.
Section 218.97 Good Faith Challenge Procedures
The main purpose of requiring that each railroad establish
operating rules containing certain minimum requirements under this
subpart is to ensure safe handling requirements of certain operations
by employees where human factor caused accidents have historically
occurred. Codifying these requirements will enable FRA to take
enforcement action when necessary, and will therefore discourage non-
compliance with these important safety rules. FRA is convinced that
human factor caused accident rates and incidents of non-compliance
would be significantly lower if each railroad were properly qualifying
employees and consistently enforcing its own operating rules. FRA's
perception is that on occasion some railroad officers are permissive in
allowing occasional violations of operating rules in order to achieve
short-term perceived efficiencies. For example, a railroad officer may
order an employee to shove blind, i.e., without ensuring that the track
is clear for the movement, in an effort to finish a job quickly and get
a train out of the yard. If the move originated from a direct order by
a railroad official, the employee might fear challenging the railroad
official on the order or might have complied with so many similar
orders in the past as to not perceive the danger in occasionally
violating an operating rule. Another example could occur when an
employee is told he or she may leave work early as soon as a particular
assignment is complete. Rather than taking the longer but safer route
to determine that a switch was left properly lined, the employee
assumes the switch was left properly lined, even though some time has
passed since the employee last observed it. This proposed rule is
intended to check emergence of the culture that sometimes accepts some
degree of non-compliance with a railroad's operating rules.
One essential aspect of changing this undesirable culture of
complacency with some non-compliance is to establish better lines of
communication between employees and railroad officers. An employee who
is well trained and qualified to do the work, as FRA is proposing by
requiring railroads to have a written program in section 218.95, should
readily recognize when a railroad officer has given the employee an
order that does not comply with the railroad's own operating rules. In
order to address this issue, FRA is proposing good faith challenge
procedures.
The good faith challenge procedures are about establishing
dialogues between employees and railroad officials. A good faith
challenge is initiated by an employee who believes that if he or she
obeys a particular order issued by a railroad official, the employee
would violate one or more of the operating rules required by this
proposed subpart. At its core, the good faith challenge and its
attendant procedures should force a railroad official to listen to an
employee's concern regarding such an order and to reconsider the
validity of the order. FRA has created a mechanism for appealing the
first official's order to a second official in the situation where
dialogue and compromise do not resolve the discrepancy. FRA refers to
the challenge as the ``good faith'' challenge because we do not intend
for employees to abuse it. For example, if several experienced
employees in a particular yard were all to initiate separate challenges
where no real dispute could be articulated, this concerted effort to
create a work stoppage or slowdown would be in bad faith and would not
shield the employees from the proposed protections required in each
railroad's written procedures. Meanwhile, we expect bad faith
challenges to never or rarely occur and for the challenge to provide,
in part, for a dialogue between employee and supervisor that railroads
should be permitting and encouraging without being prompted by
regulation. Of course, if the good faith challenge is implemented and
found to be regularly abused, FRA would consider amending or abolishing
the challenge.
FRA's proposal to institute minimum good faith challenge procedures
is not without precedent. FRA's current regulations require employers
of roadway workers to ``have in place a written procedure to achieve
prompt and equitable resolution of challenges''. 49 CFR 214.311 and
214.313. In FRA's experience, and in anecdotal information received by
union representatives, the roadway worker good faith challenge has been
a great success. To FRA's knowledge, all challenges by roadway workers
have been immediately resolved between the roadway worker and the
railroad official who issued the order. FRA originally considered a
proposal that would mirror the roadway worker good faith challenge
approach, and we certainly encourage interested parties to comment on
whether that approach should be applied here.
FRA has proposed good faith challenge procedures that are more
detailed than those established for roadway workers because the
officer/employee relationship dynamic is different for roadway work
versus operations work. That is, the strict chain of command is more
prevalent in operations than roadway work. Thus, a supervisor of
roadway work may be more accepting of a challenge than an operations
supervisor, e.g., a yardmaster.
Paragraph (a) proposes general procedures for implementing a good
faith challenge specific to the requirements of this subpart; railroads
[[Page 60391]]
or employers of railroad employees subject to this subpart, of course,
are free to implement a good faith challenge in areas not subject to
this subpart. Paragraph (a) proposes that each employer be responsible
for the training and compliance by its employees with the requirements
of this subpart. Obviously, railroads will have to instruct employees
on all aspects of the good faith challenge or it will have no effect.
FRA intends to take enforcement action where a railroad fails to
properly instruct employees or a railroad's officers fail to comply
with implementation of the good faith challenge procedures.
Paragraph (a)(1) proposes that each employer guarantee each
employee the right to challenge in good faith as to whether the
procedures that will be applied to accomplish a specific task comply
with the requirements of this subpart or any operating rule relied upon
to fulfill the requirements of this subpart. Thus, the proposal's
applicability would only be for a challenge to any order that violates
a requirement in proposed subpart F. Paragraph (a)(1) of the proposed
rule would require a railroad to adopt and implement written procedures
as the mechanism for instituting the good faith challenge. Such written
procedures should not lead to protracted arguments that are unusually
disruptive to operations as FRA proposes that each railroad's
procedures provide for ``prompt'' challenges. FRA's expectations are
that such challenges should be resolved in a matter of minutes,
certainly not an hour or more. It is within this context that FRA also
specified the concept that a railroad's written procedures provide for
``equitable resolution of challenges;'' by proposing this requirement,
FRA meant for a railroad officer to give deference to an employee's
challenge if the employee has suggested a safe way to do the work that
is in compliance with the relevant operating rules. Follow-up to
clarify the correct application of the rule leading to the challenge
can be done at a later time or date so that a definitive answer may be
provided by the railroad to the railroad officer and employee involved;
e.g., a railroad's manager of operating rules may want to issue a
bulletin generically outlining the challenge and the proper application
of the rule. As a good practice, a railroad should take this extra step
to clarify a definitive answer even if the employee does not request
such a review, as provided for in proposed paragraph (c)(4), as it may
be used as a learning experience for other employees.
Proposed paragraph (a)(2) requires that a railroad's good faith
procedures indicate that the challenge is not intended to supplant any
rights or remedies available to the employee under a collective
bargaining agreement or under the statute providing for employee
protections found at 49 U.S.C. 20109. The statutory provision permits
an employee to file a complaint and testify against a railroad, as well
as refuse to work because of hazardous conditions, without fear that a
railroad will discriminate, discharge or otherwise take retribution
against the employee. Additionally, the statute provides a mechanism
for dispute resolution under the Railway Labor Act if the employee
wishes to file a dispute, grievance or claim arising under the
statutory protection provisions. In other words, an employee who makes
a good faith challenge, but is ordered to do the work pursuant to
proposed paragraph (c), may still refuse to work because of hazardous
conditions and seek the protection prescribed in 49 U.S.C. 20109. While
it is proposed that railroads indicate that the good faith written
procedures are not intended to abridge these other rights and remedies,
the proposed rule does not require that railroads must educate their
employees on these other protections, because those protections are
generally applicable to all aspects of railroad operations--not merely
to the three areas of concern addressed by the subpart. Employees may
want to take this opportunity to self-educate or unions may want to
take this opportunity to remind their members of the other employee
protections available that are separate from this rule.
Paragraph (a)(3) proposes that a railroad instruct affected
employees on the good faith challenge procedures contemporaneously with
the training railroads are required to provide under 49 CFR 217.11. The
idea is that an employee's chance of understanding the proper
application of the good faith challenge should be greatest at the time
the employee is receiving instruction on the relevant operating
rule(s). Of course, FRA does not expect a railroad to instruct an
employee whose duties do not involve handling equipment, switches and
derails. If an employee's duties change to include these activities,
the railroad will have to provide the instruction prior to assigning
the new duties.
The good faith challenge procedures are a critical component of
FRA's proposal, which is narrowly tailored with the intention to drive
down the number of accidents caused by human factors. Employees learn
in the classroom but there are often so many topics covered in an
operating rules class that it could be difficult for an employee to
retain everything taught. To compensate, railroads traditionally
provide operating rule books not only to put employees on notice that
compliance with these rules is expected, but also, as a reference so
that each employee can check the rules and be reminded of their
requirements. In similar fashion, FRA proposes a requirement in
paragraph (a)(4) that each railroad provide a copy of its written good
faith procedures to each affected employee, as well as any amendments
to its written procedures prior to the effective date of the
amendments. Also, like any other record FRA requires, a railroad would
need to make the written procedures available for inspection by FRA.
Paragraph (b) proposes additional procedures for each railroad to
include in its written good faith procedures. Each of these more
specific requirements lays the framework for what FRA envisions as a
respectful dialogue between two individuals with differences of opinion
on an operations issue with a safety component; the two individuals
are, of course, an employee and a railroad officer.
Paragraph (b)(1) proposes granting each employee the right to
challenge any directive which, based on the employee's good faith
determination, would cause the employee to violate any requirement of
this subpart or any operating rule relied upon to fulfill the
requirements of this subpart. The good faith challenge procedures
should eliminate any stigma employees have regarding challenging
railroad officers on safety issues pertaining to handling equipment,
switches and derails. Likewise, standardization of the challenge should
cause railroad officers to truly reflect on the orders issued and
whether any aspect of an order would result in non-compliance with the
relevant railroad operating rules.
Paragraph (b)(2) specifies a proposed requirement that each
railroad's good faith challenge procedures shall include a provision
stating that the railroad will not seek retribution against an employee
who makes a challenge in good faith. A properly instructed employee,
exercising the right as specified in paragraph (b)(1), should feel
confident that he or she will not be discharged, demoted, or otherwise
discriminated against for making a legitimate challenge. Employees
should be aware that this process will not protect the employee if the
employee is proven to abuse the challenge. Meanwhile, merely being
proven wrong regarding the
[[Page 60392]]
application of an operating rule does not prove abuse of the challenge.
A challenge may be made in ``good faith'' if the employee is unsure of
the correct application of the rule and seeks clarification. Similarly,
if the employee misunderstands the rule or its application, that does
not equate with raising a challenge in bad faith. If FRA's roadway
worker good faith challenge is any indication of future compliance, we
look forward to all challenges being made in good faith.
Paragraph (b)(3) proposes a requirement that the good faith written
procedures state ``that no work is to be performed with respect to the
challenged task until the challenge is resolved.'' This is similar to
the roadway worker requirement that the employer's procedures allow the
challenging employee ``to remain clear of the track until the challenge
is resolved.'' 49 CFR 214.311(b). However, while this requirement has
posed no problems for employers of roadway workers, FRA has added
additional clarification and procedures to the proposal to make
absolutely certain that we are not advocating a work stoppage or
slowdown. As previously stated, the procedures are to be drafted so
that they provide for a ``prompt'' resolution of challenges as provided
in paragraph (a)(1).
The proposed regulation identifies four ways that a challenge may
be ``resolved.'' One, we expect that some railroad officers when
challenged will realize they made a mistake and will defer to the
employee's suggested alternative method of operation that should be in
compliance with the operating rules. Two, after making a challenge and
receiving an explanation or recitation of the rule from the officer, an
employee may likewise realize his or her mistake and quickly defer to
the officer's directive. Three, in some situations, the challenge may
lead to a discussion of options on how the task can be performed in
compliance with the operating rules. That discussion may lead to a
realization either that both persons were only partially correct or
there is another option not previously asserted. Under those
circumstances, an amicable resolution would be the advancement of a
third option that was reached through communication and compromise, and
is therefore satisfactory to both parties. The fourth way a challenge
may be ``resolved'' is with a direct order to proceed with the work as
initially ordered. A direct order should be a last resort and FRA
requests comments regarding whether the rule should require that the
written program indicate a preference that railroad officers always
attempt to resolve good faith challenges amicably before seeking
further review by a second railroad officer as proposed in paragraph
(c).
