[Federal Register: October 12, 2006 (Volume 71, Number 197)]
[Proposed Rules]               
[Page 60371-60412]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc06-24]                         


[[Page 60371]]

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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 217 and 218



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


[[Page 60372]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217 and 218

[Docket No. FRA-2006-25267]
RIN 2130-AB76

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

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Human factors are the leading cause of train accidents, 
accounting for 38 percent of the total in 2005. Human factors also 
contribute to employee injuries. The proposed rule would establish 
greater accountability on the part of railroad management for 
administration of railroad programs of operational tests and 
inspections, and greater accountability on the part of railroad 
supervisors and employees for compliance with those railroad operating 
rules that are responsible for approximately half of the train 
accidents related to human factors. Furthermore, this rulemaking is 
intended to supplant the need for Emergency Order 24, which requires 
special handling, instruction and testing of railroad operating rules 
pertaining to hand-operated main track switches in non-signaled 
territory.

DATES: Written comments must be received by December 11, 2006. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to November 13, 2006, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA 2006-25267, may 
be submitted by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 

submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov.
 Follow the online instructions for submitting 

comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 

see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of 
this document for Privacy Act information related to any submitted 
comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 

the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1120 Vermont Avenue, NW., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler, 
Senior Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont 
Avenue, NW., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background and Authority
II. Proceedings to Date
    A. Increase in Human Factor Caused Accidents and Non-compliance
    B. Accident at Graniteville, SC and Safety Advisory 2005-01
    C. Emergency Order No. 24
    D. FRA's Action Plan For Addressing Critical Railroad Safety 
Issues
    E. Railroad Safety Advisory Committee (RSAC) Overview
    F. Establishment of Railroad Operating Rules Working Group
    G. Development of the NPRM
III. Remote Control Operations
    A. Background
    B. Situational Awareness
    C. Technology Aided Point Protection
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Act of 1995
    G. Energy Impact
    H. Privacy Act
VI. List of Subjects

I. Background and Authority

    The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 
20103, provides that, ``[t]he Secretary of Transportation, as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety supplementing laws and regulations in effect on 
October 16, 1970''. The Secretary's responsibility under this provision 
and the balance of the railroad safety laws have been delegated to the 
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of 
operating rules and practices, FRA has traditionally pursued a very 
conservative course of regulation, relying upon the industry to 
implement suitable railroad operating rules and mandating in the 
broadest of ways that employees be ``instructed'' in their requirements 
and that railroads create and administer programs of operational tests 
and inspections to verify rules compliance. This approach was based on 
several factors, including a recognition of the strong interest the 
railroads have in avoiding costly accidents and personal injuries, the 
limited resources available to FRA to directly enforce railroad 
operating rules, and the apparent success of management and employees 
in accomplishing most work in a safe manner.
    Over the years, however, it became necessary to ``Federalize'' 
certain requirements, either to remedy perceived shortcomings in the 
railroads' rules or to emphasize the importance of compliance and to 
provide FRA a more direct means of promoting compliance. These actions, 
which in most cases were preceded or followed by statutory mandates, 
included adoption of rules governing--
     Blue Signal Protection for employees working on, under or 
between railroad rolling stock (49 CFR part 218, subpart B);
     Railroad Communications (49 CFR part 220);
     Prohibition of Tampering with Safety Devices (49 CFR part 
218, subpart D); and
     Control of Alcohol and Drug Use in Railroad Operations (49 
CFR part 219); In addition, FRA has adopted requirements for 
Qualification and Certification of Locomotive Engineers (49 CFR part 
240) that directly prohibit contravention of certain specified 
operating rules and practices.

[[Page 60373]]

    FRA believes these programs of regulation contribute positively to 
railroad safety, in part because they contribute significantly to good 
discipline among affected employees.
    FRA is not specifically required by statute to issue a regulation 
on the subjects covered by this proposed rule. However, FRA believes 
that establishing greater accountability for implementation of sound 
operating rules is necessary for safety. FRA is initiating this 
rulemaking because it has recognized that human factor train accidents 
comprise the largest single category of train accident causes and 
because existing regulations have proven inadequate to achieve a 
significant further reduction in their numbers or severity. Moreover, 
the current situation in the railroad industry, which is characterized 
by strong market demand, extensive hiring of new employees, and rapid 
attrition of older employees now becoming eligible for retirement, 
demands a more substantial framework of regulations to help ensure that 
operational necessity will not overwhelm systems of safeguards relied 
upon to maintain good discipline.
    The theme of this proposed rule is accountability. It embodies both 
a broad strategy intended to promote better administration of railroad 
programs, on the one hand, and a highly targeted strategy designed to 
improve compliance with railroad operating rules addressing three 
critical subject matters, on the other. Within this framework, FRA 
would take responsibility to set out certain requirements heretofore 
left to private action and for monitoring compliance with those 
requirements through appropriate inspections and audits. Railroad 
management would be more accountable for putting in place appropriate 
rules, instructions, and programs of operational tests. Railroad 
supervisors would be accountable for doing their part to administer 
operational tests and establish appropriate expectations with respect 
to rules compliance. Railroad employees would be accountable for 
complying with specified operating rules, and they would enjoy a right 
of challenge should they be instructed to take actions that, in good 
faith, they believe would violate the rules. It is intended that this 
framework of accountability promote good discipline, prevent train 
accidents, and reduce serious injuries to railroad employees.
    In this SUPPLEMENTARY INFORMATION section, FRA provides a detailed 
explanation of the growing number of accidents, the severity of some of 
those accidents, the agency's prior actions, the approach proposed and 
some discussion of alternatives. In certain instances, FRA specifically 
requests commenters to offer suggestions or provide information for 
FRA's consideration prior to a final rule. Of course, FRA would 
appreciate comments on any aspect of this proposed rule.

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Non-compliance

    FRA has grown steadily more concerned over the past few years as 
the frequency of human factor caused accidents has increased. When 
these accidents are reported, the reporting railroad is required to 
cite the causes of the accident. In the case of a human factor caused 
accident, an employee or employees are typically associated with a 
failure to abide by one or more railroad operating rules. Over the past 
few years, FRA inspectors have simultaneously observed a substantial 
increase in non-compliance with those railroad operating rules that are 
frequently cited as the primary or secondary causes to these types of 
accidents.
    Accidents caused by mishandling of equipment, switches and derails 
rose from 370 to 640 per year from the years 1997 to 2004--an increase 
of 42 percent. The greatest causes of these accidents as identified by 
the railroads were (1) switch improperly lined and (2) absence of 
employee on, at or ahead of a shoving movement. These two issues alone 
account for over 60 percent of all accidents caused annually by 
employees mishandling of equipment, switches and derails.
    A grouping of four other causes saw steady increases from 133 per 
year in 1997 to 213 per year in 2004--a cumulative increase of 37 
percent; these causes are (1) failure to control a shoving movement, 
(2) switch previously run through, (3) cars left foul and (4) failure 
to apply or remove a derail. Two additional causes of accidents, (1) 
switch not latched or locked and (2) car(s) shoved out and left out of 
clear, were the cited cause of only 10 accidents in 1997 and 40 
accidents in 2004.
    While the accident data shows significant increases in these areas, 
the data collected by FRA during inspections suggests that the number 
of accidents could easily increase at an even greater rate. FRA 
inspection data shows that non-compliance related to mishandling of 
equipment, switches and derails rose from 319 to 2,954 per year from 
the years 2000 to 2004--a nine-fold increase. The most common areas of 
human factor non-compliance were (1) employee failed to observe switch 
points for obstruction before throwing switch; (2) employee failed to 
ensure all switches involved with a movement were properly lined; (3) 
employee failed to ensure switches were latched or locked; (4) employee 
failed to ensure switches were properly lined before movement began; 
and (5) employee left equipment fouling adjacent track.
    Several other related issues of non-compliance also saw substantial 
increases, although the overall number of incidents found by FRA was 
lower than the top five. These additional areas of non-compliance are: 
(1) Employee left derail improperly lined (on or off); (2) absence of 
employee on, at, or ahead of shoving movement; (3) employee failed to 
ensure train or engine was stopped in the clear; (4) employee failed to 
ensure switches were properly lined after being used; (5) employee 
failed to reapply hasp before making move over switch (if equipped); 
(6) employee failed to relock the switch after use; and (7) one or more 
employees failed to position themselves so that they could constantly 
look in the direction of movement.
    Some non-compliance data applies particularly to human factor 
mistakes FRA noted during inspections of operations involving remotely 
controlled locomotives. FRA assigned non-compliance codes to identify 
the following problems specifically associated with these remote 
control operations: (1) Employee operated equipment while out of 
operator's range of vision; (2) employee failed to provide point 
protection, locomotive leading; and (3) employee failed to provide 
point protection, car leading. In 2004, the first year that FRA 
collected data under those codes, FRA inspectors recorded 29 instances 
of non-compliance with the railroad's operating rules underlying the 
three codes. In 2005, the number of instances of non-compliance with 
those same codes recorded by FRA inspectors increased to 92.

