Railroad Communications

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 220

[Docket No. RSOR-12; Notice No. 5]

RIN 2130-AB19

Railroad Communications

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Railroad Administration (FRA) amends its radio

standards and procedures to promote compliance by making the

regulations more flexible; to require wireless communications devices,

including radios, for specified classifications of railroad operations

and roadway workers; and to retitle this part to reflect its coverage

of other means of wireless communications such as cellular telephones,

data radio terminals and other forms of wireless communications used to

convey emergency and need to know information.

This final rule is based upon recommendations from a rail industry

and labor working group convened by FRA and upon review of comments

received in response to the June 26, 1997 notice of proposed rulemaking

(62 FR 34544).

DATE: Effective Date: This rule is effective January 4, 1999.

Compliance Dates: Sections 220.9 and 220.11 are effective July 1, 1999

for each railroad that:

(1) provides commuter service in a metropolitan or suburban area;

(2) provides intercity passenger service; or

(3) had 400,000 or more annual employee work hours in 1997.

Sections 220.9 and 220.11 are applicable July 1, 2000 for each

railroad that had fewer than 400,000 annual employee work hours in

1997.

ADDRESSES: Any petition for reconsideration should be submitted in

triplicate to Ms. Renee Bridgers, Docket Clerk, Office of Chief

Counsel, Federal Railroad Administration, 400 Seventh Street, S.W.,

Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Gene Cox, Operating Practices

Specialist, Office of Safety, FRA, 400 Seventh Street S.W., Washington,

D.C. 20590 (telephone: 202-493-6319); Dennis Yachechak, Operating

Practices Specialist, Office of Safety, FRA, 400 Seventh Street S.W.,

Washington, D.C. 20590 (telephone: 202-493-6260); or Patricia V. Sun,

Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh Street S.W.,

Washington, D.C. 20590 (telephone: 202-493-6060).

SUPPLEMENTARY INFORMATION:

FRA's 1994 Report to Congress

FRA first issued railroad radio standards and procedures (49 CFR

Part 220) in 1977. In 1992, in section 11 of the Rail Safety

Enforcement and Review Act (RSERA), Pub. L. No. 102-365, 106 Stat. 972,

Congress required the Secretary of Transportation to conduct an inquiry

into Part 220 procedures. As part of its inquiry, FRA conducted a field

investigation of current voice communications technology and practice,

held three Roundtable discussions on advanced train control

technologies, published a notice of special safety inquiry (59 FR

11847; March 11, 1994), conducted a public hearing on voice radio

communications, contracted with the Department of Commerce's Institute

for Telecommunications Sciences for a technical evaluation of advanced

train control systems, and consulted with other agencies within DOT and

with staff of the Federal Communications Commission.

In July 1994, FRA published its Report to Congress on Railroad

Communications and Train Control. FRA concluded that railroad radio

communications were generally good and had steadily improved since

FRA's last major study in 1987. However, compliance with the standards

and procedures in Part 220 was poor, and employees continued to report

problems with radio equipment. (FRA's June 26, 1997 notice of proposed

rulemaking, discussed below, details the technology application and

utilization problems (62 FR 34544-45) uncovered during the inquiry.)

Based on these findings, FRA committed to revising Part 220 to make the

regulations more flexible.

Railroad Safety Advisory Committee's Review of Part 220

In 1996, FRA established the Railroad Safety Advisory Committee

(RSAC or the Committee) to implement a more consensual approach to

rulemaking. RSAC is comprised of 48 representatives from 27 member

organizations, including railroads, labor groups, equipment

manufacturers, state government groups, public associations, and two

associate non-voting representatives from Canada and Mexico. To address

specific tasks, such as railroad communications, RSAC formed standing

or temporary subcommittees, or working groups, comprised of

knowledgeable persons from the organizations represented on RSAC. The

Railroad Communications Working Group (Working Group or Group) was

comprised of representatives from the following organizations:

American Public Transit Association (APTA)

The American Short Line Railroad Association (ASLRRA)

Association of American Railroads (AAR)

Brotherhood of Locomotive Engineers, American Train Dispatchers

Department (BLE)

Brotherhood of Maintenance of Way Employes (BMWE)

Brotherhood of Railroad Signalmen

Burlington Northern Santa Fe

Canadian Pacific Rail System

Consolidated Rail Corporation (Conrail)

CSX Transportation, Inc.

[[Page 47183]]

FRA

International Brotherhood of Electrical Workers

National Railroad Passenger Corporation (AMTRAK)

Norfolk Southern Corporation (NS)

Railway Progress Institute

Transportation Communications International Union

United Transportation Union.

In its Task Statement (Task No. 96-3) to the Working Group, RSAC

charged the Group to report back on the following issues:

1. all matters relating to revision of the existing standards,

including data required for regulatory analysis;

2. communications needs in support of train operations;

3. communications needs in support of switching operations; and

4. the role of communications capability in emergency preparedness,

including passenger service.

In a series of meetings, the Working Group examined extensive data,

debated how to improve compliance with FRA radio standards and

procedures, and considered whether to mandate radios and other forms of

wireless communications to convey emergency and need to know

information. In 1997, the Working Group achieved consensus on

recommendations to amend Part 220, which the RSAC subsequently approved

by formal ballot. On June 26, 1997, FRA published a notice of proposed

rulemaking (NPRM) [62 FR 34544] based on the Working Group's

recommendations.

Summary of Principal Communications Requirements in the NPRM

FRA proposed to vary communication equipment standards and

implementation periods according to railroad size, providing small

railroads more flexibility in recognition of their unique concerns.

Small railroads were defined as those with fewer than 400,000 annual

employee work hours (see the Regulatory Flexibility Act analysis below

for further discussion of how small entities are defined in this part),

and large railroads were defined as those with 400,000 or more annual

employee work hours. This reporting cut-off is used in 49 CFR Parts 217

and 219 (Railroad Operating Rules and Control of Alcohol and Drug Use,

respectively).

More communications equipment would be required on trains operated

by large railroads than on those operated by small railroads. Large

railroads would be required to equip each train with a working radio in

each occupied controlling locomotive and with a means of redundant

working wireless communications. A working radio is one that can

communicate with the railroad's control center from any location within

the rail system (through repeater stations, if necessary), with the

exception of limited segments of territory where topography or

transient weather conditions prevent effective communications. In the

case of joint operations on another railroad, the radio must also be

able to reach the control center of the host railroad. For small

railroads, each train's communication equipment requirements would be

determined by a variety of factors, including whether the train

transports passengers, hauls hazardous materials, engages in joint

operations with large railroads, or operates above specified speeds.

For roadway workers, communication equipment requirements would

also vary according to the size of the railroad. Large railroads would

be required to equip maintenance-of-way equipment operating without

locomotive assistance with a working radio. If multiple units are

traveling together, only one unit would need to be equipped. Each

maintenance-of-way work group would also be required to have intra-

group communications capability. Each employee designated by the

railroad to provide on-track safety for a roadway work group, and each

lone worker, would be required to have immediate access to a working

radio.

Small railroads would have to provide each employee responsible for

on-track safety and each lone worker with immediate access to working

wireless communications unless railroads do not operate in excess of 25

miles per hour. A railroad, regardless of size, would be excepted from

these roadway worker communication requirements whenever the roadway

work location is inaccessible to trains or has no through traffic or

traffic on adjacent tracks when roadway workers are present.

In addition to the proposed equipment requirements, FRA would

require railroad employees to notify the railroad's control center,

using the quickest means of communications available, of emergency

conditions that could result in death or injury, damage to property, or

serious disruption of railroad operations. FRA also proposed to require

railroad employees to test radio and redundant wireless communication

equipment as soon as practicable before the beginning of their work

assignment, and to remove inoperative equipment from service upon

detection. The NPRM also proposed a retention period for copies of

mandatory directives.

Discussion of Comments

By August 25, 1997, the closing date for the comment period, FRA

had received comments from the following parties, many of whom were

represented in the Working Group:

APTA

ASLRRA

AAR

BLE

BLE, Local Chairman 112 (BLE 112)

BLE, General Committee of Adjustment, Southeastern Pennsylvania

Transportation Authority (BLE SEPTA)

BMWE

Conrail

Duluth, Missabe and Iron Range Railway (DMIR)

Railtex

NS

Union Pacific Railroad Company (UP)

Comments that were addressed to specific sections of the NPRM are

discussed in the section-by-section analysis. In reviewing the

comments, five major issues emerged, which are discussed below.

(1) Coverage

The NPRM defined a working radio as one that can communicate with

the railroad's control center from any location within the rail system

(through repeater stations, if necessary), with the exception of

limited segments of territory where topography or transient weather

conditions temporarily prevent effective communications. In the case of

joint operations on another railroad, the radio must also be able to

reach the control center of the host railroad. FRA requested comments

on whether the final rule should allow exclusions in communications

coverage where the cost of placing additional repeater stations to

prevent dead spots would be significant in relation to potential

benefits.

FRA received the most comments on this issue. Coverage is a

significant issue for many western railroads because of their greater

territory and more diverse terrain.

BLE SEPTA commented that coverage exclusions should only be

considered on territory without passenger or hazardous materials

traffic, or on a case-by-case waiver basis. Factors such as

installation cost, topography or frequency of use should not determine

coverage limits, since quick communication is needed whenever a

potential disaster strikes. BMWE also opposed allowing railroads

subject to the NPRM to define additional coverage limits. BMWE

commented that the safety risks associated with operating without

communications capability remain the same regardless of

[[Page 47184]]

topography, and that cost issues had been adequately addressed by the

NPRM's exclusion of railroads with fewer than 400,000 annual employee

work hours and allowance for temporary fluctuations due to weather or

terrain.

DMIR, on the other hand, commented that FRA needed to clarify what

communications capability would be required for each piece of on-track

equipment and for intra-group communication. While DMIR's present

portable radios could communicate with other nearby radios, there were

areas on its system where topography prevented these radios from being

able to reach the dispatcher. DMIR estimated that providing each lone

worker with a portable radio capable of reaching the dispatcher would

cost the railroad approximately $200,000 (ten additional base stations,

six towers and forty more portable radios).

UP commented that it would not be cost effective or practicable to

design and implement a wide area system with 100% coverage all of the

time. Instead, UP suggested that FRA define its coverage requirements

using common terminology such as ``90% of the territory is covered 90%

of the time'' since this would reduce future waiver applications. With

respect to the proposed communications requirements for roadway workers

in Sec. 220.11, UP noted that portable radios do not provide the same

coverage as locomotive radios because of differences in transmitted

power, antenna height, and antenna efficiency and therefore could not

be expected to communicate with the control center from anywhere on the

right-of-way.

AAR commented that the preamble's implied requirement to construct

and install new base stations was not agreed to by the Working Group,

contained in the rule text or analyzed in the regulatory impact

analysis. ASLRRA supported AAR, adding that it would be cost-

prohibitive to require all railroads to install repeater stations to

eliminate dead spots and provide complete radio coverage. ASLRRA also

commented that the Working Group had never voted or reached consensus

on this issue because of the unavailability of data demonstrating the

safety benefits of full coverage.