For the direct order to proceed with the work as initially ordered,
FRA proposes additional requirements for each railroad's written
procedures that are intended to encourage a rational approach to the
disputed issue. The written procedures shall provide for further review
any time a challenge is resolved by issuing a direct order that is
unacceptable to the challenging employee. FRA intends this further
review be made by a railroad officer who cannot be unduly influenced by
the officer who issued the initial order; we hope to accomplish that by
requiring that the reviewing officer be a different officer who is not
a subordinate of the officer who issued the initial order. As this
review is envisioned as just a quick check with another officer, the
employee shall not be required to do the work as ordered until the
second, reviewing officer has made a decision. FRA requests comments
regarding whether some smaller railroads may have difficulty complying
with this proposed requirement and, if so, suggestions regarding
alternative options for providing fair review would be appreciated. FRA
also requests comments regarding whether the review should always be
made directly to officers in the railroad's operating rules department,
as improved communications has made the final railroad decision-makers
more easily accessible for providing on-the-spot interpretative
guidance.
The proposed written procedures shall also provide the employee
with the right to document any protest and provide that the employee be
advised that completing the work under protest and as ordered will not
subject the employee to Federal civil penalties. These additional
requirements are not just prudent but reflect existing statutory
requirements. 49 U.S.C. 21304. These procedures do not supercede the
statutory requirements nor do they exceed them. Thus, the time needed
to document a protest should not pose a new burden on railroads.
The direct order procedures shall also provide the employee with
the right to one more review by a railroad officer designated by name
or title in the written procedures who will make the final
interpretation of the applicable operating rule. It is not expected
that this review be immediate but that the written procedures will
specify a reasonable period after the incident in which the railroad
will get back to the employee with a formal interpretation of the issue
in question. This review can be as simple as a call from a railroad's
manager of operating rules to the employee with an explanation.
However, a call will not be sufficient if the employee requests that
verification decision in writing.
During the RSAC Railroad Operating Rules Working Group meetings,
AAR and APTA voiced opposition to the idea of the promulgation of a
good faith challenge. Both associations were concerned that
implementation of such a challenge would pose numerous logistical
difficulties as well as a perceived high potential for abuse by
employees. One concern raised was that on-time performance could easily
be compromised if an employee raised a challenge and a quick compromise
solution could not be reached. FRA does not believe it needs to address
this issue as it is one that would need to be addressed by each
individual railroad by setting up effective protocols for supervisors
to follow when issuing direct orders to proceed; i.e., each yardmaster
or other supervisor who may need to issue a direct order to proceed
should know who to contact in the event that an immediate review is
requested. For example, a railroad may wish to provide contact lists to
each supervisor of other supervisors so that each supervisor has
multiple people to contact in the event a challenge needs immediate
review. FRA welcomes suggestions on how to address this issue on
smaller railroads with few supervisors available to conduct such
immediate reviews.
Another perceived concern that arose from an FRA draft proposal
before the RSAC's Railroad Operating Rules Working Group was that train
delays could result from finding a second officer to provide the
immediate review prior to execution of a direct order. Additional time
delays would result if an employee had the right to immediately
document the challenge before returning to work. FRA has addressed this
issue by proposing in paragraph (c)(2) that the employee be afforded an
opportunity to document the protest electronically (e.g., by radio
transmission to be recorded) or in writing any time ``before the tour
of duty is complete.''
AAR also asserted that FRA did not have the authority to promulgate
such a challenge as a statutory provision vested employee protections
under the Railway Labor Act. See 49 U.S.C. 20109(c). FRA respectfully
disagrees. The statutory provision provides that ``a dispute,
grievance, or claim arising under this section [Sec. 20109] is subject
to resolution under section 3 of the Railway Labor
[[Page 60393]]
Act (45 U.S.C. 153)'' but does not preclude FRA from promulgating other
employee protections when the underlying basis is to promote safer
railroading. AAR also points to the legislative history in which the
House of Representatives Committee on Interstate and Foreign Commerce
commented that ``[t]he Committee intends * * * [the Railway Labor Act]
to be the exclusive means for enforcing this section [and] * * * does
not intend for FRA to be involved in this area.'' H.R. Rep. No. 96-
1025, at 16 (1980). FRA agrees that it does not have any authority to
resolve employee protection disputes under Sec. 20109 and we have no
intent to do so. FRA's proposal to institute good faith challenge
procedures is not an attempt to vest FRA with the authority to resolve
labor disputes but instead is an attempt to provide employees with a
formal process by which they may, in good faith, challenge orders that
they believe will require them to violate certain railroad operating
rules. The good faith procedures do not amount to a refusal to work and
do not supplant or supercede the statutory protections. Instead, FRA
proposes to instill compliance with the good faith procedures through
its well-defined enforcement policy (see 49 CFR part 209, app. A) and
not by usurping the National Railroad Adjustment Board's authority to
resolve labor disputes, grievances or claims.
Section 218.99 Shoving or Pushing Movements
Generally, in conventional operations, shoving or pushing movements
occur when the controlling locomotive is not leading the movement
because the locomotive engineer is not in a position to have an
unobstructed view of the track in the direction of the shoving
movement. However, in remote control operations, there may be an issue
with respect to point protection in either direction of movement. The
terms ``shoving'' and ``pushing'' have the same meaning but FRA uses
both terms because our nation's railroads have split in the usage of
each term. Proposed paragraph (a) would require that each railroad have
in effect an operating rule that complies with the requirements in
paragraphs (b) through (d) and that each railroad officer, supervisor,
and employee shall uphold and comply with that rule. The purpose for
proposing that each railroad officer, supervisor, and employee shall
uphold and comply with that rule is so that all effected employees will
be required to follow the operating rules FRA proposes that each
railroad maintain as opposed to merely requiring that each railroad
have in effect such a rule.
As specified in paragraphs (b) through (d), shoving or pushing
movements can be made safely if precautions are taken. This proposed
section states those minimum precautions and requires that each
railroad have in effect specific operating rules incorporating the
precautions. The precautions proposed take direct aim at those human
factor causes that have been identified as causing the increasing trend
of non-compliance and accidents. As specified in paragraph (e), there
are other movements that could be considered shoving or pushing
movements but FRA believes these other movements can be treated
differently as they are safe if certain operating conditions are met.
Paragraph (b)(1) proposes that prior to rolling equipment being
shoved or pushed, the locomotive engineer and the employee directing
the move should be required to participate in a job briefing which will
cover the means of communication to be used and how protection will be
provided. The job briefing requirement in this proposed paragraph would
require that the engineer (conventional or remote control operator)
shall have a job briefing detailing the method of communication used to
relay information, e.g., radio, hand signals, or pitch and catch. If
the employee providing protection is not part of the crew, the job
briefing shall include how that qualified employee will provide that
protection; for example, if a yardmaster is the qualified employee, the
conductor directing the move would explain in the briefing that the
yardmaster intends to provide point protection by viewing a monitor
that provides a real-time image of the track from a camera set up in
the yard. Under this scenario, the yardmaster would be performing
covered service under the hours of service laws.
Paragraph (b)(2) proposes requirements for establishing point
protection during shoving or pushing movements. The proposal would
require that only a crewmember or other qualified employee shall
provide point protection. In this context, crewmembers or qualified
employees include remote control operators working together, members of
other train crews, and other employees, regardless of job title, who
are qualified to perform the job (see definitions of ``employee'' and
``qualified'' in this proposed subpart). The requirements of this
proposed section mandate work that is ``covered service'' under the
hours of service laws. 49 U.S.C. 21101, et seq. Thus, to be a qualified
employee, the employee will need to receive instruction and testing, be
subject to Federal regulations controlling alcohol and drug use and
hours of service recordkeeping provided for, respectively, in parts
217, 219 and 228 of this chapter. The purpose of requiring a qualified
employee, as opposed to any employee, is to prevent persons that may
not be qualified (e.g., taxi drivers, crane operators, or clerks) from
making safety sensitive operating decisions without the proper
instruction and safeguards in place. Incidently, if an unqualified
person were to perform this work in violation of the proposed rule, the
person would still have to be accounted for under the hours of service
laws or the railroad would incur additional liability.
Paragraph (b)(2)(i) proposes a requirement that the employee
providing point protection visually determine, for the duration of the
shoving or pushing movement, that the track is clear within the range
of vision or for the complete distance to be shoved or pushed. Shoving
accidents often occur because a train crew makes a shoving movement
without determining that the track is clear in the direction of
movement. This proposed paragraph would address this problem by
requiring an operating rule that keeps a qualified employee observing
the track to make sure it is clear and remains clear. A definition of
``track is clear'' is proposed in Sec. 218.93. Each railroad will need
to incorporate this definition in its operating rules so that operating
employees will be instructed on the proper way of making the
determination that the track is clear. If the requirements for track is
clear are met, there should be a drastic reduction in the number of
shoving movement accidents.
Paragraph (b)(2)(i) proposes that a crewmember or other qualified
employee shall visually determine, for the duration of the shoving or
pushing movement, that the track is clear, either within the range of
vision or for the complete distance to be shoved or pushed. This means
that if the crewmember or other qualified employee responsible for
controlling the shoving or pushing movement can directly and
continuously observe the track for the entire movement to be shoved or
pushed, the employee may initiate and continue the movement for the
full distance of the movement. For example, if a shoving movement of
less than 100 car lengths is to be made onto track that is capable of
holding 100 cars and a crewmember or other qualified employee observes
that the track is clear for the entire length of the track, the
[[Page 60394]]
employee may initiate movement onto or down the track; as the shoving
movement continues, the employee will provide updates to the locomotive
engineer, as necessary, until the entire movement is complete.
Meanwhile, if the employee providing the visual determination can only
see part of the way down the track to be shoved or pushed, the employee
will only be permitted to initiate movement for the distance that the
employee can directly and continuously observe. In this second example,
the facts are the same except that there is curvature in the track that
does not allow the observing employee to see more than 20 car lengths
at a time; in this situation, the employee may initiate movement onto
or down the track but must have either continuous visual contact with
the engineer or be in radio communication with the engineer, so as to
provide distance instruction on how far the engineer may safely shove,
until the shoving or pushing movement is complete.
FRA notes that, inherent to the success of this procedure is
compliance with restricted speed requirements, which limit movements
within yard limits and on yard tracks to a speed that permits stopping
within one-half the range of vision but not more than a stated speed
(normally 15 or 20 miles per hour). Compliance with restricted speed is
mandatory under subpart C of Part 218 for main track operations within
yard limits, but the rule is silent with respect to yard and industry
tracks. Commenters are asked to address whether, in order to
effectively implement the protection for shoving moves embodied in this
proposal, FRA should expressly incorporate restricted speed
requirements.
FRA intended to provide railroads and qualified employees with the
option of making the visual determination required in proposed
paragraph (b)(2)(i) with the aid of monitored cameras or other
technological means, provided that the technological means and
attendant procedures provide an equivalent level of protection to that
of a direct visual determination. Some concerns are that any monitored
camera must have sufficient resolution and real time coverage to
provide protection equal to direct visual determination. Concerning
attendant procedures, one such procedure may be for an employee viewing
a monitor to communicate updates to the locomotive engineer or
controlling crewmember at appropriate intervals. Another attendant
procedure may be the need to limit the monitoring employee so that
ancillary duties would not greatly distract from the employee's ability
to provide continuous visual determinations and communication. Other
technological means may include, but are not limited to, real-time
satellite imaging of sufficient resolution, a completely circuited
track indicating track occupancy, and electronic switch position
indicators.
The requirements listed in paragraph (b)(2)(ii) propose that a
crewmember or other qualified employee give signals or instructions
necessary to control the movement. Such signals or instructions may be
made verbally, i.e., either via face-to-face or radio communication.
However, any effective method of communication is acceptable. For
example, some acceptable forms of communication include, but are not
limited to, hand signals, whistle signals, and electronic signals
utilizing remote control technology.
In paragraph (c), FRA proposes to treat all remote control
movements as shoving or pushing movements, except when the remote
control operation is being conducted like a conventional pulling
operation such that the operator controlling the movement is riding the
leading locomotive in a position to observe conditions ahead in the
direction of movement. FRA suggests that this treatment is necessary
because the safe application of remote control operations warrants it.
Those who are familiar with remote control switching operations should
find these proposed requirements compatible with most current operating
rules. Thus, FRA's intention is to require those rules which reflect
best practices.