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

    Although the increasing number of human factor caused accidents 
impacted the railroad industry and its employees, a catastrophic 
accident that occurred at Graniteville, South Carolina on January 6, 
2005, catapulted the issue into the national spotlight. As the National 
Transportation Safety Board (NTSB) described in its report NTSB/RAR-05/
04, PB2005-916304 (Nov. 29, 2005), that accident occurred when Norfolk 
Southern Railway Company

[[Page 60374]]

(NS) freight train 192, while traveling in non-signaled territory at 
about 47 miles per hour (mph), encountered an improperly lined switch 
that diverted the train from the main track onto an industry track, 
where it struck an unoccupied, parked train (NS train P22). The 
collision derailed both locomotives and 16 of the 42 freight cars of 
train 192, as well as the locomotive and 1 of the 2 cars of train P22. 
Among the derailed cars from train 192 were three tank cars containing 
chlorine, one of which was breached, releasing chlorine gas. The train 
engineer and eight other people died as a result of chlorine gas 
inhalation. About 554 people complaining of respiratory difficulties 
were taken to local hospitals. Of these, 75 were admitted for 
treatment. Because of the chlorine release, about 5,400 people within a 
1-mile radius of the derailment site were evacuated for several days. 
Total property damages exceeded $6.9 million. The total monetized 
damages were much higher than that, with one estimate ranging as high 
as $125 million. NTSB determined that the probable cause of the 
collision was the failure of the crew of NS train P22 to return a main 
track switch to the normal position after the crew completed work at an 
industry.
    The crew's failure violated railroad operating rules but did not 
violate any Federal requirement. NS Operating Rule 104, in effect at 
the time, placed primary responsibility with the employee handling the 
switch and other crewmembers were secondarily responsible if they were 
in place to observe the switch's position. NTSB/RAR-05/04 at 8. In 
addition, NTSB concluded that NS rules required a job briefing which 
``would likely have included a discussion of the switches and 
specifically who was responsible for ensuring that they were properly 
positioned [and that] [h]ad such a briefing taken place, the relining 
of the switch might not have been overlooked.'' Id. at 44. FRA concurs 
that the lack of intra-crew communication regarding the switch's 
position was particularly significant at the time the crew was 
preparing to leave the site. Id. at 8-9.
    Four days after the Graniteville accident (and coincidentally, two 
days after a similar accident at Bieber, California with serious, but 
not catastrophic consequences), FRA responded by issuing Safety 
Advisory 2005-01, ``Position of Switches in Non-Signaled Territory.'' 
70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an 
opportunity for the agency to inform the industry and the general 
public regarding a safety issue, to articulate agency policy, and to 
make recommendations. FRA explained in the safety advisory that ``[a] 
review of FRA's accident/incident data shows that, overall, the safety 
of rail transportation continues to improve. However, FRA has 
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of 
railroad employees to return manual (hand-operated) main track switches 
to their normal position, i.e., usually lined for the main track, after 
use. As a result, rather than continuing their intended movement on the 
main track, trains approaching these switches in a facing-point 
direction were unexpectedly diverted from the main track onto the 
diverging route, and consequently derailed.''
    Safety Advisory 2005-1 strongly urged all railroads to immediately 
adopt and comply with five recommendations that were intended to 
strengthen, clarify and re-emphasize railroad operating rules so as to 
ensure that all main track switches are returned to their normal 
position after use. The recommendations emphasized communication both 
with the dispatcher and other crewmembers. FRA recommended that 
crewmembers complete and sign a railroad-created Switch Position 
Awareness Form (SPAF). Proper completion of a SPAF was expected to 
trigger specific communication relevant to critical elements of the 
tasks to be performed. Additional training and railroad oversight were 
also recommended.

C. Emergency Order No. 24

    Safety Advisory 2005-1 did not have the long-term effect that FRA 
hoped it would. The Safety Advisory was intended to allow the industry 
itself a chance to clamp down on the frequency and severity of one 
subset of human factor accidents, i.e., those accidents involving hand-
operated main track switches in non-signaled territory. FRA credits the 
Safety Advisory with contributing to a nearly six-month respite from 
this type of accident, from January 12 through July 6, 2005, but 
following this respite there was a sharp increase in serious accidents.
    Three serious accidents over a 28-day period were the catalyst for 
FRA issuing an emergency order: Emergency Order No. 24 (EO 24); Docket 
No. FRA-2005-22796, Notice 1, 70 FR 61496, 61498 (Oct. 24, 2005). The 
three accidents cited in EO 24 resulted in fatal injuries to one 
railroad employee, non-fatal injuries to eight railroad employees, an 
evacuation of civilians, and railroad property damage of approximately 
two million dollars. Furthermore, each of these accidents could have 
been far worse, as each had the potential for additional deaths, 
injuries, property damage or environmental damage. Two of the accidents 
could have involved catastrophic releases of hazardous materials as 
these materials were present in at least one of the train consists that 
collided.
    FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
immediately impose ``restrictions and prohibitions * * * that may be 
necessary to abate the situation.'' Id.
    EO 24 was necessary because FRA could not secure compliance with 
these important railroad operating rules without additional action. FRA 
considered issuing another Safety Advisory, but that might at best only 
provide another temporary respite. The issuance of EO 24 was ``intended 
to accomplish what the Safety Advisory could not: Implement safety 
practices that will abate the emergency until FRA can complete 
rulemaking''. 70 FR at 61498. FRA further concluded that ``reliance 
solely on employee compliance with railroad operating rules related to 
the operation of hand-operated main track switches in non-signaled 
territory, without a Federal enforcement mechanism, is inadequate to 
protect the public safety.'' 70 FR at 61499. Thus, EO 24 supplied FRA 
with such an enforcement mechanism without the delay that is usually 
incurred through rulemaking.
    EO 24 is built on the foundation of FRA's regulations, at 49 CFR 
part 217, which requires each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
With regard to hand-operated switches in non-signaled territory, EO 24 
requires that each railroad (1) instruct its employees, (2) allow only 
qualified employees to operate and verify switches, (3) require 
employees to confirm switch positions with the dispatcher prior to 
releasing the limits of a main track authority, (4) develop a Switch 
Position Awareness Form for employees to complete when operating 
switches, (5) require employees to conduct job briefings at important 
intervals, (6) require intra-crew communication of switch positions 
after a switch is operated, (7) enhance its program of operational 
tests and inspections under 49 CFR part 217, and (8) distribute copies 
of EO 24, and retain proof of distribution, to all

[[Page 60375]]

employees affected. Minor clarifying amendments were made to EO 24 in a 
second notice, but the overarching requirements remained unchanged from 
the first notice. 70 FR 71183 (Nov. 25, 2005).

D. FRA's Action Plan for Addressing Critical Railroad Safety Issues

    Prior to the Graniteville accident, FRA had developed and 
implemented procedures to focus agency resources on critical railroad 
safety issues. Such procedures were appropriate even though the 
industry's overall safety record had improved over the last decade and 
most safety trends were moving in the right direction. FRA recognizes 
that significant train accidents continue to occur, and the train 
accident rate has not shown substantive improvement in recent years. 
Several months after the Graniteville accident, an action plan was 
published. FRA acknowledged in the plan that ``recent train accidents 
have highlighted specific issues that need prompt government and 
industry attention''. Action Plan at 1 (published on FRA's Web site at 
http://www.fra.dot.gov/).

    In the plan, FRA introduced its basic principles to address 
critical railroad safety issues. One basic principle is that FRA's 
safety program is increasingly guided by careful analysis of accident, 
inspection, and other safety data. Another basic principle is that FRA 
attempts to direct both its regulatory and compliance efforts toward 
those areas involving the highest safety risks. The plan is intended to 
be proactive in that it will target the most frequent, highest risk 
causes of accidents.
    FRA identified ``reducing human factor accidents'' as one of the 
major areas in which the agency planned initiatives. In fact, the plan 
discusses this issue first because it constitutes the largest category 
of train accidents, accounting for 38 percent of all train accidents 
over the last five years, and human factor accidents are growing in 
number. Furthermore, FRA's plan takes aim at reducing human factor 
accidents because in recent years most of the serious events involving 
train collisions or derailments resulting in release of hazardous 
materials, or harm to rail passengers, have been caused by human 
factors or track problems.
    FRA's analysis of train accident data has revealed that a small 
number of particular kinds of human errors are accounting for an 
inordinate number of human factor accidents. For example, the eight 
human factor causes involving mishandling equipment, switches and 
derails that FRA is addressing in this proposed rule accounted for 
nearly 48 percent of all human factor accidents in 2004; these eight 
causes, which resulted in accidents causing over $113 million in 
damages to railroad property from 2001-2005, can be grouped into three 
basic areas of railroad operations: (1) Operating switches and derails; 
(2) leaving equipment out to foul; and, (3) the failure to protect 
shoving or pushing movements. In addition, FRA allows any railroad to 
identify the cause of an accident in general terms when the railroad is 
unsure of exactly which of the more specific human factor cause codes 
apply. Without in-depth analysis of each accident that was reported by 
railroads using these generic human factor cause codes, it is 
impossible to know how many of these accidents should be attributable 
to mistakes involving the operation of switches and derails, leaving 
equipment out to foul, or the failure to protect shoving or pushing 
movements; it is likely, however, that some portion of this additional 
2.5 percent of all human factor accidents in 2004 are attributable to 
mistakes involving these three basic areas of railroad operations. 
Thus, this proposal is geared to address approximately half of all 
human factor caused accidents on all classes of track.
    Of the 118 human factor causes that are tracked, the leading cause 
was improperly lined switches, which alone accounted for more than 16 
percent of human factor accidents in 2004. The next two leading causes 
were shoving cars without a person on the front of the movement to 
monitor conditions ahead, i.e., lack of point protection, and shoving 
cars with point protection but still resulting in a failure to control 
the movement; these two shoving-related causes together accounted for 
17.6 percent of human factor accidents in 2004. The remaining five 
causes addressed in this proposed rule account for nearly 14 percent of 
the total number of accident causes; these causes involve leaving cars 
in a position that fouls an adjacent track, operating over a switch 
previously run through, a failure to apply or remove a derail, a 
failure to latch or lock a switch, and a failure to determine before 
shoving, that the track is clear ahead of the movement. The two catch-
all general causes that might be cited when a railroad believes one or 
more related causes may apply or is unsure of the exact cause are: (1) 
other general switching rules and; (2) other train operation/human 
factors.
    The human factor causes that FRA is attempting to address with this 
proposal are of a type that involve non-compliance with established 
railroad operating rules related to fundamental railroad operations. In 
each case, compliance can be objectively and conclusively determined. 
For example, it can be definitively determined whether switches are 
properly lined, locked, latched or had been previously run through. It 
can be determined whether a shoving movement was made without point 
protection or without the signals or instructions necessary to control 
the movement. Similarly, it can be determined whether a car is left 
fouling a track such that it is causing an unsafe operating condition, 
or whether the track is clear ahead for a shoving movement. Finally, it 
can also be determined with certainty whether there has been a failure 
to apply or remove a derail.
    The top human factor causes that FRA is choosing not to address 
with this proposal are already regulated, to some extent, or would be 
significantly more difficult to regulate. For example, several human 
factor causes relate to the failure to apply a sufficient number of 
hand brakes; that issue is already covered by regulation at 49 CFR 
232.103(n). Speeding issues, including restricted speed, are regulated 
to discourage clearly excessive speeding by imposing revocation periods 
or civil penalties for locomotive engineer violators. 49 CFR 
240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for 
regulating a train handling issue, such as a locomotive engineer's 
improper use of an independent brake or air brakes to prevent excess 
buff or slack action, can pose difficulties as train handling is an 
area where locomotive engineers exercise discretion. 58 FR 18982, 18992 
(Apr. 9, 1993) (describing in section-by-section analysis why FRA 
amended the qualification and certification of locomotive engineer's 
rule to require revocation only when there is a failure to conduct 
certain brake tests as opposed to the more general, original 
requirement to revoke for ``failure to adhere to procedures for the 
safe use of train or engine brakes''. 56 FR 28228, 28259 (June 19, 
1991)). Likewise, the operating conditions related to improper coupling 
are too numerous to easily address through regulation, and 
determination of responsibility related to train handling and train 
make-up involves often complex technical issues that are still subject 
to study. (See Safe Placement of Train Cars, Report to the Senate 
Committee on Science, Commerce and Transportation and the House 
Committee on Transportation and Infrastructure, June 2005), published 
at http://www.fra.dot.gov).