The issue of ``coverage'' is separable into two dimensions. The

first has to do with the ability of mobile radios (mounted semi-

permanently within the cabs of locomotives, on-track equipment or

trucks assigned to roadway workers) to transmit and receive from any

place along the length of a railroad right-of-way. Major railroads

maintain thousands of repeater stations that facilitate communication

with control centers from such locations. However, even the most

complete of the current repeater station arrays may be unable to

receive from or transmit to mobile radios at isolated (localized) sites

such as long tunnels, at the base of cliffs, or at certain locations

within gorges. The working group did not discuss, and FRA did not

intend to propose, that every such ``dead spot'' be remedied, since

this could require the expenditure of large sums of money to place

repeating stations where no commercial power is available in order to

yield very modest increases in communication capability. The final rule

requires that radio coverage of all territories be provided (as is

generally the case today) with the following exceptions: (a) tunnels or

other localized places of extreme topography; and (b) temporary lapses

of coverage due to atmospheric or topographic conditions.

FRA also recognizes that certain existing ``dead spot'' locations

may warrant further study for special treatment. Examples may include

very long tunnels where an engine fire or derailment could create an

immediate need for rescue by a relief train. One commentator in this

proceeding, BLE Local 112, suggested that this final rule expressly

mandate such coverage. However, this proceeding has focused on the

equipping of trains and provision of communications capability to

roadway workers, rather than the density of the communications

infrastructure. Accordingly, FRA does not have available the data that

would be needed to resolve these issues in this final rule. To the

extent passenger operations are conducted through long tunnels, FRA

will expect railroads to address communications needs in formulating

plans under the new requirements for Passenger Train Emergency

Preparedness (64 FR 24632; May 4, 1998).

As noted in the final rule, transient weather conditions (alone or

in combination with topographic features) may also give rise to

temporary coverage gaps over which the railroad will have no control.

These interruptions are inherent to communications in the 160 MHZ band

and cannot be effectively addressed through regulatory fiat.

The second dimension of the coverage issue involves those

situations where roadway workers may find it necessary to work at some

distance from trucks or on-track equipment equipped with mobile radios,

in territory where only a mobile radio can be relied upon to

communicate with the control center. In these situations, it is again

unrealistic to require that repeater stations be installed in a pattern

so dense that portable radios will always be capable of reaching the

control center. Portable radios transmit at lower wattage than mobile

radios, and their smaller antennas are less able to receive faint

signals. Particularly in the Western States, adding repeater stations

to accommodate communication with the control center using only

portable radios could result in massive expenditures for additional

radio infrastructure. FRA has reviewed this issue in light of the

public comments and fashioned the following approach in this final

rule:

Those in charge of obtaining protection for roadway

workers (including lone workers) must be provided with whatever radio

equipment is needed to reach the control center from their work area,

subject to the same localized and transient exceptions that apply to

trains above. (Groups or lone workers traveling by rail will already

have this capability in the form of a mobile radio, and trucks used by

signal maintainers and other roadway workers must be similarly equipped

unless portable radios are sufficient for the purpose of reaching the

control center.)

To the extent that it is not practicable for such workers

to maintain immediate access to communications capability with the

control center (because of the need to work at some distance from

equipment on which mobile radios are mounted), portable radios must be

provided. Portable radios will permit these workers to monitor local

transmissions from trains, a major objective sought by representatives

of these workers during the working group negotiation. In an emergency

involving injury to a roadway worker, it may also be possible to relay

information to the control center through crews of passing trains or

through another roadway worker situated within earshot of the group's

on-track equipment or truck.

FRA believes that the final rule upholds the intent of the working

group to provide effective communications capability for trains and

roadway workers while responding to the detailed comments on coverage

received in response to the NPRM. FRA recognizes that standards for

effective communication will continue to evolve as technology improves

and the rail industry gains experience in the application of this final

rule.

(2) Roadway Worker Protection

The NPRM proposed to require large railroads to provide each

designated employee in charge, and each lone worker, with immediate

access to a

[[Page 47185]]

working radio. Small railroads would have the option of providing

immediate access to either a working radio or working wireless

communications.

Several commentators raised issues concerning the NPRM and FRA's

Roadway Worker Protection regulations (49 CFR Part 214, Subpart C).

Referring to FRA's proposed lone worker definition, DMIR suggested that

FRA substitute ``work group'' for ``work gang'' to be consistent with

Part 214 terminology. FRA agrees and has substituted ``group'' for

``gang'' throughout this final rule. To further harmonize this part

with Part 214, FRA substitutes ``employee responsible for on-track

safety'' for ``designated employee in charge'' (a term used in the

NPRM's preamble, but not the rule text) and ``employee in charge of on-

track equipment'' to ensure consistent terminology, and amends

Sec. 220.61(b) to require the employee responsible for on-track safety

to retain a copy of a mandatory directive while it is in effect, to

parallel the retention requirements in Sec. 214.321 (retention of

mandatory directives is discussed in more detail elsewhere in this

preamble).

NS expressed concerns about ``substantial'' duplication between the

NPRM and Part 214. Additionally, AAR commented that the preamble had

incorrectly stated that the Working Group's recommendations resulted

from a decision to enhance roadway worker compliance with Part 214 and

ability to communicate unsafe conditions. ASLRRA supported AAR's

comments, adding that the preamble had misstated the tasks of the

Working Group by implying that the Group had been tasked with equipping

maintenance-of-way equipment and/or extending roadway worker

requirements into the railroad communications rule.

After examining both rules, FRA finds them complementary, not

conflicting or duplicative, since the communications requirements in

this final rule reinforce compliance with on-track safety procedures by

workers performing duties on or adjacent to live track. While there may

not be agreement concerning the Group's reasons for amending Part 220,

the changes contained in the NPRM were the product of consensus.

BMWE's comments are addressed in the section-by-section analysis.

(3) Non-Radio Wireless Communications Procedures

FRA asked for comments on whether non-radio wireless communications

procedures paralleling the radio procedures in Subpart B should be

adopted for cellular telephones and other wireless communications

devices that would be covered under the NPRM. To focus on this issue,

FRA inquired whether non-radio wireless communications had the same

opportunities for misunderstanding as radio transmissions, and asked

how such procedures would be enforced (e.g., ``over'' and ``out'' with

cellular telephones where usually only one party to the conversation

could be overheard).

BLE SEPTA recommended that FRA adopt certain sections of the

current radio procedures for non-radio wireless communications,

specifically identification (Sec. 220.27), statement of numbers and

letters (Sec. 220.29), ending a transmission (Sec. 220.35), consistency

with federal regulations and railroad operating rules (Sec. 220.43),

complete communications (Sec. 220.45), and transmission of mandatory

directives (Sec. 220.61). BLE SEPTA noted that while cellular

telephones have less interference from other communications there is

also no listener redundancy to detect errors. BMWE also supported

adoption of non-radio wireless communications procedures to ensure the

accurate transmittal and copying of information. In particular, BMWE

advocated requiring all mandatory directives transmitted via non-radio

wireless communications to be repeated back and verified before being

acted upon. BLE Local 112 suggested that FRA require the dispatcher to

have a separate telephone number for emergencies.

Conversely, UP commented that non-radio wireless communications

procedures were unnecessary, and that railroads could combine ordinary

telephone procedures with operating rules to govern such

communications. APTA also commented that non-radio wireless

communications procedures were unnecessary, since wireless

communications other than radio would not involve heavy communications

traffic on shared channels. With cellular telephones, for example,

parties to a call would not be subject to interfering traffic so the

potential for confusion would be diminished. APTA also believed that

non-radio wireless communications procedures would be difficult to

monitor, and consequently, both unenforceable and counterproductive.

After reviewing the comments, FRA has decided not to promulgate

non-radio wireless communications procedures at this time, since the

Working Group did not consider in depth how to ensure the accuracy and

completeness of non-radio wireless communications. As proposed, in this

final rule FRA addresses only the testing and failure of non-radio

wireless communications equipment (in Secs. 220.37 and 220.38

respectively).

FRA emphasizes, however, that the procedures in Sec. 220.61(b)

should be followed even when a cellular telephone or other form of

wireless communication is used to transmit a mandatory directive, since

there is a risk of miscommunication. Regardless of the means of

transmission, an employee should not copy a mandatory directive while

at the controls of moving equipment. Regardless of the means of

transmission, FRA expects a mandatory directive to be copied in its

entirety and retained for the duration of the work assignment, to

ensure that those responsible for executing the directive understand

(if train crew) or acknowledge (if roadway workers) it. While existing

railroad operating rules will otherwise continue to govern non-radio

communications, FRA will monitor compliance with Sec. 220.61, and will

revisit the issue of non-radio wireless communications procedures if

necessary.

(4) Ending a Transmission

In the NPRM, FRA asked for comment on whether use of ``over'' and

``out'' at the end of each radio transmission should remain a

requirement or become a recommended practice .

Comments in response to the NPRM were divided. BMWE was not opposed

to retention of ``over'' and ``out'' provided that failure to end a

transmission in this manner did not result in individual liability.

Conrail supported changing ``over'' and ``out'' to a recommended

practice, commenting that this requirement was unique to railroads. UP,

also in favor of anti-retention, suggested that ``over'' and ``out'' be

required only when necessary to ensure transmission quality. Finally,

AAR and ASLRRA both favored allowing railroads to follow their own

current radio practices, commenting that ``over'' and ``out'' had no

special safety significance.

After reviewing these comments, FRA has decided to retain ``over

and out'' in the final rule, except in yard switching operations, where

radio congestion is a frequent problem and rapid delivery of

information supports real time decisions that are crucial to safety.

This exception is consistent with the latitude allowed under current

FRA enforcement practice. Use of ``over'' and ``out'' makes clear to

the conversants, and to any listeners monitoring and using that

frequency, when a radio transmission is in progress and when it has

concluded. Past audits demonstrate that overall compliance with radio

rules improves whenever this requirement is strictly

[[Page 47186]]

enforced. Moreover, crews may act on incomplete information or

overlapping transmissions without a standard procedure to indicate when

a transmission is over.

(5) Copying and Retention of Mandatory Directives

In the NPRM, FRA clarified that Sec. 220.61 has always required

that the conductor and the engineer each have an individual copy of

every mandatory directive transmitted by radio, since each is

responsible for ensuring that all train crew members (with the

exception of passenger and commuter train personnel not directly

involved in the operation of the train) read and understand the

directives before they are acted upon.