Paragraph (c) also proposes an additional requirement for remote
control operations during shoving or pushing movements. This additional
requirement is necessary so that the remote control operator, either
directly or indirectly, can confirm that the movement is observed
moving in the direction intended. If the remote control operator does
not confirm or receive confirmation that the equipment is traveling in
the intended direction, the operator must immediately stop the
movement. Accident reports indicate that remote control operators who
have forgotten which way the controlling locomotive is headed may
unintentionally make a reverse movement when a forward movement was
intended, or vice versa; had these operators been abiding by this
proposed rule, the accidents would have been avoidable. FRA previously
elaborated on this issue in the SUPPLEMENTARY INFORMATION section
titled ``Situational Awareness.''
In paragraph (d), FRA recognizes that many railroads utilizing
remote control technology will create a designated area of track,
controlled by a remote control operator, that can make a remote control
operation more efficient; this area is called a remote control zone and
it is defined in this subpart. When a remote control zone is activated,
a designated remote control operator has the authority to deny other
movements entry into the tracks designated as within the zone. However,
it is not until the remote control crewmembers determine that a
particular segment meets the definition of ``track is clear'' that the
operation may shove, push, or pull cars into the cleared track segment
of the zone without providing point protection as proposed in paragraph
(b)(2). The act of determining that the segment of track is clear is
commonly referred to as ``conditioning the track'' or ``a conditioning
run.''
Paragraph (d) proposes that the point protection required by
proposed paragraph (b)(2) may be avoided for a remote control operation
that is shoving within an activated remote control zone, as long as the
movement will take place on the pull-out end, the track is clear for
the movement, and the zone is not jointly occupied and has not been
jointly occupied since the last determination that the track is clear.
If conditions change, such that the track is no longer clear, point
protection must either be provided or a new conditioning run conducted
by the remote control operator(s). For example, each time that a remote
control operator allows equipment, unrelated to the operator's remote
control movements, to enter the activated zone, i.e., the zone has been
jointly occupied, the remote control crewmembers cannot be certain that
the track segment into which a shove is planned is clear until another
conditioning run is completed. FRA does not believe it is sufficient to
rely on a communication from a member of another train crew in
determining the track is clear as this situation has led to previous
accidents.
Paragraph (d)(1) specifies that the remote control zone exception
to the point protection requirements in paragraph (b)(2) are proposed
only for remote control movements that are operated from a controlling
locomotive on the leading end in the direction of movement. This
describes a movement that is typically referred to as a remote control
movement occurring on the pull-out end. When the controlling remote
control locomotive is not located on the leading end in the direction
of movement, it is proposed that the operation shall establish point
protection as prescribed in paragraph (b)(2) regardless of whether the
[[Page 60395]]
operation is to take place within the remote control zone.
In paragraph (d)(2), FRA proposes to provide an acceptable method
for one remote control crew to pass onto a relieving remote control
crew an activated zone that meets the definition of track is clear.
Some railroads currently allow for this transfer for efficiency
purposes; otherwise, any relieving crew would need to do its own
conditioning run prior to making shoving moves on the pull-out end of a
remote control zone without point protection. As remote control crews
must take their own safety into account when conditioning a zone and
making sure the track remains clear, the transferring of a zone is
likely to continue to be a safe practice. If FRA develops any accident
data to suggest that this is an unsafe practice, we will reconsider
this allowance and likely require that the relieving crew conduct its
own conditioning run.
Paragraph (d)(3) proposes a determination that the zone may not be
jointly occupied and has not been jointly occupied since the last
determination that the track is clear. The second condition of that
determination is arguably redundant given the first condition that the
track is clear. However, FRA is rephrasing this extremely important
requirement because we do not want railroads or employees to believe
that it is acceptable to establish a zone, allow a train into the zone,
and fail to recondition the track based on previous determinations.
Even if another crew jointly occupied the zone and communicated to the
remote control crew the position of each relevant switch and that the
track in the zone is clear, this second-hand information has proven
less reliable than information conveyed by remote control crews--so an
exception is not justified here.
As specified in paragraph (e), shoving or pushing movements are
safe under certain operating conditions and, thus, FRA proposes to
exempt these listed operations from the requirements in paragraphs (b)
through (d) under the specified conditions. One, proposed paragraph
(e)(1) is a recommendation to exempt push-pull operations when operated
from the leading end in the direction of movement because, if a cab
control car is on the leading end of a movement and a locomotive
engineer is operating the cab control car from the leading end, the
operation is as safe as a conventional locomotive operation that does
not involve shoving or pushing. Two, paragraph (e)(2) also describes a
situation where a locomotive engineer is operating from the leading,
controlling locomotive and it is only manned helper locomotives or
distributed power, i.e., unmanned locomotives, that are shoving or
pushing.
Pursuant to proposed paragraph (e)(3), the third operational
exception to the proposed shoving or pushing minimum requirements set
out in paragraphs (b) through (d) of this section is the allowance of
the performance of roadway maintenance activity under the direct
control of a roadway worker performing work in accordance with railroad
operating rules specific to roadway workers. In other words, a
crewmember or qualified employee is not required when a train crew is
working under the direct control of a roadway worker and that roadway
worker can provide adequate point protection. For example, if a ballast
or work train is operated by a train crew, a roadway worker may direct
the ballast or work train crew to move the train in order to perform
the maintenance activity. To the contrary, this proposed exception
would not permit a railroad to have an operating rule allowing a
roadway worker to direct a train crew on logistical or revenue moves
and such action would violate proposed paragraph (c) of this section.
Proposed paragraph (e)(4) permits an exception from the proposed
shoving and pushing rules because few of the shoving or pushing
accidents have occurred on main track. From 2002 through 2005, only
about 5 percent of shoving or pushing accidents occurred on main track.
However, in order to make this exemption work, a long list of
conditions apply that would provide an equivalent level of safety to
that of the proposed requirements found in paragraphs (b) through (d)
of this section. The requirements should look familiar to the industry
as the requirements follow commonly used railroad operating rules. See
General Code of Operating Rules (GCOR) 5th Edition (effective Apr. 3,
2005), GCOR 6.5, 6.6, and 6.32 and, Northeast Operating Rules Advisory
Committee (NORAC) 138c. The following clarification is provided for a
few of the requirements that may not be quite as evident as the others.
Paragraph (e)(4)(i)(A) proposes that if another movement or work
authority is in effect within the same or overlapping limits, the
shoving or pushing movement shall not be initiated until the leading
end of the movement is protected by a qualified employee. Paragraph
(e)(4)(ii) proposes that movement is limited to the train's authority
because the danger of an accident increases substantially when a train
shoves beyond the limits of its current authority. The proposed
requirement in paragraph (e)(4)(iv) is met by meeting either (A), (B)
or (C), as meeting any one of these three requirements should ensure
safe movement into and over a highway-rail grade crossing or pedestrian
crossing as those terms are defined in the definitions section of this
subpart. To meet the requirement of proposed paragraph (e)(4)(iv)(B), a
designated and qualified ``employee,'' as defined in this subpart, must
be stationed at the crossing and have the capability to communicate
with trains in sufficient time to inform the train of the condition of
the crossing; the proposed rule does not specify the method of
communication as the key issue is that the communication be effective.
In paragraph (e)(4)(v), FRA uses the undefined terms ``interlocking
limits'' or ``controlled point limits'' although FRA does refer to
these terms elsewhere in this chapter; FRA did not define these terms
because we believe the railroad industry is familiar with what we mean
by these terms. They are commonly understood terms of art. See 49 CFR
236.753. In paragraph (e)(4)(v)(C), a crewmember is in a position to
determine that the train's movement has occupied the circuit
controlling a signal such that the crewmember has the ability to
determine that it is the leading wheels of his or her own movement that
has activated the signal circuit.
FRA is concerned that technology used to contain remote control
operations within zones, where remote control operators cannot directly
observe the far end of the pull-out movement, be sufficiently secure to
prevent incursions into other rail operations. Although the rule text
does not contain language on this point, FRA requests comment on
whether such technology should be required to fail safe in design or at
least include redundant safeguards. Should such technology be made
subject to 49 CFR part 236, subpart H (the ``processor-based rule'')?
FRA reserves the right to include appropriate restrictions on such
technology in the final rule.
Section 218.101 Leaving Equipment in the Clear
In paragraph (a), FRA proposes that each railroad shall have in
effect an operating rule which establishes minimum requirements for
preventing equipment from fouling connecting tracks unsafely, and that
each railroad implement procedures that will enable employees to
identify when the equipment is fouling. In addition, each railroad
officer, supervisor and employee shall uphold and comply with
[[Page 60396]]
that rule. The purpose for proposing that each railroad officer,
supervisor, and employee shall uphold and comply with that rule is so
that all effected employees will be required to follow the operating
rules FRA proposes that each railroad maintain as opposed to merely
requiring that each railroad have in effect such a rule. In order to
fully understand FRA's intent, one must consider FRA's definitions of
``clearance point'' and ``foul or fouling a track'' in proposed section
218.93.
In paragraph (b), FRA proposes the general rule that equipment
shall not be left where it will foul a connecting track or adjacent
track but raises two exceptions. The exceptions are necessary because
railroad operations would be nearly impossible without them. Safe
operations permit some fouling of track under the conditions described
in paragraphs (b)(1) and (b)(2). These exceptions are proposed
considering that basic railroad operating rules and safety procedures,
if properly applied, should be sufficient to prevent accidents under
the two exceptions.
Paragraph (b)(1) proposes that it is permissible for equipment on a
main track or siding to foul the main track or siding switch as long as
the switch is lined for the track upon which the equipment is standing.
For example, it is permissible under the proposal for a train on the
main track to be stopped at an absolute signal with the rear of the
train fouling a siding switch lined for the main track upon which the
train is standing. Additionally, this would prohibit the switch that is
being fouled from being thrown underneath the train while it is fouling
the switch. Signal systems and main track authority rules should
protect such movements from approaching trains.
Paragraph (b)(2) proposes that it is permissible for equipment that
is standing on a yard or industry lead track (commonly referred to as a
lead track, switching lead, or ladder track) to foul a yard or industry
track if the switch is lined for the yard or industry track upon which
the equipment is standing. Conversely, it is not permissible for
equipment to be standing on a yard or industry track and foul the lead
track, irregardless of the position of the switch on which the
equipment is standing (fouling). Paragraph (b)(2) applies to industry
sidings while paragraph (b)(1) does not. In simple terms, it is
permissible to occupy a lead track and foul a track connected to it,
but it is not permissible to occupy the connected track in a manner
that fouls the lead track.
Paragraph (c) proposes that each railroad, whether at the system,
division, or terminal level, shall implement procedures for instructing
employees who handle equipment so that the employees can identify
clearance points and avoid leaving equipment out to foul. One way to
implement such procedures is to show employees that there are readily
observable clearance points on or near the track, e.g., marks on the
rails or ties indicating a clearance point. When clearance points are
not identified on or near the track, railroads must institute
procedures for instructing employees on how to calculate clearance
points; e.g., a railroad may choose to implement a procedure requiring
employees to stand next to the rail and extend an arm to simulate the
width of equipment. Great care should be used in instituting procedures
for determining clearance points so that the margin of error is
appropriate where employees are permitted to ride the side of a car and
as the clearance point would be bigger for employees with bigger or
longer bodies than the average person. This proposed section is not
intended to apply to close clearance as it relates to buildings,
loading docks, or doorways, although a railroad may choose to provide
procedures for implementing safe operations under such circumstances.
Section 218.103 Hand-Operated Switches and Derails
Paragraph (a) proposes that each railroad shall have in effect an
operating rule which meets the minimum requirements set forth in this
section. In addition, each railroad officer, supervisor and employee
shall uphold and comply with that rule. The proposal contains some
provisions that apply to all hand-operated switches and derails, some
that apply only to hand-operated main track switches, some that apply
only to hand-operated crossover switches and some that apply only to
hand-operated derails. This represents a departure from FRA's current
enforcement scheme which is limited to hand-operated switches in non-
signaled territory as specified in EO 24.
