Railroad Operating Rules and Radio Standards and Procedures

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217 and 220

[FRA Docket No. RSOR-12, Notice No. 3]

Railroad Operating Rules and Radio Standards and Procedures

RIN 2130-AA76

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FRA is amending its Railroad Operating Rules and its Radio

Standards and Procedures by removing requirements that railroads file

their operational testing programs, operating rules instruction

programs, annual summaries on operational tests and inspections, and

their radio rules with the Federal Railroad Administrator and by

substituting requirements that railroads retain such records and make

them available to FRA representatives during normal business hours. FRA

is also amending the Railroad Operating Rules by eliminating the

requirement that Class III railroads file their operating rules,

timetables, and timetable special instructions with the Federal

Railroad Administrator. In addition, FRA is making technical changes to

require railroads to record specific information when conducting

operational tests and inspections of their employees. Finally, FRA is

changing the Railroad Operating Rules and the Radio Standards and

Procedures so as to allow retention of certain records by ``electronic

recordkeeping'' (i.e., retention of a computer record in lieu of a

paper record). These amendments are intended to eliminate nonessential

reporting requirements while enabling FRA to review meaningful data to

determine the safety of a railroad's operations.

EFFECTIVE DATE: The rule becomes effective on November 21, 1994.

FOR FURTHER INFORMATION CONTACT: Jon Kaplan, Trial Attorney, Office of

Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 20590

(telephone: (202) 366-0635) or Dennis R. Yachechak, Railroad Safety

Specialist, Office of Safety, FRA, 400 Seventh Street, SW., Washington,

DC 20590 (telephone: (202) 366-504).

SUPPLEMENTARY INFORMATION: On October 19, 1992, FRA published a Notice

of Proposed Rulemaking (``NPRM'') on amendments to its Railroad

Operating Rules (49 CFR Part 217) and Radio Standards and Procedures

(49 CFR Part 220). 57 FR 47603 (1992). FRA proposed to remove

requirements that railroads file their respective operating rules,

radio rules, operational testing programs, operating rules instruction

programs, and annual summaries on operational tests and inspections

with FRA in Washington, D.C. and to substitute requirements that

railroads retain these records and make them available upon request for

inspection by FRA personnel during regular business hours. FRA believed

that these proposed amendments, if adopted, would remove nonessential

filing and reporting requirements while concurrently reducing the

burden borne by the railroads in paperwork and mailing expenses.

FRA received written comments on the proposal from seven entities

and conducted a public hearing at the request of one. The public

hearing was held in Washington, DC, on December 14, 1992, at which four

organizations were represented. As a result of these comments and

further analysis of the amendments proposed, FRA now publishes its

final rule. FRA recognizes the importance of a railroad's operating

rules and its radio rules for moving trains and other pieces of rolling

equipment safely. The requirements promulgated in the final rule take

this factor into account by balancing FRA's interest in reviewing

pertinent documents against the railroads' interest in reducing their

paperwork burden.

The final rule reflects reconsideration of the proposals announced

in the NPRM. In the interest of reducing certain paperwork

requirements, FRA has adopted certain proposed revisions to the

regulations. FRA has also authorized railroads to retain information

electronically so long as the railroads satisfy the stated conditions.

Nevertheless, FRA has retained the filing requirements prescribed in

existing Sec. 217.7 for Class I railroads and Class II railroads. See

Interstate Commerce Commission (``ICC'') regulations at 49 CFR Part

1201 and ICC General Instructions 1-1. FRA has determined that its

headquarters office, located in Washington, DC, needs to continue

receiving copies of the operating rules of national and regional

railroads to remain apprised of such rules. Finally, FRA believes that

operational test and inspection records require more specific data

elements. FRA has concluded that the newly identified data points serve

to clarify the existing information requirements by defining the

individual sources comprising each operational test and inspection. See

Section-by-Section Analysis for details.

Discussion of Comments and Conclusions

FRA received written comments from the American Public Transit

Association, Association of American Railroads (``AAR''), The American

Short Line Railroad Association (``ASLRA''), Consolidated Rail

Corporation (``Conrail''), New Jersey Transit Rail Operations, Union

Pacific Railroad Company, and United Transportation Union (``UTU''). At

the public hearing held December 14, 1992, four organizations

participated: the Railway Labor Executives' Association (``RLEA''), the

Brotherhood of Locomotive Engineers (``BLE''), AAR, and Conrail. The

discussions that follow examine the issues raised by the commenters and

analyze the reasons behind the adoption of the final rule.

1. Whether FRA should abolish requirements that railroads file

their operating rules, radio rules, and certain other documents with

FRA.

Two unions representing railroad employees objected to the proposal

that railroads merely retain their operating rules, programs of

operational tests and inspections, programs of instruction on operating

rules, and annual summaries. The UTU declared that FRA was abdicating

its responsibility of reviewing the documents for regulatory

compliance. The UTU alleged that requiring the relocation of records to

the railroad's system headquarters and division headquarters would vest

FRA's field inspectors with total enforcement responsibility and that,

consequently, document inspection would be entirely discretionary and

no longer an integral part of FRA's safety assessment of a railroad. In

other words, the UTU claimed, FRA was sending a message that

administering the operating rules regulations was no longer a priority.