    Developing close call data. As part of its mission to improve 
railroad safety,

[[Page 60376]]

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

E. Railroad Safety Advisory Committee (RSAC) Overview

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major customer groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AAPRCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation Association (HSGTA);
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC); and
United Transportation Union (UTU).

    *Indicates associate, non-voting membership.
    Effective May 2006, the following additional members have been 
added to the Committee:

Transportation Security Administration;
American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.

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

F. Establishment of Railroad Operating Rules Working Group

    On April 14, 2005, FRA held a Human Factors Workshop which convened 
members of RSAC for the purpose of developing a task statement to be 
presented at the next RSAC meeting. FRA explained that current 
regulations do not address compliance with the relevant operating rules 
that cause the preponderance of human factor accidents. The agency 
expressed a desire to standardize and adopt these rules as Federal 
requirements with greater accountability being the goal. It was also 
raised that training and qualification programs should be included as 
part of the task because employee compliance is certainly directly 
related to how well employees are instructed and tested. FRA suggested 
that one area of consideration was to improve its regulations (49 CFR 
part 217) which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
Many participants expressed a preference for non-regulatory action.
    On May 18, 2005, the RSAC accepted a task statement and agreed to 
establish the Railroad Operating Rules Working Group whose overall 
purpose was to recommend to the full committee how to reduce the number 
of human factor caused train accidents/incidents and related employee 
injuries. The working group held eight two-day conferences, one per 
month from July 2005 through February 2006. The vast majority of the

[[Page 60377]]

time at these meetings involved review of an FRA document suggesting 
language that could form the basis of proposed regulatory text. This 
exercise was extremely beneficial as participants were able to fully 
strengthen the proposal.
    FRA clearly benefitted from the participation of the working group 
in detailed review of railroad operating rules and practices; 
unfortunately, the RSAC participants were unable to reach a consensus 
for making formal recommendations. Typically, FRA gives great deference 
to RSAC's recommendations when proposing a rule, although the agency is 
not bound to adopt such recommendations. Here, where RSAC was unable to 
make formal recommendations, FRA is, of course, not bound by FRA's 
proposal within the RSAC working group process. However, FRA has sought 
to carry forward the elements of the discussion draft that had 
benefitted from thoughtful comment by Working Group members. FRA 
developed a greater appreciation for the nuances of each of the 
railroad operating rules and practices discussed; and, armed with that 
additional insight, FRA has sought to put forth a reasonable proposal 
that reflects real world railroading.

G. Development of the NPRM

    EO 24 illuminated the problems associated with mishandling of hand-
operated main track switches in non-signaled territory. While there may 
be more than one cause that contributes to non-compliance with the 
operating rules, accidents could be prevented by strict employee 
compliance with those rules. Accidents involving this type of switch 
often occur when the employee operating the switch loses focus on the 
task at hand. In an effort to refocus the attention of employees who 
operate switches, EO 24's seven sections can be boiled down to three 
major components: (1) Instruction, (2) communication and (3) 
verification through testing. FRA's proposed rule incorporates these 
three major components but with a broader application.
    Instruction. It is fundamental that an employee cannot be expected 
to properly abide by operating rules without proper instruction, 
especially when those operating rules have been amended. To that end, 
EO 24 provides an outline for essential initial instruction and 
periodic instruction. Likewise, FRA proposes enhanced instruction, 
training and examination, i.e., qualification, for employees on the 
relevant operating rules, pertaining to handling equipment, switches 
and derails.
    Communication. FRA agrees with the general principle that mistakes 
can be prevented or corrected by proper communication. Communication 
prevents non-compliance and accidents because it generally is how 
people working together know what each of them is doing. For example, 
EO 24 stressed the importance of communication by requiring job 
briefings at certain crucial intervals: Before work is begun, each time 
a work plan is changed, and at completion of the work. Such regular job 
briefings ensure that employees working together understand the task 
they are intending to perform and exactly what role is expected of them 
and their colleagues. Through proper job briefings, employees can 
prevent some mishaps and contain others from worsening a bad situation. 
For these reasons, FRA proposes a job briefing component to this 
rulemaking.
    In the background section of EO 24, FRA described a recurrent 
scenario of non-compliance where a train crew's mistake in leaving a 
main track switch lined for movement to an auxiliary track was the last 
act or omission that resulted in an accident; and yet these types of 
accidents are preventable through reliable communication of the actual 
switch position. This scenario ``occurs when a train crew has exclusive 
authority to occupy a specific track segment until they release it for 
other movements and [yet] that train crew goes off duty without lining 
and locking a hand-operated main track switch in its normal position''. 
70 FR at 61497. It is unfortunate that FRA has to clarify that the 
communication be reliable and accurately reflect the switch position, 
but some accident investigations have revealed employees whose actions 
implied more of an interest in quitting work for the day than taking 
the safe route to verify a switch's position and whether it was 
properly locked. FRA's proposal retains EO 24's emphasis on intra-crew 
communication or intra-roadway worker group communication. See 70 FR at 
61499-50 and Sec.  218.103.
    Perhaps the most controversial aspect of EO 24 is the requirement 
that employees operating hand-operated main track switches in non-
signaled territory complete a Switch Position Awareness Form (SPAF). 
The SPAF requirement is controversial because it creates a paperwork 
burden for employees and railroads. Switches may be lined and locked 
properly, but a violation of EO 24 may occur for merely failing to fill 
out a single component on the form. Critics of the form may not 
appreciate that FRA's intention for requiring a SPAF is to create a 
contemporaneous communication that reminds the employee of the 
importance of properly lining and locking such main track switches.
    In the case of a train crew, the contemporaneous communication 
created by the SPAF is twofold: (1) The SPAF itself is a written 
communication that reminds the employee operating the switch to keep 
track of the switch's position and (2) another crewmember, typically 
the locomotive engineer, serves as a secondary reminder to the employee 
operating the switch because that other crewmember is also required to 
request information as to the switch's alignment. As FRA clarified in 
EO 24's second notice, it is immaterial how crewmembers communicate, 
e.g., whether in-person, by radio, by hand signals, or other effective 
means, as long as the communication takes place. 70 FR 71186 and 71188. 
By requiring both the SPAF and the intra-crew communication, FRA is 
requiring some redundancy, i.e., two communication reminders to 
properly line and lock such switches in the case of a train.
    For purposes of EO 24, the paperwork burden and the redundancy in 
communication created by the introduction of the SPAF was acceptable. 
The very sharp increase in collisions, deaths and injuries resulting 
from improperly lined main track switches required FRA to take decisive 
action. Prior to EO 24, many railroads had already adopted the use of a 
SPAF voluntarily as a best practice suggested in Safety Advisory 2005-
1. However, the inclusion of a SPAF in EO 24 does not bind the agency 
to forever require it; and the proposed rulemaking suggests an 
alternative approach that does not include it.
    FRA decided not to propose requiring a SPAF in this proposed rule 
because the comprehensive communication requirements contained in 
proposed Sec.  218.103, titled ``Hand-operated Switches and Derails'', 
creates a direct enforcement mechanism that makes enforcement through a 
SPAF redundant. For example, the proposal includes a requirement that 
all crewmembers verbally confirm the position of a hand-operated main 
track switch that was operated by any crewmember of that train before 
it leaves the location of the switch. See Sec.  218.103(i)(3)(i). 
Likewise, the proposed rule would require that upon the expiration of 
exclusive track occupancy authority for roadway workers, roadway 
workers who operate hand-operated main track switches report the 
position of any such switches operated to the roadway worker in charge. 
See Sec.  218.103(i)(3)(ii).
    NTSB also ``does not believe that * * * the use of forms [such as a 
SPAF]

[[Page 60378]]