Paragraph (b) proposes certain general rules for employees who
operate or verify the position of a hand-operated switch or derail. For
instance, paragraph (b)(1) proposes a fundamental requirement that an
employee operating or verifying a hand-operated switch or derail's
position shall be ``qualified,'' as that term is defined in this
subpart; conversely, it would be easy for an unqualified person to make
a mistake in switch alignment or fail to recognize a defective switch
or derail because, unlike a qualified employee, the unqualified person
is not trained on proper switch and derail operation or on how to
detect a defective switch or derail. It is exactly these types of
defective conditions that cause accidents and may be preventable by
promulgating this proposed rule.
Paragraph (b)(2) proposes a requirement that each railroad have an
operating rule warning employees that each person who operates or
verifies the position of a hand-operated switch or derail is
individually responsible for the position of the switch or derail in
use. The purpose of this paragraph is to remind an employee that FRA
may take enforcement action against the employee personally for a
willful violation. FRA hopes that the personal liability aspect of this
rule will reinforce among employees the critical importance of ensuring
that hand-operated switches and derails are left properly lined before
leaving a work site.
Paragraphs (b)(3) and (b)(4) contain proposals that would require
employees to make certain observations. The requirements to ``visually
ensure'' that hand-operated switches and derails are properly lined for
the intended route and that the points fit properly and the target, if
so equipped, corresponds with the switch's position specifies the need
for the operating/verifying employee to take a good hard look at the
switch or derail. For example, a proper observation would deduce
whether the switch points fit properly against the stock rail, i.e. no
gaps. The operating/verifying employee should certainly not be relying
on second-hand knowledge of the switch or derail's position in
verifying its position.
Paragraphs (b)(5) through (b)(8) propose that the operating/
verifying employee make certain other firsthand assurances that are
fundamental to safe railroading. These additional assurances require
observation and physical testing to ensure the hand-operated switch or
derail is properly secured. Paragraph (b)(5) proposes a requirement
that if the switch or derail is equipped with a lock, hook or latch, it
must be in the hasp, before making movements in either direction over
the switch; this requirement should reduce accidental misalignments of
hand-operated switches after initiating a movement and also permit the
switch points from moving under the equipment. Proposed paragraph
(b)(6) refers to physically testing a hand-operated switch or derail's
lock to ensure it is secured; thus, the testing may be, but not limited
to, pulling on the lock to ensure it is properly secured, ensuring the
hook or latch securely fits into the hasp, and
[[Page 60397]]
that the switch or derail will not move unintentionally. This
regulation does not require switches to be equipped with locks, hooks
or latches. Paragraph (b)(7) proposes a requirement for an operating/
verifying employee to ensure that switches are not operated while
equipment is standing or moving over a switch. Operating a switch under
a moving train or while equipment is standing over it is an obvious
recipe for disaster but apparently occurs with enough frequency that we
propose it be included in each railroad's operating rules. Under
paragraph (b)(8), it would be a violation of this proposed rule for an
employee to fail to lock, hook, or latch a switch, if so equipped,
after the employee is finished using the switch. This means that if the
switch is equipped with a latch or hook, it must be applied and
secured. For locks, this means the lock is in the hasp, and the lock is
locked. If it is a latch or hook, the latch or hook must be in the
hasp. For purposes of this section, ``not in use'' means that there is
either no crew or equipment in the vicinity of the switch or there is a
crew in the vicinity of the switch but the crew has no intention of
using the switch. Therefore, it must be locked, hooked, or latched, if
so equipped.
Paragraph (c)(1) would provide regulatory authority over the hand-
operated main track switches so that FRA regulates the positioning of
all such switches; in contrast, FRA only prescribes requirements for
hand-operated main track switches in non-signaled territory in EO 24.
It is proposed that each railroad will retain discretion regarding the
normal position of a hand-operated main track switch. Generally,
railroad operating rules pertaining to the operation of switches
provide that the normal position for a main track switch is lined and
locked for movement on the main track when not in use; the purpose of
this rule is so that trains traveling on main track will not be
inadvertently diverted onto another track. (Of course, this can be
avoided if all trains were required to approach all main track switches
prepared to stop, but that requirement would impose a substantial
burden on railroads under most circumstances and would also introduce
other safety concerns.) FRA proposes to permit railroads to designate a
different position as normal, as some operations may be more efficient
with a hand-operated main track switch's ``normal'' position designated
in what would otherwise be referred to as the ``reverse'' position. No
matter what position a railroad designates as the normal position of
each hand-operated main track switch, the proposal is for such
designations to be made in writing. The railroad may designate the
normal position of the switch in its operating rules, system special
instructions, timetables, general orders, or any other written
documentation that will provide adequate notice to employees operating
and verifying hand-operated main track switches.
FRA is unaware of any railroads that do not require locking of main
track switches as a safeguard against unauthorized use. Paragraph
(c)(1) proposes that employees operating and verifying hand-operated
main track switches should pay careful attention to ensure that these
switches, when not in use, are lined and locked in that position except
under two circumstances. The first circumstance under which it is
proposed that the employee does not need to return the switch to the
designated normal position is when the train dispatcher directs
otherwise; thus, the train dispatcher, with movement control over that
main track segment, directs the crew using the switch to leave the
switch in other than the normal position. The dispatcher would then be
responsible for the switch and must follow railroad operating
procedures for the necessary protection of the switch. Such ``necessary
protection'' entails that the dispatcher take steps to ensure that the
next train crew approaching the switch has a track warrant informing
that the switch has been left reversed. In some instances, the
dispatcher will need to make a note in a log of train movements or
other similar document to ensure that subsequent dispatchers have
access to the reversed switch information. The second circumstance
under which it is proposed that the employee does not need to return
the switch to the designated normal position is when the switch is left
in the charge of a crewmember of another train, a switchtender, or a
roadway worker in charge. The reason this proposal should be an
alternative safe procedure is because these other employees will
likewise be individually responsible for the safe and proper operation
of that hand-operated main track switch; the employees performing these
jobs shall be qualified on operating switches and verifying switch
position according to this proposal, so there should be no inherent
problems with the transfer of responsibility for the switch. Regardless
of the position of the switch when the train dispatcher directs
otherwise or the switch is left in the charge of another qualified
employee, it must still be locked, hooked or latched, if so equipped,
when not in use, per proposed paragraph (b)(5).
Proposed paragraph (c)(2) requires that in non-signaled territory,
before a train or engine service employee releases the limits of a main
track authority and a hand-operated switch is used to clear the main
track, and, prior to departing the train's location, certain conditions
are required. This introductory sentence in proposed paragraph (c)(2)
makes clear that it does not apply to maintenance-of-way employees who
may be releasing the limits of a main track authority. It also proposes
certain conditions on the employee releasing the limits prior to
departing the train's location such that the employee should not be
releasing the limits at another location; this proposed requirement is
intended to prevent an employee from releasing the limits while located
in the yard office or while traveling away from the train's location in
a taxi. The purpose of requiring the employee releasing the limits to
be located near the train is so that an employee who has any question
about the condition of the switch has access to verifying its
condition.
In paragraph (c)(2)(i), the first proposed condition that must be
met is that the employee releasing the limits, after conducting a job
briefing in accordance with paragraph (i)(3)(i) of this section, report
to the train dispatcher that the hand-operated main track switch has
been restored to its normal position and locked, unless the train
dispatcher directs that the hand-operated main track switch be left
lined and locked in the reverse position. The reference to another
proposed paragraph in this section is intended to remind the employee
releasing the limits that before a train or a train crew leaves the
location where any hand-operated main track switch was operated, all
crewmembers have a verbal communication to confirm the position of the
switch. Soon after this job briefing, it is time to call the dispatcher
and confirm the same information that should have been included in the
train crew's job briefing. If the train dispatcher wants the employee
to leave the switch in the reverse position, this communication is the
train dispatcher's opportunity to inform the employee of such a
request. It is proposed that the employee and dispatcher confirm with
each other the switch position and that the switch is locked so that
there is little chance that any trespasser without a key or bolt
cutters could misalign the switch. As in proposed paragraph (c)(1)(i),
a train dispatcher who directs that the switch be left in the reverse
[[Page 60398]]
position must take the protection necessary to ensure that the
subsequent train crew that will approach the switch has a track warrant
informing them of the switch's reverse position. Again, such
``necessary protection'' entails that the dispatcher take steps to
ensure that the next train crew approaching the switch has a track
warrant informing that the switch has been left reversed. In some
instances, the dispatcher will need to make a note in a log of train
movements or other similar document to ensure that subsequent
dispatchers have access to the reversed switch information.
Paragraph (c)(2)(ii) and (iii) detail two more proposed conditions
that must be met when main track authority limits are being prepared
for release. The second proposed condition is that if the train
crewmember's report of the switch position is correct, i.e., matches
the operating rule or dispatchers direction, the train dispatcher shall
repeat the reported switch position information to the employee
releasing the limits and ask whether the repeated information is
correct. Typically, railroad procedures require the train dispatcher to
ask whether ``that is correct'' with regard to confirming this type of
information, so the proposed regulation is intended to reflect those
commonly used procedures. The third proposed condition is that the
employee releasing the limits then confirm that this information is
correct with the train dispatcher. Railroads and employees who
currently release such limits should recognize that these requirements
follow the traditional rules of such release. The purpose of the
dispatcher and employee repeating the switch's condition is so that
both employees can confirm that the other is repeating the correct
information regarding the position of the switch and that it is locked.
The proposed rule retains the requirement in EO 24 that an employee
releasing the limits of a main track authority in non-signaled
territory communicate with the train dispatcher that all hand-operated
main track switches operated have been restored to their normal
position, unless the train dispatcher directs otherwise, but only to
the extent that the switches are at the location where the limits are
being released. With the proposed elimination of a SPAF, it would be
difficult for an employee to recall the condition of any particular
hand-operated main track switch operated and there would likely be a
reaction for an employee to believe he or she left all such switches in
proper position--without much opportunity to double-check the condition
of those faraway switches at that time. As mentioned previously,
accidents often occur where the limits are being released and that is
why the proposed rule has placed emphasis on addressing the problem at
those locations. The switches located at the point of release of the
limits should be readily accessible for any employee who is unsure of
the condition the switch was last left in. The proposed rule also adds
the requirement that the employee report that the switch has been
locked; locking of the main track switch should prevent easy access to
unauthorized users.
The proposed requirements in paragraph (c)(2) carry over certain
employee/dispatcher communication requirements from EO 24 that provide
additional checks to ensure that hand-operated main track switches are
left properly lined and locked. The proposed requirement is carefully
tailored to address the switches at the location being released because
FRA has determined that many of the accidents are occurring at that
location. As several comments were received in response to EO 24
regarding an equivalent requirement carried over in proposed paragraph
(c)(2), it should be helpful to describe what FRA means by the term
``releasing the limits of a main track authority.'' The term means
releasing all or a portion of the limits (i.e., rolling up the limits)
of an existing main track authority.
Paragraph (d) proposes that when rolling or on-track maintenance-
of-way equipment is approaching a hand-operated switch or derail not
lined for its intended movement, it shall not foul a track (see
definition of ``foul or fouling a track'' in this subpart) until the
switch or derail is properly lined for the intended movement. If the
switch is intended to be trailed through, such as with a spring switch,
or a yard type switch commonly referred to as a ``rubber switch'' or a
``run-through switch,'' movement shall not trail through the switch
until the route is seen to be clear or the equipment has been granted
movement authority by the employee in charge of that track segment or
switch. Additionally, if a train, rolling equipment or on-track
maintenance-of-way equipment is closely approaching a switch and an
employee observes a conflicting movement also closely approaching the
switch, the track with the approaching conflicting movement shall not
be fouled.
In paragraph (e), FRA proposes a requirement that when equipment
enters a track, the hand-operated switch to that track shall not be
lined away from the track until that equipment has passed the
``clearance point'' (as defined in this subpart) of that track. If
complied with, this proposed requirement will prevent an employee from
operating a switch while equipment is fouling it, directly on it, or in
close proximity to it. The purpose of this proposed requirement is to
prevent injuries and accidents caused by improper operation of
switches. Injuries should be reduced by this requirement because when
switches are operated with equipment fouling a switch, or directly on a
switch, a switch can be hard to operate or may be put under tension
such that when an employee begins to operate the switch handle, it may
move unexpectedly; thus, back injuries and other muscle strains may be
reduced. In addition, accidents may be reduced as employees will not be
allowed to operate switches under tension, i.e., when cars are on a
switch.
