Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Fixed Derails

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217 and 218

[Docket No. FRA-2006-25267]

RIN 2130-AB76

Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Fixed Derails

AGENCY:

Federal Railroad Administration (FRA), DOT.

ACTION:

Final rule.

SUMMARY:

Human factors are the leading cause of train accidents, accounting for 38 percent of the total in 2005. Human factors also contribute to employee injuries. This final rule establishes greater accountability on the part of railroad management for administration of railroad programs of operational tests and inspections, and greater accountability on the part of railroad supervisors and employees for compliance with those railroad operating rules that are responsible for approximately half of the train accidents related to human factors. Additionally, this final rule will supplant Emergency Order 24, which requires special handling, instruction and testing of railroad operating rules pertaining to hand-operated main track switches in non-signaled territory. Finally, an appendix has been added to 49 CFR part 218 to provide guidance for remote control locomotive operations that utilize technology in aiding point protection.

DATES:

This regulation is effective April 14, 2008.

FOR FURTHER INFORMATION CONTACT:

Douglas H. Taylor, Staff Director, Operating Practices Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler, Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background and Authority

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Noncompliance

B. Accident at Graniteville, SC and Safety Advisory 2005-01

C. Emergency Order No. 24

D. Secretary of Transportation's Action Plan for Addressing Critical Railroad Safety Issues

E. Railroad Safety Advisory Committee (RSAC) Overview

F. Establishment of the Railroad Operating Rules Working Group and Development of the NPRM

G. Development of the Final Rule

1. Summary of the Comments

2. RSAC's Working Group Reviewed the Comments

3. Consideration of Underlying Principles in Emergency Order 24

4. Recognition of the Need To Improve Railroad Programs of Operational Tests and Inspections

III. Remote Control Operations

A. Background

B. Situational Awareness

C. Technology Aided Point Protection

IV. General Comments/Major Issues

A. Enforcement

B. Good Faith Challenge—Legal Issues

1. FRA's Rulemaking Authority

2. FRA's Enforcement Authority

3. Multiple Enforcement Actions

4. Anti-Retaliation Provision

C. Preemptive Effect

V. Section-by-Section Analysis

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272

C. Paperwork Reduction Act

D. Federalism Implications

E. Environmental Impact

F. Unfunded Mandates Act of 1995

G. Energy Impact

I. Background and Authority

The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 20103, provides that, “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.” The Secretary's responsibility under this provision and the balance of the railroad safety laws have been delegated to the Federal Railroad Administrator. 49 CFR 1.49(m). In the field of operating rules and practices, FRA has traditionally pursued a very conservative course of regulation, relying upon the industry to implement suitable railroad operating rules and mandating in the broadest of ways that employees be “instructed” in their requirements and that railroads create and administer programs of operational tests and inspections to verify rules compliance. This approach was based on several factors, including a recognition of the strong interest the railroads have in avoiding costly accidents and personal injuries, the limited resources available to FRA to directly enforce railroad operating rules, and the apparent success of management and employees in accomplishing most work in a safe manner.

Over the years, however, it became necessary to “Federalize” certain requirements, either to remedy shortcomings in the railroads' rules or to emphasize the importance of compliance and to provide FRA a more direct means of promoting compliance. These actions, which in most cases were preceded or followed by statutory mandates, included adoption of rules governing—

1. Blue Signal Protection for employees working on, under or between railroad rolling equipment (49 CFR part 218, subpart B);

2. Railroad Communications (49 CFR part 220);

3. Prohibition of Tampering with Safety Devices (49 CFR part 218, subpart D); and

4. Control of Alcohol and Drug Use in Railroad Operations (49 CFR part 219).

In addition, FRA has adopted requirements for Qualification and Certification of Locomotive Engineers (49 CFR Part 240) that directly prohibit contravention of certain specified operating rules and practices.

FRA believes these programs of regulation contribute positively to railroad safety, in part because they contribute significantly to good discipline among affected employees.

FRA is not specifically required by statute to issue a regulation on the subjects covered by this final rule. However, FRA believes that establishing greater accountability for implementation of sound operating rules is necessary for safety. FRA initiated and finalized this rulemaking because it has recognized that human factor train accidents comprise the largest single category of train accident causes and because existing regulations have proven inadequate to achieve a significant further reduction in their numbers or severity. Moreover, the current situation in the railroad industry, which is characterized by strong market demand, extensive hiring of new employees, and rapid attrition of older employees now becoming eligible for retirement, demands a more substantial framework of regulations to help ensure that operational necessity will not overwhelm systems of safeguards relied upon to maintain good discipline.

The theme of this final rule is accountability. It embodies both a broad strategy intended to promote better administration of railroad programs and a highly targeted strategy designed to improve compliance with railroad operating rules addressing three critical areas. Within this framework, FRA has

taken responsibility to set out certain requirements heretofore left to private action. FRA will be monitoring compliance with those requirements through appropriate inspections and audits, and when necessary will be assessing appropriate civil penalties to assure compliance. Railroad management will be held accountable for putting in place appropriate rules, instructions, and programs of operational tests. Railroad supervisors will be held accountable for doing their part to administer operational tests and establish appropriate expectations with respect to rules compliance. Railroad employees will be held accountable for complying with specified operating rules, and will have a right of challenge should they be instructed to take actions that, in good faith, they believe would violate those rules. It is intended that this framework of accountability promote good discipline, prevent train accidents, and reduce serious injuries to railroad employees. In this supplementary information section, FRA provides a detailed explanation of the growing number of accidents, the severity of some of those accidents, the agency's prior actions, and a discussion of major subjects addressed in the proposed rule or raised by the comments to that proposal.

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Noncompliance

FRA has grown steadily more concerned over the past few years as the frequency of human factor caused accidents has increased. When these accidents are reported, the reporting railroad is required to cite the causes of the accident. In the case of a human factor caused accident, an employee or employees are typically associated with a failure to abide by one or more railroad operating rules. Over the past few years, FRA inspectors have simultaneously observed a substantial increase in noncompliance with those railroad operating rules that are frequently cited as the primary or secondary causes to these types of accidents.

Accidents caused by mishandling of equipment, switches and derails rose from 370 to 640 per year from the years 1997 to 2004—an increase of 42 percent. The greatest causes of these accidents as identified by the railroads were (1) switch improperly lined and (2) absence of employee on, at or ahead of a shoving movement. These two issues alone account for over 60 percent of all accidents caused annually by employees mishandling of equipment, switches and derails.

A grouping of four other causes saw steady increases from 133 per year in 1997 to 213 per year in 2004—a cumulative increase of 37 percent; these causes are (1) failure to control a shoving movement, (2) switch previously run through, (3) cars left in the foul and (4) failure to apply or remove a derail. Two additional causes of accidents, (1) switch not latched or locked and (2) car(s) shoved out and left out of clear, were the cited cause of only 10 accidents in 1997 and 40 accidents in 2004.

While the accident data shows significant increases in these areas, the data collected by FRA during inspections suggests that the number of accidents could easily increase at an even greater rate. FRA inspection data shows that noncompliance related to mishandling of equipment, switches and derails rose from 319 to 2,954 per year from the years 2000 to 2004—a nine-fold increase. The most common areas of human factor noncompliance were (1) employee failed to observe switch points for obstruction before throwing switch; (2) employee failed to ensure all switches involved with a movement were properly lined; (3) employee failed to ensure switches were latched or locked; (4) employee failed to ensure switches were properly lined before movement began; and (5) employee left equipment fouling adjacent track.

Several other related issues of noncompliance also saw substantial increases, although the overall number of incidents found by FRA was lower than the top five. These additional areas of noncompliance are: (1) Employee left derail improperly lined (on or off); (2) absence of employee on, at, or ahead of shoving movement; (3) employee failed to ensure train or engine was stopped in the clear; (4) employee failed to ensure switches were properly lined after being used; (5) employee failed to reapply hasp before making move over switch (if equipped); (6) employee failed to relock the switch after use; and (7) one or more employees failed to position themselves so that they could constantly look in the direction of movement.

Some noncompliance data applies particularly to human factor mistakes FRA noted during inspections of operations involving remotely controlled locomotives. FRA assigned noncompliance codes to identify the following problems specifically associated with these remote control operations: (1) Employee operated equipment while out of operator's range of vision; (2) employee failed to provide point protection, locomotive leading; and (3) employee failed to provide point protection, car leading. In 2004, the first year that FRA collected data under those codes, FRA inspectors recorded 29 instances of noncompliance with the railroad's operating rules underlying the three codes. In 2005, the number of instances of noncompliance with those same codes recorded by FRA inspectors increased to 92. These types of noncompliance are continuing with some frequency as in 2006, FRA noted 43 instances of noncompliance with those cause codes and in the first half of 2007, FRA has noted 23 instances.

B. Accident at Graniteville, SC and Safety Advisory 2005-01

Although the increasing number of human factor caused accidents impacted the railroad industry and its employees, a catastrophic accident that occurred at Graniteville, South Carolina on January 6, 2005, catapulted the issue into the national spotlight. As the National Transportation Safety Board (NTSB) described in its report NTSB/RAR-05/04, PB2005-916304 (Nov. 29, 2005), that accident occurred when Norfolk Southern Railway Company (NS) freight train 192, while traveling in non-signaled territory at about 47 miles per hour (mph), encountered an improperly lined switch that diverted the train from the main track onto an industry track, where it struck an unoccupied, parked train (NS train P22). The collision derailed both locomotives and 16 of the 42 freight cars of train 192, as well as the locomotive and 1 of the 2 cars of train P22. Among the derailed cars from train 192 were three tank cars containing chlorine, one of which was breached, releasing chlorine gas. The train engineer and eight other people died as a result of chlorine gas inhalation. About 554 people complaining of respiratory difficulties were taken to local hospitals. Of these, 75 were admitted for treatment. Because of the chlorine release, about 5,400 people within a 1-mile radius of the derailment site were evacuated for 9 to 13 days. The property damage, including damages to the rolling stock and track, exceeded $6.9 million. In 2006, NS recorded expenses of $41 million related to this incident. This burden includes property damage and other economic losses, personal injury and individual property damage. (It should be noted that this figure does not include losses for which NS was insured, nor other costs that are associated with the accident such as liability incurred, increased shipping rates, higher insurance rates and other societal costs, i.e., expenses for non-

railroad businesses, and expenses incurred related to claims from this accident.) NTSB determined that the probable cause of the collision was the failure of the crew of NS train P22 to return a main track switch to the normal position after the crew completed work at an industry.

The crew's failure violated railroad operating rules but did not violate any Federal requirement. NS Operating Rule 104, in effect at the time, placed primary responsibility with the employee handling the switch and other crewmembers were secondarily responsible if they were in place to observe the switch's position. NTSB/RAR-05/04 at 8. In addition, NTSB concluded that NS rules required a job briefing which “would likely have included a discussion of the switches and specifically who was responsible for ensuring that they were properly positioned [and that] [h]ad such a briefing taken place, the relining of the switch might not have been overlooked.”

Id

. at 44. FRA concurs that the lack of intra-crew communication regarding the switch's position was particularly significant at the time the crew was preparing to leave the site.

Id

. at 8-9.

Four days after the Graniteville accident (and coincidentally, two days after a similar accident at Bieber, California with serious, but not catastrophic consequences), FRA responded by issuing Safety Advisory 2005-01, “Position of Switches in Non-Signaled Territory.” 70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an opportunity for the agency to inform the industry and the general public regarding a safety issue, to articulate agency policy, and to make recommendations. FRA explained in the safety advisory that “[a] review of FRA's accident/incident data shows that, overall, the safety of rail transportation continues to improve. However, FRA has particular concern that recent accidents on Class I railroads in non-signaled territory were caused, or apparently caused, by the failure of railroad employees to return manual (hand-operated) main track switches to their normal position, i.e., usually lined for the main track, after use. As a result, rather than continuing their intended movement on the main track, trains approaching these switches in a facing-point direction were unexpectedly diverted from the main track onto the diverging route, and consequently derailed.”

Safety Advisory 2005-1 strongly urged all railroads to immediately adopt and comply with five recommendations that were intended to strengthen, clarify and re-emphasize railroad operating rules so as to ensure that all main track switches are returned to their normal position after use. The recommendations emphasized communication both with the dispatcher and other crewmembers. FRA recommended that crewmembers complete and sign a railroad-created Switch Position Awareness Form (SPAF). Proper completion of a SPAF was expected to trigger specific communication relevant to critical elements of the tasks to be performed. Additional training and railroad oversight were also recommended.

C. Emergency Order No. 24

Safety Advisory 2005-1 did not have the long-term effect that FRA hoped it would. The Safety Advisory was intended to allow the industry itself a chance to clamp down on the frequency and severity of one subset of human factor accidents, i.e., those accidents involving hand-operated main track switches in non-signaled territory. FRA credits the Safety Advisory with contributing to a nearly six-month respite from this type of accident, from January 12 through July 6, 2005, but following this respite there was a sharp increase in serious accidents.

Three serious accidents over a 28-day period from August 19 to September 15, 2005, were the catalyst for FRA issuing an emergency order: Emergency Order No. 24 (EO 24); Docket No. FRA-2005-22796, 70 FR 61496 (Oct. 24, 2005). The three accidents cited in EO 24 resulted in fatal injuries to one railroad employee, non-fatal injuries to eight railroad employees, an evacuation of civilians, and railroad property damage of approximately two million dollars. Furthermore, each of these accidents could have been far worse, as each had the potential for additional deaths, injuries, property damage or environmental damage. Two of the accidents could have involved catastrophic releases of hazardous materials as these materials were present in at least one of the train consists that collided.

FRA is authorized to issue emergency orders where an unsafe condition or practice “causes an emergency situation involving a hazard of death or personal injury.” 49 U.S.C. 20104. These orders may immediately impose “restrictions and prohibitions * * * that may be necessary to abate the situation.”

Id

.

