Protection of Utility Employees Response to Petitions to Reconsider

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

[FRA Docket Number RSOR-11, Notice No. 4]

RIN 2130--AA77

Protection of Utility Employees Response to Petitions to

Reconsider

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule amendments with request for comments.

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SUMMARY: On August 16, 1993, FRA published safety standards for utility

employees working as temporary members of train and yard crews. FRA now

amends a definition, responds to the concerns raised in petitions to

reconsider the final rule, issues an amendment on a subject addressed

earlier in this rulemaking, and makes technical corrections. The

amendment will permit single-person crews to work within the

protections provided for train and yard crews.

DATES: These amendments will become effective May 15, 1995. Comments on

the amendments must be received by May 1, 1995.

ADDRESSES: Comments on the amendments should be submitted to the Docket

Clerk, Office of Chief Counsel, RCC-30, Federal Railroad

Administration, 400 Seventh Street, SW., Room 8201, Washington, DC

20590.

FOR FURTHER INFORMATION CONTACT: James T. Schultz, Chief, Operating

Practices Division, Office of Safety, FRA, RRS-11, Washington, DC 20590

(telephone: 202-366-9252), or Kyle M. Mulhall, Trial Attorney, Office

of Chief Counsel, FRA, Washington, DC 20590 (telephone: 202-366-0443).

SUPPLEMENTARY INFORMATION: On August 16, 1993 FRA published a

regulation allowing utility crew members to be excluded from the blue

signal protection requirements of part 218 while the employee works as

a temporary member of a train or yard crew. 58 FR 43287. FRA believed

this rule, which provides new protections for utility employees, would

allow more efficient use of railroad personnel without compromising the

level of safety provided by the pre-amendment regulations.

In response to this regulatory revision, FRA received several

petitions for reconsideration of the new rule, including its rationale

and specific provisions of its preamble and text.

Basis for the Rule

The preamble to the Final Rule explained the agency's rationale for

issuing this regulation. Several petitioners continue to object to the

rule, arguing that expanding the original train and yard crew exclusion

to cover utility employees will create safety risks because the new

rule does not provide adequate protection for temporary crew members.

The petitions FRA received from rail labor question the safety data

on which FRA partially relied in this rulemaking. One petitioner cites

two specific occurrences in 1987 and anecdotal information regarding

similar mishaps involving operating crews that the petitioner argues

were preventable had there been no exclusion for train and yard crews.

(That exclusion, of course, was in FRA's original rule and directly

tracked the statutory provision that required the rule.) FRA does not

agree that these limited incidents outweigh the remaining safety data.

Our conclusion continues to be that utility employees can function

safely without blue signal protection under properly structured Federal

regulations and railroad operating rules requiring adequate

communication and understanding of the work to be performed. FRA notes

that the rule does not prevent railroads from enacting more stringent

procedures to address isolated safety problems. The agency continues to

believe that according a utility employee the same level of protection

historically provided to train and yard crews would not risk the

employee's safety. Accordingly, FRA will not withdraw the final rule.

FRA has no evidence on which to conclude that crews are currently

experiencing a material risk ascribable to unexpected train movements.

FRA believes, however, there may be reason to conduct a future

rulemaking on protection for all train and yard crew members, given the

issues raised in this rulemaking. Many of the issues raised by

participants in this rulemaking were beyond the scope of this

proceeding and would be more appropriately addressed in separate agency

actions.

Preamble and Text of Final Rule

FRA received petitions from rail labor and management questioning

specific portions of the preamble and rule. FRA responds below to each

primary objection.

1. One-Member Crews. FRA's notice of proposed rulemaking requested

comment on the protection needed for a single locomotive engineer

performing helper or hostler service. The notice stated:

FRA is also concerned that protection provided for one-person

assignments (i.e., hostlers or other unaccompanied engineers) be

consistent with safety and efficiency. FRA specifically invites

comments on the circumstances under which these engineers acting alone

might be permitted to perform functions outside of the area under

control of the mechanical forces without complete blue signal

protection as provided under Secs. 218.25 (main track) or 218.27 (other

than main track).