In its comments, NS suggested that a single copy of a mandatory

directive in the possession of either the conductor or engineer could

be used to ensure that both read and understand a mandatory directive

before acting upon it, thus avoiding the copying and paperwork burden

of duplicate copies. FRA disagrees and this final rule tracks the

proposed rule; too much potential for misunderstanding exists when the

engineer and conductor share a single copy of a mandatory directive,

even if both have read it. DMIR, however, asked if a two-part form

could be used to avoid possible transcription errors in making a

duplicate written copy of the mandatory directive. FRA has no

objections, so long as the engineer and conductor each retain a part of

the form containing the complete mandatory directive.

For roadway groups, FRA proposed to require that a mandatory

directive be ``acknowledged,'' instead of ``read and understood,'' by

the designated employee in charge, who would then provide a detailed

job briefing at the beginning of the assignment notifying the other

roadway workers of the group's movement limitations, authorities, and

other relevant information.

FRA received no comments on this proposal, and adopts it in this

final rule.

FRA proposed requiring that fulfilled or canceled mandatory

directives be marked with an ``X'' or in accordance with the railroad's

operating rules to prevent later employee confusion as to which

mandatory directives were applicable at any point of time, and that

each employee responsible for executing a mandatory directive within a

train crew or roadway group retain copies of those directives for the

duration of his or her work assignment. FRA also solicited comments on

the value of requiring retention of copies of mandatory directives for

seven work days after completion of the work assignment as recommended

in a recent FRA Safety Bulletin (61 FR 64191, August 26, 1996), and as

already required on NORAC (the Northeast Operating Rules Advisory

Committee) member railroads. This proposal would enable both railroads

and FRA to enforce compliance with the copying requirement.

Commentators uniformly supported marking directives fulfilled or

canceled. Commentators were divided on FRA's suggestion to retain

copies until the end of the work assignment, and uniformly opposed

retention for seven work days after completion of the work assignment.

Railtex, for example, commented that a seven day retention period would

be unenforceable, but supported retaining copies of mandatory

directives for the duration of the crews' work assignment. AAR, ASLRRA,

and BMWE, on the other hand, commented that retaining mandatory

directives beyond their effective period could lead to confusion as to

which directives had been fulfilled and which remained active, and that

marking fulfilled directives with an ``X'' or in accordance with

railroad operating rules would be sufficient. ASLRRA added that FRA's

Roadway Worker Protection regulations require retention only until the

directive has been fulfilled or canceled.

After considering this issue further, FRA continues to believe that

those employees responsible for ensuring that mandatory directives are

read and understood, namely engineers and conductors, should be

required to retain their copies for the duration of the work assignment

and mark copies of directives that have been fulfilled or canceled with

an ``X'' or in accordance with the railroad's operating rules and this

final rule so provides. Inspecting retained copies will enable

railroads and FRA to monitor and ensure that all mandatory directives

are correctly copied, read, and understood before being acted upon by

those with a need to know.

FRA agrees, however, that these part's retention requirements

should be consistent with those in Part 214 for employees responsible

for on-track safety. To avoid potential confusion, in

Sec. 220.61(b)(5)(ii) the final rule requires the employee responsible

for on-track safety to retain a copy of the mandatory directive while

it is in effect, the same retention period required for a copy of

authority for exclusive track occupancy under Sec. 214.321. Copies of

fulfilled or canceled directives need not be marked because of their

anticipated short retention time.

Other comments

In addition, FRA received some comments that did not address

specific sections of the NPRM or the five issues discussed above.

BLE suggested that each working radio should be equipped with a

hand held microphone and speaker, to allow the engineer greater range

of vision and movement while operating the controls of the locomotive,

and to screen out interference and background noise. Communication

equipment design specifications is a significant issue that was not

considered by the Working Group, and consequently is not within the

scope of the NPRM. FRA will therefore defer resolution of this issue to

future rulemakings.

BLE SEPTA made several comments specific to SEPTA's predominantly

short train operations. BLE SEPTA expressed concern that on two car

trains any interference with the primary radio would also block the

redundant radio because of the short distance between radios. Since

SEPTA engineers often operate multiple unit cars with dual operating

compartments separated by a passenger compartment, BLE SEPTA also

suggested requiring the redundant working wireless communication to be

located in the operating compartment of the controlling locomotive to

ensure access by the engineer. While FRA believes that such equipment

should be located in the back of the consist, where it would be better

protected and available for emergency notification in the event of a

frontal impact, the final rule does not specify where redundant

communication equipment should be placed in a train. BLE SEPTA would

also require voice tests for each radio frequency used during the

train's tour and for each instance where a train proceeds after an

interruption of power. Implicit in the working radio definition,

however, is the presumption that the radio works on all relevant

channels. This communications capability should not be affected by a

change in radio frequency or an interruption of power.

BLE SEPTA also recommended that FRA prohibit the use of radio to

transmit public service announcements and promotional information to

the crew for conveyance to passengers. FRA agrees that radio channels

should not be used for non-essential broadcasts, but has not included

this prohibition since it is already included in many railroad

operating rules, such as NORAC Rule 709, which prohibits broadcast of

unnecessary, irrelevant, or unidentified information. An additional BLE

SEPTA comment concerning incomplete

[[Page 47187]]

transmissions is discussed in Sec. 220.45 below.

Finally, referring to appendix B's Recommended Pronunciation of

Numerals, DMIR stated that the number ``0'' should be spoken as

``zero,'' not ``0;'' and that ``1600'' should be ``wun six hundred''

not ``wun six thousand.'' FRA appreciates DMIR noting these long-

standing errors, and has corrected them in this rule.

Effective Dates

As proposed, this final rule becomes effective 120 days after

publication to allow all railroads four months to implement the new

streamlined procedures, which should not require extensive investment

or retraining. Since the timetable for implementation is, of course,

determined by the issuance date of this final rule, FRA is extending

the proposed implementation dates for Secs. 220.9 and 220.11 an

additional nine months to allow both large and small railroads

sufficient time for equipment purchase. Thus, Secs. 220.9 and 220.11

apply July 1, 1999 for railroads providing commuter service in a

metropolitan or suburban area, railroads providing intercity passenger

service, and railroads with 400,000 or more annual employee work hours

in 1997. Since small railroads are allowed an additional year for

capital investment, Secs. 220.9 and 220.11 apply July 1, 2000 for

railroads with fewer than 400,000 annual employee work hours in 1997.

As mentioned above, this part is retitled to reflect its coverage

of other means of wireless communications such as cellular telephones

and data radio terminals. The section-by-section analysis discusses the

remaining amendments to Part 220.

SECTION-BY-SECTION ANALYSIS

Subpart A-General

Section 220.1 Scope

As proposed, FRA expands the scope of this part to allow for newer

forms of technology already in use. For this reason, FRA changes the

phrase ``radio communications'' to ``wireless communications'' and adds

definitions for ``working radio'' and ``working wireless

communications'' to this part.

Section 220.2 Preemptive Effect

This new section parallels the preemption language in 49 U.S.C.

Sec. 20106.

Section 220.3 Application

This section is unchanged.

Section 220.5 Definitions

Throughout this rule, FRA substitutes ``locomotive,'' which also

includes cab cars and MU units, wherever the term ``engine'' appeared.

Also, as mentioned above, FRA changes the term ``gang'' to ``group''

when referring to roadway workers, to be consistent with FRA's Roadway

Worker Protection regulations.

Unless otherwise noted, the following definitions are adopted as

proposed.

Adjacent tracks. This definition, taken from FRA's Roadway Worker

Protection regulations (see below), means two or more tracks with track

centers spaced less than 25 feet apart.

Control center. By control center, FRA means the locations from

which a railroad issues instructions governing its operations.

Employee. In 1992, the Rail Safety Enforcement and Review Act

(RSERA) clarified that FRA's safety jurisdiction extends to all

entities, including contractors and their employees, that may violate

the railroad safety laws. FRA has therefore amended this definition to

include contractors and their employees, and any individuals authorized

by railroads who use radios, or any other form of wireless

communications in connection with railroad operations.

Immediate access. This term, discussed in the preamble of the NPRM,

is now added to the definitions section. Immediate access to a radio

means that a radio is either on the employee's person, or sufficiently

close to the employee to allow the employee to make and receive radio

transmissions.

Joint operations. This term means rail operations conducted by more

than one railroad on the tracks of a railroad with 400,000 or more

annual employee work hours, except as necessary for the purposes of

interchange.

Locomotive. This term is taken from FRA's Railroad Locomotive

Safety Standards (49 CFR Part 229).

Lone worker. For consistency, this definition and terms that cross-

reference roadway worker protection throughout this document are taken

from the Roadway Worker Protection regulations.

Mandatory directive. In this part, FRA replaces the term ``train

order'' with ``mandatory directive,'' which conveys the same meaning as

the traditional train order, but refers specifically to speed

restrictions and movement authorities such as track warrants, Form D's,

and DTC (Direct Train Control) authorities. Excluded from this

definition are verbal instructions that are advisory in nature and

typically involve imminent conditions, such as verbal permission to:

pass a block or interlocking signal indicating stop; open a main track

switch and enter the main track in interlocking limits or in CTC

(Centralized Traffic Control) territory; move with the current of

traffic in Rule 251 territory; make a reverse movement within the

limits of the same block, pass a stop sign or red flag and enter

working limits; and obtain foul time. Verbal warnings of obstructions

or trespassers on or along the right-of-way, or instructions to stop a

train due to an imminent danger, are also excluded. All of these

instructions must be repeated as prescribed in Sec. 220.33(b), but need

not be copied since the crew will shortly act upon the information

conveyed. Copying requirements are addressed further in the discussion

of Sec. 220.33.

Railroad operation. This definition substitutes ``locomotive'' for

``engine,'' and makes an editorial change from ``single'' to

``singly.''

Roadway worker. This definition, taken from FRA's Roadway Worker

Protection regulations, means any employee of a railroad, or of a

contractor to a railroad, whose duties include inspection,

construction, maintenance or repair of railroad track, bridges,

roadway, signal, and communication systems, electrical traction

systems, roadway facilities or roadway maintenance machinery on or near

track or with the potential of fouling a track, and flagmen and

switchman/lookouts.

Train. Any railroad operation subject to the air brake testing

requirements of FRA's regulations on Railroad Power Brakes and Drawbars

(49 CFR Part 232) is considered a train for purposes of this rule. This

includes transfer trains, but not switching operations, or the assembly

and disassembly of rail cars within a railroad yard, since these

operations do not require an air test.

Working radio. A working radio is one with an adequate power

source, free of mechanical malfunctions, that can both transmit and

receive communications to and from the railroad's control center from

any location within the rail system (through repeater stations, if

necessary), with certain exceptions noted below. In the case of joint

operations on another railroad, the radio must also be able to reach

the control center of the host railroad.

A radio satisfies this definition even if there are localized dead

spots (such as a tunnel) within a territory and even if temporary

fluctuations or interference from weather or terrain occur. (It should

be noted, however, that under Sec. 220.45 of this part, any

communications which are not fully understood or properly completed may

not be acted upon and must be treated as if not sent.) Railroads must

maintain the communications

[[Page 47188]]

capability to broadcast in all territory over which they operate,

however.