EO 24 was necessary because despite the Safety Advisory, there was insufficient compliance with railroad operating rules related to the operation of hand-operated main track switches in non-signaled territory. FRA considered issuing another Safety Advisory, but that might at best only provide another temporary respite. The issuance of EO 24 was “intended to accomplish what the Safety Advisory could not: implement safety practices that will abate the emergency until FRA can complete rulemaking.” 70 FR at 61498. FRA further concluded that “reliance solely on employee compliance with railroad operating rules related to the operation of hand-operated main track switches in non-signaled territory, without a Federal enforcement mechanism, is inadequate to protect the public safety.” 70 FR at 61499.

EO 24 is built on the foundation of FRA's regulations, at 49 CFR part 217, which require each railroad to instruct its employees on the meaning and application of its code of operating rules, and to periodically test its employees to determine their level of compliance. With regard to hand-operated switches in non-signaled territory, EO 24 requires that each railroad (1) instruct its employees, (2) allow only qualified employees to operate and verify switches, (3) require employees to confirm switch positions with the dispatcher prior to releasing the limits of a main track authority, (4) develop a Switch Position Awareness Form for employees to complete when operating switches, (5) require employees to conduct job briefings at important intervals, (6) require intra-crew communication of switch positions after a switch is operated, (7) enhance its program of operational tests and inspections under 49 CFR part 217, and (8) distribute copies of EO 24, and retain proof of distribution, to all employees affected. Minor clarifying amendments were made to EO 24 in a second notice, but the overarching requirements remained unchanged from the first notice. 70 FR 71183 (Nov. 25, 2005).

D. Secretary of Transportation's Action Plan for Addressing Critical Railroad Safety Issues

Prior to the Graniteville accident, FRA had developed and implemented procedures to focus agency resources on critical railroad safety issues. Such procedures were appropriate even though the industry's overall safety record had improved over the last decade and most safety trends were moving in the right direction. FRA recognizes that significant train accidents continue to occur, and the train accident rate has not shown substantive improvement in recent years. Several months after the Graniteville accident, the Secretary of Transportation announced a National

Rail Safety Action Plan to address this need. FRA acknowledged in the plan that “recent train accidents have highlighted specific issues that need prompt government and industry attention.” Action Plan at 1 (published on FRA's Web site at

http://www.fra.dot.gov/

).

In the plan, FRA introduced its basic principles to address critical railroad safety issues. One basic principle is that FRA's safety program is increasingly guided by careful analysis of accident, inspection, and other safety data. Another basic principle is that FRA attempts to direct both its regulatory and compliance efforts toward those areas involving the highest safety risks. The plan is intended to be proactive in that it will target the most frequent, highest risk causes of accidents.

FRA identified “reducing human factor accidents” as one of the major areas in which the agency planned initiatives. In fact, the plan discusses this issue first because it constitutes the largest category of train accidents, accounting for 38 percent of all train accidents over the first five years of this decade, and human factor accidents were growing in number at the time the action plan was implemented. Furthermore, FRA's plan takes aim at reducing human factor accidents because in recent years most of the serious events involving train collisions or derailments resulting in release of hazardous materials, or harm to rail passengers, have been caused by human factors or track problems.

FRA's analysis of train accident data has revealed that a small number of particular kinds of human errors are accounting for an inordinate number of human factor accidents. For example, the eight human factor causes involving mishandling equipment, switches and derails that FRA is addressing in this final rule accounted for nearly 48 percent of all human factor accidents in 2004; these eight causes, which resulted in accidents causing over $113 million in damages to railroad property from 2001-2005, can be grouped into three basic areas of railroad operations: (1) Operating switches and derails; (2) leaving equipment out to foul; and (3) the failure to protect shoving or pushing movements. Thus, this rulemaking is meant to address nearly half of all human factor caused accidents on all classes of track.

Of the 118 human factor causes that are tracked, the leading cause was improperly lined switches, which alone accounted for more than 16 percent of human factor accidents in 2004. The next two leading causes were shoving cars without a person on the front of the movement to monitor conditions ahead, i.e., lack of point protection, and shoving cars with point protection but still resulting in a failure to control the movement; these two shoving related causes together accounted for 17.6 percent of human factor accidents in 2004. The remaining five causes addressed in this final rule account for nearly 14 percent of the total number of accident causes; these causes involve leaving cars in a position that fouls an adjacent track, operating over a switch previously run through, a failure to apply or remove a derail, a failure to latch or lock a switch, and a failure to determine before shoving that the track is clear ahead of the movement. The two catch-all general causes that might be cited when a railroad believes one or more related causes may apply or is unsure of the exact cause are: (1) Other general switching rules; and (2) other train operation/human factors.

The human factor causes that are the central focus of this final rule are of a type that involve noncompliance with established railroad operating rules related to fundamental railroad operations. In each case, compliance can be objectively and conclusively determined. For example, it can be definitively determined whether switches are properly lined, locked, latched or had been previously run through. It can be determined whether a shoving movement was made without point protection or without the signals or instructions necessary to control the movement. Similarly, it can be determined whether a car is left fouling a track such that it is causing an unsafe operating condition, or whether the track is clear ahead for a shoving movement. Finally, it can also be determined with certainty whether there has been a failure to apply or remove a derail.

The top human factor causes that FRA is choosing not to address with this final rule are already regulated, to some extent, or would be significantly more difficult to regulate. For example, several human factor causes relate to the failure to apply a sufficient number of hand brakes; that issue is already covered by regulation at 49 CFR 232.103(n). Speeding issues, including restricted speed, are regulated to discourage clearly excessive speeding by imposing revocation periods or civil penalties for locomotive engineer violators. 49 CFR 240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for regulating a train handling issue, such as a locomotive engineer's improper use of an independent brake or air brakes to prevent excess buff or slack action, can pose difficulties as train handling is an area where locomotive engineers exercise discretion. 58 FR 18982, 18992 (Apr. 9, 1993) (describing in section-by-section analysis why FRA amended the qualification and certification of locomotive engineer's rule to require revocation only when there is a failure to conduct certain brake tests as opposed to the more general, original requirement to revoke for “failure to adhere to procedures for the safe use of train or engine brakes.” 56 FR 28228, 28259 (June 19, 1991)). Likewise, the operating conditions related to improper coupling are too numerous to easily address through regulation, and determination of responsibility related to train handling and train make-up involves often complex technical issues that are still subject to study.

See Safe Placement of Train Cars, Report to the Senate Committee on Science, Commerce and Transportation and the House Committee on Transportation and Infrastructure

(June 2005), published at

http://www.fra.dot.gov.

Developing close call data.

As part of its mission to improve railroad safety, FRA is sponsoring the Confidential Close Call Reporting System Demonstration Project to demonstrate the effectiveness of a confidential close call reporting system for the railroad industry. “Close calls” in this context are unsafe events that do not result in a reportable accident but very well could have. In other industries such as aviation, implementation of close call reporting systems that shield the reporting employee from discipline (and the employer from punitive sanctions levied by the regulator) have contributed to major reductions in accidents. In March of 2005, FRA completed an overarching memorandum of understanding with railroad labor organizations and railroad management to develop pilot programs to document close calls. Participating railroads will be expected to develop corrective actions to address the problems that may be revealed. The aggregate data may prove useful in FRA's decision-making concerning regulatory and other options to promote a reduction in human factor-caused accidents. However, the project has not yet produced sufficient data to consider in this final rule.

E. Railroad Safety Advisory Committee (RSAC) Overview

In March 1996, FRA established RSAC, which provides a forum for developing consensus recommendations to FRA's Administrator on rulemakings and other safety program issues. The Committee includes representation from

all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AAPRCO);

American Association of State Highway & Transportation Officials (AASHTO);

American Public Transportation Association (APTA);

American Short Line and Regional Railroad Association (ASLRRA);

American Train Dispatchers Association (ATDA);

Association of American Railroads (AAR);

Association of Railway Museums (ARM);

Association of State Rail Safety Managers (ASRSM);

Brotherhood of Locomotive Engineers and Trainmen (BLET);

Brotherhood of Maintenance of Way Employes Division (BMWED);

Brotherhood of Railroad Signalmen (BRS);

Federal Transit Administration (FTA)*;

High Speed Ground Transportation Association (HSGTA);

International Association of Machinists and Aerospace Workers;

International Brotherhood of Electrical Workers (IBEW);

Labor Council for Latin American Advancement (LCLAA)*;

League of Railway Industry Women*;

National Association of Railroad Passengers (NARP);

National Association of Railway Business Women*;

National Conference of Firemen & Oilers;

National Railroad Construction and Maintenance Association;

National Railroad Passenger Corporation (Amtrak);

National Transportation Safety Board (NTSB)*;

Railway Supply Institute (RSI);

Safe Travel America (STA);

Secretaria de Comunicaciones y Transporte*;

Sheet Metal Workers International Association (SMWIA);

Tourist Railway Association Inc.;

Transport Canada*;

Transport Workers Union of America (TWU);

Transportation Communications International Union/BRC (TCIU/BRC);

and United Transportation Union (UTU).

Effective May 2006, the following additional members have been added to the Committee:

Transportation Security Administration*;

American Chemistry Council;

American Petroleum Institute;

Chlorine Institute;

Fertilizer Institute; and

Institute of Makers of Explosives.

*Indicates associate, non-voting membership.

When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings.

F. Establishment of the Railroad Operating Rules Working Group and Development of the NPRM

On April 14, 2005, FRA held a Human Factors Workshop which convened members of RSAC for the purpose of developing a task statement to be presented at the next RSAC meeting. FRA explained that current regulations do not address compliance with the relevant operating rules that cause the preponderance of human factor accidents. The agency expressed a desire to standardize and adopt these rules as Federal requirements with greater accountability being the goal. It was also raised that training and qualification programs should be included as part of the task because employee compliance is certainly directly related to how well employees are instructed and tested. FRA suggested that one area of consideration was to improve its regulations (49 CFR part 217) which require each railroad to instruct its employees on the meaning and application of its code of operating rules, and to periodically test its employees to determine their level of compliance. Many participants expressed a preference for non-regulatory action.

On May 18, 2005, the RSAC accepted a task statement and agreed to establish the Railroad Operating Rules Working Group whose overall purpose was to recommend to the full committee how to reduce the number of human factor caused train accidents/incidents and related employee injuries. The working group held eight two-day conferences, one per month from July 2005 through February 2006. The vast majority of the time at these meetings involved review of an FRA document suggesting language that could form the basis of proposed regulatory text.

The draft proposed rule text that FRA developed for the working group was the agency's first attempt to address several broad concerns. One, FRA set out to propose regulations that addressed those human factors that are the leading cause of train accidents. This involved analyzing the accident/incident data, identifying the relevant causes, identifying the relevant operating rules and procedures, and synthesizing those railroad rules and procedures in clear and enforceable language. Two, FRA's issuance of EO 24 was intended to address the emergency created by the mishandling of hand-operated main track switches in non-signaled territory that caused several tragic accidents; however, EO 24 was never intended to be a permanent arrangement, and the initiation of an informal rulemaking was necessary to provide the public and the regulated community an opportunity to provide comment on preferences for a final rule. Three, as the agency with oversight of railroad safety, FRA was aware of both the successes and failures of each railroad's program of operational tests and inspections required pursuant to 49 CFR 217.9. The draft proposed rule text was designed to close loopholes and impose specific reviews to focus testing and inspection programs on the

operating rules that have the greatest impact on safety.

FRA clearly benefitted from the participation of the working group in detailed review of railroad operating rules and practices. The working group's meetings provided a meaningful forum for interested participants to be able to offer insight into the strengths and weaknesses of FRA's suggested draft proposed rule text and related issues. Unfortunately, the RSAC participants were unable to reach a consensus for making formal recommendations prior to issuance of the proposed rule. The working group's consensus was limited to an agreement to reconvene to discuss the NPRM, and any comments received, after the NPRM comment period closed. Relying heavily on items that the working group achieved near consensus on and ideas suggested by FRA that received support from at least some members of the working group, FRA published an NPRM on October 12, 2006. 71 FR 60372.

G. Development of the Final Rule

As mentioned previously in this preamble, FRA's main purpose in issuing this rule is to reduce the number of accidents/incidents attributed to human factor causes and this regulation is narrowly tailored to accomplish that goal. The correlation between these accidents/incidents and the final rule have been established. This final rule is the product of FRA's decisions regarding the most effective way to regulate after review and consideration of input from both the comments filed in the docket and the RSAC. This final rule is also the product of FRA's experience with EO 24; FRA is adopting many of its requirements and revising others. Furthermore, this final rule requires revisions to each railroad's operational testing and inspection program to ensure that each railroad's officers are better qualified to conduct tests and inspections and each railroad is, in fact, focusing its program on the most serious safety concerns.

1. Summary of the Comments

The NPRM specified that written comments must be received by December 11, 2006, and that comments received after that date would be considered to the extent possible without incurring additional expense or delay. FRA received 12 comments by the deadline and two comments after the deadline. As an aid to further discussion at a meeting of the RSAC Operating Practices Working Group held in early February 2007, FRA prepared two comment summaries which have been added to the docket. These documents contained the same information but one document arranged the comments by commenter and the other by section commented on. The 14th comment received, i.e., the comment of Mr. Walter C. Rockey filed on February 5, 2007, was received too late to include in these summary documents, although the comment was reviewed and considered. Thus, FRA considered all 14 comments filed with the docket.

The 14 commenters touched upon nearly every section of the NPRM, including some who made general comments that applied to the overall nature or approach of the NPRM. Some of the comments are addressed in the section of this preamble titled “IV. General Comments/Major Issues.” Most of the comments, however, were specific to a particular proposed section and thus it made greater sense to address the comment in the section of the preamble titled “V. Section-by-Section Analysis.” FRA believes that it has addressed each of the comments made by the 14 commenters, either directly or indirectly, and has consequently considered all known reasonable alternatives to the NPRM.

2. RSAC's Working Group Reviewed the Comments

The Railroad Operating Rules Working Group held two multi-day meetings (February 8-9, 2007 and April 4-5, 2007) in an attempt to achieve consensus recommendations based on the proposed rule and the comments received. The RSAC participants were able to achieve limited consensus on a few items and those consensus items were agreed to by the full RSAC. In the areas where RSAC was able to achieve a consensus recommendation, FRA honored the principle of each recommendation and generally sought to carry forward the elements of the discussion draft that had benefited from thoughtful comment by RSAC participants. The final rule's text, however, might be slightly different in light of regulatory drafting requirements. FRA developed a greater appreciation for the nuances of each of the railroad operating rules and practices discussed; and, armed with that additional insight, FRA has sought to put forth a reasonable final rule that reflects real world railroading.