Paragraph (f) also attempts to prevent accidents and injuries due
to last minute misalignments of switches. Generally, after an employee
lines a hand-operated switch to or from the main track, the safest
position for the employee is away from the switch until the movement is
complete. Some railroads specify a distance, e.g., that the employee
shall stand at least 20 feet from that switch; FRA has proposed the 20
feet away requirement but requests comments on whether a distance
should be specified. The key here is that each employee operating such
a switch is far enough away that the employee could not operate the
switch at the last moment, or even underneath the movement, if the
employee remains a safe distance from the switch until the movement is
complete. This rule does not apply during continuous switching
operations and thus, this proposed requirement is not meant to apply to
an employee who is switching a cut of cars into classification tracks.
Paragraph (g)(1) proposes the general rule that both hand-operated
switches of a crossover shall be properly lined before equipment begins
a crossover movement. Properly lined means that switches at both ends
of the crossover are lined either for the crossover movement or both
are lined for straight track. As train crews expect crossover switches
to be properly lined, i.e., in correspondence (see definition of
``correspondence of crossover switches''), an accident can easily occur
when crossover switches are out of correspondence. A related concern
that is addressed in the proposal is what to do when equipment is
traversing a crossover; the proposal would require that all equipment
be clear of both ends
[[Page 60399]]
of the crossover before restoring the switches to the normal position.
If employees apply a railroad operating rule that matches this
proposal, the requirement should prevent the unintentional running
through of crossover switches or unintentional movements onto another
track that could potentially strike other rolling equipment. FRA
recognizes that a safe operation is probable during continuous
switching operations where only one crew is using both tracks connected
by the crossover, so FRA has proposed an exception for that situation.
Paragraph (g)(2) identifies three exceptions to the general rule
that hand-operated crossover switches should be in correspondence. The
reason for the exceptions is that each operation is safe or safer with
the crossover switches out of correspondence than in correspondence.
That is, each exception identifies a situation in which employees on
the track are protected by diverting trains and equipment without
slowing down operations.
FRA is aware that some configurations of crossover switches are
quite complicated, typically due to the location of adjacent or
adjoining track and other attendant switches. Railroads should address
these complicated configurations of crossover switches when employees
are trained on the physical characteristics of the territory. Without
proper training on how to apply a railroad's operating rule for
correspondence of crossover switches, it will be difficult to hold
employees accountable. However, railroads can be held accountable if
employees do not properly apply such an operating rule and lack of
training is one of the causes. Of course, if a railroad provided
training but a violation was committed due to the complexities of the
crossover configuration, FRA will exercise discretion regarding whether
any enforcement action is necessary.
Paragraph (g)(2)(i)(A) proposes allowing mechanical department
workers to line one end of a crossover away from the track under blue
signal protection to allow workers on, under, or between rolling
equipment on main track. See 49 CFR 218.27. Similarly, paragraph
(g)(2)(i)(B) proposes allowing providing track protection for roadway
workers on track that is considered ``inaccessible'' under Sec.
214.327 of this chapter. FRA proposes paragraph (g)(2)(i)(C) to permit
those railroads that have the technology, in centralized traffic
control (CTC) territory to allow a signal maintainer to perform
maintenance, testing or inspection of the switch at only one end of a
crossover while continuing to operate trains over the other crossover
switch. FRA does not have any evidence to suggest this exception is an
unsafe practice. Finally, proposed paragraph (g)(2)(ii) states the
obvious need for immediate restoration of the crossover switches to
correspondence after the protection afforded by paragraph (g)(2)(i)(A),
(B) or (C) is no longer necessary.
Paragraph (h) proposes the general rules for hand-operated derails.
Paragraph (h)(1) proposes that the normal position of fixed derails is
in the derailing position; but, a railroad may specify in its operating
rules or special instructions that the normal position of a fixed
derail is in the non-derailing position. Furthermore, fixed derails
must remain in the derailing position until changed to allow movement
onto the protected track; consequently, the proposed rule requires that
the fixed derails shall be returned to the normal position once the
movement is complete. If fixed derails are being used for protection of
workers using blue signals, these proposed rules would not be
applicable as FRA already has other regulations governing derails in
that circumstance. See 49 CFR part 218, subpart B.
The entire purpose of a derail, whether fixed or portable, is to
protect something or someone. Derails are typically used to prevent
unauthorized equipment from rolling out onto main tracks in front of
trains. They are also used to protect workers who are on a track to
repair track or equipment. Derails may be placed in addition to
warnings provided by signs, flags, gates, and notices in timetables and
special instructions; thus, derails protect employees when other
employees operating equipment or a train fail to heed these other
warnings, or unattended equipment rolls freely. Although a properly
applied derail that stops equipment or a train has done its job, FRA
proposes in paragraph (h)(2) that enforcement action may be necessary
when a railroad or person causes a movement to be made over a derail in
the derailing position. As the typical situation involving movement
over a derail occurs at low speeds and does not result in serious
injuries or excessive damage to railroad property, the industry has
accepted, in FRA's view, too much tolerance for this type of incident.
Consequently, while FRA plans to use its enforcement discretion, the
purpose of proposing this requirement is to reverse the permissive
culture of the railroad industry that has accepted running over a
derail. This proposed requirement is not intended to discourage the use
of derails in protecting workers; thus, to the extent that railroads
may try to mandate that employees stop using derails, to avoid the
potential liability of FRA enforcement action, FRA would need to
consider additional regulatory measures to mandate the use of derails.
We are doubtful that such further regulatory measures would become
necessary as the potential liability for employees injured when derails
could have been used is probably enough of a deterrent to arbitrary
elimination of operating rules pertaining to derail protection.
Paragraph (h)(3) proposes that if a hand-operated derail is
equipped with a lock, when the derail is not in use, the lock must be
in the hasp and secured. For the purpose of this section, not in use
means that no crew is either operating over the derail or continuously
or intermittently operating over the derail. If no crew or equipment is
in the vicinity of the derail or there is no intent to use the derail,
then it must be locked, if so equipped, in the designated normal
position.
As previously mentioned in the SUPPLEMENTARY INFORMATION section
titled ``Accident at Graniteville, SC and Safety Advisory 2005-01,''
NTSB found that catastrophic accidents, such as the one at
Graniteville, SC, could be prevented by adequate job briefings. The
proposal found in paragraph (i) would require each railroad to have its
own rules and procedures governing the minimum requirements for a
satisfactory job briefing, which to FRA's knowledge, nearly all
railroads already do. It is essential that employees working together
know exactly what each person's role is in the operation, what the
methods of operation and protection will be, and the order in which
segments of the job are to be accomplished. With such knowledge, one
employee could recognize the mistakes of another and correct them
before any operating rule violation or serious accident occurred.
Paragraph (i)(2) proposes frequent job briefings at important
junctures. It is critical that employees know what is expected of them
before they start working, know what is expected to happen if the work
plan changes after work is initiated but before the work is completed,
and to confirm whether all the work was completed to everyone's
satisfaction and according to the operating rules. For experienced
employees, each job briefing should not be a particularly long meeting;
in fact, FRA expects that some job briefings may last less than one
minute, but the length of an adequate briefing will most likely depend
on the complexity of the job.
[[Page 60400]]
Just in case there is any confusion that the operation of a hand-
operated main track switch is a job requiring briefings, FRA proposes
requirements in paragraph (i)(3) for such briefings where employees
should be engaging in meaningful communication. Thus, in paragraph
(i)(3)(i), FRA specifically proposes that before a train leaves the
location where any hand-operated main track switch was operated, all
crewmembers shall have verbal communication to confirm the position of
the switch. Similarly, paragraph (i)(3)(ii) addresses that
communication amongst employees is vital when roadway workers are
working within the same work limits and operate hand-operated main
track switches. Thus, when any roadway work group is working under the
protections of the specified form of working limits, FRA proposes that
any employee who operates a hand-operated main track switch within such
limits shall do so under the direction of the roadway worker in charge.
Further, it is proposed that the employee operating the hand-operated
main track switch shall report to the roadway worker in charge the
position of all hand-operated main track switches the employee has
operated to the roadway worker in charge prior to the expiration of the
authority limits.
In some roadway work group situations, a roadway worker may be
instructed during a job briefing to convey switch position information
to an employee who is not the roadway worker in charge. In this
alternative situation, the contact person is acting as an intermediary
between the employee operating the switch and the roadway worker in
charge. This intermediary person is commonly referred to as an
``employee in charge.'' FRA proposes that it shall be acceptable for
the employee in charge to pass on the switch position information from
the employee operating the switch to the roadway worker in charge
without firsthand verification of the switch position. The important
aspect of this requirement is that the work group members are
communicating the switch position and not who conveys the information.
FRA would appreciate comments on this aspect of the proposal although
the allowance of this option should reflect the reality of current
operations.
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule 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). FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of this proposed
rule. Document inspection and copying facilities are available at the
Department of Transportation Central Docket Management Facility located
in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC 20590. Access to the docket may also be
obtained electronically through the Web site for the DOT Docket
Management System at http://dms.dot.gov. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No.
FRA-2005-23080. FRA invites comments on this regulatory evaluation.
FRA analyzed the foregoing NPRM and found that there will be
relatively little change in the burden upon railroads, however, the FRA
believes that much greater compliance with rules which are almost
identical to what the railroads have promulgated as their own operating
rules will likely result in a reduction in human factor accidents,
especially those human factors causes most directly targeted by the
rulemaking. FRA believes that most railroads can achieve average
reductions of 35% in these accidents, because there is a large railroad
with better than average compliance with its own operating rules which
routinely has human factor accident rates 35% below the industry
average. The costs of the foregoing are minimal, because most of the
procedures mandated are already incorporated in the railroads' own
operating rules. The biggest costs will be related to publication of
changed language, and management of the operating rules programs. The
rule would have even less impact on small entities, as they are excused
from most of the burdens which regulate management of their operating
rules testing programs. The NPRM would generate twenty-year discounted
benefits of $191,189,965, and twenty-year discounted costs of
$20,756,051, for a twenty-year discounted net benefit of $170,433,914,
if the assumptions in this analysis are correct.
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket an Analysis of Impact on Small Entities (AISE) that assesses the
small entity impact of this proposal. Document inspection and copying
facilities are available at the DOT's Central Docket Management
Facility located in Room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC 20590. Docket
material is also available for inspection on the Internet at http://dms.dot.gov. Photocopies may also be obtained by submitting a written
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10,
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington,
DC 20590; please refer to Docket No. FRA-2006-25267.
FRA notes that the impact on small entities have been considered
throughout the development of this NPRM both internally and through
consultation within the RSAC forum, as described in Section II of this
preamble. After the Railroad Operating Rules Working Group failed to
reach a consensus recommendation, FRA reported the Working Group's
unofficial areas of agreement and disagreement to the RSAC.
The AISE developed in connection with this NPRM concludes that this
proposal would not have a significant economic impact on a substantial
number of small entities. Thus, FRA certifies that this proposed rule
is not expected to have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act or
Executive Order 13272.
C. Paperwork Reduction Act
The information collection requirements in this proposed 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:
BILLING CODE 4910-06-P
[[Page 60401]]
[GRAPHIC] [TIFF OMITTED] TP12OC06.010
[[Page 60402]]
[GRAPHIC] [TIFF OMITTED] TP12OC06.011
[[Page 60403]]
[GRAPHIC] [TIFF OMITTED] TP12OC06.012
BILLING CODE 4910-06-C
[[Page 60404]]
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail
Stop 17, Washington, DC 20590. Comments may also be submitted via e-
mail to Mr. Brogan at the following address: [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
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 a final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register.
D. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the proposed regulation. Where a regulation
has federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
This is a rule with preemptive effect. Subject to a limited
exception for essentially local safety hazards, its requirements will
establish a uniform Federal safety standard that must be met, and State
requirements covering the same subject are displaced, whether those
standards are in the form of State statutes, regulations, local
ordinances, or other forms of State law, including State common law.
Preemption is addressed in 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, section 20106 of Title 49 of the United
States Code provides that all regulations prescribed by the Secretary
related to railroad safety preempt any State law, regulation, or order
covering the same subject matter, except a provision necessary to
eliminate or reduce an essentially local safety hazard that is not
incompatible with a Federal law, regulation, or order and that does not
unreasonably burden interstate commerce. This is consistent with past
practice at FRA, and within the Department of Transportation.
FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132. FRA notes that the
above factors have been considered throughout the development of this
NPRM both internally and through consultation within the RSAC forum, as
described in Section II of this preamble. After the Railroad Operating
Rules Working Group failed to reach a consensus recommendation, FRA
reported the Working Group's unofficial areas of agreement and
disagreement to the RSAC. The RSAC has as permanent voting members two
organizations representing State and local interests: AASHTO and ASRSM.
The RSAC regularly provides recommendations to the FRA Administrator
for solutions to 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 will be afforded opportunity to consult by virtue of this
NPRM and comment period.
Please be advised that on April 27, 2005, FRA received from the
State of California a petition for rulemaking on the subject of remote
control operations referred to in the SUPPLEMENTARY INFORMATION section
as ``Technology Aided Point Protection.'' The petition requested that
FRA initiate a rulemaking ``to formally approve and establish rules
affecting RCL [remote control locomotive] operations by railroads over
public highway-rail at-grade crossings.'' California's petition did not
raise an issue regarding preemption. On October 27, 2005, FRA denied
California's rulemaking petition because it was procedurally deficient
and it did not include sufficient information upon which to base a
rulemaking proceeding. See Docket No. FRA-2005-21094 (found at http://dms.dot.gov/). Nevertheless, this proposed rule contains specific
provisions of the kind requested in the petition.
For the foregoing reasons, FRA believes that this proposed rule is
in accordance with the principles and criteria contained in Executive
Order 13132.
E. Environmental Impact
FRA has evaluated this proposed regulation 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 proposed regulation 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
[[Page 60405]]
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 proposed regulation is not a major Federal action
significantly affecting the quality of the human environment.
F. Unfunded Mandates Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) [currently $128,100,000] in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. The proposed rule would not result
in the expenditure, in the aggregate, of $128,100,000 or more in any
one year, and thus preparation of such a statement is not required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) that is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM 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. Privacy Act
FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, 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 (Volume 65, Number 70;
Pages 19477-78) or you may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 217
Railroad operating rules, Program of operational tests and
inspections, Program of instruction on operating rules, and
Recordkeeping.
49 CFR Part 218
Railroad operating practices, Handling equipment, switches and
derails, Shoving or pushing movements, Main track switches, Crossover
switches, Remote control locomotive operations, Good faith challenge
procedures, Program of instruction, training and examination, and Job
briefings.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
parts 217 and 218 of Title 49, Code of Federal Regulations as follows:
PART 217--[AMENDED]
1. The authority citation for part 217 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.
1A. Section 217.2 is added to read as follows:
Sec. 217.2 Preemptive effect.
Under 49 U.S.C. 20106, issuance of these regulations preempts any
State law, regulation, or order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety hazard;
is not incompatible with a law, regulation, or order of the United
States Government; and does not impose an unreasonable burden on
interstate commerce.
2. Section 217.4 is amended by adding the following definitions of
Associate Administrator for Safety and Qualified to read as follows:
Sec. 217.4 Definitions.
* * * * *
Associate Administrator for Safety means the Associate
Administrator for Safety of the Federal Railroad Administration or that
person's delegate as designated in writing.
* * * * *
Qualified means that a person has successfully completed all
instruction, training and examination programs required by the railroad
and this part and that the person, therefore, has actual knowledge or
may reasonably be expected to have knowledge of the subject on which
the person is expected to be competent.
* * * * *
3. Section 217.9 is revised to read as follows:
Sec. 217.9 Program of operational tests and inspections;
recordkeeping.
(a) Requirement to conduct operational tests and inspections. Each
railroad to which this part applies shall periodically conduct
operational tests and inspections to determine the extent of compliance
with its code of operating rules, timetables, and timetable special
instructions, specifically including tests and inspections sufficient
to verify compliance with the requirements of subpart F of part 218 of
this chapter, in accordance with a written program retained at its
system headquarters and at the division headquarters for each division
where the tests are conducted.
(b) Railroad and railroad testing officer responsibilities. (1)
Each railroad officer who conducts operational tests and inspections
shall:
(i) Be qualified on the railroad's operating rules in accordance
with Sec. 217.11 of this part;
(ii) Be qualified on the operational testing program requirements
and procedures relevant to the testing the officer will conduct;
(iii) Receive appropriate field training, as necessary to achieve
proficiency, on each operational test that the officer is authorized to
conduct; and
(iv) Conduct operational tests in accordance with the railroad's
program of operational tests and inspections.
(2) Written records documenting qualification of each railroad
testing officer shall be retained at the railroad's system headquarters
and at the division headquarters for each division where the officer is
assigned and made
[[Page 60406]]
available to representatives of the FRA for inspection and copying
during normal business hours.
(c) Written program of operational tests and inspections. Beginning
thirty (30) days before commencing operations, 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--
(1) Provide for operational testing and inspection under the
various operating conditions on the railroad with particular emphasis
on 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. The railroad's program shall specifically provide for a
minimum number of tests per year that cover the requirements of part
218, subpart F of this chapter.
(2) Describe each type of operational test and inspection adopted,
including the means and procedures used to carry it out;
(3) State the purpose of each type of operational test and
inspection;
(4) State, according to operating divisions where applicable, the
frequency with which each type of operational test and inspection is
conducted;
(5) Designate an officer, or officers for each railroad with
division headquarters, by name or job title, who shall be responsible
for ensuring that the program of operational tests and inspections is
properly implemented on a system-wide basis or, for officers
responsible for a division, on a divisional basis. The designated
officer's responsibility will 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.
(6) Begin within thirty (30) days of the date of commencing
operations; and
(7) Include a schedule for making the program fully operative
within 210 days after it begins.
(d) 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.
(e) Reviews of tests and inspections and adjustments to the program
of operational tests.
(1) Reviews by railroads other than passenger railroads. Each
railroad to which this part applies, except for a railroad with less
than 400,000 total employee work hours annually and except for a
railroad subject to paragraph (e)(2) of this section, shall conduct
periodic reviews and analyses as provided in this paragraph and shall
retain, at each division headquarters, where applicable, and at its
system headquarters, one copy of the following written reviews.
(i) Monthly review. The designated officer for each division
headquarters, or system headquarters, if no division headquarters
exists, shall conduct a written monthly review of the operational
testing data for the division or system to determine compliance by the
railroad testing officers with the railroad's program of operational
tests and inspections required by paragraph (c) of this section. At a
minimum, this monthly review shall include the name of each railroad
testing officer, the number of tests and inspections conducted by each
officer, and whether the officer conducted the minimum number of each
type of test or inspection required by the railroad's program. Monthly
reviews shall be completed no later than 15 days after the month has
ended.
(ii) Quarterly review. The designated officer of each division
headquarters, or system headquarters, if no division headquarters
exists, shall conduct a written quarterly review of the accident/
incident data, the results of prior operational tests and inspections,
and other pertinent safety data for that division or system to identify
the relevant operating rules related to those accidents/incidents that
occurred during the quarter. Based upon the results of that review, the
designated officer shall make any necessary adjustments to the tests
and inspections required of railroad officers for the subsequent
period(s). Quarterly reviews and adjustments shall be completed no
later than 30 days after the quarter has ended.
(iii) Six month review. The designated officer of each system
headquarters office responsible for development and administration of
the program of operational tests shall conduct a review of the program
of operational tests and inspections on a six month basis to ensure
that it is being utilized as intended, that the monthly and quarterly
reviews provided for in this paragraph have been properly completed,
that appropriate adjustments have been made to the distribution of
tests and inspections required, and that the railroad testing officers
are appropriately directing their efforts. Six month reviews shall be
completed no later than 30 days after the review period has ended.
(2) Reviews by passenger railroads. Not less than once every six
months, the designated officers of the National Railroad Passenger
Corporation and of each railroad providing commuter service in a
metropolitan or suburban area shall conduct periodic reviews and
analyses as provided in this paragraph and shall retain, at each
division headquarters, where applicable, and at its system
headquarters, one copy of the reviews. Each such review shall be
completed within 30 days of the close of the period.
(i) The designated officer of each division headquarters, or system
headquarters, if no division headquarters exists, shall conduct a
written review of the operational testing data for the division or
system to determine compliance by the railroad testing officers with
its program of operational tests and inspections required by paragraph
(c) of this section. At a minimum, this review shall include the name
of each railroad testing officer, the number of tests and inspections
conducted by each officer, and whether the officer conducted the
minimum number of each type of test or inspection required by the
railroad's program.
(ii) The designated officer of each division headquarters, or
system headquarters, if no division headquarters exists, shall conduct
a written review of accident/incident data, the results of prior
operational tests and inspections, and other pertinent safety data for
the division or
[[Page 60407]]
system to identify the relevant operating rules related to those
accidents/incidents that occurred during the period. Based upon the
results of that review, the designated officer shall make any necessary
adjustments to the tests and inspections required of railroad officers
for the subsequent period(s).
(iii) The designated officer of each system headquarters office
responsible for development and administration of the program of
operational tests shall conduct a review of the program of operational
tests and inspections to ensure that it is being utilized as intended,
that the other reviews provided for in this paragraph have been
properly completed, that appropriate adjustments have been made to the
distribution of tests and inspections required, and that the railroad
testing officers are appropriately directing their efforts.
(3) Records retention. The records of periodic reviews required in
paragraphs (e)(1) and (e)(2) of this section shall be retained for a
period of one year after the end of the calendar year to which they
relate and shall be made available to representatives of the Federal
Railroad Administration for inspection and copying during normal
business hours. All written records of reviews may be stored
electronically.
(f) 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 employee
work hours annually, shall retain, at each of its division headquarters
and at the system headquarters of the railroad, one copy of a written
summary of the following with respect to its previous calendar year
activities: The number, type, and result of each operational test and
inspection, stated according to operating divisions where applicable,
that was conducted as required by paragraphs (a) and (c) of this
section. These records shall be retained for three calendar years after
the end of the calendar year to which they relate and shall be made
available to representatives of the FRA for inspection and copying
during normal business hours.
(g) Electronic recordkeeping. Each railroad to which this part
applies is authorized to retain by electronic recordkeeping the
information prescribed in this section, provided that all of the
following conditions are met:
(1) The railroad adequately limits and controls accessibility to
such information retained in its electronic database system and
identifies those individuals who have such access;
(2) The railroad has a terminal at the system headquarters and at
each division headquarters;
(3) Each such terminal has a computer (i.e., monitor, central
processing unit, and keyboard) and either a facsimile machine or a
printer connected to the computer to retrieve and produce information
in a usable format for immediate review by FRA representatives;
(4) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as
true and accurate copies of the electronically kept records; and
(5) The railroad provides representatives of the FRA with immediate
access to these records for inspection and copying during normal
business hours and provides printouts of such records upon request.
(h) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the record(s) required by this section; or
(2) Otherwise falsify such records through material misstatement,
omission, or mutilation.
(i) Upon review of the program of operational tests and inspections
required by this section, the Associate Administrator for Safety may,
for cause stated, disapprove the program. Notification of such
disapproval shall be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program, the railroad shall be provided an opportunity
of not less than 30 days to respond and to provide written or oral
submissions, or both, in support of the program. The Associate
Administrator for Safety shall render a final decision in writing and
the railroad shall be provided not less than 30 days to amend the
program in accordance with the Associate Administrator for Safety's
decision.