is sufficient to prevent recurrences of accidents such as the one at 
Graniteville.'' NTSB/RAR-05/04 at 45. In support of this position, NTSB 
cites to the example of railroads that require train crews to record 
signal indications as they are encountered en route in order to lessen 
the chance that a traffic control signal will be missed or 
misinterpreted by a crew. Meanwhile, NTSB states that it ``has 
investigated a number of accidents in which such forms, although 
required and used, did not prevent crews from missing signals and 
causing accidents.'' Id.
    Although NTSB does not support the use of a SPAF, it did express 
agreement with the emergency order in two respects. That is, NTSB 
supported EO 24's requirements directing that job briefings be held at 
the completion of work and that a train crewmember who repositions a 
hand-operated main track switch in non-signaled territory communicate 
with the engineer regarding the switch position. In support of this 
position, NTSB explains that ``a comprehensive safety briefing was not 
held before the work at Graniteville [and] [h]ad such a briefing been 
held before and, more importantly, after the work (as required by the 
FRA emergency order), the accident might have been avoided.'' Id. at 
46. As stated previously, FRA proposes to retain these two aspects from 
the emergency order in its rule.
    The EO 24 requirements for employees releasing the limits of a main 
track authority in non-signaled territory to communicate with the train 
dispatcher have, for the most part, carried over to this proposed rule 
and been strengthened. The proposed rule retains the requirement in EO 
24 that an employee releasing the limits of a main track authority in 
non-signaled territory communicate with the train dispatcher that all 
hand-operated main track switches operated have been restored to their 
normal position, unless the train dispatcher directs otherwise, but 
only to the extent that the switches are at the location where the 
limits are being released. 70 FR at 61499 and Sec.  218.103(c)(2). With 
the proposed elimination of a SPAF, it would be difficult for an 
employee to recall the condition of any particular hand-operated main 
track switch operated and there would likely be a reaction for an 
employee to believe he or she left all such switches in proper 
position--without much opportunity to double-check the condition of 
those faraway switches at that time. As mentioned previously, accidents 
often occur where the limits are being released and that is why the 
proposed rule has placed emphasis on addressing the problem prior to 
departing the train's location. The switches located at the point of 
release of the limits should be readily accessible for any employee who 
is unsure of the condition the switch was last left in. The proposed 
rule also adds the requirement that the employee report that the switch 
has been locked; locking of the main track switch should prevent easy 
access to unauthorized users.
    Hand-in-hand with the EO 24 requirement that the employee contact 
the dispatcher to release main track authority in non-signaled 
territory is the corresponding requirement in EO 24 for train 
dispatchers; that is, EO 24 requires that the train dispatcher must 
also confirm the switch positions with the employee releasing the 
limits before clearing the limits of the authority and confirm that the 
SPAF was initialed as required. The proposed rule also requires the 
train dispatcher to verify the switch position information with the 
employee and the requirement for the dispatcher to confirm that the 
switch is locked in the intended position by repeating to the employee 
releasing the limits the report of the switch position and asking 
whether that is correct. The proposed rule also strengthens the current 
requirement in EO 24 by requiring that the employee then confirm this 
information with the train dispatcher.
    FRA would appreciate comments that include descriptions of ``close 
calls'' in which the additional employee/dispatcher communications 
required in EO 24 prevented hand-operated main track switches from 
being left improperly lined or unlocked. Any other comments regarding 
such required communication between employees and dispatchers would be 
appreciated.
    Verification through testing. The third major component of EO 24's 
requirements involves the verification of compliance through testing. 
FRA's regulations, at 49 CFR part 217, require each railroad to 
instruct its employees on the meaning and application of its code of 
operating rules, and to periodically test its employees to determine 
their level of compliance. Compliance with railroad operating rules is 
critical, especially when technology does not provide a fail safe 
option.
    Most railroads have excellent written programs of operational tests 
and inspections, but FRA has identified weaknesses in the oversight and 
implementation of nearly all of these programs. For example, some 
railroad testing officers lack the competency to perform operational 
tests and inspections. Likewise, some railroads do not perform 
operational tests that address the root cause of human factor 
accidents, while others view the requirement as a numbers-generating 
exercise, and consequently conduct relatively few meaningful tests. 
That is, while it may be important that employees come to work with the 
proper equipment (and FRA considers that a basic requirement which, of 
course, must be satisfied), FRA's concern is that not enough 
verification testing is occurring on the operating rules most likely to 
cause accidents, including but not limited to rules addressing handling 
of switches.
    FRA's verification through testing and inspection requirements in 
EO 24 are narrowly focused on those operating rules involving the 
operation of hand-operated main track switches in non-signaled 
territory. The purpose of this narrow focus was to create a special 
obligation for only those types of rules violations that were causing 
the emergency situation. FRA still believes compliance with these types 
of rules should be verified. The proposed rule would replace EO 24's 
requirements and add requirements for verification of testing on a 
broader number of operating rules directly related to the root cause of 
human factor accidents; that is, the proposed rule would require 
testing of all the rules related to proposed part 218, subpart F, not 
just those rules related to hand-operated main track switches in non-
signaled territory.
    The proposed rule would also amend sections 217.4 and 217.9 to 
require competency of railroad testing officers. In FRA's view, it is 
unfathomable that railroad testing officers would be allowed to conduct 
tests and inspections without proper instruction, on-the-job training, 
and some kind of written examination or observation to determine that 
the person is qualified to do the testing; however, Federal regulations 
currently do not require that railroad testing officers be qualified in 
such a manner. Railroads should already be shouldering this burden 
without Federal requirements so we do not view this as a substantial 
burden; instead, we view the qualification of railroad testing officers 
as a necessary expense of operating a railroad.
    Furthermore, railroad officers that test for non-compliance are 
typically the same officers who are in charge of operations. In that 
regard, a railroad officer, who is knowledgeable of Federal 
requirements and the government's enforcement authority over individual 
officers, should be discouraged from ordering an employee to violate 
any operating rule inconsistent with

[[Page 60379]]

proposed part 218, subpart F. In other words, if all railroad testing 
officers on a particular railroad are properly qualified, it will be 
more difficult for railroad officers to accept inconsistency in the 
application of operating rules.
    FRA proposes amending Sec.  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 Sec.  217.9(c)(1). Except for the smallest freight 
railroads, FRA proposes that each railroad conduct one or more reviews 
of operational tests and inspections that should help guide each 
railroad in its implementation of its program. The monthly, quarterly, 
and six-month reviews for freight railroads, as well as the reviews for 
passenger railroads, in proposed Sec.  217.9(e) would formalize a best 
practice from some of the largest and safest railroads nation-wide. The 
proposed reviews are intended to ensure that each railroad is 
conducting tests and inspections directed at the causes of human factor 
train accidents and employee casualties. Each program would be 
specifically required to include appropriate tests and inspections 
addressing the rules dealing with handling of switches, leaving 
equipment in the clear, and protecting the point of the shove. 
Structured tests or observations permit railroads to find employees 
that need additional training or who may benefit from a reminder that 
it is not acceptable to take shortcuts that violate the operating 
rules.
    Furthermore, the proposal to amend the program of operational tests 
and inspections, by emphasizing its purpose to focus on operating rules 
violations that cause accidents, should cut down on the disparity 
between the few instances of non-compliance found by many railroads 
with the many instances of non-compliance found through FRA inspections 
on the same railroads (see discussion in ``Increase In Human Factor 
Caused Accidents and Non-compliance''). While railroads have 
universally done an acceptable job of taking corrective action 
following an accident, railroads have not done as well in consistently 
testing for the variety of operating rules, at a variety of locations, 
and at different times of the day, in order to meet FRA's expectations 
for an effective testing and inspection program. Accidents and 
incidents of non-compliance should be prevented by the proposed 
formalization of the process of verification through testing and FRA's 
proposed ability to inspect each railroad's program of operational 
tests and inspections, as well as its records.
    Finally, FRA emphasizes that it intends to retain an enforcement 
mechanism, as it did in EO 24, because prior reliance on the railroad 
to ensure employee compliance with railroad operating rules without a 
Federal enforcement mechanism has repeatedly proven to be inadequate to 
protect the public and employee safety. Under current regulations, FRA 
has been able to effectively intervene in railroad operating rules 
compliance issues (apart from those already codified as obligations 
under existing regulations) only indirectly, through use of substantial 
resources, and in the case of exceptionally pervasive non-compliance. 
The system of accountability provided for in this proposed rule will, 
by contrast, encourage railroad management to prevent a lessening of 
oversight or decline in compliance by reviewing safety performance in 
detail, assisting individual employees to acquire habits of work that 
are consistent with safety by permitting them to challenge directions 
that could cause them to cut corners, and permitting individual FRA 
inspectors to more persuasively seek corrective action early in the 
process of deteriorating rules compliance.
    While FRA intends to retain an enforcement mechanism, there may be 
instances where an employee realizes that he or she violated an 
operating rule but is afraid of the consequences of reporting the 
error--even when such reporting would have the potential to prevent an 
accident or injury to other workers or innocent bystanders. NTSB 
addressed this point in its report on the Graniteville accident when it 
stated that a ``significant civil penalty may have an unintended impact 
on safety under some circumstances. That is, an employee who, after 
leaving a work site, realizes that a switch has been left improperly 
lined may be made more reluctant than in the past to immediately report 
the error to train dispatchers. The threat of the severe fine may 
prompt the employee to attempt a remedy (such as returning later to 
reline the switch) before the mistake can become known. As happened in 
the September 2005 fatal collision in Shepherd, Texas, such action on 
the part of the employee could contribute to an accident that might 
otherwise have been avoidable.'' NTSB/RAR-05/04 at 46. As FRA would 
certainly not want a regulation to discourage an employee from 
reporting or correcting a potentially hazardous situation, we would 
appreciate any suggestions for processes which could avoid a 
disincentive to report unsafe conditions. One concept FRA is 
considering for the final rule is to require each railroad to have a 
reporting program whereby FRA would agree not to use reports submitted 
to the railroad under the safety self-reporting program (or information 
derived therefrom) in any enforcement action except information 
concerning accidents or criminal offenses which are wholly excluded 
from the program. This concept is in use by the Federal Aviation 
Administration (FAA) for providing relief from penalties for pilots who 
report unsafe actions or conditions through the Aviation Safety Action 
Program, described in Advisory Circular 120-66B, and the Aviation 
Safety Reporting Program described in Advisory Circular 00-46D--
Aviation Safety Reporting Program and referred to in 14 CFR 91.25. FRA 
would like comment on whether programs similar to the two FAA programs 
could be adopted by FRA to avoid adverse incentives.