FRA has noted in the section-by-section analysis where we have adopted an RSAC recommendation or deviated from it. FRA also refers to comments and suggestions made by members of the Working Group, full RSAC, or other commenters so as to show the origin of certain issues and the nature of discussions concerning those issues. FRA believes these references serve to illuminate factors it has weighed in making its regulatory decisions, as well as the logic behind those decisions. The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA is acting. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommendations achieve the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements.

3. Consideration of Underlying Principles in Emergency Order 24

EO 24 illuminated the problems associated with mishandling of hand-operated main track switches in non-signaled territory. While there may be more than one cause that contributes to noncompliance with the operating rules, accidents could be prevented by strict employee compliance with those rules. Accidents involving this type of switch often occur when the employee operating the switch loses focus on the task at hand. In an effort to refocus the attention of employees who operate switches, EO 24's seven sections can be boiled down to three major components: (1) Instruction, (2) communication, and (3) verification through testing. FRA's final rule incorporates these three major components but with a broader application.

Instruction

. It is fundamental that an employee cannot be expected to properly abide by operating rules without proper instruction, especially when those operating rules have been amended. To that end, EO 24 provides an outline for essential initial instruction and periodic instruction. Likewise, FRA is requiring enhanced instruction, training, and examination, i.e., qualification, for employees on the relevant operating rules, pertaining to handling equipment, switches and fixed derails.

Communication

. FRA agrees with the general principle that mistakes can be prevented or corrected by proper communication. Communication prevents noncompliance and accidents because it generally is how people working together know what each other is doing. For example, EO 24 stressed the importance of communication by requiring job briefings at certain crucial intervals: Before work is begun; each time a work plan is changed; and at completion of the work. Such regular

job briefings ensure that employees working together understand the task they are intending to perform and exactly what role is expected of them and their colleagues. Through proper job briefings, employees can prevent some mishaps and contain others from worsening a bad situation. For these reasons, FRA proposes a job briefing component to this rulemaking.

In the background section of EO 24, FRA described a recurrent scenario of noncompliance where a train crew's mistake in leaving a main track switch lined for movement to an auxiliary track was the last act or omission that resulted in an accident; and yet these types of accidents are preventable through reliable communication of the actual switch position. This scenario “occurs when a train crew has exclusive authority to occupy a specific track segment until they release it for other movements and [yet] that train crew goes off duty without lining and locking a hand-operated main track switch in its normal position.” 70 FR at 61497. It is unfortunate that FRA has to clarify that the communication be reliable and accurately reflect the switch position, but some accident investigations have revealed employees whose actions implied more of an interest in quitting work for the day than taking the safe route to verify a switch's position and whether it was properly locked. FRA's final rule retains EO 24's emphasis on intra-crew communication or intra-roadway worker group communication.

See

70 FR at 61499-50 and § 218.105.

Perhaps the most controversial aspect of EO 24 is the requirement that employees operating hand-operated main track switches in non-signaled territory complete a Switch Position Awareness Form (SPAF). The SPAF requirement is controversial because it creates a paperwork burden for employees and railroads. Switches may be lined and locked properly, but a violation of EO 24 may occur for merely failing to fill out a single component on the form. Critics of the form may not appreciate that FRA's intention for requiring a SPAF is to create a contemporaneous communication that reminds the employee of the importance of properly lining and locking such main track switches.

In the case of a train crew, the contemporaneous communication created by the SPAF is twofold: (1) The SPAF itself is a written communication that reminds the employee operating the switch to keep track of the switch's position and (2) another crewmember, typically the locomotive engineer, serves as a secondary reminder to the employee operating the switch because that other crewmember is also required to request information as to the switch's alignment. As FRA clarified in EO 24's second notice, it is immaterial how crewmembers communicate, e.g., whether in-person, by radio, by hand signals, or other effective means, as long as the communication takes place. 70 FR 71186 and 71188. By requiring both the SPAF and the intra-crew communication, FRA is requiring some redundancy, i.e., two communication reminders to properly line and lock such switches in the case of a train.

For purposes of EO 24, the paperwork burden and the redundancy in communication created by the introduction of the SPAF was acceptable. The very sharp increase in collisions, deaths and injuries resulting from improperly lined main track switches required FRA to take decisive action. Prior to EO 24, many railroads had already adopted the use of a SPAF voluntarily as a best practice suggested in Safety Advisory 2005-1. However, the inclusion of a SPAF in EO 24 does not bind the agency to forever require it; and the final rulemaking promulgates an alternative approach that does not include it. Of course, as this subpart prescribes minimum standards and each railroad may prescribe additional or more stringent requirements, each railroad has the choice to decide whether to continue using a SPAF after the effective date of this rule.

FRA decided not to require a SPAF in this final rule because the comprehensive communication requirements contained in §§ 218.103 and 218.105, create a direct enforcement mechanism that makes enforcement through a SPAF redundant. For example, the final rule includes a requirement that all crewmembers verbally confirm the position of a hand-operated main track switch that was operated by any crewmember of that train before it leaves the location of the switch.

See

§ 218.105(c)(1). Likewise, the final rule requires that upon the expiration of exclusive track occupancy authority for roadway workers, roadway workers who operate hand-operated main track switches report the position of any such switches operated to the roadway worker in charge.

See

§ 218.103(c)(2).

NTSB also “does not believe that * * * the use of forms [such as a SPAF] is sufficient to prevent recurrences of accidents such as the one at Graniteville.” NTSB/RAR-05/04 at 45. In support of this position, NTSB cites to the example of railroads that require train crews to record signal indications as they are encountered en route in order to lessen the chance that a block or other fixed signal will be missed or misinterpreted by a crew. Meanwhile, NTSB states that it “has investigated a number of accidents in which such forms, although required and used, did not prevent crews from missing signals and causing accidents.”

Id

.

Although NTSB does not support the use of a SPAF, it did express agreement with the emergency order in two respects. That is, NTSB supported EO 24's requirements directing that job briefings be held at the completion of work and that a train crewmember who repositions a hand-operated main track switch in non-signaled territory communicate with the engineer regarding the switch position. In support of this position, NTSB explains that “a comprehensive safety briefing was not held before the work at Graniteville [and] [h]ad such a briefing been held before and, more importantly, after the work (as required by the FRA emergency order), the accident might have been avoided.”

Id

. at 46. As stated previously, FRA is retaining these two aspects from the emergency order in its rule.

The EO 24 requirements for employees releasing the limits of a main track authority in non-signaled territory to communicate with the train dispatcher have, for the most part, carried over to this final rule and been strengthened. The final rule retains the requirement in EO 24 that an employee releasing the limits of a main track authority in non-signaled territory communicate with the train dispatcher that all hand-operated main track switches operated have been restored to their normal position, unless the train dispatcher directs otherwise, but only to the extent that the switches are at the location where the limits are being released. 70 FR at 61499 and § 218.105(d). With the elimination of the requirement for a SPAF, it would be difficult for an employee to recall the condition of any particular hand-operated main track switch operated and there would likely be a reaction for an employee to believe he or she left all such switches in proper position—without much opportunity to double-check the condition of those faraway switches at that time. As mentioned previously, accidents often occur where the limits are being released and that is why the final rule has placed emphasis on addressing the problem prior to departing the train's location. The switches located at the point of release of the limits should be readily accessible for any employee who is unsure of the condition the switch was last left in. The final rule also adds the requirement that the employee report

that the switch has been locked; locking of the main track switch should prevent easy access to unauthorized users.

Hand-in-hand with the EO 24 requirement that the employee contact the dispatcher to release main track authority in non-signaled territory is the corresponding requirement in EO 24 for train dispatchers; that is, EO 24 requires that the train dispatcher must also confirm the switch positions with the employee releasing the limits before clearing the limits of the authority and confirm that the SPAF was initialed as required. The final rule also requires the train dispatcher to verify the switch position information with the employee and the requirement for the dispatcher to confirm that the switch is locked in the intended position by repeating to the employee releasing the limits the report of the switch position and asking whether that is correct. The final rule also strengthens the current requirement in EO 24 by requiring that the employee then confirm this information with the train dispatcher.

Verification through testing

. The third major component of EO 24's requirements involves the verification of compliance through testing. FRA's regulations, at 49 CFR Part 217, require each railroad to instruct its employees on the meaning and application of its code of operating rules, and to periodically test its employees to determine their level of compliance. Compliance with railroad operating rules is critical, especially when technology does not provide a fail safe option.

4. Recognition of the Need To Improve Railroad Programs of Operational Tests and Inspections

Most railroads have excellent written programs of operational tests and inspections, but FRA has identified weaknesses in the oversight and implementation of nearly all of these programs. For example, some railroad testing officers lack the competency to perform operational tests and inspections. Likewise, some railroads do not perform operational tests that address the root cause of human factor accidents, while others view the requirement as a numbers-generating exercise, and consequently conduct relatively few meaningful tests. That is, while it may be important that employees come to work with the proper equipment (and FRA considers that a basic requirement which, of course, must be satisfied), FRA's concern is that not enough verification testing is occurring on the operating rules most likely to cause accidents, including but not limited to rules addressing handling of switches.

In EO 24, FRA's verification through testing and inspection requirements were narrowly focused on those operating rules involving the operation of hand-operated main track switches in non-signaled territory. The purpose of this narrow focus was to create a special obligation for only those types of rules violations that were causing the emergency situation. FRA still believes compliance with these types of rules should be verified. The final rule replaces EO 24's requirements and adds requirements for verification of testing on a broader number of operating rules directly related to the root cause of human factor accidents; that is, the final rule requires testing of all the rules related to part 218, subpart F, not just those rules related to hand-operated main track switches in non-signaled territory.

The final rule also amends §§ 217.4 and 217.9 to require competency of railroad testing officers. In FRA's view, it is unfathomable that railroad testing officers would be allowed to conduct tests and inspections without proper instruction, on-the-job training, and some kind of written examination or observation to determine that the person is qualified to do the testing; however, Federal regulations currently do not require that railroad testing officers be qualified in such a manner. Railroads should already be shouldering this burden without Federal requirements so we do not view this as a substantial burden; instead, we view the qualification of railroad testing officers as a necessary expense of operating a railroad.

Furthermore, railroad officers that test for noncompliance are typically the same officers who are in charge of operations. In that regard, a railroad officer, who is knowledgeable of Federal requirements and the government's enforcement authority over individual officers, should be discouraged from ordering an employee to violate any operating rule inconsistent with proposed part 218, subpart F. In other words, if all railroad testing officers on a particular railroad are properly qualified, it will be more difficult for railroad officers to accept inconsistency in the application of operating rules.

FRA is amending § 217.9 to require railroads to focus programs of operational tests and inspections “on those operating rules that cause or are likely to cause the most accidents or incidents.”

See

§ 217.9(c)(1). Except for the smallest freight railroads, FRA is requiring that each railroad conduct one or more reviews of operational tests and inspections that should help guide each railroad in the implementation of its program. The quarterly and six-month reviews for freight railroads, as well as the reviews for passenger railroads, in § 217.9(e) would formalize a best practice from some of the largest and safest railroads nationwide. These reviews are intended to ensure that each railroad is conducting tests and inspections directed at the causes of human factor train accidents and employee casualties. Each program will be specifically required to include appropriate tests and inspections addressing the rules dealing with handling of switches, leaving equipment in the clear, and protecting the point of the shove. Structured tests or observations permit railroads to find employees that need additional training or who may benefit from a reminder that it is not acceptable to take shortcuts that violate the operating rules.

Furthermore, the final rule's requirements to amend the program of operational tests and inspections, by emphasizing its purpose to focus on operating rules violations that cause accidents, should cut down on the disparity between the few instances of noncompliance found by many railroads with the many instances of noncompliance found through FRA inspections on the same railroads (

see

discussion in “

Increase In Human Factor Caused Accidents and Noncompliance

”). While railroads have universally done an acceptable job of taking corrective action following an accident, railroads have not done as well in consistently testing for the variety of operating rules, at a variety of locations, and at different times of the day, in order to meet FRA's expectations for an effective testing and inspection program. Accidents and incidents of noncompliance should be prevented by the formalization of the process of verification through testing and FRA's ability to inspect each railroad's program of operational tests and inspections, as well as its records.

Finally, FRA emphasizes that it is retaining an enforcement mechanism, as it did in EO 24, because prior reliance on the railroad to ensure employee compliance with railroad operating rules without a Federal enforcement mechanism has repeatedly proven to be inadequate to protect the public and employee safety. Under current regulations, FRA has been able to effectively intervene in railroad operating rules compliance issues (apart from those already codified as obligations under existing regulations) only indirectly, through use of substantial resources, and in the case of

exceptionally pervasive noncompliance. The system of accountability provided for in this final rule will, by contrast, encourage railroad management to prevent a lessening of oversight or decline in compliance by reviewing safety performance in detail, assisting individual employees to acquire habits of work that are consistent with safety by permitting them to challenge directions that could cause them to cut corners, and permitting individual FRA inspectors to more persuasively seek corrective action early in the process of deteriorating rules compliance.

III. Remote Control Operations

A. Background

Remote control devices have been used to operate locomotives at various locations in the United States for many years, primarily within certain industrial sites. Railroads in Canada have made extensive use of remote control locomotives for more than a decade. FRA began investigating remote control operations in 1994 and held its first public hearing on the subject in February 1995 to gather information and examine the safety issues relating to this new technology. On July 19, 2000, FRA held a technical conference in which all interested parties, including rail unions, remote control systems suppliers, and railroad industry representatives, shared their views and described their experiences with remote control operations. This meeting was extremely beneficial to FRA in developing its subsequent Safety Advisory.

On February 14, 2001, the FRA published recommended guidelines for conducting remote control locomotive operations.