The BLE echoed the UTU's concerns, stating that the removal of

agency review at the headquarters level represented a priority shift by

FRA to no longer monitor a railroad's compliance with its operating

rules or operational testing and inspection program (i.e., efficiency

testing program). The purpose of these regulations was to afford FRA

headquarters the opportunity to analyze the data from the submitted

documents. FRA needed to review incidents where railroad employees

violated their employers' operating rules to determine whether these

violations compromised railroad safety.

The AAR, however, fully endorsed FRA's proposals to eliminate

filing. The AAR saw the filing of operating rules and related documents

as unnecessary, burdensome, and serving no safety objective.

Furthermore, the AAR noted that the railroad divisions comprising each

railroad's system already provide the regulatory documents that FRA

field inspectors request for review. Requiring relocation of these

records to offices that are visited by FRA field personnel would

facilitate document accessibility and retrieval.

The ASLRA also supported an end to the filing requirements. The

ASLRA commented that these amendments would improve efficiency and

economy for the short line railroads and would promote review by

inspectors familiar with a railroad's operations. Three Class I

railroads agreed that these measures would relieve burdensome

requirements of photocopying and mailing these documents.

Although FRA proposed redesignating the locations of these records,

FRA has reconsidered the impact this measure would have on enforcement,

accident investigation, and other functions. A railroad's operating

rules and timetables are valuable resources that are used by personnel

of all disciplines in FRA's headquarters Office of Safety. For example,

at FRA headquarters, these documents are reviewed in conjunction with

accident reports filed at headquarters under 49 CFR Part 225 by the

railroad. The railroads' rules and timetables are also consulted during

FRA headquarters' analysis of draft accident investigation reports

submitted by FRA field personnel. By maintaining a copy of the

operating rules and timetables of major railroads, FRA retains its

ability to determine whether the operating rules themselves, or

violations of them, contributed to an accident. Retaining immediate

access to these documents in Washington, DC, provides FRA's

headquarters office with an efficient means to identify unsafe or

inadequate procedures and to recommend practices that will ensure

protection of train movements.

FRA believes that ensuring safe train and other movements requires

each Class I railroad, Class II railroad, the National Railroad

Passenger Corporation (Amtrak), and each railroad providing commuter

service in a metropolitan or suburban area to continue filing its

operating rules, timetables, and timetable special instructions with

FRA. These railroads conduct extensive operations, all of which are

governed by their operating rules. FRA's interest in reviewing these

documents outweighs the burdens imposed on the railroads to continue

filing these records. Therefore, FRA retains the existing filing

requirements for these railroads.

In order to ensure that the rules FRA is reviewing are current,

each railroad subject to this requirement must submit its operating

rules, timetables, and timetable special instructions to FRA by

December 21, 1994, and must submit each subsequent amendment to these

operating rules, timetables, and timetable special instructions issued

after November 21, 1994, to FRA within 30 days after it is issued.

On the other hand, FRA believes that the regulations on the

operational testing programs, operating rules instruction programs,

operational test and inspection records (i.e., efficiency tests), and

radio rules can be effectively enforced from the field. These records

are better utilized by FRA's regional personnel to monitor a railroad's

compliance with the regulatory requirements. The field staff are best

situated to observe a railroad's operations and determine whether the

operational testing programs, operating rules instruction programs,

operational test and inspections records, and radio rules are accurate

and current. Additionally, the field inspectors can examine the

operational test and inspection results in evaluating an employee's

performance of his or her duties in accordance with a railroad's rules

and instructions. FRA therefore adopts the proposal requiring railroads

to retain their programs of operational tests and inspections, programs

of instruction on railroad operating rules, records of operational

tests and inspections (including annual summaries on operational tests

and inspections), and radio rules at the designated locations provided.

2. Whether the three-year record retention requirements proposed in

the NPRM for operational testing programs and annual summaries of

operational tests and inspections will enhance railroad safety.

The NPRM proposed requiring railroads to retain their operational

testing programs under Sec. 217.9 and annual summaries of operational

tests and inspections under Sec. 217.13(a)-(c) for three calendar

years.

FRA received comments supporting and opposing this proposal. The

California Legislative Board of the UTU advocated record retention, but

argued that this information should be retained for a minimum of five

years. The BLE recommended that operational tests and inspections be

retained for only six months to one year. Both the UTU and BLE stated

that record retention would enable FRA to accurately assess a

railroad's history of safe operations by examining this collected data.

The unions believed that FRA could gain a wider perspective on a

railroad's results of its operational tests and inspections and thereby

target potential hazards in operating rules application, understanding,

and compliance.

The railroads generally disagreed with the unions. One railroad

urged FRA to modify its proposed retention requirement from three years

to one year. Likewise, the AAR and ASLRA concurred with this

recommendation. Specifically, the ASLRA claimed that the proposed

three-year record retention requirement was superfluous given the

recordkeeping requirements already imposed on railroads under the

Locomotive Engineer Qualification and Certification regulations (49 CFR

Part 240).

FRA disputes the ASLRA's judgment that these proposed requirements

are duplicative. Part 240 addresses only locomotive engineers (persons

who operate locomotives), but to ensure the safe movement of railroad

equipment, railroads also routinely test conductors, operators,

dispatchers, and maintenance-of-way personnel. All of these employees

are, at one time or another, placed in situations or conditions that

require knowledge and execution of a railroad's operating rules.