Working wireless communications. With the exceptions noted, the

final rule requires communications redundancy to compensate for radio

communication failures due to interference, equipment failure,

transmission difficulties and other problems which will occur with even

the most advanced equipment. This term means the capability to

communicate with either a control center or emergency responder of the

railroad through a radio, portable radio, cellular telephone, or other

means of two-way communication from locations within the rail system.

(Emergency responder in this part means a member of a police or fire

department, or other organization involved with public safety charged

with providing or coordinating emergency services, who responds to a

passenger or freight train emergency. See FRA's Passenger Train

Emergency Preparedness regulations for additional discussion of this

term.)

Section 220.7 Penalty

As discussed above, the RSERA expanded coverage of FRA's

regulations to include contractors and their employees. FRA therefore

amends this section to clarify that this part applies not only to

railroads but also to any other entity that may violate this part,

including independent contractors who provide goods and services to

railroads and the employees of such contractors. Thus, any person

authorized by a railroad to use its wireless communications facilities

must comply with Part 220 procedures, regardless of whether the person

has a direct employment relationship with the railroad.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub.

L. 101-410 194 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt

Collection Improvement Act of 1996, Pub. L. 104-134, April 26, 1996),

required agencies to adjust the maximum civil monetary penalties within

their jurisdiction for inflation. FRA determined the resulting $11,000

and $22,000 maximum penalties in this part by applying the criteria set

forth in sections 4 and 5 of the statute to the maximum penalties

otherwise provided for in the Federal railroad safety laws.

Additionally, the minimum penalty for violations of this part is now

$500, as required by the RSERA.

Section 220.8 Waivers

This new section adopts by reference the procedures in Subpart C of

49 CFR Part 211 (Rules of Practice) for petitioning for a waiver from

compliance with the requirements of this part.

Section 220.9 Requirements for Trains

Paragraph (a): As discussed above in the section summarizing the

communications equipment requirements for trains, large railroads must

equip all trains with a working radio in the controlling locomotive and

with a back-up means of wireless communications. This requirement

applies to both freight and passenger operations.

The controlling locomotive must be equipped with a working radio

only when the locomotive is occupied by an assigned train crew and the

train is involved in railroad operations. To allow for possible radio

failure en route, the train must also have a form of working wireless

communications upon departure from a terminal. As required in

Secs. 220.37 and 220.38, all required communication devices must be

tested prior to the commencement of a work assignment, and removed from

service if found not to be functioning as intended. Wireless

communications must be able to reach the railroad's control center or

an emergency responder.

Paragraph (b): As discussed above, small railroads have to meet the

same heightened communication equipment standards as large railroads

when operating passenger trains. Thus, all passenger trains, regardless

of the size of the operating railroad, have to be equipped with both a

working radio in the occupied controlling locomotive and with redundant

working wireless communication equipment.

For freight trains, the communication requirements are determined

by two factors: train operating speed, and extent of joint operations.

If a freight train operates at greater than 25 miles per hour, or

engages in joint operations on track where the maximum authorized speed

for freight trains is greater than 25 miles per hour, the train must be

equipped with a working radio in the occupied controlling locomotive.

Similarly, a freight train engaged in joint operations on track that is

adjacent to and within 30 feet measured between track center lines of

another track on which the maximum authorized speed for passenger

trains is greater than 40 miles per hour, must also be equipped with a

working radio in the occupied controlling locomotive. When any of the

operating conditions described above are met, the freight train crew

must have a working radio to enable them to communicate with the host

railroad's control center and the other trains on the host railroad.

The term ``within 30 feet of another track center,'' a criteria

used in FRA's exercise of jurisdiction over tourist railroads, and also

in the excepted track definition in FRA's Track Safety Standards (49

CFR Part 213), defines when a railroad operates sufficiently close to

passenger train operations to create the potential for interference.

This requirement ensures that all freight trains operating in close

parallel proximity to passenger trains are equipped with radios.

A train that engages in joint operations on track where the maximum

authorized speed for freight trains is 25 miles per hour or less is

required to have working wireless communications, but not a working

radio in the occupied controlling locomotive. A train that transports

hazardous materials must also have working wireless communications even

if it does not transport passengers or engage in joint operations. No

communication equipment is required if a train does not transport

passengers or hazardous material, and does not engage in joint

operations or operate at greater than 25 miles per hour.

Section 220.11 Requirements for Roadway Workers

As proposed, large railroads must provide a working radio on

maintenance-of-way equipment moving to or from a work location, or

between multiple work locations on the same day, to enable the roadway

work group to contact the control center in the event of an emergency

when traveling. A unit of equipment traveling alone must also be radio

equipped. A small railroad is exempted if its trains do not operate in

excess of 25 miles per hour. Several commentators noted areas in which

the preamble discussion of this section differed from the proposed rule

text; these are clarified below.

Paragraph (a)(1): BMWE alerted FRA that the preamble discussion of

this paragraph could be read as being more encompassing than the

proposed rule text. In the NPRM's preamble, FRA stated that ``[i]f

several maintenance-of-way units are physically separated, only one

unit would have to be equipped with a working radio, provided that all

of the units are under the control of the same employee (emphasis

added),'' while the rule text referred to multiple pieces of

maintenance-of-way equipment traveling together under the same movement

authority. As BMWE noted, the term ``under the control of the same

employee'' could vary from railroad to railroad. FRA agrees that the

preamble misstated the intent of the Working Group, which was to ensure

[[Page 47189]]

that multiple pieces of maintenance-of-way equipment traveling together

under the same movement authority be able to communicate with the

control center.

Additionally, AAR, APTA and UP all correctly pointed out that the

preamble discussion of intra-group communications was overly

restrictive when it twice referred to a requirement for maintenance-of-

way intra-group wireless communications capability, since the proposed

rule text only required maintenance-of-way equipment to have intra-

group communications capability with each other. Under the final rule

alternatives to wireless communications, such as horns, hand signals,

and amplified voice systems are acceptable means of intra-group

communications.

Paragraph (b): Access to a working radio is determined by function,

with two categories of roadway workers, the employee responsible for

on-track safety of a roadway work group, and the lone worker, required

to have access to a working radio. Both categories have analogous

communication needs, since in each case, the employee is responsible

for providing protection, either for an entire roadway group, or for

him or herself.

As discussed above, large railroads must provide each employee

responsible for on-track safety and each lone worker with access to a

working radio, and with a portable radio whenever immediate access to

the working radio is unavailable. Small railroads have the option of

providing access to either a working radio or working wireless

communications.

Paragraph (c)(2): As proposed, a railroad, regardless of size, is

not required to provide communication equipment whenever the work

location of the roadway work group or lone worker is physically

inaccessible to trains, or has no through or adjacent track traffic

when roadway workers are present.

BMWE suggested narrowing this proposed exclusion by requiring the

conditions in both (i) and (ii) to be present, to ensure communications

capability whenever rail traffic is expected on tracks adjacent to work

locations protected in accordance with the inaccessible track

requirements of Part 214. By changing the underlined ``or'' to ``and,''

BMWE would require physically inaccessible locations to have

communications capability to protect against traffic on adjacent tracks

not within the limits described in Sec. 220.11(c)(2)(i).

Although most short lines are single track operations, a double

track railroad could not operate on either track if it wished to

qualify for BMWE's proposed exclusion. To address BMWE's concerns and

be compatible with FRA's Roadway Worker Protection regulations, FRA

instead incorporates Part 214's adjacent tracks definition, two or more

tracks with track centers spaced less than 25 feet apart, into

Sec. 220.11(c)(2)(ii). By doing so, FRA requires railroads not exempt

under Sec. 220.11(c)(1) to provide access to a working radio to a

employee responsible for on-track safety or lone worker whenever there

is adjacent traffic within 25 feet of their work location.

Section 220.13 Reporting Emergencies

Paragraphs (a)-(c): In this new section, FRA proposed to require an

employee to use the quickest means of communications available to

notify the control center before undertaking other forms of emergency

response, such as medical treatment or evacuation, to ensure that

properly trained and equipped personnel respond to the scene as quickly

as possible. While agreeing that an employee should use the quickest

means available to notify the railroad, BMWE suggested that the on-site

employee should be allowed discretion to determine the priorities in an

emergency (e.g., by choosing to render medical attention before

notifying the railroad). Although FRA agrees that an emergency may

occasionally require immediate action prior to notification, as a

general rule, on-site employees should not undertake responsive action

without sufficient information and proper training. Requiring

notification to be the first priority facilitates the quick arrival of

professional emergency response personnel in situations when the right

actions and reactions are critical.

The employee should follow the emergency radio transmission

procedures in Sec. 220.47 of this part when using a radio, or the

procedures specified in the railroad's timetable or timetable special

instructions when using another means of wireless communications. This

section also includes language on emergency procedures originally

contained in Sec. 220.47(a).

Paragraph (d): FRA adds this paragraph to require an alternative

means of emergency reporting whenever railroad operations are conducted

while the control center is unattended or unable to receive radio

transmissions. For example, a railroad may provide its employees with

cellular telephones or portable radios with a dedicated police channel

in lieu of maintaining 24-hour control center staffing to handle after

hours emergencies. In such scenarios, employees would then have the

capability to inform the staffed operating center of another railroad

or to contact emergency responders directly. FRA anticipates that this

added flexibility will primarily benefit medium-sized railroads, since

many small railroads already rely on cellular telephones for emergency

notification and large railroads staff their control centers around the

clock.

Subpart B--Radio and Wireless Communication Procedures

FRA retitles Subpart B to make clear that the definition for

working wireless communications, like that for working radio, requires

that communications equipment be tested and in working condition before

a work assignment commences. Both wireless communication and radio

equipment are covered by Secs. 220.37 and 220.38; section titles in

this Subpart that apply only to radio operations have accordingly been

retitled to reflect that fact.

Section 220.21 Railroad Operating Rules; Radio Communications;

Recordkeeping

FRA deletes the implementation dates from this section since these

references are no longer necessary.

Paragraph (b): FRA received no comments on its proposed editorial

changes, which are incorporated into this final rule.

Paragraph (c): FRA retains the carrier classifications (Class I,

II, and III railroads) created by the former Interstate Commerce

Commission (ICC) and retained unchanged by the ICC's successor, the

Surface Transportation Board.

Section 220.23 Publication of Radio Information

FRA received no comments on its proposed editorial changes, which

are incorporated into this final rule.

Section 220.25 Instruction and Operational Testing of Employees

Paragraph (c): This paragraph requires a railroad to test employees

authorized to use a radio for railroad operations on the procedures in

this part. The railroad shall administer radio procedure tests in

accordance with its written program of operational tests and

inspections filed under Sec. 217.9 (Railroad Operating Rules, 49 CFR

Part 217), and in conjunction with mandatory periodic operating rules

tests.