See

66 FR 10340, Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing these recommendations, FRA sought to identify a set of “best practices” to guide the rail industry when implementing this technology. As this is an emerging technology, FRA believes this approach serves the railroad industry by providing flexibility to both manufacturers designing the equipment and to railroads in their different operations, while reinforcing the importance of complying with all existing railroad safety regulations. All of the major railroads have adopted these recommendations, with only slight modifications to suit their individual requirements.

Regarding the enforcement of Federal regulations as they apply to remote control locomotive operations, the Safety Advisory explains that: “although compliance with this Safety Advisory is voluntary, nothing in this Safety Advisory is meant to relieve a railroad from compliance with all existing railroad safety regulations [and] [t]herefore, when procedures required by regulation are cited in this Safety Advisory, compliance is mandatory.”

Id

. at 10343. For example, the Safety Advisory clearly states that “each person operating an RCL [remote control locomotive] must be certified and qualified in accordance with 49 CFR Part 240 [FRA's locomotive engineer rule] if conventional operation of a locomotive under the same circumstances would require certification under that regulation.”

Id

. at 10344.

In November 2001, all six major railroads submitted to FRA their training programs for remote control operators as required by Part 240. Since that initial filing, several railroads have made changes to their remote control training programs at FRA's request. FRA is closely monitoring this training and making additional suggestions for improvement on individual railroads as they become necessary. These training programs currently require a minimum of two weeks classroom and hands-on training for railroad workers who were previously qualified on the railroad's operating and safety rules. Federal regulations require that locomotive engineers be trained and certified to perform the most demanding type of service they will be called upon to perform. Thus, a remote control operator who will only be called upon to perform switching duties using a remote control locomotive would not need to be trained to operate a locomotive on main track from the control stand of the cab. Major railroads are currently reviewing their remote control operator training plans in light of discussions with labor representatives and FRA regarding the requirements of these positions.

In addition to the required training, the regulations require railroads to conduct skills performance testing of remote control operators that is comparable to the testing required of any other locomotive engineer performing the same type of work. Federal regulations also hold remote control operators responsible for compliance with the same types of railroad operating rules and practices that other locomotive engineers are required to comply with in order to retain certification.

See

49 CFR 240.117. Any alleged noncompliance triggers an investigation and review process. If a violation is found, the remote control operator will be prohibited from operating a locomotive on any railroad in the United States for a minimum of 15 days to a maximum of three years. The length of the prohibition (or revocation of the certificate) depends on whether the person was found to have committed other violations within the previous three years and whether the railroad, using its discretion, determined that the person had completed any necessary remedial training.

Furthermore, FRA addressed the current Federal locomotive inspection requirements and the application of those requirements to remote control locomotive technology. For example, the Safety Advisory states that the remote control locomotive “system

must

be included as part of the calendar day inspection required by 49 CFR 229.21, since this equipment becomes an appurtenance to the locomotive.” 66 FR at 10344 (emphasis added). Another example of a mandatory requirement mentioned in the Safety Advisory is that the remote control locomotive “system components that interface with the mechanical devices of the locomotive, e.g., air pressure monitoring devices, pressure switches, speed sensors, etc., should be inspected and calibrated as often as necessary,

but not less than

the locomotive's periodic (92-day) inspection.”

Id.

(emphasis added);

see

49 CFR 229.23. Thus, the Safety Advisory reiterated that existing Federal regulations require inspection of the remote control locomotive equipment.

Although some aspects of this proposed rule pertains to main track operations where remote control locomotive operations rarely occur, most of the problems this proposal is intended to address are found equally in conventional and remote control locomotive yard switching operations. As FRA reported to Congress earlier this year, “RCL [i.e., remote control locomotive] and conventional train accident rates were virtually identical for those major railroads that made extensive use of both types of operations.” “Final Report—Safety of Remote Control Locomotive Operations” (“Final Report”) (March 2006) (published on FRA's Web site at

http://www.fra.dot.gov/

). The current remote control locomotive technology is best used for yard switching operations and is primarily used for that purpose.

See

Final Report at 15-17.

The final rule would continue FRA's policy of implementing minimum requirements for safe remote control locomotive operations within the confines of railroad operating rules having broad applicability. As previously explained, FRA has found existing rules adequate to accommodate safe remote control locomotive

operations without the need to draft a rule narrowly focused on remote control locomotive operations.

See

Docket No. FRA-2000-8422 (found at

http://dms.dot.gov/

) (denying a request for initiation of a rulemaking to solely address remote control locomotive issues). That said, after identifying certain characteristics of remote control locomotive shoving or pushing operations, FRA is implementing one requirement that pertains to remote control locomotive operations; that requirement addresses the problem of lack of situational awareness.

See

§ 218.99(c). FRA also recognizes the relatively new use of permanently installed cameras in yards or at grade crossings which permit an employee to provide point protection without being physically present on, at, or ahead of the movement. Although it is possible for this technology to be used in conventional operations, e.g., by a yardmaster for a train crew, we believe it is more often used for remote control locomotive operations.

See

§ 218.99(b)(2). The following background on these two issues should illuminate them further.

B. Situational Awareness

In FRA's recent report to Congress, the agency identified the potential for a reduction in a remote control operator's situational awareness as one of four human factor issues that warrant close attention as remote control locomotive technology continues to evolve.

See

Final Report at 24-26. A locomotive engineer, including a remote control operator, who is located in the cab of a controlling locomotive has a greater situational awareness than a remote control operator located on the ground. A remote control operator located on the ground may also be more easily distracted by conflicting movements or other physical dangers caused by continuously moving about the yard than a person located in a locomotive cab. The nature of remote control locomotive operations can also cause the remote control operator to be distracted by concentrating on switching operations, e.g., constantly referring to the switch list, coupling and uncoupling cars, and, pitching and catching. Also, a remote control operator on the ground may forget, or may not know, the locomotive orientation (i.e., the particular direction the remote control locomotive is heading) due to his or her location away from the remote control locomotive, and thus may inadvertently initiate a movement in the wrong direction. Similarly, a defective or misaligned switch could cause a movement to be diverted onto a connecting track unintentionally and go unnoticed if the remote control crewmembers are not observing the direction of movement. Apparently, the latter is what happened on December 7, 2003, on the Union Pacific Railroad in San Antonio, Texas, when a remote control locomotive operator, while switching, was struck and killed by his locomotive at the west end of UP's East yard. The employee had reversed one end of a crossover switch and was walking toward the other end of the crossover switch to line it when he was struck from behind by the remote control locomotive. The employee had started the remote control locomotive moving as he was walking toward the other end of the crossover.

See

Final Report at 90. This move was initiated after the employee pushed a button to realign a power-assisted switch, but likely did not wait at the switch machine to confirm visually that the points had moved to the correct position. NTSB/RAB-06/02 at 9. In addition to lack of adequate railroad oversight of the misaligned power-assisted switch, NTSB concluded that the probable cause of this accident was the employee's “inattentiveness to the location of the locomotives and the switch position.” NTSB/RAB-06/02 at 11. Certainly, this inattentiveness is another way to describe a lack of situational awareness.

As many railroads were not eager to invest in remote control technology until after FRA issued its Safety Advisory 2001-01, there is limited data and few studies completed detailing the safety implications of remote control operations; however, among the few studies that have been completed, situational awareness has arisen as a recurring theme. For example, in a study funded by FRA, an independently conducted root cause analysis of six remote control locomotive-involved accidents/incidents that occurred in 2006, found that the loss of situational awareness was a major factor in five of the accidents/incidents analyzed. Human Factors Root Cause Analysis of Accidents/Incidents Involving Remote Control Locomotive Operations (May 2006) (DOT/FRA/ORD-06/05) (published on FRA's Web site at

http://www.fra.dot.gov/downloads/Research/ord0605.pdf

). Further analysis suggests that remote control locomotive technology facilitated this loss of awareness in four of these five accidents/incidents by enabling remote control operators to control their cuts of cars away (i.e., remotely) from the point of movement. Additionally, four probable contributing factors were related to one or more remote control operator's control of a movement from a physical location away from the remote control locomotive and/or cut of cars. Consequently, the independent contractor who performed the root cause analysis identified the loss of remote control operator situational awareness as one of only four critical safety issues identified.

See

Final Report at 85-90.

FRA also sponsored the same independent contractor to undertake a study based on focus group sessions with remote control operators. These sessions provided a forum to gather information about operator experiences with remote control locomotive operations, to identify safety issues, lessons learned, and best practices from those who are most familiar with remote control locomotive operations and equipment. Focus groups also provided a means to solicit suggestions on how to improve remote control locomotive operations. One of the themes identified was that situational awareness can be lost when the remote control operator is not in the immediate vicinity of the remote control locomotive. Among the recommended practices from the focus groups were the suggestions to standardize operating practices and to require remote control operators to protect the point at all times.

See

Final Report at 79-85.

The Brotherhood of Locomotive Engineers and Trainmen (BLET) sponsored a study by Dr. Frederick C. Gamst, a private consultant specializing in railroading, and Mr. George A. Gavalla, a private consultant and former FRA Associate Administrator for Safety. “Hazard Survey of Remote Control Locomotive Operations on the General System of Railroads in the United States” (“BLET Study”) (The BLET Study is available in the docket for this NPRM). The BLET Study is based on anecdotal information supplied by railroad workers and officers who voluntarily self-reported their thoughts and experiences concerning their interactions with remote control operations. All of the self-reporting was done in writing and mainly via the Internet in its various forms of communication (i.e., e-mails, bulletin-boards, weblog, etc.). The study catalogues the myriad experiences, complaints, and ideas that were recorded by Dr. Gamst over three years beginning in January 2002. The anecdotal information collected by Dr. Gamst reflects the same general themes identified in the focus group study sponsored by FRA and described in the preceding paragraph. As in FRA's sponsored focus group study, the information Dr. Gamst collected is not

statistically sampled to be representative of all remote control operators in the U.S. or Canada. While the main drawback to these types of studies is that the researchers do not attempt to validate any statements made by employees, as participation is often premised on the condition that employees remain anonymous, the collection of individual opinions and perceptions taken as a whole are useful in identifying problems associated with remote control operations. Like the FRA's sponsored studies, the BLET's sponsored study also identified perceived problems associated with a remote control crew not observing the direction of movement. Specifically, the BLET study raised the issue as the reason why a remote control operator might keep shoving or pulling after a movement derailed or collided with an obstruction.

Id.

at 60-62.

C. Technology Aided Point Protection

The proposed rule contained a preamble discussion regarding how cameras and other technologies are increasingly being installed as an alternative to having an employee directly observing the leading end of a shoving or pushing movement. The technology permits indirect observation and is in use, mainly in yards, to provide point protection during remote control operations or when it would be more efficient during some conventional operations. In the proposed rule, FRA explained that it is possible to set up these cameras and monitors so that they provide at least an equivalent level of safety to that of an employee protecting the point. Of course, not every operation may be set up properly, working properly, or provide an equivalent level of safety. In order to facilitate the use of such technology, the final rule would only permit such an operation to substitute for an employee's direct visual determination where the technology provides an equivalent level of protection to that of a direct visual determination.

See

§ 218.99(b)(3)(i).

Even with this clarification, the proposed rule raised the concern regarding whether previously published guidance should be incorporated in the final rule. The BRS commented that there are too many questions regarding the safe use of remote cameras and that regulation is necessary to provide that cameras cannot be used when they are not working as intended for any reason. FRA believes the final rule addresses BRS's concern as the technology cannot possibly afford an equivalent level of protection if it is not working properly. Furthermore, FRA has decided to incorporate the guidance as an appendix to part 218. Appendix D includes further explanation and mandatory requirements for exercising the option to provide point protection with the aid of technology as permitted in § 218.99(b)(3)(i).

The issue of reliance on non-crewmembers to carry out some remote control locomotive operator crew functions was raised in the focus group study sponsored by FRA and summarized in the Final Report. The remote control operators that made up the focus groups had indicated that there were occasions in which a non-crewmember, generally a yardmaster, would provide point protection, line switches, or check the status of a derail for a remote control crew. When this was allowed, several potential problems could result. First, there is great potential for an error in communication or a misunderstanding between the non-crewmember and the crewmembers regarding the activity or status of equipment. Further, a yardmaster who is occupied with his or her other responsibilities might not give the task the attention it deserves, or could be distracted and give an incorrect answer to a question by a remote control crewmember (e.g., “is the move lined?”). The result could be that the task does not get completed or there is an error in task execution. Further, the remote control crew might not have any alternative way of determining that there is a problem with the point protection provided by the non-crewmember until it is too late.

See

Final Report at 82. Similar issues were raised in the BLET Study. BLET Study at 44.

In response to these concerns, FRA has specified additional requirements for technology aided point protection to be used by remote control locomotive operations at highway-rail grade crossings, pedestrian crossings, and yard access crossings in Appendix D, II. One, before conducting such operations, diagnostic testing is required to determine the suitability of the crossing for permitting technology aided point protection. The Crossing Diagnostic Team shall include representatives from the railroad, FRA, as well as the relevant State and local governments. Two, Appendix D specifically requires such operations to be conducted only “at crossings equipped with flashing lights, gates, and constant warning time train detection systems;” thus, it is clear that such operations are not permitted where there are passive warning systems or only some but not all of those active warning systems listed. Three, the safety of such operations is enhanced by having the remote control operator view the monitor and thus that has also been added to the requirements. The fourth and fifth requirements for such operations are intended to ensure that the cameras are arranged so that the remote control locomotive operator can accurately judge the end of the movement's proximity to the crossing as well as the speed and driver behavior of any approaching motor vehicles. Six, the remote control locomotive operator is required to be able to determine that the flashing lights and gates are working as intended either by sufficient camera resolution or a remote health monitoring system. The seventh and final requirement for such operations is that the railroad notify FRA's Associate Administrator for Safety in writing when this type of protection has been installed and activated at a crossing.