Therefore, FRA believes that maximizing safety requires each railroad

to retain its program of operational tests and inspections for all

employees covered by its operating rules.

FRA has concluded that a thorough analysis of a railroad's

operating procedures requires adopting the proposal as stated.

Accordingly, all railroads must retain their operational testing

programs and annual summaries on operational tests and inspections for

three calendar years. FRA believes that trend analysis of this data

will serve as an effective tool to assess a railroad's regulatory

compliance. Inspectors can better recognize patterns of rules

noncompliance and efforts railroads have made to remedy safety problems

uncovered by previous tests. The results of these tests may be used as

a barometer to measure the safety of a railroad and determine whether

its level of compliance is improving, deteriorating, or remaining

steady.

3. Whether FRA's proposal requiring railroads to retain their

operating rules, radio rules, operational testing programs, operating

rules instruction programs, and annual summaries on operational tests

and inspections at the system headquarters and all division

headquarters is overly burdensome.

The proposed rule identified two locations where railroads were

required to retain pertinent rules and programs: division headquarters

and system headquarters. The NPRM proposed that railroads would retain

their operating rules and Radio Standards and Procedures paperwork at

all of their division headquarters and at the system headquarters. See

proposed Secs. 217.7-217.13 (introductory text). FRA believed that most

railroads already maintained copies of these records at these locations

and that, therefore, FRA's enforcement personnel would be able to

effectively and efficiently enforce Parts 217 and 220 by visiting any

one of these sites.

This proposal prompted a number of parties to comment on its

usefulness. Four commenters argued that requiring the railroads to

retain the pertinent documents at their system headquarters and at all

of their division headquarters would impose additional administrative

costs with no offsetting safety benefits. Two organizations suggested

that the operational testing programs and annual summaries be retained

only at the railroad's system headquarters. Another two parties

recommended that each railroad's division headquarters retain only

information that applies to operations within that geographical

division.

FRA agrees with the commenters that the proposal was overbroad in

scope. The final rule departs from the NPRM by requiring that each

division headquarters retain only those documents that the division

applies and enforces (e.g., operational testing programs and operating

rules instruction programs). Likewise, each division headquarters must

retain the records of operational tests and inspections conducted by

that division. The proposal that each railroad retain its operational

testing program, operating rules instruction program, and annual

summaries on operational tests and inspections (for railroads with

400,000 or more total manhours) at the system headquarters has been

adopted unchanged.

FRA assumes that railroads with extensive operations conduct

operational tests and inspections at all division headquarters.

Railroad safety requires that all employees responsible for train

operations comply with a railroad's operating rules governing train

movements over a territory. Therefore, under final rule Sec. 217.9(d),

railroads with 400,000 or more total manhours will be required to

retain their annual summaries on operational tests and inspections

records at their system headquarters and at each of their division

headquarters. Although two parties asked that the regulation be amended

to require railroads to retain all of their annual summaries only at

the system headquarters level, FRA believes that this data must also be

available at all division headquarters in order for inspectors to

determine the extent of rules compliance in other divisions and system-

wide. This requirement will not impose any further burdens on the

railroads because, as one commenter noted, the railroads already

maintain copies of these documents at the division level and provide

copies for FRA inspectors upon request. FRA believes that effective

inspections of annual summaries are best served by examining these

records at a railroad's division headquarters and system headquarters.

4. Whether FRA should permit electronic retention of documents.

The NPRM never addressed this issue specifically. However, the

proposal's emphasis on deregulation encouraged several parties to

recommend that FRA allow railroads to retain records and reports by

electronic recordkeeping. Both the written and oral comments stressed

the cost savings that computer filing would provide to railroads.

Requiring railroads to retain the information in paper form would

impose additional administrative and storage costs. Computer storage of

these documents would also enable the railroads to immediately update

any amendments to their operational testing programs and operating

rules instruction programs. Moreover, one commenter argued that

retaining ``hard copies'' that contained historical data could create

confusion in the offices that utilize the information.

After reviewing the written comments and the transcript of the

public hearing, FRA agrees with the commenters that electronic

retention is a practical alternative for railroads to comply with the

regulatory recordkeeping requirements. FRA thus authorizes railroads to

retain their operational testing programs, operational test and

inspection records (including annual summaries), and instruction

programs on operating rules by electronic recordkeeping provided that

certain conditions are met to safeguard the data entered and stored in

a computer system. These stipulations are stated in Sec. 217.9(e) and

explained in the Section-by-Section Analysis. Railroads that elect to

use electronic data processing systems to store their operating rules

information must be certain that proper security measures are

implemented to ensure the integrity of the documents retrieved for

inspection. Moreover, the information produced by computer must be

organized in a usable format to afford FRA inspectors complete access

to the records. FRA believes that electronic record retention is a

viable option for the railroads provided that FRA's monitoring

activities to measure compliance remain unimpeded.

Section-by-Section Analysis

The final rule contains substantial revisions to the proposal to

amend the Railroad Operating Rules and the Radio Standards and

Procedures (49 CFR Parts 217 and 220) in response to the written

comments received, the testimony at the public hearing, and further

review and reflection within FRA. Where terms or paragraphs in the

final rule differ from those in the NPRM, the final rule provides

designations or citations to reflect these amendments.