4. Appendix A to Part 217 is amended by revising the entry for
Sec. 217.9 to read as follows:
Appendix A to Part 217--Schedule of Civil Penalties
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
* * * * * * *
217.9 Operational tests and inspections:
(a) Program......................... $7,500 $10,000
(b) Railroad and railroad testing
officer responsibilities:
(1) Failure to provide $5,000 $7,500
instruction, examination, or
field training, or failure to
conduct tests in accordance
with program...................
(2) Records..................... $5,000 $7,500
(c) Record of Program............... $5,000 $7,500
(d) Record of tests and inspections. $7,500 $10,000
(e) Failure to conduct or retain
copy of:
(1) Monthly review.............. $5,000 $7,500
(2) Quarterly review............ $7,500 $10,000
(3) Six month review............ $5,000 $7,500
(4) Records..................... $5,000 $7,500
(f) Annual summary.................. $7,500 $10,000
(h) Falsification of record......... (--) $11,000
(i) Failure to timely or $7,500 $10,000
appropriately amend program after
disapproval........................
* * * * * * *
------------------------------------------------------------------------
[[Page 60408]]
PART 218--[AMENDED]
5. 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.
5A. Section 218.4 is added to read as follows:
Sec. 218.4 Preemptive effect.
Under 49 U.S.C. 20106, issuance of these regulations preempts any
State law, regulation, or order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety hazard;
is not incompatible with a law, regulation, or order of the United
States Government; and does not impose an unreasonable burden on
interstate commerce.
6. Section 218.5 is amended by revising the definition of Flagman's
signals to read as follows:
Sec. 218.5 Definitions.
* * * * *
Flagman's signals means a red flag by day and a white light at
night, and fusees as prescribed in the railroad's operating rules.
* * * * *
7. Section 218.37 is amended by revising paragraphs (a)(1)(iii) and
(a)(1)(iv) to read as follows:
Sec. 218.37 Flag protection.
(a) * * *
(1) * * *
(iii) When a train stops on main track, flag protection against
following trains on the same track must be provided as follows: A crew
member with flagman's signals must immediately go back at least the
distance prescribed by timetable or other instructions for the
territory and display one lighted fusee. He may then return one-half of
the distance to his train where he must remain until he has stopped the
approaching train or is recalled. When recalled, he must leave one
lighted fusee and while returning to his train, he must also place
single lighted fusees at intervals that do not exceed the burning time
of the fusee. When the train departs, a crew member must leave one
lighted fusee and until the train resumes speed not less than one-half
the maximum authorized speed (including slow order limits) in that
territory, he must drop off single lighted fusees at intervals that do
not exceed the burning time of the fusee.
(iv) When required by the railroad's operating rules, a forward
crew member with flagman's signals must protect the front of his train
against opposing movements by immediately going forward at least the
distance prescribed by timetable or other instructions for the
territory, displaying one lighted fusee, and remaining at that location
until recalled.
* * * * *
8. Part 218 is amended by adding subpart F to read as follows:
Subpart F--Handling Equipment, Switches and Derails
Sec.
218.91 Purpose and scope.
218.93 Definitions.
218.95 Instruction, training and examination.
218.97 Good faith challenge procedures.
218.99 Shoving or pushing movements.
218.101 Leaving equipment in the clear.
218.103 Hand-operated switches and derails.
Subpart F--Handling Equipment, Switches and Derails
Sec. 218.91 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and
casualties that can result from the mishandling of equipment, switches
and derails.
(b) This subpart prescribes minimum operating rule requirements for
the handling of equipment, switches and derails. Each railroad may
prescribe additional or more stringent requirements in its operating
rules, timetables, timetable special instructions, and other special
instructions.
Sec. 218.93 Definitions.
As used in this subpart--
Associate Administrator for Safety means the Associate
Administrator for Safety of the Federal Railroad Administration or that
person's delegate as designated in writing.
Clearance point means the location near a turnout beyond which it
is unsafe for passage on an adjacent track(s). Where a person is
permitted by a railroad's operating rules to ride the side of a car, a
clearance point shall accommodate a person riding the side of a car.
Controlled siding means a siding within centralized traffic control
(CTC) or interlocking limits where a signal indication authorizes the
siding's use.
Correspondence of crossover switches means both crossover switches
are lined for the crossover or both are lined for the straight tracks.
Employee means an individual who is engaged or compensated by a
railroad or by a contractor to a railroad to perform any of the duties
defined in this subpart.
Foul or fouling a track means rolling equipment or on-track
maintenance-of-way equipment is located such that any part of the
equipment is between the clearance point and the switch point leading
to the track on which the equipment is standing.
Hand-operated switch means any type of switch when operated by
manual manipulation, including when operated by a push button or radio
control, when such switch is not protected by distant switch
indicators, switch point indicators or other visual or audio
verification that the switch points are lined for the intended route
and fit properly.
Highway-rail grade crossing means a location where a public
highway, road, street, or private roadway, including associated
sidewalks and pathways, crosses one or more railroad tracks at grade.
Locomotive means a piece of on-track equipment (other than
specialized roadway maintenance equipment or a dual purpose vehicle
operating in accordance with Sec. 240.104(a)(2)):
(1) With one or more propelling motors designed for moving other
equipment;
(2) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
(3) Without propelling motors but with one or more control stands.
Pedestrian crossing means a separate designated sidewalk or pathway
where pedestrians, but not vehicles, cross railroad tracks. Sidewalk
crossings contiguous with, or separate but adjacent to, highway-rail
grade crossings, are presumed to be part of the highway-rail grade
crossings and are not considered pedestrian crossings.
Qualified means that a person has successfully completed all
instruction, training and examination programs required by the railroad
and this subpart and that the person, therefore, has actual knowledge
or may reasonably be expected to have knowledge of the subject on which
the person is expected to be competent.
Remote control operator means a locomotive engineer, as defined in
Sec. 240.5 of this chapter, certified by a railroad to operate remote
control locomotives pursuant to Sec. 240.107 of this chapter.
Remote control zone means one or more tracks within defined limits
designated in the timetable special instructions, or other railroad
publication, within which remote control locomotives, under certain
circumstances specified in this part, may be operated without an
employee assigned to protect the pull-out end of the remote control
movement, i.e., the end on which the locomotive is located.
[[Page 60409]]
Roadway maintenance activity means any work limited to the duties
prescribed for a roadway worker by definition in this section,
including movement of on-track maintenance-of-way equipment other than
locomotives.
Roadway worker means any employee of a railroad, or of a contractor
to a railroad, whose duties include inspection, construction,
maintenance or repair of railroad track, bridges, roadway, signal and
communication systems, electric traction systems, roadway facilities or
roadway maintenance machinery on or near track or with the potential of
fouling a track, and flagmen and watchmen/lookouts as defined in Sec.
214.7 of this chapter.
Roadway worker in charge means a roadway worker who is qualified in
accordance with Sec. 214.353 of this chapter for the purpose of
establishing on-track safety for roadway work groups.
Switchtender means a qualified employee assigned to handle switches
at a specific location.
Track is clear means a crewmember or other qualified employee makes
a visual determination that:
(1) The portion of the track to be used is unoccupied by rolling
equipment, on-track maintenance-of-way equipment and conflicting
movements;
(2) Intervening highway-rail grade crossings and pedestrian
crossings are protected as follows:
(i) Crossing gates are in the fully lowered position; or
(ii) A designated and qualified employee is stationed at the
crossing and has the ability to communicate with trains; or
(iii) At crossings equipped only with flashing lights or passive
warning devices, when it is clearly seen that no traffic is approaching
or stopped at the crossing and the leading end of the movement over the
crossing does not exceed 15 miles per hour;
(3) Intervening switches and derails are properly lined for the
intended movement; and
(4) The portion of the track has sufficient room to contain the
equipment being shoved or pushed.
Sec. 218.95 Instruction, training and examination.
(a) Program. Effective [DATE 90 DAYS FOLLOWING THE EFFECTIVE DATE
OF THE FINAL RULE], 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.
(1) The written program of instruction, training and examination
shall specifically address the requirements of this subpart, as well as
consequences of non-compliance.
(2) The written program of instruction, training and examination
shall include training in any technology (and related procedures)
employed to accomplish work subject to the particular requirements,
actions required by the employee to enable and use the system, means to
detect malfunctioning of equipment or deviations from proper
procedures, actions to be taken when malfunctions or deviations are
detected, and information needed to prevent unintentional interference
with the proper functioning of such technology.
(3) Implementation schedule for employees, generally. Each employee
performing duties subject to the requirements in this subpart shall be
initially instructed, trained and examined prior to [DATE 12 MONTHS
FROM PUBLICATION DATE OF THE FINAL RULE], and employees required to be
instructed, trained and examined thereafter or hired during the 12-
month period following [publication date of the final rule] shall be
instructed, trained and examined before performing duties subject to
the requirements in this subpart.
(4) After [DATE 12 MONTHS AFTER PUBLICATION DATE OF THE FINAL
RULE], no employee shall perform work requiring compliance with the
operating rules implementing the requirements of this subpart unless
instructed, trained and examined on these rules within the previous
three years.
(5) The records of instruction, examination and training required
by this section shall document qualification of employees under this
subpart.
(b) Written records documenting instruction, training and
examination of each employee required by this subpart shall be retained
at its system headquarters and at the division headquarters for each
division where the employee is assigned and made available to
representatives of the FRA for inspection and copying during normal
business hours.
(c) Upon review of the program of instruction, training and
examination required by this section, the Associate Administrator for
Safety may, for cause stated, disapprove the program. Notification of
such disapproval shall be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program, the railroad shall be provided an opportunity
of not less than 30 days to respond and to provide written or oral
submissions, or both, in support of the program. The Associate
Administrator for Safety shall render a final decision in writing and
the railroad shall be provided not less than 30 days to amend the
program in accordance with the Associate Administrator for Safety's
decision.
Sec. 218.97 Good faith challenge procedures.
(a) General procedures. Each employer is responsible for the
training of and compliance by its employees with the requirements of
this subpart.
(1) Each employer shall adopt and implement written procedures
which guarantee each employee the right to challenge in good faith
whether the procedures that will be used to accomplish a specific task
comply with the requirements of this subpart or any operating rule
relied upon to fulfill the requirements of this subpart. Each
employer's written procedures shall provide for prompt and equitable
resolution of challenges made in accordance with this subpart.
(2) The written procedures required by this section shall indicate
that the good faith challenge described in paragraph (a)(1) of this
section is not intended to abridge any rights or remedies available to
the employee under 49 U.S.C. 20109 or a collective bargaining
agreement.
(3) Each affected employee shall be instructed on the written
procedures required by this paragraph as part of the training
prescribed by Sec. 217.11 of this chapter.
(4) A copy of the written procedures shall be provided to each
affected employee and made available for inspection and copying by
representatives of the FRA during normal business hours. The employer
shall provide a copy of any amendments to its written procedures to
each affected employee prior to its effective date.
(b) The written procedures shall--
(1) Grant each employee the right to challenge any directive which,
based on the employee's good faith determination, would cause the
employee to violate any requirement of this subpart or any operating
rule relied upon to fulfill the requirements of this subpart;
(2) Provide that an employee making a good faith challenge shall
not be
[[Page 60410]]
discharged or in any way discriminated against for making the
challenge;
(3) Provide that no work is to be performed with respect to the
challenged task until the challenge is resolved. A challenge may be
resolved by: a railroad or employer officer's acceptance of the
employee's request; an employee's acceptance of the directive; an
employee's agreement to a compromise solution acceptable to the person
issuing the directive; or a direct order to proceed with the work, as
initially ordered. Such direct order shall be entered only in
accordance with prior and subsequent procedures set forth in paragraph
(c) of this section.
(c) The written procedures, prior appeal and subsequent procedures
shall:
(1) Provide for immediate review by at least one officer of the
railroad or employer prior to execution of a direct order. The review
shall not be conducted by the person issuing the challenged directive,
or his or her subordinate. The railroad or employer officer providing
this immediate review shall have the same options for resolving the
challenge as the initial officer, except that the reviewing officer's
decision shall not be subject to further immediate review, unless
provided for in a railroad's written procedures;
(2) Provide that the employee be afforded an opportunity to
document electronically or in writing any protest to the direct order
before the tour of duty is complete. The employee shall be afforded the
opportunity to retain a copy of the protest;
(3) Provide that the employee be orally advised that completing the
work as ordered will not subject the employee to penalties or
consequences for non-compliance under this subpart; and
(4) Provide that the employee has a right to further review by a
designated railroad or employer officer, within a specified period
following completion of the duty tour, for the purpose of verifying the
proper application of the regulation, law, procedure or rule in
question. Upon request by the employee, that verification decision
shall be made in writing to the employee.