57 FR 41457.

Protecting one-member crews was therefore within the scope of the

notice. FRA chose not to address the subject in rule text because no

comments were received. In the preamble to the final rule, however, FRA

expressed discomfort with one-member crews. It was stated that a lone

engineer could not take advantage of the exclusion from blue signal

protection unless joined by a utility employee to ensure that the

locomotive cab was always occupied. 58 FR 43287.

The Association of American Railroads (AAR) objected to that

preamble statement, arguing that the language of the rule did not seem

to bar the use of one-person crews. FRA agrees that the rule does not

impose such a prohibition on one-member crews. FRA therefore grants

this portion of AAR's request.

Although AAR is correct that the utility employee rule did not, on

its face, preclude its application to one-member crews, application of

utility protection to such crews would not be logical. The utility

employee rule presumes the presence of a permanent crew to which the

utility crew member becomes temporarily attached for specific purposes.

One-person crews either do not join larger crews or do so to perform

duties distinct from those assigned a utility employee. FRA remains

concerned with the unique risk faced by lone engineers despite the

current lack of evidence of a substantial injury record for one-member

crews. An [[Page 11048]] engineer assigned to helper or hostler service

must frequently perform work, such as placing rear end markers or

making connections between locomotives, that puts that employee in

danger, particularly when this work is performed in congested terminals

and rail yards. FRA believes that if single-engineer assignments are

not carefully controlled, the industry may risk an entirely avoidable

safety problem. Safety can be assured only by providing protection

against unexpected movement of equipment equivalent to a crew member

occupying the cab. AAR, in its joint submission with the United

Transportation Union (UTU) dated March 5, 1993, agreed that crews need

to have complete control over the equipment on which they are working.

FRA believes this can be achieved and therefore issues a new

Sec. 218.24 as an amendment that prohibits an engineer working alone

from going on, under, or between rolling equipment to perform

inspections, tests, repairs, or servicing without blue signal

protection unless all of the following conditions are met:

(1) Each locomotive in the locomotive engineer's charge is either

(i) coupled to the train or other railroad rolling equipment to be

assisted or (ii) stopped a sufficient distance from the train or

rolling equipment to ensure a separation of at least 50 feet; and,

(2) Before a controlling locomotive is left unattended, the one-

member crew shall secure the locomotive as follows:

(i) The throttle is in the IDLE position;

(ii) The generator field switch is in the OFF position;

(iii) The reverser handle is removed (if so equipped);

(iv) The isolation switch is in the ISOLATE position;

(v) The locomotive independent (engine) brake valve is fully

applied;

(vi) The hand brake on the controlling locomotive is fully applied

(if so equipped); and

(vii) A bright orange engineer's tag (a tag that is a minimum of

three by eight inches with the words ASSIGNED LOCOMOTIVE--DO NOT

OPERATE) is displayed on the control stand of the controlling

locomotive.

If the single-engineer crew is working in helper service, safety

must also be assured by effective communication between engineers of

controlling locomotives to prevent unexpected movement. Single-engineer

helper service crews are most commonly found in heavy grade territory

on main track routes, where additional locomotives are added to trains

to push or pull trains on steep grades.

FRA believes the single engineer is particularly vulnerable while

attaching his or her locomotive to, or detaching it from, the train to

be assisted. FRA provides protection by requiring that communication be

established between engineers of controlling locomotives on a common

track or working a common train, and these engineers reach an

understanding of the work to be performed before taking advantage of

the exclusion for train and yard crews. FRA proposes the following

language to achieve that purpose:

When assisting another train or yard crew with the equipment the

other crew was assigned to operate, a single engineer must

communicate directly, either by radio in compliance with Part 220 of

this chapter or by oral telecommunication of equivalent integrity,

with the crew of the train to be assisted. The crews of both trains

must notify each other in advance of all moves to be made by their

respective equipment. Prior to attachment or detachment of the

assisting locomotive(s), the crew of the train to be assisted must

inform the single engineer that the train is secured against

movement. The crew of the train to be assisted must not move the

train or permit the train to move until authorized by the single

engineer.