1. Definitions. In new Sec. 217.4, definitions of ``Class I,''

``Class II,'' and ``Class III'' railroads are included to explain the

classifications by which regulatory requirements are assigned. The

definitions of ``division headquarters'' and ``system headquarters''

have been discussed earlier in this preamble.

2. Operating rules; filing and recordkeeping.

Section 217.7 contains the filing and recordkeeping requirements

with regard to operating rules, timetables, and timetable special

instructions.

Paragraph (a) provides that Class I railroads, Class II railroads,

the National Railroad Passenger Corporation (Amtrak), and railroads

providing commuter service in a metropolitan or suburban area must

continue to file their operating rules, timetables, and timetable

special instructions with the Federal Railroad Administrator. The

deadline for filing these documents is November 21, 1994. Most

railroads are in compliance with FRA's existing provisions concerning

such filings. For such railroads, it is not FRA's intent that another

copy of already filed material be given to the agency. If a railroad

currently has its documents on file with the agency, FRA will deem that

railroad to be in compliance with this section, if the documents are in

effect on November 21, 1994. (In other words, if previously filed

documents are still in effect on November 21, 1994, then a railroad has

complied with the new provision, having filed before December 21,

1994.)

Paragraph (b) provides that railroads subject to the filing

requirements must also submit to FRA a copy of any amendment to these

documents issued after November 21, 1994, within 30 days after it is

issued.

Under paragraph (c), Class III railroads and all other railroads

subject to this part but not subject to paragraphs (a) and (b) of this

section must retain one copy of their current operating rules,

timetables, and timetable special instructions at their respective

system headquarters. These documents must be made available to FRA

representatives for inspection and photocopying during normal business

hours.

3. Program of operational tests and inspections; recordkeeping;

annual summary on operational tests and inspections; electronic

recordkeeping. Proposed amendments to Sec. 217.9 called for railroads

to retain one copy of their operational test and inspection programs at

all division headquarters and at the system headquarters. The final

rule adopts this proposal with some significant modifications.

Proposed paragraph (a) is adopted unchanged, with one exception: A

railroad must now conduct its operational tests and inspections in

accordance with a program that it retains.

Paragraph (b) also departs from the proposed text. After November

21, 1994, a railroad must retain one copy of its current program of

operational tests and inspections. The program must be updated with any

subsequent amendments. These programs must be retained at the system

headquarters of the railroad and at the division headquarters for each

division where the tests prescribed in the program are conducted (i.e.,

the records availability may be division specific). In other words, if

certain tests are not conducted in a certain division, that division

headquarters need not retain a copy of the program prescribing those

particular tests. The operational testing program must be made

available to FRA representatives for inspection and photocopying during

normal business hours and must be retained for three calendar years

following the end of the year to which it relates.

The criteria requirements stated in existing Sec. 217.9(b) (1)-(4)

and (6) remain unchanged, and a conforming change is made to paragraph

(b)(5): deletion of the reference to a program ``filed with'' FRA.

Under final rule paragraph (b)(5), a railroad must begin conducting

operational tests and inspections within 30 days after November 21,

1994 or the date of commencing operations, whichever is later. This

requirement will not affect railroads that are currently in operation,

given that the existing regulations already require railroads to begin

their programs within 30 days after they file their operational testing

programs.

Redesignated Sec. 217.9(c) (formerly Sec. 217.9(d)) requires a

railroad to keep a record of the date, time, place, and result of each

operational test and inspection that was performed in accordance with

its program. Each record must identify the officer administering the

operational test and inspection and each employee tested. These

requirements clarify the information requirements provided under

existing Sec. 217.9(d) by identifying specific data points each record

must provide. These revisions will promote the examination of relevant

information from captured data sources, enabling FRA to determine the

effectiveness of a railroad's operational testing program. The

operational test and inspection records must be retained for one

calendar year after the end of the year to which they relate at the

system headquarters of the railroad and at the division headquarters

for each division where the tests are conducted (i.e., the records

availability may be division specific). Additionally, railroads must

make their operational test and inspection records available to FRA

representatives for inspection and photocopying during normal business

hours.

FRA has decided to organize all provisions in Part 217 pertaining

to operational tests and inspections under Sec. 217.9; therefore,

Sec. 217.13 introductory text and paragraphs (a) through (c) are

removed and redesignated as Sec. 217.9(d). New paragraph (d) requires

railroads with 400,000 or more total manhours per year to compile an

``annual summary'' recounting the number, type, and result of each

operational test and inspection conducted, stated according to

operating divisions where applicable, which are the same requirements

as provided under existing Sec. 217.13(b). The summaries should be

indexed in a well organized format to facilitate efficient and

manageable review. FRA has also concluded that annual compilations of

the total number of train miles and of the rate at which the railroad

conducts operational tests and inspections provide limited useful

information; therefore, these existing requirements are removed from

the final rule. These compilations, redesignated ``annual summaries on

operational tests and inspections,'' must be made available at each

division headquarters and at the system headquarters by March 1 of each

calendar year. Such annual summaries are required to be retained at

these locations for three calendar years after the end of the year to

which they relate and made available to FRA representatives for

inspection and photocopying during normal business hours.

New Sec. 217.9(e) authorizes railroads to retain their operational

testing programs, operational test and inspection records, and annual

summaries on operational tests and inspections by electronic

recordkeeping, subject to conditions stated in that provision. This

provision provides an alternative for railroads retaining certain

information as required in the regulations.