IV. General Comments/Major Issues

A. Enforcement

FRA received a variety of comments that expressed concern about enforcement of the rule. At the RSAC working group meetings, the labor organizations expressed concern that the final rule might enable FRA to assess civil penalties against individual employees for noncompliance with what were formerly just railroad operating rules. FRA understands from the comments and RSAC discussions that the labor organizations would prefer that FRA implement a process for employees to report unsafe conditions, such as FRA's Confidential Close Call Reporting System Demonstration Project discussed in this preamble (II. D.), rather than penalizing employees. BMWED's comments may have captured the labor position best when it expressed that there are underlying root causes for why accidents occur and thus FRA should exercise maximum restraint in assessing civil penalties against individual employees. BMWED also requested that FRA limit enforcement to individual railroad employees who commit the most egregious, gross and willful violations, and that mistakes, human error, and poor judgment do not rise to the level of the most egregious, gross and willful violations.

FRA wishes to clarify some apparent misunderstandings. For instance, there was a general idea expressed by labor participants in the RSAC meetings that this final rule would be different than the other Federal rail safety regulations because this one specifically allows FRA to enforce the regulation against an individual employee. This is incorrect. Each of FRA's rail safety regulations permit enforcement against any person who violates a regulatory requirement or

causes the violation of any requirement. See e.g., § 217.5 and § 218.9. “Person” is broadly defined and includes any employee, regardless of whether the employer is a railroad or not, or whether the employee is a manager, supervisor or other official. In other words, this final rule is not unique to FRA's regulations in that it permits FRA to take enforcement action against individual persons for a failure to comply including the assessment of civil penalties if the violation is willful or the issuance of a warning letter for a willful or nonwillful violation or a notice of proposed disqualification for a willful or nonwillful violation that demonstrates the person's unfitness for safety-sensitive service.

In response to BMWED's concern that FRA limit enforcement to individual railroad employees who commit the most egregious, gross and willful violations, we note that this is very similar to FRA's existing enforcement policy which we would apply to enforcement of this final rule. In both parts 217 and 218, FRA already states that “[p]enalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury.”

Id.

FRA's well-established policy with regard to the assessment of civil penalties against individuals will apply here.

See

49 CFR part 209, app. A.

Likewise, in the NPRM, FRA mentioned the concern that there may be instances where an employee realizes that he or she violated an operating rule but is afraid of the consequences of reporting the error—even when such reporting would have the potential to prevent an accident or injury to other workers or innocent bystanders. NTSB addressed this point in its report on the Graniteville accident when it stated that a “significant civil penalty may have an unintended impact on safety under some circumstances. That is, an employee who, after leaving a work site, realizes that a switch has been left improperly lined may be made more reluctant than in the past to immediately report the error to train dispatchers. The threat of the severe fine may prompt the employee to attempt a remedy (such as returning later to reline the switch) before the mistake can become known. As happened in the September 2005 fatal collision in Shepherd, Texas, such action on the part of the employee could contribute to an accident that might otherwise have been avoidable.” NTSB/RAR-05/04 at 46. FRA disagrees with NTSB that FRA's enforcement program would have a negative effect on an employee's decision to remedy a mistake. Given FRA's published enforcement policy, an employee who recognizes noncompliance and seeks to correct it has likely not acted willfully nor been grossly negligent. Instead, an individual civil penalty is warranted where an employee recognizes noncompliance and does not act to correct it. Thus, FRA's enforcement policy offers employees an incentive to self-report noncompliance as doing so would likely be considered a reason for FRA to exercise its enforcement discretion not to take enforcement action against the individual. (Self-reporting is not, however, a defense to a potential individual liability action, and self-reporting does not absolutely preclude FRA from taking enforcement action against an individual although FRA would consider self-reporting a strong reason for mitigation of the civil penalty, disqualification order, or other enforcement remedy.) . When each railroad instructs its employees on its operating rules, it should emphasize this incentive to self-report. In addition, we encourage each railroad to reconsider its own discipline policy so that it does not discourage self-reporting of inadvertent noncompliance.

B. Good Faith Challenge—Legal Issues

Both prior to and subsequent to the publication of the NPRM, AAR raised legal objections to FRA promulgating a rule with a good faith challenge requirement as found in § 218.97. AAR's objections essentially raised four main issues: (1) Whether FRA has the authority to issue a regulation requiring good faith challenge procedures; (2) whether FRA is preempted by statute from enforcing regulatory good faith challenge procedures; (3) whether any regulatory good faith challenge procedures would contradict legislative intent by subjecting railroads to multiple enforcement actions and penalties; and (4) whether FRA is preempted by statute from requiring and enforcing an anti-retaliatory provision as part of the good faith challenge requirements.

Some of AAR's concerns are premised on the legislative history and statutory construction of 49 U.S.C. 20109 (Section 20109), which offers rail employees protections from retaliation when engaged in specified safety-related conduct. Meanwhile, Section 20109 was amended between the deadline for comments to the NPRM and this final rule. Public Law 110-53, which became effective on August 3, 2007, substantially amended Section 20109 by increasing the number of situations in which an employee is statutorily protected from retaliation. For example, paragraph (a) of Section 20109 makes it unlawful to discriminate against employees when the discrimination is at all based on an “employee's lawful, good faith act:” (1) To aid nearly any type of investigation whether initiated by a governmental agency, Congress, or another person with supervisory authority over the employee or the authority to conduct such investigations; (2) “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security;” (3) to file a complaint, directly cause a railroad safety or security enforcement proceeding to be brought, or testify in such a proceeding; (4) “to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;” and (5) to accurately report hours on duty pursuant to the Hours of Service Laws. Rail employees looking to seek protection against alleged retaliation for refusing to violate or assist in the violation of one of the regulations in part 218, subpart F, would likely do so under Section 20109(a)(2).

Under Section 20109(b), the statute prohibits a railroad employer from retaliating against an employee for: (1) “Reporting, in good faith, a hazardous safety or security condition;” (2) refusing to work, under certain conditions, when a hazardous safety or security condition is confronted in the employee's duties; and (3) refusing to authorize the use of any safety-related equipment, track or structures, if those items are in a hazardous safety or security condition and certain other conditions are met. Unlike Section 20109(a)(2), a refusal under Section 20109(b) is not predicated on a refusal to violate or assist in the alleged violation of any Federal law, rule, or regulation relating to railroad safety or security. Another substantial change to Section 20109 is that the statute no longer states that disputes and grievances are to be handled under the Railway Labor Act (“RLA”), but instead permits relief under this section to be initiated by an employee filing a complaint with the Secretary of Labor. Considering the substantial changes to Section 20109, rail employees and railroads are encouraged to carefully review the statute in order to respectively retain the protections afforded and comply with the law.

In consideration of the statutory amendments to Section 20109, there is no longer a need for a regulatory anti-

retaliation provision. This determination is further discussed in this section under the title “4. Anti-Retaliation Provision.” We anticipate that the elimination of the regulatory anti-retaliation provision, as well as other changes to the good faith challenge procedures made in response to various comments should allay most concerns, both legal and non-legal, raised by AAR and other commenters. Furthermore, for the following reasons, FRA remains unconvinced that there are any legal impediments to promulgating a good faith challenge regulation.

1. FRA's Rulemaking Authority

One of AAR's legal issues is the assertion that FRA does not have rulemaking authority to issue a good faith challenge provision. We disagree. FRA has authority to regulate railroad safety under 49 U.S.C. 20103 (Section 20103). More specifically, the language of Section 20103(a) mandates that “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for

every

area of railroad safety” (emphasis added). In addition, case law supports a broad interpretation of an agency's authorizing statute. For example, in

Whirlpool Corp.

v.

Marshall,

445 U.S. 1 at 11, (1980), the Supreme Court concluded that OSHA “clearly conform[ed] to the fundamental objective of the [Occupational Safety and Health] Act”—the purpose of which was “to prevent occupational deaths and serious injuries”—when it promulgated a regulation limiting retaliation against employees that refuse to work because of a good faith belief that they would be subjected to real danger of death or injury. Similarly, in promulgating § 218.97, FRA is conforming to the objective of its authorizing statute (to improve railroad safety), by prescribing a regulation which gives employees the right to challenge what may be an unsafe work assignment. Accordingly, FRA is authorized to issue the rule's good faith challenge provision because it is intended to improve railroad safety.

AAR does not challenge FRA's authority to regulate railroad safety under Section 20103. Instead, AAR claims that Section 20109 precludes that authority as it relates to the good faith challenge procedures, specifically singling out the proposed anti-retaliation provision previously found at § 218.97(b)(2). Meanwhile, changes to the rule and the statute have rendered AAR's concerns moot. For instance, the final rule does not contain an anti-retaliation provision similar to the proposed provision and, thus, there cannot be a conflict between Congressional intent and that particular regulatory provision.

AAR also argues that by legislating to provide employees a right to refuse to work in certain circumstances under Section 20109, Congress intended to preclude FRA from issuing a rule providing employees the right to exercise a good faith challenge in similar circumstances. It is important to note that the good faith challenge in both the NPRM and this final rule is distinguished from the statutory refusal to work as the regulatory challenge does not permit an employee to refuse to comply with the challenged directive indefinitely, but instead only protects the employee from being required to do the challenged task while the appeal process afforded by the good faith challenge procedures is on-going.

See

proposed § 218.97(b)(3), redesignated as § 218.97(c)(5)(iv) and (d)(2). The issue thus becomes whether Congress intended to preempt this type of rulemaking by FRA.

In support of such an argument, AAR asserts that FRA does not have the authority to issue rules providing for the good faith challenge for the same reasons that FRA may not directly regulate hours of service. In particular, AAR cites

Atchison, Topeka and Santa Fe Ry.

v.

Pena,

44 F.3d 437, 441-42 (7th Cir. 1994),

aff'd, Bhd. of Locomotive Engineers

v.

Atchison, Topeka and Santa Fe Ry,

516 U.S. 152 (1996), in which the Seventh Circuit overturned FRA's interpretation of the Hours of Service Act, 45 U.S.C. 61-66 (“Hours of Service Act”). AAR stated that “[s]ince Congress has established hours-of-service restrictions, FRA has no rulemaking authority to establish its own hours-of-service requirements.” AAR's Comments at 3 (Dec. 11, 2006). By analogy, AAR argues that as Congress has established specific standards and a specific process for an employee to refuse work in Section 20109, FRA has no rulemaking authority to establish its own requirements for an employee to refuse work.

AAR's analogy to, and reliance on,

Atchison

is misplaced. FRA is neither interpreting Section 20109 nor issuing rules that implement Section 20109. In order to effectuate that point, the final rule specifically requires in § 218.97(b)(2) that a railroad or employer's good faith challenge written procedures “shall indicate that the good faith challenge described in paragraph (b)(1) is not intended to abridge any rights or remedies available to the employee under a collective bargaining agreement, or any Federal law including, but not limited to, 29 U.S.C. 651

et seq.

, 6 U.S.C. 1142, or 49 U.S.C. 20109.” This requirement in the regulation is intended to clarify that FRA is not attempting to undermine the Congressional intent or language found in Section 20109. Instead, FRA is using the clear substantive rulemaking authority in railroad safety matters found in Section 20103.

2. FRA's Enforcement Authority

Another of AAR's legal issues is the assertion that FRA's proposed rule provides for resolution of disputes and grievances arising in situations already covered by Section 20109. AAR argues that enforcing the good faith challenge procedures proposed in the NPRM would contradict legislative intent to preclude any agency enforcement of this issue and that Section 20109 provides similar employee protections and requires disputes, claims and grievances arising under that section to be handled by the RLA. AAR further notes that a House of Representatives committee report in the legislative history for that statute demonstrates that Congress intended the RLA to “be the exclusive means for enforcing this section” and that it did “not intend for FRA to be involved in this area.” H.R. Rep. No. 1025, 96th Cong., 2d Sess., at 16 (1980). AAR thus argues that the enforcement of the regulatory good faith challenge procedures is preempted by Section 20109(c) and its legislative history. With the recent amendments to Section 20109, AAR's references to legislative history have lost relevancy. However, FRA disagrees with AAR's position under the former statute and the version effective August 3, 2007.

AAR confuses procedures for handling the initial exercise of a right with procedures for handling a claim of retaliation “resulting from” the initial exercise of a right. Under the former statute, Section 20109(c) provided procedures for handling a claim of retaliation as a consequence of the initial refusal to work. That section stated that “a dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act.” This language refers to disputes, claims and grievances resulting from a claim of retaliation as a result of the employee's exercise of the right under former Section 20109. The legislative history of that statute corroborates this assertion. A House of Representatives Committee Report discussing the remedy under former Section 20109 refers to discrimination not involving discharge or suspension “such as assignment to undesirable duties.” Since a dispute over an assignment of undesirable duties refers to an act of retaliation rather than an

exercise of the initial right to refuse work, this report lends support to the proposition that the language “dispute, grievance, or claim arising under this section” in former Section 20109(c) refers to disputes resulting from the retaliation that occurred and not from the initial exercise of the right to refuse to work. The same position is applicable to Section 20109 as recently amended.

This rulemaking, on the other hand, only requires procedures for handling the “initial” exercise of the good faith challenge. These procedures include such actions as not requiring the challenging employee to complete the work until the good faith challenge is resolved and allowing the employee to document the challenge. The procedures provide employers and employees with a process for handling an employee's good faith challenge. Unlike Section 20109, the procedures do not provide employers and employees with a process for handling an employee's claim of retaliation resulting from his or her good faith challenge. Therefore, FRA's procedures for handling the good faith challenge do not contradict legislative intent as applied to this issue.

3. Multiple Enforcement Actions

AAR argues that the good faith challenge would contradict legislative intent by subjecting railroads to multiple enforcement actions and penalties in situations where both the statutory right to refuse work under Section 20109 and the regulatory right to a good faith challenge would apply. Assuming the employee chose to make a good faith challenge and then claimed that he was consequently retaliated against, AAR argues that the employer would not only be subject to a civil penalty by the FRA under the regulation but would also be subject to damages by the Department of Labor (“DOL”) for violating Section 20109. AAR argues that multiple penalties for the same occurrence contradict legislative intent.