Use of single-person crews is a relatively recent practice. FRA

gave notice in the NPRM of its intent to consider the safety of such

crews, but only addressed the issue in the preamble to the final rule.

While FRA is not obliged to provide further opportunity to comment, it

has decided that soliciting comment is the better course. FRA therefore

invites comment on this amendment before it takes effect. FRA will

provide a 60-day comment period from the date of publication. At the

close of this period, FRA will review the materials received and make

necessary adjustments to the amendment.

FRA notes that the contemplated requirements are nearly identical

to operating rules of several railroads that currently use single-

member crews.

2. Ranking Crew Member. Section 218.5 of the Final Rule defined

``ranking crew member'' as the assigned locomotive engineer, if the

person in general charge of the train was not named by the railroad's

operating rules. The UTU argued that the definition dilutes the

traditional authority of railroad conductors at the expense of safety.

In response to these comments, the final rule is modified to permit the

designation of the crew member responsible for coordination with the

utility employee only by the railroad's operating rules. Accordingly,

the last sentence of the definition of ``ranking crew member'' is

deleted, and the term is changed to ``designated crew member.''

3. Occupied Locomotive Cab. Rail management argued that the

requirement in Sec. 218.22(b)(2), which requires the locomotive

engineer, or another crew member, to be present in the cab of the

controlling locomotive in order for the crew to make use of a utility

employee, was overly restrictive. FRA believes that a crew member in

the controlling locomotive who is aware that others are working on the

train can prevent equipment movement that would endanger the crew. This

crew member's presence in the cab serves to prevent such events as

unexpected couplings when crew members are in jeopardy and is,

therefore, an essential element of the exclusion.

4. Craft lines. In the Final Rule, at Sec. 218.22(b)(5), FRA

clarified the agency's intention not to expand the type of work that

could be performed by crews without blue signal protection. In order to

accomplish this goal, FRA listed the duties that a utility employee is

allowed to perform within the exclusion. This list was intended to be

inclusive of all essential and routine duties traditionally performed

by crews. Several petitioners objected that the list was incomplete,

preventing carriers from making full use of utility employees. FRA

disagrees. FRA has, in letters to each petitioner, addressed the duties

each has raised. The few specific duties which the petitioners

identified as not on the list are in truth parts of jobs listed or jobs

which do not require blue signal protection. FRA will not, therefore,

amend the list.

A labor union petitioner, the Brotherhood of Railway Carmen (BRC),

objected that the list contained duties beyond those traditionally

performed by train and yard crews. BRC did not identify the duties to

which it objected. The petitioner asserts that the agency therefore

acted beyond the scope provided by the notice of proposed rulemaking.

FRA disagrees. The Final Rule merely permits utility employees to work

like other crew members under specific conditions, which was the

expressed intent of the proposed rule.

Rail labor also objected to the preamble explanation that if non-

crewmember supervisors perform duties that constitute inspecting,

testing, repairing, or servicing, and that cause them to go on, under,

or between the equipment, they are not excused from blue signal

requirements by virtue of their supervisory occupation. This example

illustrated FRA's position that blue signal requirements are based on

function and not craft. Any title could be used in place of

``supervisors.'' It was not a suggestion that supervisors replace other

employees who currently perform [[Page 11049]] these jobs, as the

petitioner seems to fear.

In addition, it should be understood that this rule does not

replace existing collective bargaining agreements with respect to

assignments of duties. This rule simply defines the limits of the

duties a utility employee may perform without traditional blue signal

protection. The existence of this rule, however, does not mean that

these duties must be assigned to utility employees. But it should be

noted that a utility employee must not be assigned responsibilities

beyond those listed, without full blue signal protection, regardless of

existing labor and management agreements.