Each participating railroad must have the essential components of a

computer system (i.e., a desk-top computer and either a facsimile

machine or a printer connected to the computer to retrieve and produce

records for immediate review). The material retrieved in hard copy form

must contain relevant information organized in a usable format to

render the data completely understandable. The documents must be made

available for FRA inspection during normal business hours, which FRA

interprets as the time, any day of the week, when railroads conduct

their regular business transactions. Nevertheless, FRA reserves the

right to review and examine the documents prepared in accordance with

the Railroad Operating Rules and Radio Standards and Procedures

regulations at any reasonable time if situations warrant.

Additionally, each railroad must provide adequate security measures

to limit employee access to its electronic data processing system and

must prescribe who can create, modify, or delete data from the data

base. Although FRA does not identify the management position capable of

instituting changes in the data base, each railroad must indicate the

source authorized to make such changes. Each railroad must also

designate who will be authorized to authenticate the hard copies

produced from the electronic format. In short, each railroad electing

to electronically retain its records must ensure the integrity of the

information and prevent possible tampering of data, enabling FRA to

fully execute its enforcement responsibilities.

4. Program of instruction on operating rules; recordkeeping;

electronic recordkeeping. Section 217.11 is revised to require that a

railroad retain a copy of its instruction program on operating rules

instead of filing a copy with the Federal Railroad Administrator.

Paragraph (a), which mandates periodic instruction of employees whose

activities are governed by the railroad's operating rules in accordance

with a written program, remains unchanged, with the exception that the

system headquarters of the railroad is to retain a copy of the entire

instruction program and that the division headquarters for each

division where an employee is instructed is to retain all portions of

the copy of the program that the division applies and enforces. (In

other words, the records availability at the division headquarters may

be division specific.) Paragraph (b) mandates that after November 21,

1994, or 30 days before commencing operations, whichever is later, a

railroad must make one copy of its current program and one copy of any

subsequent revision available to FRA for inspection and photocopying

during normal business hours. Paragraph (c) is added to authorize a

railroad to retain by electronic recordkeeping its instruction program

on operating rules, provided that certain conditions specified in

Sec. 217.9(e) (1)-(5) are met.

5. Annual report on enforcement of part 219; information collection

requirements. The requirements formerly provided under Sec. 217.13(d),

``Annual report on enforcement of part 219,'' have been transferred to

part 219 with the final rule publication of 49 CFR Sec. 219.803. See

final rule at 58 FR 68235 (1993). Because existing Sec. 217.13 (a)-(c)

is redesignated as Sec. 217.9(d), Sec. 217.13 is removed and existing

Sec. 217.15, ``Information collection requirements,'' is redesignated

as Sec. 217.13. The removal of existing Sec. 217.13 eliminates the

information collection requirements provided under existing

Sec. 217.15(b)(4), redesignated Sec. 217.13(b)(4), which is, therefore,

removed.

6. Definitions. Section 220.5 is amended by adding paragraphs (d)

and (e), which define ``division headquarters'' and ``system

headquarters.'' These terms also appear in Sec. 217.4 and are discussed

previously in the preamble.

7. Railroad operating rules; radio communications; recordkeeping.

Section 220.21(b) is amended by requiring railroads subject to Part 220

to retain one copy of their current radio operating rules and any

subsequent revisions at the locations prescribed in newly added

subparagraphs (1) and (2). Subparagraph (1) provides that Class I

railroads, Class II railroads, the National Railroad Passenger

Corporation, and railroads providing commuter service in a metropolitan

or suburban area must retain their radio rules at all division

headquarters and at the system headquarters. Under subparagraph (2),

Class III railroads and all other railroads subject to this part but

not subject to subparagraph (1) are required to retain their radio

rules at their respective system headquarters. These records are

required to be made available to FRA representatives for inspection and

photocopying during normal business hours.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies

This final rule has been evaluated in accordance with existing

regulatory policies. The regulatory document is considered to be a

nonsignificant regulatory action under E.O. 12866 and is a

nonsignificant rule under Sec. 5(a)(4) of DOT Regulatory Policies and

Procedures [44 FR 11034, February 26, 1979] because it eliminates

nonessential reporting requirements while maintaining a high level of

safety. FRA has prepared and placed in the rulemaking docket a

regulatory evaluation addressing the economic impact of this rule. A

copy of the regulatory evaluation may be reviewed and copied in Room

8201, 400 Seventh Street, S.W., Washington, D.C. 20590.

In its regulatory analysis, FRA found that railroads will derive

several benefits with the implementation of this rule. First, the final

rule eliminates or narrows the applicability of various requirements

that railroads reproduce and mail to FRA certain records and reports of

operating rules and practices, thereby reducing administrative and

postage expenses. Although certain railroads will still have to submit

particular documents to FRA, the final rule removes most processing and

handling expenditures associated with filing the paperwork requirements

under existing Part 217. Second, the final rule reduces Federal

government labor costs necessary to examine, organize, and compile the

information since most of the records will be retained at the

appropriate railroad offices. Finally, railroads will be permitted to

retain required information in an electronic format, thereby reducing

storage and overhead costs and facilitating access to selected records.

The regulatory evaluation does not quantify the reduction in costs

available to railroads electing to exercise this option; therefore,

this analysis does not reflect the economic benefits gained from

electronic recordkeeping.