The statutory and legislative histories of both the former and current versions of Section 20109 do not appear to support AAR's claim that multiple penalties are impermissible. While former 49 U.S.C. 20109(d), current 49 U.S.C. 20109(e), and H.R. Report No. 1025 state that employees may not seek protection under multiple provisions, they do not address the issue of preventing employers from facing multiple penalties. The statutory “election of remedies” provision is intended to protect an employer from having to pay the same types of damages to an employee multiple times just because there are multiple statutory provisions upon which an employee could file a complaint or a suit. The election of remedies provision is intended to prevent, for example, an employee from getting double the backpay, compensatory damages, and punitive damages the employee is entitled to by seeking protection under both the Occupational Safety and Health Act of 1970, 29 U.S.C. 660(c), and Section 20109. We believe AAR is misinterpreting the election of remedies provision by confusing FRA's enforcement of penalties against an alleged bad actor versus an employee seeking remedies for him or herself. Furthermore, a railroad routinely may face multiple demands for penalties or lawsuits in safety matters. Many times, when FRA enforces a regulation against a railroad for a set of facts, the railroad is privately sued based on the same set of facts. This situation is no different and legally acceptable.

4. Anti-Retaliation Provision

AAR made several arguments suggesting that FRA is prohibited by statute from including an anti-retaliation provision in the rule and, although FRA disagrees with AAR's legal conclusion, the proposed anti-retaliation provision found in § 218.97(b)(2) of the NPRM has not been retained in the final rule. FRA proposed an anti-retaliation provision that required each railroad's good faith written procedures to provide that an employee making a good faith challenge not be discharged or in any way discriminated against for making the challenge. In order for the good faith challenge to achieve its intended purpose, i.e., improve railroad safety, it is fundamental that an employee be protected from retaliation when holding an employer or supervisor accountable. In October 2006, when the NPRM was published, the Federal laws protecting rail employees from retaliation were more narrowly written than the recently amended statutory protections provided for in Section 20109; consequently, when the NPRM was published, FRA was concerned that there could be multiple scenarios where an employee could raise a good faith challenge and not otherwise be legally protected from employer retaliation.

Given the statutory amendments effective August 3, 2007, it is unlikely that a rail employee, whether working for a publicly-owned railroad, a privately-owned railroad, or a contractor or subcontractor of either type of railroad, would not be protected from retaliation under either Section 20109 or 6 U.S.C. 1142, which was also enacted in Public Law 110-53. These two statutes protect employees from retaliation for “the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done * * * to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to” either “public transportation safety or security” or “railroad safety or security” respectively. 6 U.S.C. 1142(a)(2) or 49 U.S.C. 20109(a)(2);

see also

29 U.S.C. 660(c). These statutes require DOL to investigate complaints of anti-retaliatory action and provide an array of remedies to an employee for violation of the law including reinstatement, backpay with interest, compensatory damages, and punitive damages up to $250,000. 49 U.S.C 20109(d)(3) and 6 U.S.C 1142(d)(3). Consequently, the recently effective anti-retaliatory statutory protections afforded to rail employees would now protect an employee from retaliation under FRA's good faith challenge rule and it is thus unnecessary for this final rule to require that each railroad include a similar anti-retaliation provision in its good faith challenge procedures.

Any potential FRA enforcement of anti-retaliation under the good faith challenge regulation would likely only add a nominal deterrent effect given the substantial remedies employees may seek directly against a defendant under the employee protections statutes. FRA's enforcement authority is limited to civil penalty assessments up to $27,000 against employers and individuals (

see

49 U.S.C. 21301), emergency orders, compliance orders and agreements, and FRA's other statutorily granted enforcement authority. FRA does not have the authority to collect damages or back pay on behalf of any employee, nor order a railroad to reverse itself on a claim of discharge, discrimination or other retaliation. In consideration of these employee protection alternatives, FRA has decided to remove the anti-retaliatory provision from this rule rather than try to duplicate an investigation into alleged anti-retaliatory acts or omissions that an employee will certainly want to pursue under a collective bargaining agreement, with DOL, or in another forum.

Given the changed playing field for Federal inquiries into alleged retaliation, FRA is now assured that claims of retaliation will be adequately investigated and remedied by another Federal agency. FRA has already held discussions with DOL on ways to integrate FRA's safety program with DOL's whistleblower protection program. For example, FRA's employees will be trained to recognize when an

employee has alleged retaliation so that FRA may inform employees of their basic rights and refer such employees to DOL. FRA anticipates taking other action to inform employees of the statutory protections, such as providing a link to DOL's Web site from FRA's Web site and reminding employee complainants of the statutory protection.

C. Preemptive Effect

The American Association for Justice (AAJ) commented that FRA had impermissibly broadened the scope of preemption under 49 U.S.C. 20106. AAJ objected to FRA's discussion in the preamble of the NPRM regarding 49 CFR 217.2 and 49 CFR 218.4. FRA's discussion of each of these sections was identical, providing that:

This section informs the public of FRA's intention and views on the preemptive effect of the rule. The preemptive effect of this rule is broad, as its purpose is to create a uniform national standard. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. Exceptions would be rare. In general, 49 U.S.C. 20106 will preempt any State law—whether statutory or common law—and any State regulation, rule, or order, that concerns the same subject matter as the regulations in this rule. 71 FR 60372 at 60382 and 60386.

AAJ specifically objected to FRA's assertion that the preemptive effect of the rule is broad, that exceptions would be rare, and that § 20106 preempts common law claims. In support of its position that these assertions amounted to an expansion of preemption, AAJ cited

In re Soo Line R. Co. Derailment of January 18, 2002

, 2006 WL 1153359, an unreported Minnesota state court decision. In that decision, the court found for various reasons that plaintiffs' claims were not preempted. Some were not preempted, according to the court, because although Federal regulations covered the subject matter of the claims, the conditions at the location at the time of the derailment constituted an essentially local safety hazard. Others were not preempted, the court said, because the Federal regulations covering the subject matter of the claims were violated. A third category of claims were found not to be preempted because the regulations alleged to cover the subject matter of the claims were deemed by the court not specific enough to do so, and a final group of claims were found not to be preempted because there was no regulation covering the subject matter. While FRA disagreed with AAJ's comments, AAJ's comments have been rendered moot by enactment of Pub. L. No.110-53, discussed below.

Normal State negligence standards apply where there is no Federal action covering the subject matter. In Pub. L. No.110-53, Congress recently clarified the availability of State law causes of action under section 20106 where there is Federal action covering the subject matter. As amended, 49 U.S.C. 20106 provides that issuance of these regulations preempts any State law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local railroad safety or railroad security hazard; that is not incompatible with a law, regulation, or order of the United States Government; and that does not unreasonably burden interstate commerce. Section 20106 permits State tort actions arising from events or activities occurring on or after January 18, 2002, for the following: (a) A violation of the Federal standard of care established by regulation or order issued the Secretary of Transportation (with respect to railroad safety, such as these regulations) or the Secretary of Homeland Security (with respect to railroad security); (b) a party's violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; and (c) a party's violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. Nothing in section 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action.

V. Section-by-Section Analysis

Part 217—[Amended]

Section 217.2 Preemptive Effect

This section informs the public of FRA's intention and views on the preemptive effect of the rule. The preemptive effect of this rule is broad, as its purpose is to create a uniform national standard. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except an additional or more stringent provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. Section 20106 permits State tort actions arising from events or activities occurring on or after January 18, 2002, for the following: (a) A violation of the Federal standard of care established by regulation or order issued by the Secretary of Transportation (with respect to railroad safety, such as these regulations) or the Secretary of Homeland Security (with respect to railroad security); (b) a party's violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; and (c) a party's violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. Nothing in section 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action. The NPRM language has been amended to reflect the changes made to Section 20106.

Only one comment addressed this paragraph and that comment has been discussed in the preamble.

See

IV. General Comments/Major Issues, C. Preemptive Effect.

Section 217.4 Definitions

FRA has added a definition of

Associate Administrator for Safety

to this section that is consistent with other definitions of this term in this chapter. The purpose of including this definition is to identify an official who would have the authority to require amendments to programs of operational tests and inspections. FRA did not receive any comments related to this definition.

FRA has added a definition of

qualified

to this section. The need for this definition arose from the new requirements for railroad testing officers in § 217.9. As further explained in the analysis for that section, it is not acceptable for a railroad testing officer to be monitoring or instructing employees without being instructed, trained and examined, i.e., qualified, on the railroad's operating rules and the tests the officer is expected to perform; thus, FRA is requiring such qualification. A person cannot be considered qualified unless he or she has successfully completed all “instruction, training, and examination”

programs required by both the railroad and this part.

The definition of “qualified” is modeled after the definition used in § 240.7 in this chapter and should have the same meaning despite some slight differences. The phrase “training and testing” has been replaced by “instruction, training, and examination” to more thoroughly reflect the educational aspects of the requirements for a qualified person. The definition does not contain the word “appropriate” prior to the educational aspects so as to emphasize that the educational aspects of qualifying a person are mandatory, not discretionary. A word choice was made to substitute the term “successfully completed” for the word “passed.” The definition added to part 217 is the same definition added to part 218, subpart F. The relevant comments FRA received pertained to the proposed requirements in § 217.9 and not the definition itself.

Section 217.9 Program of Operational Tests and Inspections; Recordkeeping

FRA is amending and adding paragraphs to this section. Although not every existing paragraph is being amended, FRA is reprinting the entire section to make it easier for readers to follow.

FRA's amendment to paragraph (a) would clarify that the requirement to conduct operational tests and inspections specifically include tests and inspections sufficient to verify compliance with the requirements of subpart F of part 218 of this chapter. The proposed and final rules identify certain operating rules with which noncompliance has led to an increase in human factor-caused accidents. Subpart F of part 218 requires that each railroad have in effect certain operating rules and that each railroad officer, supervisor and employee uphold and comply with those rules. As the operating rules identified in subpart F of part 218 are designed to address the most frequently caused human factor accidents, FRA's amendment to paragraph (a) requires that each railroad periodically conduct operational tests and inspections to determine the extent of compliance with its code of operating rules, timetables, and timetable special instructions, specifically including tests and inspections sufficient to verify compliance with the requirements of subpart F of part 218 of this chapter, in accordance with a written program as required by paragraph (c) of this section. The program's increased focus on human factor-caused accident prevention should direct awareness to the related operating rules and correlate with a decrease in such accidents.

Paragraph (b) is added to this section to establish new responsibilities for both railroads and those railroad officers who conduct operational tests and inspections, i.e., railroad testing officers. FRA inspections and investigations have revealed railroad testing officers who lack the fundamental knowledge to perform adequate tests and inspections. In order for these officers to be able to do a proper job, they must know the railroad's operating rules, how the tests they will conduct fit into the railroad's testing program, and how to conduct a proper test. AAR and APTA recommended amending paragraph (b)(1)(iii) because they believe this paragraph might be wrongly interpreted to require field training on every operational test an officer might be authorized to conduct. FRA does not agree that changing “as necessary to achieve proficiency” to “when necessary to achieve proficiency” changes the meaning, as AAR and APTA prefer. We also disagree with AAR's interpretation of the proposed, and now final, paragraph. It is unnecessary for every railroad testing officer to be qualified and receive field training on every conceivable operational test. Experience can substitute for field training, as long as the person is able to conduct an acceptable test. In addition, a railroad testing officer does not need to receive field training on an operational test that the officer will not be asked to conduct. Of course, if an officer who conducts an improperly executed test is found to lack relevant experience conducting such a test and any field training on how to conduct such a proper test, FRA would consider the event to be a violation of the requirement. That said, FRA recognizes that some tests and inspections are so simple that no particular experience or training should be necessary; a railroad will need to use discretion and make training decisions on a case-by-case basis if it chooses not to train its railroad testing officers on each operational test. Paragraph (b)(1)(iv) requires that railroad testing officers conduct operational tests in accordance with the railroad's program for such tests and inspections. A test that is incompetently executed should not count towards compliance with a railroad's program of operational tests and inspections. Finally, this paragraph requires written records documenting that each railroad testing officer was properly qualified and that such records be made available to FRA upon request.

FRA received several comments with regard to proposed paragraph (b). BRS and BLET expressed support for the concept of requiring railroad testing officers to be qualified on operating rules, the testing program and conducting operational tests. AAR requested a “grandfather provision” that would allow current testing officers to continue conducting tests for ninety days after the effective date of the rule before records would need to be kept that these testing officers were qualified in accordance with paragraph (b)(2). Similarly, APTA requested that each railroad have until December 21, 2008, to qualify its railroad testing officers on the operational testing program. In the NPRM, FRA expressed disagreement with the need for such a grandfather provision. However, based on the comments and further consideration of the qualification and recordkeeping requirements, FRA will not require compliance with this paragraph until July 1, 2008, although we encourage each railroad to attempt to comply earlier.

FRA does not consider the requirements of paragraph (b) to be onerous. Each railroad should already maintain an accessible record showing when each testing officer was last qualified on the railroad's operating rules in accordance with paragraph (b)(1)(i). It is contrary to logic that a railroad would allow a person to become a railroad testing officer without ensuring that the person is qualified on the operational testing program requirements and procedures relevant to tests and inspections the testing officer would be expected to conduct. We do not understand how a person could possibly do a testing officer's job if the person lacked sufficient knowledge of the railroad's testing program such that the person could not conduct an adequate test or inspection. With that understanding, FRA would not expect that a great degree of new training is necessary, nor that it would be burdensome to create a record. APTA recommended that FRA relax the record retention requirements for “grandfathered” or existing testing officers. In the alternative, we suggest that if a railroad has not previously kept a record of whether an officer is qualified on the operational testing program, that the railroad create a short survey which would allow an officer to acknowledge whether the officer considers himself/herself qualified on the various aspects of the program, as well as qualified (either through experience or prior instruction, training, and examination) on the various types of tests and inspections that the officer may be asked to conduct. Meanwhile,

FRA acknowledges that each railroad must qualify its railroad testing officers on any amended or added operating rules that seek to conform with part 218, subpart F of this chapter, and any corresponding changes to the railroad's operational testing program by July 1, 2008; however, as most of these new Federal requirements are already similar to existing operating rules on the vast majority of railroads, we do not anticipate that this additional training will be extensive. Except for adding this applicability date, the final version of paragraph (b) is the same as the version proposed.