Sec. 218.99 Shoving or pushing movements.
(a) Each railroad shall have in effect an operating rule which
complies with the requirements of paragraphs (b) through (d) of this
section, and, each railroad officer, supervisor and employee shall
uphold and comply with that rule.
(b) General movement requirements.
(1) Job briefing. Rolling equipment shall not be shoved or pushed
until the locomotive engineer has participated in a job briefing by the
employee who will direct the move, who shall describe as part of the
job briefing the means of communication to be used and how point
protection will be provided.
(2) Point Protection. When rolling equipment is shoved or pushed,
point protection shall be provided by a crewmember or other qualified
employee:
(i) Visually determining, for the duration of the shoving or
pushing movement, that the track is clear either within the range of
vision or for the complete distance the equipment is to be shoved or
pushed. The determination that the track is clear may be made with the
aid of monitored cameras or other technological means, provided that it
and the procedures for use provide an equivalent level of protection to
that of a direct visual determination by an employee properly
positioned to make the observation; and
(ii) Giving signals or instructions necessary to control the
movement.
(c) Remote control movement requirements. All remote control
movements are considered shoving or pushing movements, except when the
remote control operator controlling the movement is riding the leading
end of the leading locomotive in a position to visually determine
conditions in the direction of movement. In addition to the other
requirements of this section, when initiating a remote control shoving
or pushing movement:
(1) The remote control operator shall visually determine the
direction the equipment moves; or
(2) A member of the crew shall visually determine the direction the
equipment moves and confirm the direction with the remote control
operator. If no confirmation is received, the movement shall be
immediately stopped.
(d) Remote control zone, exception to point protection requirement.
When a remote control zone is activated, point protection, as
prescribed in paragraph (b)(2) of this section, is not required under
the following conditions:
(1) The remote control movement is operated from a controlling
locomotive on the leading end in the direction of movement, i.e., the
movement occurs on the pull-out end;
(2) The track is clear for the movement as determined by the remote
control crewmembers or crewmembers from a relieved remote control crew
who have transferred the remote control zone directly to the relieving
crew; and
(3) The remote control zone is not jointly occupied and has not
been jointly occupied since the last determination that the track is
clear.
(e) Operational exceptions. A railroad may adopt operating rules
other than those required by paragraphs (b) through (d) of this section
in the following circumstances:
(1) Push-pull operations when operated from the leading end in the
direction of movement, i.e., push mode;
(2) Shoving or pushing operations with manned helper locomotives or
distributed power locomotives when operated from the leading end in the
direction of movement;
(3) During the performance of roadway maintenance activity under
the direct control of a roadway worker performing work in accordance
with railroad operating rules specific to roadway workers; or
(4) When the leading end of a shoving movement is on a main track
or controlled siding, under the following conditions:
(i) The train dispatcher gives permission to make the movement and
verifies that:
(A) Another movement or work authority is not in effect within the
same or overlapping limits unless conflicting movements are protected;
and
(B) A main track is not removed from service by a work authority
within the same or overlapping limits;
(ii) Movement is limited to the train's authority;
(iii) Movement shall not be made into or within yard limits,
restricted limits, drawbridges, or work authority limits;
(iv) Movement shall not enter or foul a highway-rail grade crossing
or pedestrian crossing except when:
(A) Crossing gates are in the fully lowered position; or
(B) A designated and qualified employee is stationed at the
crossing and has the ability to communicate with trains; or
(C) At crossings equipped only with flashing lights or passive
warning devices, when it is clearly seen that no traffic is approaching
or stopped at the crossing and the leading end of the movement over the
crossing does not exceed 15 miles per hour; and
(v) Movement shall not be made into or within interlocking limits
or controlled point limits unless the following conditions are met:
(A) The signal governing movement is more favorable than
restricting aspect;
(B) Each signal governing movement into and through interlocking
limits or controlled point limits shall be continuously observed by a
member of that crew;
(C) The crewmember is in a position to determine that the train's
movement
[[Page 60411]]
has occupied the circuit controlling that signal as evidenced by that
signal assuming its most restrictive aspect; and
(D) Movement does not exceed the train's length.
Sec. 218.101 Leaving equipment in the clear.
(a) Each railroad shall have in effect an operating rule which
complies with the requirements of paragraphs (b) and (c) of this
section and each railroad officer, supervisor and employee shall uphold
and comply with that rule.
(b) Equipment shall not be left where it will foul a connecting
track unless:
(1) The equipment is standing on a main track or siding and the
main track or siding switch that the equipment is fouling is lined for
the main track or siding on which the equipment is standing; or
(2) The equipment is standing on a yard or industry switching lead
track and the yard or industry track switch that the equipment is
fouling is lined for the yard or industry switching lead track on which
the equipment is standing.
(c) Each railroad shall implement procedures that enable employees
to identify clearance points and a means to identify locations where
clearance points will not permit a person to safely ride on the side of
a car.
Sec. 218.103 Hand-operated switches and derails.
(a) Each railroad shall have in effect an operating rule which
complies with the requirements set forth in this section and each
railroad officer, supervisor and employee shall uphold and comply with
that rule.
(b) General. Employees operating or verifying the position of a
hand-operated switch or derail shall:
(1) Be qualified on the railroad's operating rules relating to
their operation;
(2) Be individually responsible for the position of the switch or
derail in use;
(3) Visually ensure that switches and derails are properly lined
for the intended route;
(4) Visually ensure that the points fit properly and the target, if
so equipped, corresponds with the switch's position;
(5) Ensure that the switch is latched or secured by placing the
lock or hook, if so equipped, in the hasp before making movements in
either direction over the switch;
(6) After locking, hooking or latching a switch or derail that is
so equipped, test the lock, hook or latch to ensure it is secured;
(7) Ensure that switches are not operated while equipment is
standing or moving over a switch; and
(8) Ensure that when not in use, switches are locked, hooked, or
latched if so equipped.
(c) Hand-operated Main Track Switches. (1) The normal position of a
hand-operated main track switch shall be designated by the railroad in
writing and the switch shall be lined and locked in that position when
not in use except when:
(i) The train dispatcher directs otherwise with respect to the
position of a hand-operated main track switch and the necessary
protection is provided; or
(ii) The hand-operated switch is left in the charge of a crewmember
of another train, a switchtender, or a roadway worker in charge.
(2) Releasing Authority Limits. In non-signaled territory, before a
train or engine service employee releases the limits of a main track
authority and a hand-operated switch is used to clear the main track,
and, prior to departing the train's location, the following conditions
are required:
(i) The employee releasing the limits, after conducting a job
briefing in accordance with paragraph (i)(3)(i) of this section, shall
report to the train dispatcher that the hand-operated main track switch
has been restored to its normal position and locked, unless the train
dispatcher directs that the hand-operated main track switch be left
lined and locked in the reverse position and the necessary protection
is provided;
(ii) If the report of the switch position is correct, the train
dispatcher shall repeat the reported switch position information to the
employee releasing the limits and ask whether that is correct; and
(iii) The employee releasing the limits shall then confirm to the
train dispatcher that this information is correct.
(d) Rolling and on-track maintenance-of-way equipment shall not
foul a track until all hand-operated switches and derails connected
with the movement are properly lined, or in the case of hand-operated
switches designed to be trailed through, until the intended route is
seen to be clear or the train has been granted movement authority. When
a conflicting movement is approaching a hand-operated switch, the track
shall not be fouled or the switch or derail operated.
(e) When equipment enters a track, the hand-operated switch to that
track shall not be lined away from the track until the equipment has
passed the clearance point in the track.
(f) Except during continuous switching operations, when an employee
lines a hand-operated switch to let equipment enter or leave the main
track, the employee shall move at least twenty (20) feet away from the
switch and not return to the switch until the movement is complete.
(g)(1) Hand-operated crossover switches, generally. Both hand-
operated switches of a crossover shall be properly lined before
equipment begins a crossover movement. A crossover movement shall be
completed before either hand-operated switch is restored to normal
position, except when one crew is using both tracks connected by the
crossover during continuous switching operations.
(2) Correspondence of hand-operated crossover switches. (i) Hand-
operated crossover switches shall be left in corresponding position
except when:
(A) Used to provide blue signal protection under Sec. 218.27 of
this part; or
(B) Used for inaccessible track protection under Sec. 214.327 of
this chapter; or
(C) Performing maintenance, testing or inspection of hand-operated
crossover switches in centralized traffic control (CTC) territory.
(ii) Hand-operated crossover switches shall be immediately restored
to correspondence after protection is no longer required.
(h) Hand-operated derails. (1) The normal position of fixed derails
is in the derailing position except as provided in part 218, subpart B
of this chapter, or the railroad's operating rules or special
instructions. Derails shall be kept in that position except when
changed to permit movement, whether or not any equipment is on the
tracks they protect.
(2) Movement shall not be made over a derail in the derailing
position.
(3) Derails equipped with locks shall be locked, when not in use.
(i) Job briefings. (1) Minimum requirements necessary for an
adequate job briefing shall be specified.
(2) Job briefings shall be conducted by employees operating hand-
operated switches before work is begun, each time a work plan is
changed and at completion of the work.
(3) Additional job briefing requirements for hand-operated main
track switches.
(i) Before a train or a train crew leaves the location where any
hand-operated main track switch was operated, all crewmembers shall
have verbal communication to confirm the position of the switch.
(ii) In the case of exclusive track occupancy authority established
under Sec. 214.321, foul time under Sec. 214.323, or train
coordination under Sec. 214.325, when a roadway worker qualified to
operate hand-operated main track switches is granted permission by the
[[Page 60412]]
roadway worker in charge to occupy or otherwise use the limits of the
exclusive track occupancy, such employee receiving permission to occupy
the working limits shall report the position of any such switches
operated upon expiration of the authority limits to the roadway worker
in charge or to a designated intermediary employee who shall convey the
switch position to the roadway worker in charge.
9. Appendix A to Part 218 is amended by adding a heading for
subpart F and entries for Sec. Sec. 218.95, 218.97, 218.99, 218.101,
and 218.103 to read as follows:
Appendix A to Part 218--Schedule of Civil Penalties
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
* * * * * * *
Subpart F--Handling Equipment, Switches
and Derails:
218.95 Instruction, Training and
Examination:
(a) Program..................... $7,500 $10,000
(b) Records..................... 5,000 7,500
(c) Failure to timely or 7,500 10,000
appropriately amend program
after disapproval..............
218.97 Good Faith Challenge
Procedures:
(a-c) Failure to adopt or 7,500 10,000
implement procedures...........
218.99 Shoving or Pushing Movements:
(a) Failure to implement 7,500 10,000
required operating rule........
(b) Failure to conduct job 7,500 10,000
briefing, use a qualified
employee, or establish protect
protection.....................
(c) Failure to observe equipment 7,500 10,000
direction......................
(d) Failure to establish remote 7,500 10,000
control zone in lieu of point
protection.....................
(e) Failure to abide by 7,500 10,000
operational exception
requirements...................
218.101 Leaving Equipment in the
Clear:
(a) Failure to implement 7,500 10,000
required operating rule........
(b) Equipment left improperly 7,500 10,000
fouling........................
(c) Failure to implement 7,500 10,000
procedures for identifying
clearance points...............
218.103 Switches and Derails:
(a) Failure to implement 7,500 10,000
required operating rule........
(b-i) Railroad and employee 5,000 7,500
failures.......................
------------------------------------------------------------------------
Issued in Washington, DC on October 4, 2006.
Joseph H. Boardman,
Administrator.
[FR Doc. 06-8568 Filed 10-11-06; 8:45 am]
BILLING CODE 4910-06-P