III. Remote Control Operations

A. Background

    Remote control devices have been used to operate locomotives at 
various locations in the United States for many years, primarily within 
certain industrial sites. Railroads in Canada have made extensive use 
of remote control locomotives for more than a decade. FRA began 
investigating remote control operations in 1994 and held its first 
public hearing on the subject in February 1995 to gather information 
and examine the safety issues relating to this new technology. On July 
19, 2000, FRA held a technical conference in which all interested 
parties, including rail unions, remote control systems suppliers, and 
railroad industry representatives, shared their views and described 
their experiences with remote control operations. This meeting was 
extremely beneficial to FRA in developing its subsequent Safety 
Advisory.
    On February 14, 2001, the FRA published recommended guidelines for 
conducting remote control locomotive operations. See 66 FR 10340, 
Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing 
these recommendations, FRA sought to identify a set of ``best 
practices'' to guide the rail industry when implementing this 
technology. As this is an emerging technology, FRA believes this 
approach serves the railroad industry by providing flexibility to both 
manufacturers designing the equipment and to railroads in their 
different operations, while reinforcing the importance of complying 
with all existing railroad safety regulations. All

[[Page 60380]]

of the major railroads have adopted these recommendations, with only 
slight modifications to suit their individual requirements.
    Regarding the enforcement of Federal regulations as they apply to 
remote control locomotive operations, the Safety Advisory explains 
that: ``although compliance with this Safety Advisory is voluntary, 
nothing in this Safety Advisory is meant to relieve a railroad from 
compliance with all existing railroad safety regulations [and] 
[t]herefore, when procedures required by regulation are cited in this 
Safety Advisory, compliance is mandatory''. Id. at 10343. For example, 
the Safety Advisory clearly states that ``each person operating an RCL 
[remote control locomotive] must be certified and qualified in 
accordance with 49 CFR part 240 [FRA's locomotive engineer rule] if 
conventional operation of a locomotive under the same circumstances 
would require certification under that regulation''. Id. at 10344.
    In November 2001, all six major railroads submitted to FRA their 
training programs for remote control operators as required by part 240. 
Since that initial filing, several railroads have made changes to their 
remote control training programs at FRA's request. FRA is closely 
monitoring this training and making additional suggestions for 
improvement on individual railroads as they become necessary. These 
training programs currently require a minimum of two weeks classroom 
and hands-on training for railroad workers who were previously 
qualified on the railroad's operating and safety rules. Federal 
regulations require that locomotive engineers be trained and certified 
to perform the most demanding type of service they will be called upon 
to perform. Thus, a remote control operator who will only be called 
upon to perform switching duties using a remote control locomotive 
would not need to be trained to operate a locomotive on main track from 
the control stand of the cab.
    In addition to the required training, the regulations require 
railroads to conduct skills performance testing of remote control 
operators that is comparable to the testing required of any other 
locomotive engineer performing the same type of work. Federal 
regulations also hold remote control operators responsible for 
compliance with the same types of railroad operating rules and 
practices that other locomotive engineers are required to comply with 
in order to retain certification. See 49 CFR 240.117. Any alleged non-
compliance triggers an investigation and review process. If a violation 
is found, the remote control operator will be prohibited from operating 
a locomotive on any railroad in the United States for a minimum of 15 
days to a maximum of three years. The length of the prohibition (or 
revocation of the certificate) depends on whether the person was found 
to have committed other violations within the previous three years and 
whether the railroad, using its discretion, determined that the person 
had completed any necessary remedial training.
    Furthermore, FRA addressed the current Federal locomotive 
inspection requirements and the application of those requirements to 
remote control locomotive technology. For example, the Safety Advisory 
states that the remote control locomotive ``system must be included as 
part of the calendar day inspection required by 49 CFR 229.21, since 
this equipment becomes an appurtenance to the locomotive''. Id. at 
10344 (emphasis added). Another example of a mandatory requirement 
mentioned in the Safety Advisory is that the remote control locomotive 
``system components that interface with the mechanical devices of the 
locomotive, e.g., air pressure monitoring devices, pressure switches, 
speed sensors, etc., should be inspected and calibrated as often as 
necessary, but not less than the locomotive's periodic (92-day) 
inspection''. Id. (emphasis added); see 49 CFR 229.23. Thus, the Safety 
Advisory reiterated that existing Federal regulations require 
inspection of the remote control locomotive equipment.
    Although some aspects of this proposed rule pertains to main track 
operations where remote control locomotive operations rarely occur, 
most of the problems this proposal is intended to address are found 
equally in conventional and remote control locomotive yard switching 
operations. As FRA reported to Congress earlier this year, ``RCL [i.e., 
remote control locomotive] and conventional train accident rates were 
virtually identical for those major railroads that made extensive use 
of both types of operations''. ``Final Report--Safety of Remote Control 
Locomotive Operations'' (``Final Report'') (March 2006) (published on 
FRA's Web site at http://www.fra.dot.gov/). The current remote control 

locomotive technology is best used for yard switching operations and is 
primarily used for that purpose. See Final Report at 15-17.
    The proposed rule would continue FRA's policy of implementing 
minimum requirements for safe remote control locomotive operations 
within the confines of railroad operating rules having broad 
applicability. As previously explained, FRA has found existing rules 
adequate to accommodate safe remote control locomotive operations 
without the need to draft a rule narrowly focused on remote control 
locomotive operations. See Docket No. FRA-2000-8422 (found at http://dms.dot.gov/
) ( denying a request for initiation of a rulemaking to 

solely address remote control locomotive issues). That said, after 
identifying certain characteristics of remote control locomotive 
shoving or pushing operations, FRA is proposing one requirement that 
pertains to remote control locomotive operations; that requirement 
addresses the problem of lack of situational awareness. See Sec.  
218.99(c). FRA also recognizes the relatively new use of permanently 
installed cameras in yards or at grade crossings which permit an 
employee to provide point protection without being physically present. 
Although it is possible for this technology to be used in conventional 
operations, e.g., by a yardmaster for a train crew, we believe it is 
more often used for remote control locomotive operations. See Sec.  
218.99(b)(2). The following background on these two issues should 
illuminate them further.

B. Situational Awareness

    In FRA's recent report to Congress, the agency identified the 
potential for a reduction in a remote control operator's situational 
awareness as one of four human factor issues that warrant close 
attention as remote control locomotive technology continues to evolve. 
See Final Report at 24-26. A locomotive engineer, including a remote 
control operator, who is located in the cab of a controlling locomotive 
has a greater situational awareness than a remote control operator 
located on the ground. A remote control operator located on the ground 
may also be more easily distracted by conflicting movements or other 
physical dangers caused by continuously moving about the yard than a 
person located in a locomotive cab. Also, a remote control operator on 
the ground may forget, or may not know, the locomotive orientation 
(i.e., the particular direction the remote control locomotive is 
heading) due to his or her location away from the remote control 
locomotive, and thus may initiate a movement in the wrong direction. 
Similarly, a defective or misaligned switch could cause a movement to 
diverge onto a connecting track unintentionally and go unnoticed if the 
remote control crewmembers are not observing the direction of

[[Page 60381]]

movement. Apparently, the latter is what happened on December 7, 2003, 
on the Union Pacific Railroad in San Antonio, Texas, when a remote 
control locomotive operator, while switching, was struck and killed by 
his locomotive at the west end of UP's East yard. The employee had 
reversed one end of a crossover switch and was walking toward the other 
end of the crossover switch to line it when he was struck from behind 
by the remote control locomotive. The employee had started the remote 
control locomotive moving as he was walking toward the other end of the 
crossover. See Final Report at 90. This move was initiated after the 
employee pushed a button to realign a power-assisted switch, but likely 
did not wait at the switch machine to confirm visually that the points 
had moved to the correct position. NTSB/RAB-06/02 at 9. In addition to 
lack of adequate railroad oversight of the misaligned power-assisted 
switch, NTSB concluded that the probable cause of this accident was the 
employee's ``inattentiveness to the location of the locomotives and the 
switch position''. NTSB/RAB-06/02 at 11. Certainly, this 
inattentiveness is another way to describe a lack of situational 
awareness.
    As many railroads were not eager to invest in remote control 
technology until after FRA issued its Safety Advisory 2001-01, there is 
limited data and few studies completed detailing the safety 
implications of remote control operations; however, among the few 
studies that have been completed, situational awareness has arisen as a 
recurring theme. For example, in a study funded by FRA, an 
independently conducted root cause analysis of six remote control 
locomotive-involved accidents/incidents that occurred in 2006, found 
that the loss of situational awareness was a major factor in five of 
the accidents/incidents analyzed. Human Factors Root Cause Analysis of 
Accidents/Incidents Involving Remote Control Locomotive Operations (May 
2006) (DOT/FRA/ORD-06/05) (published on FRA's Web site at http://www.fra.dot.gov/downloads/Research/ord0605.pdf
). Further analysis 

suggests that remote control locomotive technology facilitated this 
loss of awareness in four of these five accidents/incidents by enabling 
remote control operators to control their cuts of cars away (i.e., 
remotely) from the point of movement. Additionally, four probable 
contributing factors were related to one or more remote control 
operator's control of a movement from a physical location away from the 
remote control locomotive and/or cut of cars. Consequently, the 
independent contractor who performed the root cause analysis identified 
the loss of remote control operator situational awareness as one of 
only four critical safety issues identified. See Final Report at 85-90.
    FRA also sponsored the same independent contractor to undertake a 
study based on focus group sessions with remote control operators. 
These sessions provided a forum to gather information about operator 
experiences with remote control locomotive operations, to identify 
safety issues, lessons learned, and best practices from those who are 
most familiar with remote control locomotive operations and equipment. 
Focus groups also provided a means to solicit suggestions on how to 
improve remote control locomotive operations. One of the themes 
identified was that situational awareness can be lost when the remote 
control operator is not in the immediate vicinity of the remote control 
locomotive. Among the recommended practices from the focus groups were 
the suggestions to standardize operating practices and to require 
remote control operators to protect the point at all times. See Final 
Report at 79-85.
    The Brotherhood of Locomotive Engineers and Trainmen (BLET) 
sponsored a study by Dr. Frederick C. Gamst, a private consultant 
specializing in railroading, and Mr. George A. Gavalla, a private 
consultant and former FRA Associate Administrator for Safety. ``Hazard 
Survey of Remote Control Locomotive Operations on the General System of 
Railroads in the United States'' (``BLET Study'') (The BLET Study is 
available in the docket for this NPRM). The BLET Study is based on 
anecdotal information supplied by railroad workers and officers who 
voluntarily self-reported their thoughts and experiences concerning 
their interactions with remote control operations. All of the self-
reporting was done in writing and mainly via the Internet in its 
various forms of communication (i.e., e-mails, bulletin-boards, weblog, 
etc.). The study catalogues the myriad experiences, complaints, and 
ideas that were recorded by Dr. Gamst over three years beginning in 
January 2002. The anecdotal information collected by Dr. Gamst reflects 
the same general themes identified in the focus group study sponsored 
by FRA and described in the preceding paragraph. As in FRA's sponsored 
focus group study, the information Dr. Gamst collected is not 
statistically sampled to be representative of all remote control 
operators in the U.S. or Canada. While the main drawback to these types 
of studies is that the researchers do not attempt to validate any 
statements made by employees, as participation is often premised on the 
condition that employees remain anonymous, the collection of individual 
opinions and perceptions taken as a whole are useful in identifying 
problems associated with remote control operations. Like the FRA's 
sponsored studies, the BLET's sponsored study also identified perceived 
problems associated with a remote control crew not observing the 
direction of movement. Specifically, the BLET study raised the issue as 
the reason why a remote control operator might keep shoving or pulling 
after a movement derailed or collided with an obstruction. Id. at 60-
62.