FRA has moved paragraph (b) to (c) and added two new requirements found at (c)(1) and (c)(5). Regarding the two new requirements, FRA has implemented a scheme that requires each railroad to amend the existing program of operational tests and inspections with the purpose of requiring railroads to do a better job of focusing their tests and inspections on those types of operating rules that either cause the most human factor-caused accidents nationwide or are identified as problematic on the particular railroad's division or system. At a minimum, FRA expects railroads to test and inspect for those operating rules identified as problematic in the quarterly or six month reviews, i.e., those operating rules violations that have recently caused accidents or incidents on the division or system-wide. We also expect railroads to regularly spot-check for compliance with those operating rules that lead to accidents and incidents nationwide, even if the railroad has not specifically encountered any recent incidents. As mentioned in the

SUPPLEMENTARY INFORMATION

section under “Development of the NPRM,” the verification through testing process does not always work well because during some periods of disruption related to organizational or personnel changes, some railroads do not perform operational tests that address the root cause of human factor accidents. At worst, administration of the program may be reduced to a numbers-generating exercise, and, consequently, on portions of the railroad, officers may conduct relatively few meaningful tests. Clearly, FRA intends for the program of operational tests and inspections to be meaningful and the amendments are intended to forcefully move lagging railroads to produce more meaningful tests and inspections.

Paragraph (c)(1) contains the existing requirement that the program shall provide for operational testing and inspection under the various operating conditions on the railroad. It has also been amended, so that on or after July 1, 2008, each railroad shall be required to amend its program to “particularly emphasize those operating rules that cause or are likely to cause the most accidents or incidents, such as those accidents or incidents identified in the quarterly reviews, six month reviews, and the annual summaries as required under paragraphs (e) and (f), as applicable.” Thus, FRA expects that each railroad would conduct a significant number of tests and inspections directed at addressing localized problems with compliance, such as those identified on a division, problems identified on a system-wide basis, and leading causes of human factor-caused accidents nationwide, such as those identified through this final rule.

In order to gain some specificity in each railroad's program, paragraph (c)(1) also requires “a minimum number of tests per year that cover the requirements of part 218, subpart F of this chapter.” FRA is reluctant to state a percentage or specific number per number of employee work hours as each railroad may have particular operating rules it wishes to emphasize to a greater degree than the next; however, the objective in including this language is to encourage sufficient testing in these critical areas to verify good compliance by railroad operating employees and to help establish the expectation that there will be compliance with those rules. FRA would be critical of a program that placed the majority of its emphasis on enforcing operating rules that are not leading causes of accidents/incidents. The requirement for a specific minimum number of such tests per year follows from such a requirement imposed in EO 24, albeit EO 24 covered a smaller subset of the operating rules FRA is covering in part 218, subpart F. AAR requested that the rule allow a railroad to specify in its program “a minimum percentage of tests per year” that cover the requirements of part 218, subpart F of this chapter, as opposed to a just “a minimum number of tests per year.” AAR's comment was somewhat unclear in that it did not specify how the percentage might be calculated; we assume that AAR means a percentage of the total number of operational tests to be performed in a given year will cover part 218, subpart F requirements. FRA is not adopting AAR's suggestion as we do not understand why a railroad that can identify a minimum number of total operational tests per year would have trouble identifying a minimum number of tests that cover the requirements of part 218, subpart F. It may be that railroads would like the flexibility to change the minimum number of tests in periods less than a year, i.e., monthly, quarterly, or six-month intervals. FRA recognizes that, from time-to-time, a railroad may have a reduction in business, a reduction in the number of operating employees, a reduction in employee work hours, or another factor that reduces the need to conduct as many operational tests as it set forth in its operational testing program. When such factors occur, a railroad should simply amend its program and create a record explaining the reason for the reduction in the amount of minimum tests. In that way, when FRA audits the program, we can readily deduce why the railroad has reduced the minimum number of tests to be conducted, decide whether the reasons are valid, and notify the railroad if we disapprove of the action taken pursuant to paragraph (i).

Paragraph (c)(5) adds a new requirement that, on or after July 1, 2008, the program show the railroad's designation of an officer to manage the program at each level of responsibility (division or system, as applicable). The officer may be designated either by name or job title, as long as the designation clearly identifies a responsible person that FRA can contact when FRA audits the program. The officer shall also have oversight responsibility to ensure that the program is being implemented properly across each division and system-wide. FRA's expectation is that this officer will at least manage the program to ensure that the overall direction of the program is sound. This designated officer would be expected to take an active role in ensuring that divisions and the entire system are meeting program requirements and ordering changes when expectations are not met. To the degree that a system-level officer can identify a division, or a specific railroad testing officer, that is failing to appropriately direct efforts, the designated officer is expected to take corrective action. In order to ensure that the railroad's testing officers are properly directing their efforts to reduce accidents/incidents, the designated officer or officers will need to make adjustments to the implementation of the program based on any reviews that might be required in paragraph (e), as well as the annual summary produced in accordance with former paragraph (d), which has been redesignated as paragraph (f).

Additionally, former paragraph (b)(6) has been redesignated as paragraph (c)(7) without any changes from the

prior existing rule. Former paragraph (c) has been redesignated as paragraph (d) also without change.

Paragraph (e) adds requirements for periodic reviews for any railroad with at least 400,000 total employee work hours annually. FRA has decided to provide each Class I railroad (including the National Railroad Passenger Corporation) until July 1, 2008 to comply with this paragraph and, the remaining railroads to which this paragraph applies, shall comply with an applicability date of January 1, 2009. The NPRM only would have provided until the effective date of the rule to comply with this section and FRA decided to heed the concerns raised during the RSAC working group meetings that the effective date of the rule would not provide sufficient time for each railroad to implement the reviews required by this paragraph.

FRA has decided to exclude freight railroads that have less than 400,000 total employee work hours annually from conducting periodic reviews and analyses as provided in paragraph (e)(1) because only 135 smaller railroads that meet this criterion reported any human factor caused rail accidents, and of those 135 that reported such accidents, only 20 railroads reported five (5) or more human factor caused rail accidents during the years 2002 through 2005. During this four year period, these 135 smaller railroads experienced 334 human factor caused rail accidents amounting to 7 percent of all human factor caused rail accidents. It should also be considered that there are almost 600 smaller railroads that fit this criterion and yet only 135 reported any human factor caused rail accidents at all. On that basis, FRA is excepting the smallest railroads, based on the less than 400,000 employee work hours threshold, from the monthly and quarterly reviews. Of course, if FRA accumulates evidence to suggest that railroads with less than 400,000 employee work hours are experiencing a significant number of human factor caused accidents, FRA will consider whether to initiate a new rulemaking revising this final rule.

Similarly, Amtrak and the railroads providing commuter service in a metropolitan or suburban area also experience a relatively low number of human factor caused rail accidents compared to the freight railroads with greater than 400,000 employee work hours annually. During the years 2002-2004, Amtrak and the commuter railroads experienced a total of 270 accidents attributed to human factor causes. At a meeting held with members of APTA on April 27, 2006, (notes of this meeting are in the docket of this proceeding) APTA explained that many of its member railroads do not keep accident/incident data and/or operational testing data electronically and, thus, conducting periodic reviews greater than annually would create a substantial burden for those railroads that could not simply run a report from a computer. In addition, APTA members reminded FRA that a commuter railroad's budget is dependant on the generosity of local and state governments, which may not want to upgrade computers and software which would permit quicker and more efficient accident/incident reviews. Passenger railroads are generally more stable in their organizations and experience greater continuity with respect to staffing at the line officer level (where many problems often develop).

With regard to six month reviews, however, there is a definite benefit for Amtrak and the commuter railroads to conduct a thorough system level review to achieve some degree of accountability. Meaningful reviews should help drive proper implementation of the program of operational tests and inspections—thus driving down the number of accidents/incidents attributable to human factors. APTA explained in its comments that there are funding and development issues that will require a period of training on these new regulations and any new automated reporting system that is created in response to the rule; consequently, APTA requested 12 months to implement the first six-month review under paragraph (e)(2). FRA has decided to deny APTA's request to delay implementation of the six-month review for a year. FRA does not agree with APTA that the six-month review requires a “new automated reporting system” for any railroad that does not already have one up and running. The records and reviews required by this section could be maintained by old-fashioned written records, and the analysis required could be completed without the aid of a computer or with software readily available in stores now. That said, we agree that an automated system would likely provide for more efficiently completed analysis. FRA, however, has not required such automation. Finally, FRA has not excepted even the smallest commuter railroads from the requirement that reviews be conducted, because in FRA's experience no railroad is free from the risk that good discipline will erode over time, and the consequences of a passenger train accident can be very serious indeed. The benefits of the review are too important to postpone for a year.

For the major freight railroads, the quarterly review is to be developed and conducted at the division level unless no division headquarters, or its equivalent, exists. Most larger railroads have created division headquarters (

see

current definition in § 217.4 of this part) to manage portions of the railroad and, certainly, railroads that have divisions do so because it is more efficient. That is, it is easier for an officer at a division headquarters to know what safety issues are problematic in his or her division than an officer of a large railroad at the system level.

AAR asserted in its comments an overall objection to paragraph (e) as it deems the reviews and recordkeeping requirements of this section as “micro-management”and “command-and-control regulation at its worst.” AAR maintains that monthly, quarterly, and six-month reviews are not typically conducted by freight railroads as FRA asserted in its proposed rule and that FRA is wrong to maintain that it is a best practice for freight railroads to adjust its program of tests and inspections based on one quarter's worth of data. Furthermore, AAR asserts that even if some railroads voluntarily conducted the same types of reviews without regulation, FRA is not justified to impose this “regulatory straitjacket, with the formality and recordkeeping that are byproducts of regulatory requirements,” on each railroad.

FRA appreciates the comments of AAR with regard to paragraph (e) and certainly has given AAR's counterpoint due consideration. The main focus of this rule is to reduce the number of human factor caused accidents, and FRA's experience has been that one way to do that is to impose these types of review requirements which force needed improvements on a railroad's operational testing and inspection program. Prior to the publication of this rule, when FRA has identified significant problems with such a program and there has also been a correlation of noncompliance with important safety laws, FRA has shown some restraint in enforcement while working with some railroads in trying to improve compliance. On a case-by-case basis, FRA has entered into a voluntary compliance agreement with a railroad so that it is clear what enforcement action FRA will take if the operational testing and monitoring changes requested by FRA are not completed by a specific deadline.

Although voluntary compliance agreements are typically effective in improving safety on a particular railroad

or division, FRA's experience has been that the problems that trigger the need for such agreements are fairly common in the industry. The regulatory approach in this rule is significantly more efficient than entering into tens or hundreds of individual agreements. The implementation of this rule will effectively require the implementation of best practices that should aid in the reduction of accidents/incidents before FRA is able to pinpoint any problem associated with a particular railroad's system of tests and inspections. Rather than changing one railroad, or one division on a large railroad, at a time, this rule will require all but the smallest freight railroads to place greater emphasis on human factor caused accidents in each operational test and inspection program.

AAR also commented that FRA should not require that a designated officer for each division shall be the sole officer who may perform the required monthly and quarterly reviews of tests and inspections, if a railroad has divisions. AAR suggests that the rule permit each railroad the flexibility to choose whether an officer at headquarters can perform the required reviews. FRA is rejecting AAR's comment as it applies to the quarterly review. In order to comply with the requirements for the quarterly review under paragraph (e)(1)(i), an officer would need to have a detailed knowledge of the operation. It is our experience that railroads that have divisions are too large for a person at the system headquarters to have the kind of mastery over each division to conduct the kind of in-depth analysis required of the quarterly review. Where FRA has audited strong programs, division officers are conducting periodic analysis of accidents/incidents at the division level and making appropriate adjustments at the division level as remedial action. We are surprised at AAR's comments because the divisions typically operate semi-autonomously from system headquarters, albeit with regular coordination on system-wide matters. As a practical matter, if a division headquarters exists, an officer at the division level will be in the best position to perform the types of reviews required by the quarterly review.

Meanwhile, FRA has responded to AAR's comment by deleting the requirement for a monthly review. Instead, the review to determine whether each railroad testing officer is conducting the minimum number of each type of test or inspection required by the railroad's program will only be required on a quarterly basis, as opposed to a monthly basis. What was formerly referred to as the monthly review, but is now part of the quarterly review, is not expected to be an onerous task. It is merely a quick written tally of the number of tests performed by each railroad testing officer, including the railroad operating rules tested for, and a determination made whether the tally shows adherence to the written program of operational tests and inspections. When this type of review reveals noncompliance with the program, the designated officer is required to make any necessary adjustments to the tests and inspections required of railroad officers for the subsequent period(s). The designated railroad officer in paragraph (c)(5) may or may not be the officer who performs this review, but this designated railroad officer would be required to ensure that the quarterly review is properly completed. As FRA would expect that this aspect of the quarterly review would be derived from data collected at the division level, FRA does not anticipate any problems for a division officer producing this information in a quarterly review.

FRA is mandating a comprehensive quarterly review for freight railroads under paragraph (e)(1)(i). In addition to the scorecard for each railroad testing officer (i.e., the formerly proposed monthly review), it shall include a “review of the [railroad's] accident/incident data, the results of prior operational tests and inspections, and other pertinent safety data for that division or system to identify the relevant operating rules related to those accidents/incidents that occurred during the quarter.” The focus of the quarterly review is to identify those operating rules which pose the greatest risk of being violated—which should then be targeted for regular tests and inspections. That is why FRA is requiring that based upon the results of the quarterly review, the designated officer shall make any necessary adjustments to the tests and inspections required of railroad officers for the subsequent period. The quarterly review must be in writing and include the data upon which any conclusions are based. In response to several comments, FRA has clarified that any review, record or other information required by this section to be in writing may be retained electronically pursuant to paragraph (g).