Section 220.27 Identification

Paragraph (a): FRA combines paragraphs (a)(2) and (a)(3), and

deletes

[[Page 47190]]

paragraph (a)(3)'s requirement for an employee (usually the dispatcher)

to identify the location of the station from which the employee is

broadcasting, for those railroads that use central or regional

dispatching, with a uniquely designated station for each dispatching

system. If a station does not have a unique designation, both the

station's name and location should continue to be stated.

Paragraph (b): FRA received no comments on its proposed editorial

changes, which are incorporated into this final rule.

Section 220.29 Statement of Letters and Numbers in Radio Communications

This section is retitled to limit its applicability to radio

communications.

Paragraph (b): FRA received no comments on its proposed editorial

changes, which are incorporated into this final rule.

Paragraph (c): This paragraph is amended to provide that a decimal

point may also be indicated by the use of the words ``dot,'' or

``point,'' in addition to ``decimal.''

Section 220.31 Initiating a Radio Transmission

This section is retitled to limit its applicability to radio

communications. FRA had asked for comment on whether to change its

current order of identification, which requires the caller to identify

him or herself before identifying the intended receiver, to the reverse

order, with the caller first identifying who he or she seeks to

contact, and then identifying him or herself. FRA received no comments

on this proposal, and accordingly retains its current order of

identification.

Section 220.33 Receiving a Radio Transmission

This section is retitled to limit its applicability to radio

communications.

Paragraph (a): FRA adopts a proposed change which clarifies that an

employee need not monitor the radio when other immediate duties

intervene, but must resume monitoring once those circumstances are

over.

Paragraphs (b) and (c): FRA deletes paragraph (b) since it is made

redundant by paragraph (a), and redesignates current paragraph (c) as

paragraph (b).

As discussed above, unless required by a railroad's operating

rules, a railroad employee does not have to copy advisory instructions,

since the train either already possesses authority to occupy the main

track by signal indication, or through the railroad's operating rules.

Similarly, advisory information on conditions ahead such as trespassers

or debris on track also involves imminent conditions that often change

by the time the next train passes by. While these short-term

instructions must be repeated, they need not be copied since they will

soon be acted upon. (In non-signaled territory, in contrast, occupying

or fouling a main track typically requires written initial movement

authority from the train dispatcher or control operator.)

On the other hand, copying is necessary when an order will be acted

upon later, or is of a long-term nature. In such instances, FRA

believes that an employee must have a written reference to avoid the

risk that the employee may later rely on a faulty recollection of the

instruction.

Paragraph (b)(1): FRA received no responses to its request for

comments on whether to continue requiring communications to be repeated

in switching operations. Therefore, FRA leaves this section unchanged.

As before, communications involving yard switching operations do not

have to be repeated back to the transmitting party, since switching in

yards often requires the rapid exchange of information being acted upon

in real time, and the higher volume of operations in yards contributes

to greater congestion on yard channels.

Section 220.35 Ending a Radio Transmission

This section is retitled to limit its applicability to radio

communications. As discussed above, use of ``over'' and ``out'' is no

longer required in yard switching transmissions, because of their high

volume and the need to keep phrasing as terse as possible in light of

the real time decision making for which the information is employed.

For all other radio transmissions, use of ``over'' and ``out''

continues to be required to ensure that employees act on complete

information and do not inadvertently interrupt transmissions already in

progress.

Section 220.37 Testing Radio and Wireless Communication Equipment

As discussed above, this section is retitled and expanded in scope

to cover testing of all the communication equipment required by

Secs. 220.9 and 220.11.

Paragraph (a): As proposed, FRA substitutes ``as soon as

practicable'' for ``at least once during each tour of duty,'' to

require the crew to perform a voice test at the start of their tour

rather than at any point during their trip, thus enabling the crew to

learn before they first need to use the radio whether it works properly

or needs to be replaced. BMWE noted that the NPRM preamble discussion

implied that the requirement to perform such voice tests is limited to

the engineer and conductor, when in fact the rule requires all

employees who use wireless communications equipment to perform voice

tests as soon as practicable.

DMIR, however, felt that requiring voice testing for ``all workers

using radios'' is unnecessary and would also require recordkeeping. As

mentioned above, FRA has always required voice testing; FRA is

modifying and expanding this requirement to ensure that employees have

access to working wireless communications equipment before beginning

their work assignments. FRA has not previously required recordkeeping

of voice tests, and does not do so in this rule.

Also as proposed, FRA deletes the phrase ``outside yard limits'' to

ensure that a voice test is conducted even when a train does not leave

yard limits, and the phrase ``where the train is made up'' to make

clear that at each intermediate crew change point, the new crew must

perform a voice test at the start of their tour.

Paragraphs (b) and (c): Existing paragraphs (b) and (c) are

deleted, since these requirements would be covered in proposed

Sec. 220.38, discussed below. A new paragraph (b) is added requiring

that the test of a radio shall consist of voice transmissions with

another radio, with the employee receiving the transmission advising

the employee conducting the test of the clarity of the transmission.

Section 220.38 Communication Equipment Failure

This new section addresses failure of the communication equipment

required by Secs. 220.9 and 220.11.

Paragraph (a): If a radio or wireless communication device failure

occurs, the employee is required to notify the proper authorities. In

addition, FRA now requires inoperative radios and inoperative mandatory

wireless communication equipment to be removed from service upon

discovery.

Paragraph (b): As proposed, if a radio or wireless communication

device fails en route, the controlling locomotive may proceed until the

earlier of the next calendar day inspection or the nearest repair point

where the equipment could be repaired or replaced. The movements

allowed for communication equipment repair in paragraph (b) are taken

from Sec. 229.9(b) of FRA's Railroad Locomotive Safety Standards, which

specifies the movements allowed for repair of non-complying

locomotives.

[[Page 47191]]

In the NPRM, FRA asked for comment on whether, to encourage prompt

replacement of failed radios, the final rule should expressly provide

that placement of one or more radios on locomotives at a particular

location does not constitute that location as a ``repair point.'' Both

UP and AAR agreed with this suggested guidance, which FRA will employ

as a rule of reason to encourage railroads to replace failed radios as

soon as feasible with a reasonable deployment of equipment. (FRA

anticipates that failed radios will usually be replaced and not

repaired, since the capability to repair these solid state units is

normally available only at central shops or the manufacturer). Thus,

FRA will not consider a location to be a designated repair point merely

because the railroad voluntarily makes or has made repairs there.

Section 220.39 Continuous Radio Monitoring

This section is retitled to limit its applicability to radio

communications. FRA received no comments on its proposed editorial

changes, which are incorporated into this final rule.

Section 220.41 Notification on Failure of Radio

FRA removes and reserves this section since it is made redundant by

Sec. 220.38, discussed above, which also addresses radio and equipment

failures. In its comments, Conrail correctly noted that the proposed

removal of this section would require the removal of its corresponding

penalty. Accordingly, FRA also removes the penalty for this section

from the penalty schedule.

Section 220.43 Radio Communications Consistent With Federal Regulations

and Railroad Operating Rules

This section is retitled to limit its applicability to radio

communications, and reworded, to make clear that radio communications

must be in compliance with this part, FCC regulations, and railroad

operating rules.

Section 220.45 Radio Communications Shall Be Complete

This section is retitled to limit its applicability to radio

communications, but is otherwise unchanged. BLE SEPTA suggested that

employees should be required to comply with the more restrictive

condition whenever an incomplete communication may contain a more

restrictive operating condition, until communications have been

reestablished. FRA believes that requiring employees not to act upon

incomplete communications is safer practice than requiring employees to

speculate and possibly make incorrect assumptions about the content of

unfinished communications.

Section 220.47 Emergency Radio Transmissions

This section is retitled to limit its applicability to radio

communications. As discussed above, since Sec. 220.13(a) now addresses

emergency notification, Sec. 220.47(b) has been deleted. The revised

section continues to require an initial emergency transmission to begin

with the word ``emergency'' repeated three times.

Section 220.49 Radio Communication Used in Shoving, Backing or Pushing

Movements

This section is retitled to limit its applicability to radio

communications, and to make clear that the section applies to back-up

moves only. In addition, the phrase ``in lieu of hand signals'' is

deleted to emphasize that this section applies whenever a radio is

used. To make the section easier to understand, FRA also makes several

editorial changes simplifying its language.

Section 220.51 Radio Communications and Signal Indications

This section is retitled to limit its applicability to radio

communications.

Paragraph (b): As proposed, FRA deletes the phrase ``in automatic

block territory'' to emphasize that the prohibition against conveying

signal indications applies to all types of territory. UP, however,

asked for clarification on whether a dispatcher or control operator

could advise a crew if the indication or aspect of a signal

unexpectedly changed from proceed to stop. UP noted that such warnings

have previously prevented emergencies by providing crews sufficient

notice to stop their trains safely.

In emergency situations, FRA has always allowed signal indications

or aspects to be conveyed on a need to know basis. FRA will continue to

allow such radio communications when necessary to prevent imminent

danger or accidents.

Section 220.61 Radio Transmission of Mandatory Directives

FRA substitutes ``mandatory directive'' for ``train order''

wherever that term appeared and integrates this section, which

addresses the transmission of mandatory directives by radio, into

Subpart B, which covers all radio procedures. The word ``radio'' has

been added to the title of this section. Other than this change, the

section is adopted as proposed with the addition of new retention

requirements. For train crews, the conductor and engineer are required

to retain copies of mandatory directives for the duration of their work

assignments. For on-track equipment, the employee responsible for on-

track safety must retain copies of mandatory directives while they are

in effect.

Appendices

As discussed above, FRA amends appendix B to correct some

longstanding errors in its recommended pronunciation of numerals, and

amends appendix C to delete the penalty for Sec. 220.41, which has been

removed and reserved. FRA also amends appendix C to add penalties for

failure to comply with the communications equipment standards contained

in Secs. 220.9 and 220.11. Also as discussed above, FRA amends the

minimum and maximum penalties for this part in accordance with the

RSERA and the Federal Civil Penalties Inflation Adjustment Act of 1990,

respectively.

Environmental Impact

FRA has evaluated this rule for its potential environmental

impacts, as required by the National Environmental Policy Act (42

U.S.C. 4321 et seq.) and related directives, and determined that it is

a non-major action for environmental purposes.

Federalism Implications

FRA has analyzed this rule in accordance with the principles of

Executive Order 12612 (``Federalism''), and determined that these

amendments to Part 220 do not have sufficient federalism implications

to warrant the preparation of a Federalism Assessment. The fundamental

policy decision providing that Federal regulations should govern

aspects of service provided by municipal and public benefit

corporations (or agencies) of State governments is embodied in the

statute quoted above. To provide reasonable flexibility to State-level

decision making, FRA included commuter authorities as full partners in

the development of this rule.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This rule has been evaluated in accordance with existing policies

and procedures, and been determined to be non-significant under both

Executive Order 12866 and DOT policies and procedures (44 FR 11034;

February 26, 1979). FRA has prepared and placed in the docket a

regulatory analysis addressing the economic impact of the final rule.