FRA estimates that, over a twenty-year period, this rule will cost

the railroad industry a total of $786. The cost to the railroads to

comply with this rule is about $311 for the first year and $25 for

every year thereafter. This cost burden is attributed to the changes in

recordkeeping requirements provided in the rule. The total benefits of

this rule over a twenty-year period amount to about $449,628 for

reduced labor, copying, and postage costs in both the railroad industry

and government sector. In the first year, the savings are estimated to

be $22,432 and $22,484 for each subsequent year. The benefits will be

about 447.52 times the costs.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. Sec. 601 et seq.)

requires a review of rules to assess their impact on small entities. In

reviewing the economic impact of the rule, FRA concluded that it will

not have any measurable impact on small entities. There are no direct

or indirect economic impacts for small units of government, businesses,

or other organizations. Therefore, it is certified that this rule will

not have a significant economic impact on a substantial number of small

entities under the provisions of the Regulatory Flexibility Act.

Paperwork Reduction Act

The final rule contains information collection requirements. FRA is

submitting these information collection requirements to the Office of

Management and Budget for approval in accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. Secs. 3501 et seq.) FRA has endeavored

to minimize the paperwork burden associated with this rule. The

regulatory provisions that contain information collection requirements

and the estimated time necessary to fulfill these requirements are as

follows:

----------------------------------------------------------------------------------------------------------------

Estimated

Section Brief description time (hours)

----------------------------------------------------------------------------------------------------------------

217.7(a).................... Filing one copy of a railroad's operating rules, timetables, and 1

timetable special instructions with FRA.

Note: Railroads may inform FRA in writing that the latest operating

rules, timetables, and timetable special instructions filed with

FRA remain currently in effect. The estimated time to prepare the

letter is 30 minutes. Section 217.7(a)-(b) applies only to Class I

railroads, Class II railroads, National Railroad Passenger

Corporation (Amtrak), and commuter railroads.

217.7(b).................... Filing one copy of each amendment to a railroad's operating rules, .33

timetables, and timetable special instructions with FRA.

217.7(c).................... Retaining one copy of a railroad's operating rules, timetables, and .92

timetable special instructions at the railroad's system

headquarters.

Note: Section 217.7(c) applies only to Class III railroads.

217.7(c).................... Retaining one copy of each amendment to a railroad's operating .25

rules, timetables, and timetable special instructions at the

railroad's system headquarters.

217.9(b).................... Preparing and making one copy of a railroad's program for periodic 9.92

performance of operational tests and inspections. The program must

be retained at the railroad's system headquarters and all

applicable division headquarters.

217.9(b).................... Preparing and making one copy of each amendment to a railroad's 1.92

program for periodic performance of operational tests and

inspections. The amendments must be retained at the railroad's

system headquarters and all applicable division headquarters.

217.9(c).................... Conducting operational tests and inspections and recording the .25

results thereof. The records must be retained at the railroad's

system headquarters and all applicable division headquarters.

217.9(d).................... Compiling information and preparing the railroad's annual summary on 7

operational tests and inspections. The annual summary must be

retained at the railroad's system headquarters and all division

headquarters.

Note: Section 217.9(d) applies only to railroads with 400,000 or

more manhours

217.11(b)................... Preparing and making one copy of a railroad's program of instruction 9.92

on operating rules. The program must be retained at the railroad's

system headquarters and all applicable division headquarters.

217.11(b)................... Preparing and making one copy of each amendment to a railroad's .92

program of instruction on operating rules. The amendments must be

retained at the railroad's system headquarters and all applicable

division headquarters.

220.21(b)................... Retaining one copy of a railroad's operating rules with respect to (*)

radio communications. The radio rules, and any subsequent

amendments thereto, must be retained at the railroad's system

headquarters and all division headquarters (Class I railroads,

Class II railroads, Amtrak, and commuter railroads) and system

headquarters (Class III railroads).

----------------------------------------------------------------------------------------------------------------

*Although Sec. 220.21(b) requires railroads to collect certain information, FRA assumes that most railroads

prepare their radio rules in conjunction with their operating rules as required by Sec. 217.7. Therefore, FRA

believes that the radio rules requirements will not impose any additional burden on the railroad industry than

what is already required under Sec. 217.7.

The estimates include the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and reviewing the collection of information. FRA solicits

comments on the accuracy of the estimates, the utility of the

information, and other methods that might be less burdensome to obtain

this information.

Persons desiring to comment regarding the burden estimate or any

other aspect of this collection of information, including suggestions

for reducing this burden, should submit their views in writing to: Ms.

Gloria Swanson, Office of Safety, RRS-21, Federal Railroad

Administration, 400 Seventh Street, S.W., Room 8301, Washington, D.C.

20590; and to the Office of Information and Regulatory Affairs, Office

of Management and Budget, ATTN: Desk Officer for FRA (OMB No. 2130-

0035), New Executive Office Building, 726 Jackson Place, N.W., Room

3201, Washington, D.C. 20503. Copies of any such comments should also

be submitted to the Docket Clerk, Office of Chief Counsel, Federal

Railroad Administration, 400 Seventh Street, S.W., Room 8201,

Washington, D.C. 20590.