C. Technology Aided Point Protection

    Although railroading is now one of the nation's older forms of 
mechanized transportation, equipment, components and operations all 
have evolved through new and improved technologies. Installing cameras 
in yards so that a location could be remotely monitored from somewhere 
else has become a railroading reality as cameras have become smaller, 
less expensive, and have increased resolution. It is possible to set up 
these cameras and monitors so that they provide at least an equivalent 
level of safety to that of an employee protecting the point. The 
proposed rule would permit such an operation to substitute for an 
employee's direct visual determination where the technology provides an 
equivalent level of protection to that of a direct visual 
determination. See Sec.  218.99(b)(2)(i).
    The substitution of such technology for a direct visual 
determination is dependent on many factors. Each particular situation 
will have its own particular factual circumstances that must be 
considered in determining whether an equivalent level of safety can be 
met. For instance, with regard to the basic camera set-up, a railroad 
will need to consider whether an operator must see in color (largely a 
necessity if viewing signals), the width of the angle of view, the size 
and location of the monitor, whether the technology is for day-time use 
only, and whether its use should be limited to fair weather conditions. 
However, under all circumstances, the monitor must display sufficient 
information to enable the viewer to make a determination that the track 
ahead of the move is clear and properly lined.
    There is also the consideration of whether the person viewing the 
monitor is the locomotive engineer, remote control operator, other 
crewmember or

[[Page 60382]]

other person, such as a yardmaster. If the monitor is not being viewed 
by the operator who is controlling the movement, then, there must be a 
clear understanding and channel of communication between the operator 
and the employee who is viewing the monitor--as the latter would be 
protecting the movement. Providing an equivalent level of protection to 
that of a direct visual determination requires a thorough job briefing 
in which there is an understanding of who is observing the movement, 
what is the observer's range of vision, at what locomotive speed can 
the observation be made and how information will be conveyed to the 
operator/engineer, if that person is not the one viewing the monitor. 
These camera/monitor set-ups will require railroads to implement 
attendant procedures and qualify each employee who will be utilizing 
the technology. These issues are further developed in the section-by-
section analysis for Sec.  218.99(b)(2)(i).
    The issue of reliance on non-crewmembers to carry out some remote 
control locomotive operator crew functions was raised in the focus 
group study sponsored by FRA and summarized in the Final Report. The 
remote control operators that made up the focus groups had indicated 
that there were occasions in which a non-crewmember, generally a 
yardmaster, would provide point protection, line switches, or check the 
status of a derail for a remote control crew. When this was allowed, 
several potential problems could result. First, there is great 
potential for an error in communication or a misunderstanding between 
the non-crewmember and the crewmembers regarding the activity or status 
of equipment. Further, a yardmaster who is occupied with his or her 
other responsibilities might not give the task the attention it 
deserves, or could be distracted and give an incorrect answer to a 
question by a remote control crewmember (e.g., ``is the move lined?''). 
The result could be that the task does not get completed or there is an 
error in task execution. Further, the remote control crew might not 
have any alternative way of determining that there is a problem with 
the point protection provided by the non-crewmember until it is too 
late. See Final Report at 82. Similar issues were raised in the BLET 
Study. BLET Study at 44.
    In FRA's Final Report, the agency addressed the issue of utilizing 
remote cameras for remote control locomotive operations to protect the 
point at highway-rail grade crossings in lieu of direct visual 
determinations. See Final Report at 13-15. Railroad operating rules 
currently permit a movement to travel over a crossing without the 
physical presence of a crewmember if a crossing is equipped with gates, 
if it can be determined that the gates are in the fully lowered 
position, and if the crossing is clear of vehicles and pedestrians. One 
major railroad has begun using a remote camera system at several 
crossings to make the required determinations. The railroad believes 
that crossing protection rules can be observed using this system. The 
conditions FRA presented in its report to Congress are repeated here as 
FRA would appreciate comments addressing whether these conditions 
should remain permissive or should be made mandatory.
    FRA believes the use of remote camera protection at highway-rail 
grade crossings offers an equivalent means of safety provided the 
following recommendations are adopted:
    1. Before camera-assisted remote control locomotive operations are 
permitted at highway-rail grade crossings, a Crossing Diagnostic Team 
should evaluate the crossing. The diagnostic team should have 
representatives from the railroad, FRA, the State department of 
transportation (or another State agency having jurisdiction over the 
highway-rail grade crossing), and local government authorities. The 
diagnostic team should evaluate the suitability of each crossing for 
remote camera operations. Among the factors it should consider are the 
following: the average daily traffic counts; the number of highway 
lanes; highway speed limits; the number of railroad tracks; the volume 
of school bus, transit bus, emergency vehicle, large truck, and 
hazardous materials traffic over the crossing; the minimum remote 
control locomotive operator sight distances of roadway approaches to 
the crossing; and other relevant factors that could affect the safety 
of the crossing. The diagnostic team should also consider the 
appropriate number of cameras and appropriate camera angles needed to 
provide for the remote operation of remote control locomotives over the 
crossing.
    2. Remote cameras should only be used at crossings equipped with 
warning lights, gates, and constant warning and motion sensor devices.
    3. The cameras should be arranged to give the remote control 
locomotive operator a view of the rail approaches to the crossing from 
each direction to accurately judge the locomotive's proximity to the 
crossing.
    4. The cameras should be arranged to give the remote control 
locomotive operator a clear view to determine the speed and driver 
behavior (e.g., driving erratically) of any approaching motor vehicles.
    5. Either the camera resolution should be sufficient to determine 
whether the flashing lights and gates are working as intended or the 
crossing should be equipped with a remote health monitoring system that 
is capable of notifying the remote control locomotive operators 
immediately if the flashing lights and gates are not working as 
intended.
    6. The railroad should notify local FRA offices when this type of 
protection has been installed and activated at a crossing to ensure 
that FRA grade crossing specialists and signal inspectors can monitor 
these operations.
Final Report at 14-15
    It is possible that not all of the above recommendations would be 
necessary at highway-rail grade crossings equipped with supplemental 
safety devices that prevent motorists from driving around lowered 
gates. A diagnostic team, however, should make such determinations. FRA 
also recognizes that camera-assisted remote operation of remote control 
locomotives may not be a viable alternative at all highway-rail grade 
crossings.

IV. Section-by-Section Analysis

PART 217--[AMENDED]

Section 217.2 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. Exceptions would be rare. In general, 49 U.S.C. 
20106 will preempt any State law--whether statutory or common law--and 
any State regulation, rule, or order, that concerns the same subject 
matter as the regulations in this rule.
Section 217.4 Definitions
    FRA proposes to add a definition of Associate Administrator for 
Safety to this section that is consistent with other definitions of 
this term in this chapter.

[[Page 60383]]

The purpose of including this definition is to identify a proposed 
official who would have the authority to require amendments to programs 
of operational tests and inspections.
    FRA proposes to add a definition of qualified to this section. The 
need for this definition arose from the proposed new requirements for 
railroad testing officers in Sec.  217.9. As further explained in the 
analysis for that section, it is not acceptable for a railroad testing 
officer to be monitoring or instructing employees without being 
instructed, trained and examined, i.e., qualified, on the railroad's 
operating rules and the tests the officer is expected to perform; thus, 
FRA proposes to require such qualification. It is proposed that a 
person cannot be qualified unless he or she has successfully completed 
all ``instruction, training and examination'' programs required by both 
the railroad and this part.
    The definition is modeled after the definition used in Sec.  240.7 
in this chapter and should have the same meaning despite some slight 
differences. The phrase ``training and testing'' has been replaced by 
``instruction, training and examination'' to more thoroughly reflect 
the educational aspects of the requirements for a qualified person. The 
proposed definition does not contain the word ``appropriate'' prior to 
the educational aspects so as to emphasize that the educational aspects 
of qualifying a person are mandatory, not discretionary. A word choice 
was made to substitute the term ``successfully completed'' for the word 
``passed''. The definition proposed for part 217 is the same definition 
proposed for part 218, subpart F.
Section 217.9 Program of Operational Tests and Inspections; 
Recordkeeping
    FRA is amending and adding paragraphs to this section. Although not 
every existing paragraph is being amended, FRA is reprinting the entire 
section to make it easier for readers to follow.
    FRA is proposing an amendment to paragraph (a) which would clarify 
that the requirement to conduct operational tests and inspections 
specifically include tests and inspections sufficient to verify 
compliance with the requirements of subpart F of part 218 of this 
chapter. In this NPRM, FRA has identified certain operating rules with 
which non-compliance has led to an increase in human factor caused 
accidents. Proposed subpart F of part 218 requires that each railroad 
have in effect certain operating rules and that each railroad officer, 
supervisor and employee uphold and comply with those rules. As the 
operating rules identified in proposed subpart F of part 218 are 
designed to address the most frequently caused human factor accidents, 
FRA's proposed amendment to paragraph (a) addresses that railroads will 
specifically need to test and inspect for these proposed requirements 
in order to be in compliance with this section. The program's increased 
focus on human factor caused accident prevention should direct 
awareness to the related operating rules and correlate with a decrease 
in such accidents.
    Paragraph (b) would be added to this section to establish new 
responsibilities for both railroads and those officers on the railroads 
who conduct operational tests and inspections, i.e., railroad testing 
officers. FRA inspections and investigations have revealed railroad 
testing officers who lack the fundamental knowledge to perform adequate 
tests and inspections. In order for these officers to be able to do a 
proper job, they must know the railroad's operating rules, how the 
tests they will conduct fit into the railroad's testing program, and 
how to conduct a proper test. Experience helps and field training can 
substitute for the lack of experience if needed to achieve proficiency. 
Of course, not every railroad testing officer has experience conducting 
every type of test, or needs to; however, a railroad testing officer 
should not be conducting a test on a rule the officer is unfamiliar 
with or without having been trained on how to conduct a proper test for 
the rule to be tested. A test that is incompetently executed should not 
count towards compliance with a railroad's program of operational tests 
and inspections. Finally, this paragraph requires written records 
documenting that each railroad testing officer was properly qualified 
and that such records be made available to FRA upon request.
    FRA proposes to move current paragraph (b) to (c), add two new 
requirements and make a few minor amendments to remove obsolete dates. 
Regarding the two new requirements, FRA proposes a scheme that will 
require each railroad, to which this part applies, to amend the 
existing program of operational tests and inspections with the intended 
purpose of requiring railroads to do a better job of focusing their 
tests and inspections on those types of operating rules that either 
cause the most human factor caused accidents nation-wide or are 
identified as problematic on the particular railroad's division or 
system. At a minimum, FRA expects railroads to test and inspect for 
those operating rules identified as problematic in the quarterly or six 
month reviews, i.e., those operating rules violations that have 
recently caused accidents or incidents on the division or system-wide. 
We also expect railroads to regularly spot-check for compliance with 
those operating rules that lead to accidents and incidents nation-wide, 
even if the railroad has not specifically encountered any recent 
incidents. As mentioned in the SUPPLEMENTARY INFORMATION section under 
``Development of the NPRM'', the verification through testing process 
does not always work well because during some periods of disruption 
related to organizational or personnel changes, some railroads do not 
perform operational tests that address the root cause of human factor 
accidents. At worst, administration of the program may be reduced to a 
numbers-generating exercise, and consequently on portions of the 
railroad officers may conduct relatively few meaningful tests. Clearly, 
FRA intends for the program of operational tests and inspections to be 
meaningful and the proposed amendments are intended to forcefully move 
lagging railroads to produce more meaningful tests and inspections.
    Proposed paragraph (c)(1) would require that not only shall 
railroads ``provide for operational testing and inspection under the 
various operating conditions on the railroad'', as is currently 
required, but that such tests and inspections place ``particular 
emphasis on those operating rules that cause or are likely to cause the 
most accidents or incidents, such as those accidents or incidents 
identified in the quarterly reviews, six month reviews, and the annual 
summaries as required under paragraphs (e) and (f), as applicable''. 
Thus, if the proposal were finalized, FRA would expect that each 
railroad would conduct a significant number of tests and inspections 
directed at addressing localized problems with compliance, such as 
those identified on a division, problems identified on a system-wide 
basis, and leading causes of human factor caused accidents nation-wide, 
such as those identified through this proposed rule.
    In order to gain some specificity in each railroad's program, 
paragraph (c)(1) also proposes ``a minimum number of tests per year 
that cover the requirements of part 218, subpart F of this chapter''. 
FRA is reluctant to state a percentage or specific number per number of 
employee work hours as each railroad may have particular operating 
rules it wishes to emphasize to a greater degree than the next; 
however, the objective in including this language is to encourage 
sufficient testing in these critical areas to verify good compliance