Document inspection and

[[Page 47192]]

copying facilities are available at 1120 Vermont Avenue, 7th Floor,

Washington, D.C. Photocopies may also be obtained by submitting a

written request to the FRA Docket Clerk at Office of Chief Counsel,

Federal Railroad Administration, 400 Seventh Street, S.W., Washington,

D.C. 20590.

As part of the regulatory impact analysis FRA has assessed

quantitative measurements of costs and benefits expected from the

adoption of the final rule. Over a twenty year period, the Net Present

Value (NPV) of the estimated quantifiable societal benefits is $57.8

million, and the NPV of the estimated costs is $37.1 million.

The major costs anticipated from adopting this final rule include

the installation of radios in some locomotives; the purchase of

cellular telephones or other forms of wireless communication by smaller

railroads; usage fees for cellular telephones; the installation of

radios in some maintenance-of-way equipment; the purchase of additional

portable radios for roadway work groups and lone workers; training on

radio procedures; maintenance of locomotive and portable radios; and

replacement cellular telephones.

The major benefits anticipated from adopting this final rule

include a reduction in injuries and fatalities to roadway workers; a

reduction in trespasser fatalities; a reduction in the severity of

railroad worker injuries due to quicker emergency response; a reduction

in grade crossing accidents; and a reduction in railroad accidents due

to the improper usage of radios. Additionally, FRA anticipates other

qualitative benefits accruing from this final rule which have not been

factored into the quantified analysis. These include increased

efficiency within the industry and a reduction in hazardous material

spills.

Regulatory Flexibility Act

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

requires a review of final rules to assess their impact on small

entities. FRA's Regulatory Flexibility Assessment can be found in

Appendix B of the final rule's Regulatory Impact Analysis, located in

the docket.

After consultation with the Office of Advocacy of the Small

Business Administration (SBA), FRA decided to use the delineation of

fewer than 400,000 annual employee hours to define small entities. This

grouping is one that FRA has used in the past (in 49 CFR Parts 217

(Railroad Operating Rules) and 219 (Control of Alcohol and Drug Use))

to define who is subject to reporting requirements. Typically, FRA uses

the Surface Transportation Board's revenue-based classification of

Class III railroads as being representative of small entities. Although

many Class III railroads have fewer than 400,000 annual employee hours,

using 400,000 annual employee hours as the line between small and large

entities is preferable since FRA already maintains a database of

information on railroads below this cut-off. Additionally, defining

small railroads as those with fewer than 400,000 annual employee hours

does not automatically exempt switching and terminal railroads, unlike

the Class III distinction. By using this grouping for small railroads,

FRA captures most small entities that would be defined by the SBA as

small businesses.

FRA certifies that this rule is expected to have a significant

economic impact on a substantial number of small entities.

Approximately 435 small entities will be impacted. However, the actual

burden on most of these railroads will vary because of their different

operating characteristics. There are no small government jurisdictions

affected by this regulation.

Entities that are not subject to this rule include railroads that

do not operate on the ``general railroad system of transportation'' due

to FRA's current exercise of its jurisdiction (See 49 CFR Part 209,

Appendix A). FRA's jurisdictional approach greatly reduces the number

of tourist, scenic, historic, and excursion railroads that are subject

to this rule and its associated burdens. FRA estimates that

approximately 180 small entities will be exempted from the final

requirements of this regulation since they do not operate on the

general system of transportation.

The communication requirements pertaining to locomotives, as set

forth in Sec. 220.9 of this rule, have been designed to minimize their

impact on small railroads. While large railroads are required to have a

working radio and wireless communication redundancy in every train,

small railroads are only required to comply with this standard for

trains used to transport passengers. A radio is required on a freight

train operated by a small railroad only when the train operates at

greater than 25 miles per hour or engages in joint operations on a

large railroad where either the maximum authorized speed for freight

trains exceeds 25 miles per hour on the track being used, or the train

operates on track adjacent to and within 30 feet of another track on

which the maximum speed for passenger trains exceeds 40 miles per hour.

Any form of wireless communication device can be used on a freight

train operated by a small railroad when the train is engaged in joint

operations with a large railroad and the maximum authorized speed on

the track being used is 25 miles per hour or less.

In addition, a wireless communications device is required when a

freight train of a small railroad transports hazardous material that is

required to be placarded under 49 CFR Part 172 (Hazardous Materials)

and does not otherwise fit into one of the above mentioned categories

requiring other types of communications equipment. The flexibility

afforded to small railroads with these alternatives will lessen the

costs imposed on these railroads.

The communications requirements pertaining to roadway workers, as

set forth in Sec. 220.11 of this rule, have been designed to minimize

their impact on small railroads. Section 220.11(a)'s requirement to

equip maintenance-of-way equipment with communications capability upon

arriving at a work site does not apply to small railroads. Under

Sec. 220.11(b), large railroads must provide each employee responsible

for on-track safety and each lone worker with immediate access to a

working radio. However, small railroads can instead provide such

employees with immediate access to working wireless communications.

Small railroads may also be able to avoid any of the communication

equipping requirements of Sec. 220.11 if they meet the exceptions set

forth in Sec. 220.11(c).

Most small railroads will have a low enough volume and train

frequency not to be impacted by the requirements of Sec. 220.11, since

Sec. 220.11(c) exempts small railroads that meet certain specified

conditions. To qualify for an exemption from Sec. 220.11, a small

railroad may not operate a large volume of traffic over a branch line.

Generally, the ability of a railroad to perform track-related

maintenance on track(s) that are taken out of service is inversely

related to the volume and frequency of trains on its branch lines.

Paperwork Statement

The final rule contains new information collection requirements.

The information collection requirements currently contained in 49 CFR

220 were approved by the Office of Management and Budget (OMB) under

OMB approval numbers 2130-0035 and 2130-0524. These information

collection requirements plus the new information collection

requirements resulting from this rulemaking have been submitted to OMB

for approval under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501

[[Page 47193]]

et seq. The sections containing new information collection requirements

are listed below. All estimates include the time for reviewing

instructions; searching existing data sources; gathering or maintaining

the needed data; and reviewing the information.

[[Page 47194]]

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

Average time per Total annual

CFR section Respondent universe Total annual responses response Total annual burden hours burden cost

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

220.8--Waivers........................ 680 railroads............ 2 letters................ 1 hour.................. 2 hours $50

220.13--Reporting emergencies......... 680 railroads............ N/A...................... Usual & Customary N/A N/A

Practice.

*220.21--Railroad operating rules; 680 railroads............ N/A...................... Approved under # 2130- N/A N/A

radio communication; recordkeeping. 0035.

220.23--Publication of radio 680 railroads............ N/A...................... Usual and Customary N/A N/A

information. Procedure.

*220.25--Instruction and operational N/A...................... N/A...................... Approved under # 2130- N/A/ N/A

testing of employees. 0035.

Instruction--1st Yr............... 680 railroads............ 15,000 instr. sessions... 30 minutes.............. 7,500 hours 187,500

Instruction--Subseq. Yrs.......... 680 railroads............ 1,000 instr. sessions.... 30 minutes.............. 500 hours 12,500

Periodic operational testing--new 680 railroads............ 33,333 tests............. 15 minutes.............. 8,333 hours 208,325

requirement.

220.27--Identification................ N/A...................... N/A...................... Usual and Customary N/A N/A

Procedure.

220.31--Initiating a radio N/A...................... N/A...................... Usual and Customary N/A N/A

transmission--identification. Procedure.

220.33--Receiving a radio N/A...................... N/A...................... Usual and Customary N/A N/A

transmission--acknowledgment. Procedure.

220.35--Ending a radio transmission... N/A...................... N/A...................... Usual and Customary N/A N/A

Procedure.

220.37--Testing radio and wireless 680 railroads............ 780,000 tests............ 30 seconds.............. 6,500 hours 162,500

communication equipment.

220.38--Communication equipment N/A...................... N/A...................... Usual and Customary N/A N/A

failure--notification. Procedure.

220.47--Emergency radio transmission.. N/A...................... N/A...................... Usual and Customary N/A N/A

Procedure.

220.61--Transmission of mandatory ......................... ......................... ........................ ........................................................ ..............

directives.

Copying and repeating of mandatory 680 railroads............ 7,200,000 directives..... 1.5 minutes............. 180,000 hours 5,400,000

directive.

Train crews--marking with an X 680 railroads............ 624,000 marks............ 15 seconds.............. 2,600 hours $65,000

mandatory directives fulfilled or

cancelled.

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

[[Page 47195]]

FRA cannot impose a penalty on persons for violating information

collection requirements which do not display a current OMB control

number, if required. FRA will obtain current OMB control numbers for

any information collection requirements resulting from this rulemaking

action prior to the effective date of the final rule. The valid OMB

control number for this information collection is 2130-0524.

List of Subjects in 49 CFR Part 220

Communications, Railroad.

Accordingly, for the reasons stated in the preamble, FRA revises 49

CFR part 220 to read as follows:

PART 220 --RAILROAD COMMUNICATIONS

Subpart A--General

Sec.

220.1 Scope.

220.2 Preemptive effect.

220.3 Application.

220.5 Definitions.

220.7 Penalty.

220.8 Waivers.

220.9 Requirements for trains.

220.11 Requirements for roadway workers.

220.13 Reporting emergencies.

Subpart B--Radio and Wireless Communication Procedures

220.21 Railroad operating rules; radio communications;

recordkeeping.

220.23 Publication of radio information.

220.25 Instruction and operational testing of employees.

220.27 Identification.

220.29 Statement of letters and numbers in radio communications.

220.31 Initiating a radio transmission.

220.33 Receiving a radio transmission.

220.35 Ending a radio transmission.

220.37 Testing radio and wireless communication equipment.

220.38 Communication equipment failure.

220.39 Continuous radio monitoring.

220.41 [Reserved].

220.43 Radio communications consistent with federal regulations and

railroad operating rules.

220.45 Radio communication shall be complete.

220.47 Emergency radio transmissions.

220.49 Radio communication used in shoving, backing or pushing

movements.

220.51 Radio communications and signal indications.

220.61 Transmission of mandatory directives.

Appendix A to Part 220--Recommended Phonetic Alphabet

Appendix B to Part 220--Recommended Pronunciation of Numerals

Appendix C to Part 220--Schedule of Civil Penalties

(Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311 (1994);

and 49 CFR 1.49.)

Subpart A--General

Sec. 220.1 Scope.

This part prescribes minimum requirements governing the use of

wireless communications in connection with railroad operations. So long

as these minimum requirements are met, railroads may adopt additional

or more stringent requirements.

Sec. 220.2 Preemptive effect.

Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad

Safety Act of 1970, 45 U.S.C. 434), issuance of the regulations in this

part preempts any State law, rule, regulation, order, or standard

covering the same subject matter, except a provision necessary to

eliminate or reduce an essentially local safety hazard that is not

incompatible with this part and that does not unreasonably burden

interstate commerce.

Sec. 220.3 Application.

(a) Except as provided in paragraph (b) of this section, this part

applies to railroads that operate trains or other rolling equipment on

standard gage track which is part of the general railroad system of

transportation.

(b) This part does not apply to:

(1) A railroad that operates only on track inside an installation

which is not part of the general railroad system of transportation; or

(2) Rapid transit operations in an urban area that are not

connected with the general railroad system of transportation.

Sec. 220.5 Definitions.

As used in this part, the term:

Adjacent tracks means two or more tracks with track centers spaced

less than 25 feet apart.

Control center means the locations on a railroad from which the

railroad issues instructions governing railroad operations.

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.

Employee means an individual who is engaged or compensated by a

railroad or by a contractor to a railroad, who is authorized by a

railroad to use its wireless communications in connection with railroad

operations.

Immediate access to a radio means a radio on the employee's person,

or sufficiently close to the employee to allow the employee to make and

receive radio transmissions.

Joint operations means rail operations conducted by more than one

railroad on the track of a railroad subject to the requirements of

Sec. 220.9(a), except as necessary for the purpose of interchange.

Locomotive means a piece of on-track equipment other than hi-rail,

specialized maintenance, or other similar equipment--

(1) With one or more propelling motors designed for moving other

equipment;

(2) With one or more propelling motors designed to carry freight or

passenger traffic, or both; or

(3) Without propelling motors but with one or more control stands.

Lone worker means an individual roadway worker who is not being

afforded on-track safety by another roadway worker, who is not a member

of a roadway work group, and who is not engaged in a common task with

another roadway worker.

Mandatory directive means any movement authority or speed

restriction that affects a railroad operation.

Railroad operation means any activity which affects the movement of

a train, locomotive, on-track equipment, or track motor car, singly or

in combination with other equipment, on the track of a railroad.

Roadway worker means any employee of a railroad, or of a contractor

to a railroad, whose duties include inspection, construction,

maintenance or repair of railroad track, bridges, roadway, signal and

communication systems, electric traction systems, roadway facilities or

roadway maintenance machinery on or near track or with the potential of

fouling a track, and flagmen and watchmen/lookouts.

System headquarters means the location designated by the railroad

as the general office for the railroad system.

Train means one or more locomotives coupled with or without cars,

requiring an air brake test in accordance with 49 CFR part 232, except

during switching operations or where the operation is that of

classifying and assembling rail cars within a railroad yard for the

purpose of making or breaking up trains.

Working radio means a radio that can communicate with the control

center of the railroad (through repeater stations, if necessary to

reach the center) from any location within the rail system, except:

(1) Tunnels or other localized places of extreme topography, and

(2) Temporary lapses of coverage due to atmospheric or topographic

conditions. In the case of joint operations on another railroad, the

radio

[[Page 47196]]

must be able to reach the control center of the host railroad.

Working wireless communications means the capability to communicate

with either a control center or the emergency responder of a railroad

through such means as radio, portable radio, cellular telephone, or

other means of two-way communication, from any location within the rail

system, except:

(1) Tunnels or other localized places of extreme topography, and

(2) Temporary lapses of coverage due to atmospheric or topographic

conditions. In the case of joint operations on another railroad, the

radio must be able to reach the control center of the host railroad.

Sec. 220.7 Penalty.

Any person (including but not limited to a railroad; any manager,

supervisor, official, or other employee or agent of a railroad; any

owner, manufacturer, lessor, or lessee of railroad equipment, track, or

facilities; any independent contractor providing goods or services to a

railroad; and any employee of such owner, manufacturer, lessor, lessee,

or independent contractor) who violates any requirement of this part or

causes the violation of any such requirement is subject to a civil

penalty of at least $500 and not more than $11,000 per violation,

except that: Penalties may be assessed against individuals only for

willful violations; where a grossly negligent violation or a pattern of

repeated violations has created an imminent hazard of death or injury,

or has caused death or injury, a penalty not to exceed $22,000 per

violation may be assessed; and the standard of liability for a railroad

will vary depending upon the requirement involved. Each day a violation

continues shall constitute a separate offense. (See appendix C to this

part for a statement of agency civil penalty policy.)

Sec. 220.8 Waivers.

(a) Any person subject to a requirement of this part may petition

the Administrator for a waiver of compliance with such requirement. The

filing of such a petition does not affect that person's responsibility

for compliance with that requirement while the petition is being

considered.

(b) Each petition for waiver must be filed in the manner and

contain the information required by part 211 of this chapter.

(c) If the Administrator finds that a waiver of compliance is in

the public interest and is consistent with railroad safety, the

Administrator may grant the waiver subject to any conditions the

Administrator deems necessary.

Sec. 220.9 Requirements for trains.

(a) Except as provided for in paragraphs (b)(1) through (4) of this

section, on and after July 1, 1999, each occupied controlling

locomotive in a train shall have a working radio, and each train shall

also have communications redundancy. For purposes of this section,

``communications redundancy'' means a working radio on another

locomotive in the consist or other means of working wireless

communications.

(b) On and after July 1, 2000, the following requirements apply to

a railroad that has fewer than 400,000 annual employee work hours:

(1) Any train that transports passengers shall be equipped with a

working radio in the occupied controlling locomotive and with redundant

working wireless communications capability in the same manner as

provided in paragraph (a) of this section.

(2) Any train that operates at greater than 25 miles per hour; or

engages in joint operations on track where the maximum authorized speed

for freight trains exceeds 25 miles per hour; or engages in joint

operations on a track that is adjacent to and within 30 feet measured

between track center lines of another track on which the maximum

authorized speed for passenger trains exceeds 40 miles per hour, shall

be equipped with a working radio in the occupied controlling

locomotive.

(3) Any train that engages in joint operations, where the maximum

authorized speed of the track is 25 miles per hour or less, shall be

equipped with working wireless communications in the occupied

controlling locomotive.

(4) Any train not described in paragraph (b) of this section that

transports hazardous material required to be placarded under the

provisions of part 172 of this title shall be equipped with working

wireless communications in the occupied controlling locomotive.

Sec. 220.11 Requirements for roadway workers.

(a) On and after July 1, 1999, the following requirements apply to

a railroad that has 400,000 or more annual employee work hours:

(1) Maintenance-of-way equipment operating without locomotive

assistance between work locations shall have a working radio on at

least one such unit in each multiple piece of maintenance-of-way

equipment traveling together under the same movement authority. The

operators of each additional piece of maintenance-of-way equipment

shall have communications capability with each other.

(2) Each maintenance-of-way work group shall have intra-group

communications capability upon arriving at a work site.

(b) On and after July 1, 1999, each employee designated by the

employer to provide on-track safety for a roadway work group or groups,

and each lone worker, shall be provided, and where practicable, shall

maintain immediate access to a working radio. When immediate access to

a working radio is not available, the employee responsible for on-track

safety or lone worker shall be equipped with a radio capable of

monitoring transmissions from train movements in the vicinity. A

railroad with fewer than 400,000 annual employee work hours may provide

immediate access to working wireless communications as an alternative

to a working radio.

(c) This section does not apply to:

(1) Railroads which have fewer than 400,000 annual employee work

hours, and which do not operate trains in excess of 25 miles per hour;

or

(2) Railroad operations where the work location of the roadway work

group or lone worker:

(i) Is physically inaccessible to trains; or

(ii) Has no through traffic or traffic on adjacent tracks during

the period when roadway workers will be present.

Sec. 220.13 Reporting emergencies.

(a) Employees shall immediately report by the quickest means

available derailments, collisions, storms, wash-outs, fires,

obstructions to tracks, and other hazardous conditions which could

result in death or injury, damage to property or serious disruption of

railroad operations.

(b) In reporting emergencies, employees shall follow:

(1) The procedures of Sec. 220.47 when using a radio; or

(2) The procedures specified for reporting emergencies in the

railroad's timetables or timetable special instructions, when using

another means of wireless communications.

(c) Employees shall describe as completely as possible the nature,

degree and location of the hazard.

(d) An alternative means of communications capability shall be

provided whenever the control center is unattended or unable to receive

radio transmissions during a period in which railroad operations are

conducted.

[[Page 47197]]

Subpart B--Radio and Wireless Communication Procedures

Sec. 220.21 Railroad operating rules; radio communications;

recordkeeping.

(a) The operating rules of each railroad with respect to radio

communications shall conform to the requirements of this part.

(b) Thirty days before commencing to use radio communications in

connection with railroad operations each railroad shall retain one copy

of its current operating rules with respect to radio communications at

the locations prescribed in paragraphs (b) (1) and (b)(2) of this

section. Each amendment to these operating rules shall be filed at such

locations within 30 days after it is issued. These records shall be

made available to representatives of the Federal Railroad

Administration for inspection and photocopying during normal business

hours.

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

providing intercity rail passenger service, and each railroad providing

commuter service in a metropolitan or suburban area shall retain such

rules at each of its division headquarters and at its system

headquarters; 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.

(c) For purposes of this section, the terms Class I railroad, Class

II railroad, and Class III railroad have the meaning given these terms

in 49 CFR Part 1201.

Sec. 220.23 Publication of radio information.

Each railroad shall designate where radio base stations are

installed, where wayside stations may be contacted, and the appropriate

radio channels used by these stations in connection with railroad

operations by publishing them in a timetable or special instruction.

The publication shall indicate the periods during which base and

wayside radio stations are operational.

Sec. 220.25 Instruction and operational testing of employees.

Each employee who a railroad authorizes to use a radio in

connection with a railroad operation, shall be:

(a) Provided with a copy of the railroad's operating rules

governing the use of radio communication in a railroad operation;

(b) Instructed in the proper use of radio communication as part of

the program of instruction prescribed in Sec. 217.11 of this chapter;

and

(c) Periodically tested under the operational testing requirements

in Sec. 217.9 of this chapter.

Sec. 220.27 Identification.

(a) Except as provided in paragraph (c) of this section, the

identification of each wayside, base or yard station shall include at

least the following minimum elements, stated in the order listed:

(1) Name of railroad. An abbreviated name or initial letters of the

railroad may be used where the name or initials are in general usage

and are understood in the railroad industry; and

(2) Name and location of office or other unique designation.

(b) Except as provided in paragraph (c) of this section, the

identification of each mobile station shall consist of the following

elements, stated in the order listed:

(1) Name of railroad. An abbreviated name or initial letters of the

railroad may be used where the name or initial letters are in general

usage and are understood in the railroad industry;

(2) Train name (number), if one has been assigned, or other

appropriate unit designation; and

(3) When necessary, the word ``locomotive'', ``motorcar'', or other

unique identifier which indicates to the listener the precise mobile

transmitting station.