Environmental Impact

FRA has evaluated this final rule in accordance with its procedures

for ensuring full consideration of the potential environmental impacts

of FRA actions, as required by the National Environmental Policy Act

and related directives. This final rule meets the criteria that

establish this as a non-major action for environmental purposes.

Federalism Implications

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that the final rule does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment.

List of Subjects

49 CFR Part 217

Railroad operating rules, Railroad safety, Penalties, Reporting and

recordkeeping requirements.

49 CFR Part 220

Radio standards and procedures, Railroad operating rules, Radio

communications, Reporting and recordkeeping requirements.

The Final Rules

In consideration of the foregoing, part 217, title 49, Code of

Federal Regulations is amended to read as follows:

PART 217--[AMENDED]

1. The authority citation for Part 217 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304,

21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L.

103-272 (1994); and 49 CFR 1.49(m).

2. Section 217.4 is added to read as follows:

Sec. 217.4 Definitions.

As used in this part--

Class I, Class II, and Class III have the meaning assigned by

regulations of the Interstate Commerce Commission (49 CFR part 1201;

General Instructions 1-1), as those regulations may be revised and

applied by order of the Commission (including modifications in class

thresholds based revenue deflator adjustments).

Division headquarters means the location designated by the railroad

where a high-level operating manager (e.g., a superintendent, division

manager, or equivalent), who has jurisdiction over a portion of the

railroad, has an office.

System headquarters means the location designated by the railroad

as the general office for the railroad system.

3. Section 217.7 is revised to read as follows:

Sec. 217.7 Operating rules; filing and recordkeeping.

(a) On or before December 21, 1994, each Class I railroad, Class II

railroad, the National Railroad Passenger Corporation, and each

railroad providing commuter service in a metropolitan or suburban area

that is in operation on November 21, 1994, shall file with the Federal

Railroad Administrator, Washington, DC 20590, one copy of its code of

operating rules, timetables, and timetable special instructions which

were in effect on November 21, 1994. Each Class I railroad, each Class

II railroad, and each railroad providing commuter service in a

metropolitan or suburban area that commences operations after November

21, 1994, shall file with the Administrator one copy of its code of

operating rules, timetables, and timetable special instructions before

it commences operations.

(b) After November 21, 1994, each Class I railroad, each Class II

railroad, the National Railroad Passenger Corporation, and each

railroad providing commuter service in a metropolitan or suburban area

shall file each new amendment to its code of operating rules, each new

timetable, and each new timetable special instruction with the Federal

Railroad Administrator within 30 days after it is issued.

(c) On or after November 21, 1994, each Class III railroad and any

other railroad subject to this part but not subject to paragraphs (a)

and (b) of this section shall keep one copy of its current code of

operating rules, timetables, and timetable special instructions and one

copy of each subsequent amendment to its code of operating rules, each

new timetable, and each new timetable special instruction, at its

system headquarters, and shall make such records available to

representatives of the Federal Railroad Administration for inspection

and copying during normal business hours.

4. Section 217.9 is amended by revising paragraphs (a), (b)

introductory text, (b)(5), (c) and (d), and adding paragraph (e) to

read as follows:

Sec. 217.9 Program of operational tests and inspections;

recordkeeping; annual summary on operational tests and inspections;

electronic recordkeeping.

(a) Requirement to conduct operational tests and inspections. Each

railroad to which this part applies shall periodically conduct

operational tests and inspections to determine the extent of compliance

with its code of operating rules, timetables, and timetable special

instructions in accordance with a written program retained at its

system headquarters and at the division headquarters for each division

where the tests are conducted.

(b) Written program of operational tests and inspections. On or

after November 21, 1994, or 30 days before commencing operations,

whichever is later, each railroad to which this part applies shall

retain one copy of its current program for periodic performance of the

operational tests and inspections required by paragraph (a) of this

section and one copy of each subsequent amendment to such program.

These records shall be retained at the system headquarters of the

railroad and at the division headquarters for each division where the

tests are conducted, for three calendar years after the end of the

calendar year to which they relate. These records shall be made

available to representatives of the Federal Railroad Administration for

inspection and copying during normal business hours. The program

shall--* * *

(5) Begin within 30 days after November 21, 1994, or the date of

commencing operations, whichever is later; and

* * * * *

(c) Records of individual tests and inspections. Each railroad to

which this part applies shall keep a record of the date, time, place,

and result of each operational test and inspection that was performed

in accordance with its program. Each record shall specify the officer

administering the test and inspection and each employee tested. These

records shall be retained at the system headquarters of the railroad

and at the division headquarters for each division where the tests are

conducted for one calendar year after the end of the calendar year to

which they relate. These records shall be made available to

representatives of the Federal Railroad Administration for inspection

and copying during normal business hours.

(d) Annual summary on operational tests and inspections. Before

March 1 of each calendar year, each railroad to which this part

applies, except for a railroad with less than 400,000 total manhours,

shall retain, at each of its division headquarters and at the system

headquarters of the railroad, one copy of a written summary of the

following with respect to its previous year's activities: The number,

type, and result of each operational test and inspection, stated

according to operating divisions where applicable, that was conducted

as required by paragraphs (a) and (b) of this section. These records

shall be retained for three calendar years after the end of the

calendar year to which they relate and shall be made available to

representatives of the Federal Railroad Administration for inspection

and copying during normal business hours.