[[Page 60384]]

by railroad operating employees and to help establish the expectation 
that there will be compliance with those rules. FRA would be critical 
of a program that placed the majority of its emphasis on enforcing 
operating rules that are not leading causes of accidents/incidents. The 
proposed requirement for a specific minimum number of such tests per 
year follows from such a requirement imposed in EO 24, albeit EO 24 
covered a smaller subset of the operating rules FRA is proposing to 
cover in part 218, subpart F.
    Paragraph (c)(5) proposes a new requirement that the program show 
the railroad's designation of an officer to manage the program at each 
level of responsibility (division or system, as applicable). The 
officer may be designated either by name or job title, as long as the 
designation clearly identifies a responsible person that FRA can 
contact in case FRA wishes to audit the program. It is proposed that 
the officer should also have oversight responsibility to ensure that 
the program is being implemented properly across each division and 
system-wide. FRA's expectation is that this officer will at least 
manage the program to ensure that the overall direction of the program 
is sound. This designated officer would be expected to take an active 
role in ensuring that divisions and the entire system are meeting 
program requirements and ordering changes when expectations are not 
met. To the degree that a system-level officer can identify a division 
or a specific railroad testing officer that is failing to appropriately 
direct efforts, the designated officer would be expected to take 
corrective action. The designated officer should be making adjustments 
to the implementation of the program based on any reviews that might be 
required in proposed paragraph (e), as well as the annual summary 
produced in accordance with current paragraph (d), which is now 
proposed paragraph (f).
    Additionally, current paragraph (b), which is proposed paragraph 
(c), would be amended by removing all references to ``[o]n or after 
November 21, 1994'' as this date is now obsolete. Current paragraph 
(b)(6) would be moved to proposed paragraph (c)(7) without any 
amendments. Current paragraph (c) would be moved to paragraph (d) but 
without any revisions to the text.
    Proposed paragraph (e) would add requirements for periodic reviews 
for any railroad with at least 400,000 total employee work hours 
annually. FRA has decided to exclude freight railroads that have less 
than 400,000 total employee work hours annually because only 135 
smaller railroads that meet this criterion reported any human factor 
caused rail accidents, and of those 135 that reported such accidents, 
only 20 railroads reported five (5) or more human factor caused rail 
accidents during the years 2002 through 2005. During this four year 
period, these 135 smaller railroads experienced 334 human factor caused 
rail accidents amounting to 7 percent of all human factor caused rail 
accidents. It should also be considered that there are almost 600 
smaller railroads that fit this criterion and yet only 135 reported any 
human factor caused rail accidents at all. On that basis, FRA proposes 
excepting the smallest railroads, based on the less than 400,000 
employee work hours threshold, from the monthly and quarterly reviews. 
Of course, if FRA accumulates evidence to suggest that railroads with 
less than 400,000 employee work hours are experiencing a significant 
number of human factor caused accidents, FRA will reconsider its 
position.
    Similarly, Amtrak and the railroads providing commuter service in a 
metropolitan or suburban area also experience a relatively low number 
of human factor caused rail accidents compared to the freight railroads 
with greater than 400,000 employee work hours annually. During the 
years 2002-2004, Amtrak and the commuter railroads experienced a total 
of 270 accidents attributed to human factor causes. At a meeting held 
with members of the American Public Transportation Association (APTA) 
on April 27, 2006, (notes of this meeting are in the docket of this 
proceeding) APTA explained that many of its member railroads do not 
keep accident/incident data and/or operational testing data 
electronically and, thus, conducting periodic reviews greater than 
annually would create a substantial burden for those railroads that 
couldn't simply run a report from a computer. In addition, APTA members 
reminded FRA that a commuter railroad's budget is dependant on the 
generosity of local and State governments, which may not want to 
upgrade computers and software which would permit quicker and more 
efficient accident/incident reviews. Passenger railroads are generally 
more stable in their organizations and experience greater continuity 
with respect to staffing at the line officer level (where many problems 
often develop).
    With regard to six month reviews, however, there is a definite 
benefit for Amtrak and the commuter railroads to conduct a thorough 
system level review to achieve some degree of accountability. 
Meaningful reviews should help drive proper implementation of the 
program of operational tests and inspections--thus driving down the 
number of accidents/incidents attributable to human factors. However, 
we would appreciate comments directed toward perceived weaknesses in 
this proposed rule and any alternatives for achieving similar 
accountability. The APTA delegation also raised the issue of time 
required for implementation; and FRA requests comment on that issue in 
light of the consolidated six month review proposed. FRA is not 
inclined to except even the smallest commuter railroads from the 
requirement that reviews be conducted, because in FRA's experience no 
railroad is free from the risk that good discipline will erode over 
time, and the consequences of a passenger train accident can be very 
serious indeed.
    For the major freight railroads, the proposed monthly review and 
quarterly review would be developed and conducted at the division level 
unless no division headquarters, or its equivalent, exists. Most larger 
railroads have created division headquarters (see existing definition 
in Sec.  217.4 of this part) to manage portions of the railroad and, 
certainly, railroads that have divisions do so because it is more 
efficient. That is, it is easier for an officer at a division 
headquarters to know what safety issues are problematic in his or her 
division than an officer of a large railroad at the system level.
    In paragraph (e)(1)(i), a monthly review is proposed for each 
division or system depending on whether the freight railroad is large 
enough to maintain divisions. The proposed monthly review is not 
expected to be an onerous task. It is merely a quick written tally of 
the number of tests performed by each railroad testing officer, 
including the railroad operating rules tested for, and a determination 
made whether the monthly tally shows adherence to the written program 
of operational tests and inspections. When monthly reviews reveal non-
compliance with the program, FRA expects railroads to take corrective 
action to regain compliance. The designated railroad officer in 
paragraph (c)(5) may or may not be the officer who performs the monthly 
review, but this designated railroad officer would be required to 
ensure that the monthly review is properly completed.
    The quarterly review proposed for freight railroads in paragraph 
(e)(1)(ii) is expected to be considerably more comprehensive than the 
proposed monthly review. It should include all the information 
collected in the

[[Page 60385]]