5. Radio Communication. The rule provides a process for utility

employees to join and quit a crew. Integral to this process is

communication among crew members, most likely by radio as provided in

Sec. 218.22(e). One petitioner, Mr. Alan Thompson, objected to the

reliance on radios because of the possibility that radios could

malfunction. FRA, however, does not believe it is necessary to amend

the communication provisions. A utility employee must not be excluded

from blue signal protection unless effective communication is

established. If a radio malfunction prevents the required crew notice,

then the utility employee must be protected by blue signals unless

required communication is achieved by talking in person or other

equivalent forms of telecommunications.

6. Adequate Recordkeeping. FRA rejects the argument that additional

recordkeeping requirements are needed to make the rule enforceable. As

noted in the preamble to the Final Rule, railroads are required to

maintain hours of service records, accident reports, records of

attendance at railroad operating rules classes, and alcohol and drug

testing records for all operating personnel, including utility

employees. The agency believes these records are sufficient to

determine an employee's status for enforcement purposes.

7. Appendix Examples. Rail management argued that the examples

published in Appendix A to the rule should not include train and yard

crews. FRA chose to include all operating employees, as well as utility

employees, in the last four examples to highlight the extent of the

blue signal regulation. FRA has found that railroads have occasionally

utilized operating employees instead of maintenance-of-equipment

employees to perform work which requires blue signal protection, under

the mistaken impression that the exclusion from blue signal protection

for train and yard crews extends to all work assigned to these

employees.

The examples contain no new requirements, but simply illustrate

existing law. They are therefore not beyond the scope of this

proceeding.

8. Economic Analysis. One petitioner, BRC, questioned the amount of

the economic benefit FRA stated the rule should create. BRC argued that

time spent completing required brake tests was improperly counted as

time spent installing and removing end-of-train devices. BRC concluded,

therefore, that the time FRA believed would be saved by using utility

employees would still be spent performing brake tests. BRC argued,

therefore, that there would be less cost savings created by the rule

than FRA had estimated, because there would not be an improvement in

time preparing a train for departure.

FRA based its savings calculations on the best information

available to this agency. No participant, including BRC, provided

contrary data. Moreover, contrary to BRC's assertion, FRA's economic

analysis did not consider time spent on brake tests as an area where

benefits could be created. FRA believes that its cost and benefit

calculations accurately reflect the true impact of the final rule.

9. Penalty Amounts. One petitioner argued that the penalty amounts

contained in an appendix to the rule were inadequate to encourage

compliance. The penalty amounts are consistent with the civil penalties

levied for other violations of federal railroad safety regulations. FRA

does not believe that the penalties are insufficient to promote

compliance. The penalty schedule makes clear that FRA has the authority

to assess even higher amounts where the facts of a particular violation

warrant.

FRA's monitoring of industry application of this rule over the next

year will provide evidence of carrier compliance. If safety risks are

created by the repeated failure to comply with the rule, FRA has other

enforcement options, including compliance or emergency orders.

10. Technical Correction. The definition of ``locomotive servicing

track area'' was unintentionally deleted from the Final Rule. That

definition is now added to the list of definitions provided in

Sec. 218.5.

Regulatory Impact Analysis

This amendment to the final rule has been evaluated in accordance

with existing policies and procedures and is considered

``nonsignificant'' under Executive Order 12866. It is not considered to

be significant under Department of Transportation policies and

procedures. See 44 FR 11034. The amendment does not materially affect

the benefit/cost analysis provided in the final rule.

The Regulatory Flexibility Act

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

enacted by Congress to ensure that small entities are not unnecessarily

and disproportionately burdened by Government regulations. This

amendment will have no new direct or indirect economic impact on small

units of government, business, or other organizations.

Federalism Implications

This amendment will not have a substantial effect on the states, on

the relationship between the national government and the states, or on

the distribution of power and responsibilities among the various levels

of government. Therefore, in accordance with Executive Order 12612,

preparation of a Federalism Assessment is not warranted.