(e) Electronic recordkeeping. Each railroad to which this part

applies is authorized to retain by electronic recordkeeping the

information prescribed in paragraphs (b) through (d) of this section,

provided that all of the following conditions are met:

(1) The railroad adequately limits and controls accessibility to

such information retained in its electronic database system and

identifies those individuals who have such access;

(2) The railroad has a terminal at the system headquarters and at

each division headquarters;

(3) Each such terminal has a desk-top computer (i.e., monitor,

central processing unit, and keyboard) and either a facsimile machine

or a printer connected to the computer to retrieve and produce

information in a usable format for immediate review by FRA

representatives;

(4) The railroad has a designated representative who is authorized

to authenticate retrieved information from the electronic system as

true and accurate copies of the electronically kept records; and

(5) The railroad provides representatives of the Federal Railroad

Administration with immediate access to these records for inspection

and copying during normal business hours and provides printouts of such

records upon request.

5. Section 217.11 is amended by revising the heading and by

revising paragraphs (a), (b) introductory text, (b)(4), and (c) to read

as follows:

Sec. 217.11 Program of instruction on operating rules; recordkeeping;

electronic recordkeeping.

(a) To ensure that each railroad employee whose activities are

governed by the railroad's operating rules understands those rules,

each railroad to which this part applies shall periodically instruct

each such employee on the meaning and application of the railroad's

operating rules in accordance with a written program retained at its

system headquarters and at the division headquarters for each division

where the employee is instructed.

(b) On or after November 21, 1994, or 30 days before commencing

operations, whichever is later, each railroad to which this part

applies shall retain one copy of its current program for the periodic

instruction of its employees as required by paragraph (a) of this

section and one copy of each subsequent amendment to that program. The

system headquarters of the railroad shall retain one copy of all these

records; the division headquarters for each division where the

employees are instructed shall retain one copy of all portions of these

records that the division applies and enforces. These records shall be

made available to representatives of the Federal Railroad

Administration for inspection and copying during normal business hours.

This program shall--* * *

(4) Begin within 30 days after November 21, 1994, or the date of

commencing operations, whichever is later; and

* * * * *

(c) Each railroad to which this part applies is authorized to

retain by electronic recordkeeping its program for periodic instruction

of its employees on operating rules provided that the requirements

stated in Sec. 217.9(e)(1) through (5) of this part are satisfied.

6. Section 217.13, ``Annual report,'' is removed, and Sec. 217.15,

``Information collection,'' is redesignated as Sec. 217.13.

7. Redesignated Sec. 217.13 is amended by removing paragraph

(b)(4).

8. Appendix A to Part 217 is revised to read as follows:

Appendix A to Part 217--Schedule Of Civil Penalties1

------------------------------------------------------------------------

Willful

Section Violation violation

------------------------------------------------------------------------

217.7 Operating rules:

(a)........................................... $2,500 $5,000

(b)........................................... $2,000 $5,000

(c)........................................... $2,500 $5,000

217.9 Operational tests and inspections:

(a) Program................................... $5,000 $7,500

(b) Record of program......................... 2,500 $5,000

(c) Record of tests and inspections........... $5,000 $7,500

(d) Annual summary............................ $5,000 $7,500

217.11 Program of instruction on operating rules:

(a)........................................... $5,000 $7,500

(b)........................................... $2,500 $5,000

------------------------------------------------------------------------

1A penalty may be assessed against an individual only for a willful

violation. The Administrator reserves the right to assess a penalty of

up to $20,000 for any violation where circumstances warrant. See 49

CFR part 209, appendix A.

In consideration of the foregoing, part 220, title 49, Code of

Federal Regulations is amended to read as follows:

PART 220--[AMENDED]

1. The authority citation for Part 220 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304,

21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L.

103-272 (1994); and 49 CFR 1.49(m).

2. In Sec. 220.5, paragraphs (d) and (e) are added to read as

follows:

Sec. 220.5 Definitions.

* * * * *

(d) Division headquarters means the location designated by the

railroad where a high-level operating manager (e.g., a superintendent,

division manager, or equivalent), who has jurisdiction over a portion

of the railroad, has an office.

(e) System headquarters means the location designated by the

railroad as the general office for the railroad system.

3. Section 220.21 is amended by revising the heading and paragraph

(b) to read as follows:

Sec. 220.21 Railroad operating rules; radio communications;

recordkeeping.

* * * * *

(b) On or after November 21, 1994, or 30 days before commencing to

use radio communications in connection with railroad operations,

whichever is later, each railroad shall retain one copy of its current

operating rules with respect to radio communications, and of each

amendment to these rules, at the locations prescribed in paragraphs (b)

(1) and (2) of this section. These records shall be made available to

representatives of the Federal Railroad Administration for inspection

and copying during normal business hours.

(1) Each Class I railroad, each Class II railroad, the National

Railroad Passenger Corporation, and each railroad providing commuter

service in a metropolitan or suburban area shall retain such rules at

each of its division headquarters and at the system headquarters of the

railroad; and

(2) Each Class III railroad and any other railroad subject to this

part but not subject to paragraph (b)(1) of this section shall retain

such rules at the system headquarters of the railroad.

Issued in Washington, D.C. on August 12, 1994.

Jolene M. Molitoris,

Administrator, Federal Railroad Administration.

[FR Doc. 94-20457 Filed 8-19-94; 8:45 am]

BILLING CODE 4910-06-P