(c) If positive identification is achieved in connection with

switching, classification, and similar operations wholly within a yard,

fixed and mobile units may use short identification after the initial

transmission and acknowledgment consistent with applicable Federal

Communications Commission regulations governing ``Station

Identification''.

Sec. 220.29 Statement of letters and numbers in radio communications.

(a) If necessary for clarity, a phonetic alphabet shall be used to

pronounce any letter used as an initial, except initial letters of

railroads. See appendix A of this part for the recommended phonetic

alphabet.

(b) A word which needs to be spelled for clarity, such as a station

name, shall first be pronounced, and then spelled. If necessary, the

word shall be spelled again, using a phonetic alphabet.

(c) Numbers shall be spoken by digit, except that exact multiples

of hundreds and thousands may be stated as such. A decimal point shall

be indicated by the words ``decimal,'' ``dot,'' or ``point.'' (See

appendix B to this part, for a recommended guide to the pronunciation

of numbers.)

Sec. 220.31 Initiating a radio transmission.

Before transmitting by radio, an employee shall:

(a) Listen to ensure that the channel on which the employee intends

to transmit is not already in use;

(b) Identify the employee's station in accordance with the

requirements of Sec. 220.27; and

(c) Verify that the employee has made radio contact with the person

or station with whom the employee intends to communicate by listening

for an acknowledgment. If the station acknowledging the employee's

transmission fails to identify itself properly, the employee shall

require a proper identification before proceeding with the

transmission.

Sec. 220.33 Receiving a radio transmission.

(a) Upon receiving a radio call, an employee shall promptly

acknowledge the call, identifying the employee's station in accordance

with the requirements of Sec. 220.27 and stand by to receive. An

employee need not attend the radio during the time that this would

interfere with other immediate duties relating to the safety of

railroad operations.

(b) An employee who receives a transmission shall repeat it to the

transmitting party unless the communication:

(1) Relates to yard switching operations;

(2) Is a recorded message from an automatic alarm device; or

(3) Is general in nature and does not contain any information,

instruction or advice which could affect the safety of a railroad

operation.

Sec. 220.35 Ending a radio transmission.

(a) Except for transmissions relating to yard switching operations,

at the close of each transmission to which a response is expected, the

transmitting employee shall say ``over'' to indicate to the receiving

employee that the transmission is ended.

(b) Except for transmissions relating to yard switching operations,

at the close of each transmission to which no response is expected, the

transmitting employee shall state the employee's identification

followed by the word ``out'' to indicate to the receiving employee that

the exchange of transmissions is complete.

Sec. 220.37 Testing radio and wireless communication equipment.

(a) Each radio, and all primary and redundant wireless

communication equipment used under Secs. 220.9 and 220.11, shall be

tested as soon as practicable to ensure that the equipment

[[Page 47198]]

functions as intended prior to the commencement of the work assignment.

(b) The test of a radio shall consist of an exchange of voice

transmissions with another radio. The employee receiving the

transmission shall advise the employee conducting the test of the

clarity of the transmission.

Sec. 220.38 Communication equipment failure.

(a) Any radio or wireless communication device found not to be

functioning as intended when tested pursuant to Sec. 220.37 shall be

removed from service and the dispatcher or other employee designated by

the railroad shall be so notified as soon as practicable.

(b) If a radio or wireless communication device fails on the

controlling locomotive en route, the train may continue until the

earlier of--

(1) The next calendar day inspection, or

(2) The nearest forward point where the radio or wireless

communication device can be repaired or replaced.

Sec. 220.39 Continuous radio monitoring.

Each radio used in a railroad operation shall be turned on to the

appropriate channel as designated in Sec. 220.23 and adjusted to

receive communications.

Sec. 220.41 [Reserved]

Sec. 220.43 Radio communications consistent with federal regulations

and railroad operating rules.

Radio communication shall not be used in connection with a railroad

operation in a manner which conflicts with the requirements of this

part, Federal Communication Commission regulations, or the railroad's

operating rules. The use of citizen band radios for railroad operating

purposes is prohibited.

Sec. 220.45 Radio communication shall be complete.

Any radio communication which is not fully understood or completed

in accordance with the requirements of this part and the operating

rules of the railroad, shall not be acted upon and shall be treated as

though not sent.

Sec. 220.47 Emergency radio transmissions.

An initial emergency radio transmission shall be preceded by the

word ``emergency,'' repeated three times. An emergency transmission

shall have priority over all other transmissions and the frequency or

channel shall be kept clear of non-emergency traffic for the duration

of the emergency communication.

Sec. 220.49 Radio communication used in shoving, backing or pushing

movements.

When radio communication is used in connection with the shoving,

backing or pushing of a train, locomotive, car, or on-track equipment,

the employee directing the movement shall specify the distance of the

movement, and the movement shall stop in one-half the remaining

distance unless additional instructions are received. If the

instructions are not understood, the movement shall be stopped

immediately and may not be resumed until the misunderstanding has been

resolved, radio contact has been restored, or communication has been

achieved by hand signals or other procedures in accordance with the

operating rules of the railroad.

Sec. 220.51 Radio communications and signal indications.

(a) No information may be given by radio to a train or engine crew

about the position or aspect displayed by a fixed signal. However, a

radio may be used by a train crew member to communicate information

about the position or aspect displayed by a fixed signal to other

members of the same crew.

(b) Except as provided in the railroad's operating rules, radio

communication shall not be used to convey instructions which would have

the effect of overriding the indication of a fixed signal.

Sec. 220.61 Radio transmission of mandatory directives.

(a) Each mandatory directive may be transmitted by radio only when

authorized by the railroad's operating rules. The directive shall be

transmitted in accordance with the railroad's operating rules and the

requirements of this part.

(b) The procedure for transmission of a mandatory directive is as

follows:

(1) The train dispatcher or operator shall call the addressees of

the mandatory directive and state the intention to transmit the

mandatory directive.

(2) Before the mandatory directive is transmitted, the employee to

receive and copy shall state the employee's name, identification,

location, and readiness to receive and copy. An employee operating the

controls of moving equipment shall not receive and copy mandatory

directives. A mandatory directive shall not be transmitted to employees

on moving equipment, if such directive cannot be received and copied

without impairing safe operation of the equipment.

(3) A mandatory directive shall be copied in writing by the

receiving employee in the format prescribed in the railroad's operating

rules.

(4) After the mandatory directive has been received and copied, it

shall be immediately repeated in its entirety. After verifying the

accuracy of the repeated mandatory directive, the train dispatcher or

operator shall then state the time and name of the employee designated

by the railroad who is authorized to issue mandatory directives. An

employee copying a mandatory directive shall then acknowledge by

repeating the time and name of the employee so designated by the

railroad.

(5)(i) For train crews, before a mandatory directive is acted upon,

the conductor and engineer shall each have a written copy of the

mandatory directive and make certain that the mandatory directive is

read and understood by all members of the crew who are responsible for

the operation of the train. Mandatory directives which have been

fulfilled or canceled shall be marked with an ``X'' or in accordance

with the railroad's operating rules, and retained for the duration of

the train crew's work assignment.

(ii) For on-track equipment, before a mandatory directive is acted

upon, the employee responsible for on-track safety shall have a written

copy of the mandatory directive, and make certain that the mandatory

directive is acknowledged by all employees who are responsible for

executing that mandatory directive. The employee responsible for on-

track safety shall retain a copy of the mandatory directive while it is

in effect.

(6) A mandatory directive which has not been completed or which

does not comply with the requirements of the railroad's operating rules

and this part, may not be acted upon and shall be treated as though not

sent. Information contained in a mandatory directive may not be acted

upon by persons other than those to whom the mandatory directive is

addressed.

Appendix A to Part 220--Recommended Phonetic Alphabet

A--ALFA

B--BRAVO

C--CHARLIE

D--DELTA

E--ECHO

F--FOXTROT

G--GOLF

H--HOTEL

I--INDIA

J--JULIET

K--KILO

L--LIMA

M--MIKE

N--NOVEMBER

O--OSCAR

P--PAPA

[[Page 47199]]

Q--QUEBEC

R--ROMEO

S--SIERRA

T--TANGO

U--UNIFORM

V--VICTOR

W--WHISKEY

X--XRAY

Y--YANKEE

Z--ZULU

The letter ``ZULU'' should be written as ``Z'' to distinguish it

from the numeral ``2''.

Appendix B to Part 220--Recommended Pronunciation of Numerals

To distinguish numbers from similar sounding words, the word

``figures''should be used preceding such numbers. Numbers should be

pronounced as follows:

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

Number Spoken

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

0........................................ ZERO.

1........................................ WUN.

2........................................ TOO.

3........................................ THUH-REE-.

4........................................ FO-WER.

5........................................ FI-YIV.

6........................................ SIX.

7........................................ SEVEN.

8........................................ ATE.

9........................................ NINER.

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

(The figure ZERO should be written as ``0'' to distinguish it

from the letter ``O''. The figure ONE should be underlined to

distinguish it from the letter ``I''. When railroad rules require

that numbers be spelled, these principles do not apply.)

The following examples illustrate the recommended pronunciation

of numerals:

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

Number Spoken

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

44..................................... FO-WER FO-WER.

500.................................... FI-YIV HUNDRED.

1000................................... WUN THOUSAND.

1600................................... WUN SIX HUNDRED.

14899.................................. WUN FO-WER ATE

NINER NINER.

20.3................................... TOO ZERO DECIMAL

THUH-REE.

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

Appendix C to Part 220--Schedule of Civil Penalties \1\

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

Willful

Section Violation violation

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

220.9 Requirements for trains........... $5,000 $7,500

220.11 Requirements for roadway workers. 5,000 7,500

220.21 Railroad Operating rules; radio

communications.........................

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

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

220.23 Publication of radio information. 2,500 5,000

220.25 Instruction of employees......... 5,000 7,500

220.27 Identification................... 1,000 2,000

220.29 Statement of letters and numbers. 1,000 2,000

220.31 Initiating a transmission........ 1,000 2,000

220.33 Receiving a transmission......... 1,000 2,000

220.35 Ending a transmission............ 1,000 2,000

220.37 Voice test....................... 5,000 7,500

220.39 Continuous monitoring............ 2,500 5,000

220.41 [Reserved] .....................

220.43 Communication consistent with the

rules.................................. 2,500 5,000

220.45 Complete communications.......... 2,500 5,000

220.47 Emergencies...................... 2,500 5,000

220.49 Switching, backing or pushing.... 5,000 7,500

220.51 Signal indications............... 5,000 7,500

220.61 Radio transmission of mandatory

directives............................. 5,000 7,500

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

\1\ A penalty may be assessed against and only for a willful violation.

The Administrator reserves the right to assess a penalty of up to

$22,000 for any violation where circumstances warrant. See 49 CFR part

209, appendix A.

Issued in Washington, D.C. on August 28, 1998.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 98-23697 Filed 9-3-98; 8:45 am]

BILLING CODE 4910-06-P