# Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Derails > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A06-8568 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 12, 2006 - **Citation:** 71 FR 60372 ## Text 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. 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. 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 (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 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, 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 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 § 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 § 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 § 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 § 218.103(i)(3)(ii). NTSB also “does not believe that * * * the use of forms [such as a SPAF] is sufficient to prevent recurrences of accidents such as the one at Graniteville.” NTSB/RAR-05/04 at 45. In support of this position, NTSB cites to the example of railroads that require train crews to record signal indications as they are encountered en route in order to lessen the chance that a 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 § 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 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 § 217.9 to require railroads to focus programs of operational tests and inspections “on those operating rules that cause or are likely to cause the most accidents or incidents”. See § 217.9(c)(1). Except for the smallest freight railroads, FRA 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 § 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 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 § 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 § 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 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 § 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 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 § 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. 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 § 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 § 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 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 § 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 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 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 § 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 § 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 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, § 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 §§ 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 § 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 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 § 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 quali [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-8568. Public record. Not legal advice.