Paperwork Reduction Act

There are no new information collection requirements associated

with this amendment. Therefore, no estimate of a public reporting

burden is required.

Environmental Impact

This amendment will not have any identifiable environmental impact.

List of Subjects in 49 CFR Part 218

Occupational safety and health, Penalties, Railroad employees,

Railroad safety, Reporting and recordkeeping requirements.

The Rule

In consideration of the foregoing, FRA amends Part 218 of Title 49,

Code of Federal Regulations as follows:

PART 218--[AMENDED]

1. The authority for Part 218 is revised to read as follows:

Authority: 49 U.S.C. 20101 et seq.; and 49 CFR 1.49(m).

2. By amending Sec. 218.5 to remove the definition ``Ranking crew

member'' and to add the following definitions in alphabetical order to

read as follows:

Sec. 218.5 Definitions.

* * * * *

Designated crew member means an individual designated under the

railroad's operating rules as the point of contact between a train or

yard crew [[Page 11050]] and a utility employee working with that crew.

* * * * *

Locomotive servicing track area means one or more tracks, within an

area in which the testing, servicing, repair, inspection, or rebuilding

of locomotives is under the exclusive control of mechanical department

personnel.

* * * * *

3. By amending Sec. 218.22 to remove the word ``ranking'' and add,

in its place, the word ``designated'' in the following places:

a. Section 218.22(c)(3);

b. Section 218.22(c)(4);

c. Section 218.22(d); and

d. Section 218.22(e).

4. Add a new Sec. 218.24 to read as follows:

Sec. 218.24 One-person crew.

(a) An engineer working alone as a one-person crew shall not

perform duties on, under, or between rolling equipment, without blue

signal protection that complies with Sec. 218.27 or Sec. 218.29, unless

the duties to be performed are listed in Sec. 218.22(c)(5) and the

following protections are provided:

(1) Each locomotive in the locomotive engineer's charge is either:

(i) Coupled to the train or other railroad rolling equipment to be

assisted; or

(ii) Stopped a sufficient distance from the train or rolling

equipment to ensure a separation of at least 50 feet; and

(2) Before a controlling locomotive is left unattended, the one-

member crew shall secure the locomotive as follows:

(i) The throttle is in the IDLE position;

(ii) The generator field switch is in the OFF position;

(iii) The reverser handle is removed (if so equipped);

(iv) The isolation switch is in the ISOLATE position;

(v) The locomotive independent (engine) brake valve is fully

applied;

(vi) The hand brake on the controlling locomotive is fully applied

(if so equipped); and

(vii) A bright orange engineer's tag (a tag that is a minimum of

three by eight inches with the words ASSIGNED LOCOMOTIVE--DO NOT

OPERATE) is displayed on the control stand of the controlling

locomotive.

(b) When assisting another train or yard crew with the equipment

the other crew was assigned to operate, a single engineer must

communicate directly, either by radio in compliance with Part 220 of

this chapter or by oral telecommunication of equivalent integrity, with

the crew of the train to be assisted. The crews of both trains must

notify each other in advance of all moves to be made by their

respective equipment. Prior to attachment or detachment of the

assisting locomotive(s), the crew of the train to be assisted must

inform the single engineer that the train is secured against movement.

The crew of the train to be assisted must not move the train or permit

the train to move until authorized by the single engineer.

Appendix A to Part 218 [Amended]

5. In Appendix A to Part 218--Schedule of Civil Penalties, a new

entry is added in numerical order under Subpart B to the penalty

schedule to read as follows:

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

Willful

Section Violation violation

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Subpart B--Blue signal protection of workers:

* * * * *

218.24 One-person crew:

(a)(1) equipment not coupled or insufficiently

separated...................................... $2,000 $4,000

(a)(2) unoccupied locomotive cab not secured.... 5,000 7,500

(b) helper service.............................. 2,000 4,000

* * * * *

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Issued in Washington, DC, on February 15, 1995.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 95-4761 Filed 2-28-95; 8:45 am]

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