FRA expects that in order to conduct a meaningful quarterly review, each railroad will review accident/incident data, operational test data, and other pertinent data. For example, a railroad should identify the relevant facts for each category of data. The relevant facts are usually covered if a railroad can answer the questions signifying who, what, where, when, why, and how often. For accident/incident data, these questions would involve identifying all the employees involved in the accident/incident, a description of the accident/incident, the location where it occurred, the time it occurred, the root cause and any secondary causes, and whether the division or system has suffered this type of accident/incident often, sometimes or never. For operational test data, the issues include identifying the railroad testing officer(s) responsible for the particular location, whether the testing officers are testing for the operating rules responsible for any recent accidents/incidents, whether the testing officers conducted any tests where any recent accidents/incidents occurred, whether the testing officers are testing during the hours of highest incident rates, whether any railroad officers are briefing the employees as to the root or secondary causes and the fact that the railroad will be testing for compliance, and how often the officers are conducting any follow-up testing and job briefings.

FRA believes there are at least five other types of pertinent safety data that should be included in a proper quarterly review. One, if FRA has conducted any recent inspections, the railroad should check whether its officers' tests reflect FRA's findings. Two, if an employee is involved in an accident/incident, the employee's safety record may provide insight. Three, the railroad should determine if there is any correlation between the training or experience of the local railroad testing officers and the locations where accidents/incidents have occurred. Four, a railroad should similarly consider the extent to which employee experience plays a part in any given accident/incident. Fifth, a railroad's review should consider whether any operational conditions have recently changed that increased the likelihood of either noncompliance with the operating rules or accidents/incidents. Special attention to all these details in the quarterly or six month review, as applicable, should lead a railroad to meaningful application of its written program of operational tests and inspections with a greater potential for driving down the frequency and severity of accidents/incidents.

Although it would be best if quarterly reviews were completed immediately following the end of each quarter, FRA is requiring completion no later than 30 days after the quarter has ended. We did not receive any negative comments regarding the 30 day period. FRA originally considered requiring the quarterly review in half that time but railroads participating at a Railroad

Operating Rules Working Group meeting suggested that additional time would be needed for those railroads that do not maintain their safety data electronically. For those railroads that keep records electronically, FRA encourages quarterly reviews to take place contemporaneously with the conclusion of the quarter. Regardless of how long it takes to complete the quarterly review, each division or system should be prepared to redirect its railroad testing officers in order to appropriately react to any accidents/incidents of noncompliance during the previous quarter. Even where a division or system has had a particularly safe quarter, railroad testing officers should be instructed to adjust the way in which they are conducting their tests so that employees cannot easily anticipate the types of tests to be conducted, nor the dates and locations of such tests. Because freight railroads with divisions might find it difficult to do the system-wide six month review in only 30 days, especially since the quarterly reviews might not be completed until the 30th day, FRA has amended the proposed rule by allowing freight railroads 60 days after the review period has ended to complete the six month review. Passenger railroads with divisions are not quite as large or complex that completion of the six month review should take more than 30 days.

In paragraphs (e)(1)(ii) and (e)(2), six month reviews are only required for each Class I railroad, Amtrak, and each railroad providing commuter service in a metropolitan or suburban area. The basis for the requirement is that the identified freight railroads are so large that each would benefit from an officer, likely at the system headquarters, who is identifiable by name or job title, who will oversee whether each division, line or segment is complying with the program of operational tests and inspections. It is expected that such an officer would have the authority to intervene in division, line or segment operations to the extent that this officer could order changes to the way divisions are implementing the program. The purpose for such intervention would be to require certain types of operational tests or inspections based on observations made system-wide that may not be apparent to each designated division officer armed only with data from his or her own division.

In the case of Amtrak and the commuter railroads, paragraph (e)(2) requires reviews equivalent to those for the freight railroads in paragraph (e)(1), however all the reviews are to take place at least every six months. Of course, these are minimum requirements and passenger railroads are free to initiate more frequent reviews. For example, paragraphs (e)(2)(i) and (ii) describe reviews that are equivalent to the review required for freight railroads on a quarterly basis and certainly passenger railroads may perform that review on a quarterly basis as well; however, the passenger railroads are required to comply with those two requirements at least every six months. Paragraph (e)(2)(iii) describes a review that is to be completed at least once every six months and is the equivalent of the six month review required for freight railroads. As it is required that the passenger railroads conduct the same reviews as the freight railroad with the exception of the timing of those reviews, the prior section-by-section analysis description for each review is applicable here.

Because FRA needs to be assured that each railroad is complying with any required reviews, the regulation requires that the reviews be retained for one year after the end of the calendar year to which they relate and shall be made available to FRA upon request. FRA also encourages railroads to store these records electronically, pursuant to paragraph (g), as long as the information can be produced upon request.

Former paragraph (d), which is redesignated as paragraph (f), is being amended in two respects. One amendment is merely to change the term “manhours” to “employee work hours” as the latter is gender neutral. The second amendment would clarify that this requirement does not apply to “a railroad with less than 400,000 total” employee work hours

annually

, as the current rule accidentally fails to include the qualification of the time period.

In the NPRM, FRA questioned the necessity of retaining the annual summary requirement in paragraph (f) and FRA received several comments, including from AAR, APTA, and UTU, supporting the elimination of the annual summary on operational tests and inspections requirement. After further consideration, FRA realizes that the annual review requires different information than the other reviews and that eliminating it would have a serious detrimental effect on FRA's ability to audit a railroad's program. The annual summary requires all but the smallest railroads to create a written summary of the number, type, and result of each operational test and inspection, stated according to operating divisions where applicable, that was conducted as required by paragraphs (a) and (c) of this section. This written record may be kept in an electronic format pursuant to paragraph (g). Generally, railroads keep the data used to create this report in an electronic database which makes it relatively simple to generate the required annual summary.

Former paragraph (e) is redesignated paragraph (g) with one amendment. The former rule specified that the railroad maintain a “desk-top” computer upon which the railroad can retrieve data. As laptop and notebook computers have become more common, and their computing abilities now rival desk-top models, there is no reason to restrict railroads from using any computer to retrieve records for FRA under this section.

Proposed paragraph (h), which suggested a requirement specifying that railroads and individuals can be liable for falsifying or deliberately mutilating records required by this section, has been deleted as unnecessary for two reasons. One, if FRA has sufficient evidence to prove that a railroad or individual has falsified a program required under this section or a record kept for such a required program, then that railroad or individual could be cited by FRA for a willful violation of the underlying section. The penalty assessed would be greater than a typical civil penalty assessment.

See

49 CFR 217.5 and app. A to Part 217. Thus, even with the deletion of this proposed paragraph, FRA retains the authority to assess civil penalties for falsification of the required records pertaining to this section. Two, the activity at issue is also prohibited by criminal law.

See

, e.g., 49 U.S.C. 21311. Consequently, FRA has decided to remove this paragraph from the final rule and would expect that the existing criminal law and this final rule will provide sufficient disincentives for railroads and individuals to complete the programs and records required under this part without falsifying, mutilating, or destroying such a record.

Proposed paragraph (i), which has been redesignated as paragraph (h) requires that FRA have some specific oversight mechanism for disapproving a railroad's program of operational tests and inspections. It also requires minimum procedures and structure for the review process. The paragraph requires that the Associate Administrator for Safety only disapprove programs required by this section for cause stated. As the disapproval decision is made for cause, it is significant for the railroad to understand exactly why FRA is disapproving the program; thus, notification of such disapproval will be made in writing and specify the basis for the disapproval decision. If the Associate Administrator for Safety disapproves the program, the railroad

has 35 days from the date of the written notification of such disapproval to either (1) amend its program and submit it to the Associate Administrator for Safety for approval, or (2) provide a written response in support of the program to the Associate Administrator for Safety. If the railroad chooses the second option to defend the allegedly defective program, the Associate Administrator for Safety will inform the railroad of FRA's final decision in writing. Although the rule is silent regarding whether a railroad may request an extension, FRA intends for the Associate Administrator for Safety, as the agency's decision-maker, to have the flexibility to decide procedural issues, such as having the ability to grant or deny requests for extensions of time, as the issues arise. The Associate Administrator for Safety renders a final decision in writing which will specify the terms and conditions under which the program will be considered approved or disapproved. If the decision denies the railroad's request in whole or in part, FRA intends for the railroad to amend its program and submit it to the Associate Administrator for Safety for approval within 35 days of the final decision as that is the period of time accorded for amending programs when a railroad chooses not to appeal the disapproval. Again, a railroad may request an extension of time to amend its program and submit it to the Associate Administrator for Safety for approval, and FRA intends for the Associate Administrator for Safety to have the flexibility to decide whether to grant or deny such procedural requests. Although enforcement action is always discretionary, FRA believes that enforcement action is warranted when a railroad fails to appropriately and timely amend its program; for this reason, FRA is requiring in paragraph (h)(2) that a failure to submit the program with the necessary revisions to the Associate Administrator for Safety will be considered a failure to implement a program under this part.

The approach in paragraph (h) recognizes that FRA will want to review such written programs during audits or investigations and that FRA should have the authority to request changes to the program if it does not meet the minimum requirements of this rule. Although FRA retains the authority to review in detail each railroad's program, FRA is not requiring that each railroad submit its program for prior review and approval. Rather, FRA intends to review the programs of the major railroads over a multi-year cycle to determine if they are effective. In BLET's written comment, it requested that FRA reconsider this approach and instead advocated that each railroad be required to submit its operational tests and inspections program for FRA's explicit approval. BLET's reason for requiring a submission and approval process is that employees need to be afforded no less than the highest degree of assurance that a railroad's compliance monitoring is appropriate if the employee can be held responsible for noncompliance. A similar comment was raised by UTU in the context that FRA should prohibit testing officers from performing operational tests that violate operating rules or endanger employees. While FRA appreciates these comments, we are not adopting them for the following reasons. Although FRA has found deficiencies with some railroads' programs from time-to-time, if a railroad has a program, it will typically contain all the requirements necessary to be deemed approved. Most problems with a program cannot be determined until an audit or investigation reveals inadequacies. Thus, a mandatory approval process is both a drain on the agency's resources and also unlikely to reveal many programmatic deficiencies. The best time to request a programmatic change is when an inadequacy is revealed. However, the NPRM did not provide for specific procedures for FRA to take place when an inadequacy was identified. The rule has been strengthened to provide for specific oversight authority vesting with the Associate Administrator for Safety. It is also helpful to remember that FRA is requiring railroad testing officers to conduct tests and inspections in accordance with a railroad's program, and that it is implicit that an improperly conducted test shall not be considered a valid test toward satisfying any requirement under the program.

In the proposed rule, FRA solicited comments as to whether the final rule should require each railroad to instruct its employees on operating rules at least once every three years. BLET submitted a comment supporting triennial qualification of employees on all Federalized operating rules. As BLET points out, adding this requirement would merely expand the proposal to require each railroad to qualify its employees on Part 218, subpart F in this chapter, and many employees are already covered as locomotive engineers are currently required to be qualified every three years pursuant to § 240.210(c) of this chapter. FRA would add that a triennial operating class is the typical standard requirement on most railroads today. However, FRA also recognizes that our definition of qualified might be deemed to lead to more extensive or rigorous instruction, training, and examination than is currently in practice. While that might be a positive development, FRA recognizes that there might be costs involved with assuring the additional qualifications are met, and FRA has not found a correlation between the lack of operating rules training in general and accidents/incidents. FRA's decision only requires such periodic instruction as it applies to those operating rules that would be required by part 218, subpart F because the rules set out in that subpart do have a direct correlation to a substantial number of accidents/incidents and other noncompliance detected by FRA.

See

§ 218.95(a)(5). FRA will consider implementing another rulemaking if noncompliance with other operating rules are identified that are causing a significant number of accidents/incidents. Based on available information, the current requirement, that each railroad periodically instruct each employee on the meaning and application of the railroad's operating rules, appears to be sufficient.

See

§ 217.11.

Section 217.11 Program of Instruction on Operating Rules; Recordkeeping; Electronic Recordkeeping

FRA did not propose any changes to this section in the NPRM; however, after the NPRM's publication we realized that it contained a cross-cite to § 217.9(e)(1) through (e)(5), which has been redesignated as § 217.9(g)(1) through (5). This citation change is the only amendment to this section.

Part 218—[Amended]

Section 218.4 Preemptive Effect

This section informs the public of FRA's intention and views on the preemptive effect of the rule. The preemptive effect of this rule is broad, as its purpose is to create a uniform national standard. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except an additional or more stringent provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. Section 20106 permits State tort actions arising from events or activities occurring on or after January 18, 2002, for the following: (a) A

violation of the Federal standard of care established by regulation or order issued the Secretary of Transportation (with respect to railroad safety, such as these regulations) or the Secretary of Homeland Security (with respect to railroad security); (b) a party's violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; and (c) a party's violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. Nothing in section 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action. The NPRM language has been amended to reflect the changes made to Section 20106.

Only one comment addressed this paragraph and that comment has been discussed in the preamble.

See

IV. General Comments/Major Issues, C. Preemptive Effect.

Section 218.5 Definitions

FRA is amending the definition of

flagman's signals

in order to eliminate a reference to “torpedoes.” Torpedoes are antiquated signaling devices which have fallen into disuse in the industry. Likewise, we are amending § 218.37, which refers to this definition and the placing of torpedoes when providing flag protection.

FRA is also amending the definition of

locomotive

to explain that this particular definition of

locomotive

does not apply to subpart F. The definition of

locomotive

in this section is a more mechanically-minded definition than the definition contained in 49 CFR 218.93. This definition continues to apply to the requirements in part 218, with the exception of subpart F.

Section 218.37 Flag Protection

FRA is eliminating references to “torpedoes” as these are antiquated signaling devices which have fallen into disuse in the industry. The former rule required each railroad to have in effect an operating rule which complies with this section, and thus contains references to the use of torpedoes, even though the railroad could meet other flagging requirements without ever needing to carry or use torpedoes. In the former section, there are two paragraphs that reference torpedoes. Former paragraph (a)(1)(iii) states, in part, that “[w]hen a train stops on main track, flag protection against following trains on the same track must be provided as follows: A crew member with flagman's signals must immediately go back at least the distance prescribed by timetable or other instructions for the territory,

place at least

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