monthly reviews as well as the types of information specified in the 
paragraph, i.e., ``review of the [railroad's] accident/incident data, 
the results of prior operational tests and inspections, and other 
pertinent safety data for that division or system to identify the 
relevant operating rules related to those accidents/incidents that 
occurred during the quarter''. The focus of the quarterly review is to 
identify those operating rules which pose the greatest risk of being 
violated--which should then be targeted for regular tests and 
inspections. That is why FRA proposes that based upon the results of 
the quarterly review, the designated officer shall make any necessary 
adjustments to the tests and inspections required of railroad officers 
for the subsequent period. The proposed quarterly review must be in 
writing and include the data upon which any conclusions are based.
    FRA expects that in order to conduct a meaningful quarterly review, 
each railroad will review accident/incident data, operational test 
data, and other pertinent data. For example, a railroad should identify 
the relevant facts for each category of data. The relevant facts are 
usually covered if a railroad can answer the questions signifying who, 
what, where, when, why, and how often. For accident/incident data, 
these questions would involve identifying all the employees involved in 
the accident/incident, a description of the accident/incident, the 
location where it occurred, the time it occurred, the root cause and 
any secondary causes, and whether the division or system has suffered 
this type of accident/incident often, sometimes or never. For 
operational test data, the issues include identifying the railroad 
testing officer(s) responsible for the particular location, whether the 
testing officers are testing for the operating rules responsible for 
any recent accidents/incidents, whether the testing officers conducted 
any tests where any recent accidents/incidents occurred, whether the 
testing officers are testing during the hours of highest incident 
rates, whether any railroad officers are briefing the employees as to 
the root or secondary causes and the fact that the railroad will be 
testing for compliance, and how often the officers are conducting any 
follow-up testing and job briefings.
    FRA believes there are at least five other types of pertinent 
safety data that should be included in a proper quarterly review. One, 
if FRA has conducted any recent inspections, the railroad should check 
whether its officers' tests reflect FRA's findings. Two, if an employee 
is involved in an accident/incident, the employee's safety record may 
provide insight. Three, the railroad should determine if there is any 
correlation between the training or experience of the local railroad 
testing officers and the locations where accidents/incidents have 
occurred. Four, a railroad should similarly consider the extent to 
which employee experience plays a part in any given accident/incident. 
Fifth, a railroad's review should consider whether any operational 
conditions have recently changed that increased the likelihood of 
either non-compliance with the operating rules or accidents/incidents. 
Special attention to all these details in the quarterly or six month 
review, as applicable, should lead a railroad to meaningful application 
of its written program of operational tests and inspections with a 
greater potential for driving down the frequency and severity of 
accidents/incidents.
    Although it would be best if quarterly reviews were completed 
immediately following the end of each quarter, FRA proposes that 30 
days should be a sufficient period in which to require its completion. 
FRA originally considered requiring the quarterly review in half that 
time but railroads participating at a Railroad Operating Rules Working 
Group meeting suggested that additional time would be needed for those 
railroads that do not maintain their safety data electronically. For 
those railroads that keep records electronically, FRA expects quarterly 
reviews to take place contemporaneously with the conclusion of the 
quarter--although the proposed requirement will be a generous 30 days 
post-quarter. Regardless of how long it takes to complete the quarterly 
review, each division or system should be prepared to redirect its 
railroad testing officers in order to appropriately react to any 
accidents/incidents of non-compliance during the previous quarter. Even 
where a division or system has had a particularly safe quarter, 
railroad testing officers should be instructed to adjust the way in 
which they are conducting their tests so that employees cannot easily 
anticipate the types of tests to be conducted, nor the dates and 
locations of such tests.
    In proposed paragraph (e)(1)(iii) and (e)(2), six month reviews are 
only proposed for each Class I railroad, the National Railroad 
Passenger Corporation (commonly known as ``Amtrak''), and each railroad 
providing commuter service in a metropolitan or suburban area. The 
basis for the proposal is that the identified freight railroads are so 
large that each would benefit from an officer, likely at the system 
headquarters, who is identifiable by name or job title, who will 
oversee whether each division, line or segment is complying with the 
program of operational tests and inspections. It is expected that such 
an officer would have the authority to intervene in division, line or 
segment operations to the extent that this officer could order changes 
to the way divisions are implementing the program. The purpose for such 
intervention would be to require certain types of operational tests or 
inspections based on observations made system-wide that may not be 
apparent to each designated division officer armed only with data from 
his or her own division.
    In the case of Amtrak and the commuter railroads, the requirements 
in paragraph (e)(2), demand reviews equivalent to those for the freight 
railroads in paragraph (e)(1), but require all the reviews to take 
place at least every six months. Of course, these are proposed minimum 
requirements and passenger railroads are free to initiate more frequent 
reviews. For example, proposed paragraph (e)(2)(i) describes a review 
that is equivalent to the proposed review for freight railroads on a 
monthly basis and certainly passenger railroads may perform that review 
on a monthly basis as well. Proposed paragraph (e)(2)(ii) describes a 
review that is equivalent to the proposed review for freight railroads 
on a quarterly basis, yet, again, passenger railroads would be required 
to perform that review at least every six months. Proposed paragraph 
(e)(2)(iii) describes a review that is to be completed at least once 
every six months and is the equivalent of the six month review proposed 
for freight railroads. As it is proposed that the passenger railroads 
conduct the same reviews as the freight railroad with the exception of 
the timing of those reviews, the prior section-by-section analysis 
description for each review is applicable here.
    Because FRA needs to be assured that each railroad is complying 
with any required reviews, the proposal requires that the reviews be 
retained for one year after the end of the calendar year to which they 
relate and shall be made available to FRA upon request. FRA's proposal 
also encourages railroads to store these records electronically as long 
as they can be produced upon request.
    FRA questions whether current paragraph (d), which we propose to 
move to paragraph (f), would add any additional benefit given the 
proposed new requirements. That is, FRA would expect that the quarterly 
and six month reviews proposed in paragraph (e) would require greater 
analysis than the current data collection exercise that is described by 
the paragraph requiring the

[[Page 60386]]

annual summary. Thus, FRA is considering whether to incorporate the 
data collection requirements from the annual summary into the six month 
report and do away with the annual summary as a separate exercise 
altogether. FRA would appreciate comments on this issue.
    Current paragraph (d) is proposed to move to paragraph (f) and 
contains two amendments. One amendment is merely to change the term 
``manhours'' to ``employee work hours'' as the latter is gender 
neutral. The second amendment would clarify that this requirement does 
not apply to ``a railroad with less than 400,000 total'' employee work 
hours annually, as the current rule accidentally fails to include the 
qualification of the time period.
    Current paragraph (e) is proposed to move to paragraph (g) with one 
amendment. The current rule specifies that the railroad maintain a 
``desk-top'' computer upon which the railroad can retrieve data. As 
laptop and notebook computers have become more common, and their 
computing abilities now rival desk-top models, there is no reason to 
restrict railroads from using any computer to retrieve records for FRA 
under this section.
    Proposed paragraph (h) would clarify that railroads and individuals 
can be liable for falsifying or deliberately mutilating records 
required by this section. FRA would have civil penalty authority, and 
the Federal government could prosecute these types of acts under 
criminal statutes, whether or not this paragraph is included in a final 
rule. See, e.g., 49 U.S.C. 21311. However, at this juncture, FRA has 
decided to include this paragraph as a reminder to railroads and 
individuals, and as a placeholder for the addition of penalties in 
Appendix A to part 217--Schedule of Civil Penalties.
    Paragraph (i) proposes that FRA have some specific oversight 
mechanism for disapproving a railroad's program of operational tests 
and inspections. It also proposes minimum procedures and structure for 
the review process. The proposal would require that the Associate 
Administrator for Safety only disapprove programs required by this 
section for cause stated. As the disapproval decision is made for 
cause, it is significant for the railroad to understand exactly why FRA 
is disapproving the program; thus, FRA proposes that its notification 
of such disapproval be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Safety 
disapproves the program, it is proposed that the railroad be provided 
an opportunity of not less than 30 days to respond and to provide 
written and/or oral submissions in support of the program. It will be 
up to the Associate Administrator for Safety to grant additional time 
to respond in the rare instances that the railroad requests more than 
30 days. The Associate Administrator for Safety shall render a final 
decision in writing and the railroad shall be provided not less than 30 
days to amend the program in accordance with the Associate 
Administrator for Safety's decision. Again, on a case-by-case basis, it 
is proposed that the Associate Administrator for Safety may provide a 
railroad with additional time to correct a disapproved program. 
Although enforcement action is always discretionary, FRA believes that 
enforcement action is warranted when a railroad fails to appropriately 
and timely amend its program.
    The approach in proposed paragraph (i) recognizes that FRA will 
want to review such written programs during audits or investigations 
and that FRA should have the authority to request changes to the 
program if it does not meet the minimum requirements of this rule. The 
oversight authority vests with the Associate Administrator for Safety. 
Although FRA would have authority to review in detail each railroad's 
program, FRA does not intend to have each railroad submit its program 
for review and explicit approval. Rather, FRA intends to review the 
programs of the major railroads over a multi-year cycle to determine if 
they are effective. Please note that the proposal is for the Associate 
Administrator for Safety to render a final decision in writing. FRA 
solicits comments regarding the need for further appeals within FRA.
    Although not contained in this proposal, FRA solicits comments as 
to whether the final rule should require each railroad to instruct its 
employees on operating rules at least once every three years. FRA has 
decided to propose a requirement that only requires such periodic 
instruction as it applies to those operating rules that would be 
required by part 218, subpart F instead of all railroad operating 
rules. See Sec.  218.95(a)(5). As periodic training of operating rules 
is already occurring on the vast majority of railroads, FRA's proposal 
in part 218, subpart F is focused on those operating rules that cause 
the most accidents. Adding a more general requirement would likely 
improve safety for railroads which conduct few operating rules classes 
and we would appreciate comments regarding the costs and benefits of 
such a minimum requirement.

PART 218--[AMENDED]

Section 218.4 Preemptive Effect
    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. Exceptions would be rare. In general, 49 U.S.C. 
20106 will preempt any State law--whether statutory or common law--and 
any State regulation, rule, or order, that concerns the same subject 
matter as the regulations in this rule.
Section 218.5 Definitions
    FRA is proposing an amendment to the definition of flagman's 
signals in order to eliminate a reference to ``torpedoes''. Torpedoes 
are antiquated signaling devices which have fallen into disuse in the 
industry. Likewise, we are proposing amendments to Sec.  218.37 which 
refers to this definition and the placing of torpedoes when providing 
flag protection.
Section 218.37 Flag Protection
    FRA is proposing to eliminate references to ``torpedoes'' as these 
are antiquated signaling devices which have fallen into disuse in the 
industry. The current rule requires each railroad to have in effect an 
operating rule which complies with this section, and thus contains 
references to the use of torpedoes, even though the railroad could meet 
other flagging requirements without ever needing to carry or use 
torpedoes. In this section, there are two paragraphs that reference 
torpedoes. Paragraph (a)(1)(iii) currently states, in part, that 
``[w]hen a train stops on main track, flag protection against following 
trains on the same track must be provided as follows: A crew member 
with flagman's signals must immediately go back at least the distance 
prescribed by timetable or other instructions for the territory, place 
at least two torpedoes on the rail at least 100 feet apart and display 
one lighted fusee''. The language in italics is proposed for deletion. 
Paragraph (a)(1)(iv) currently states that ``[w]hen required by the 
railroad's operating

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rules, a forward crew member with flagman's signals must protect the 
front of his train against opposing movements by immediately going 
forward at least the distance prescribed by timetable or other 
instructions for the territory placing at least two torpedoes on the 
rail at least 100 feet apart, displaying one lighted fusee, and 
remaining at that location until recalled''. Again, the language in 
italics is proposed for deletion. Elimination of the references to 
torpedoes does not eliminate the requirement that each railroad have in 
effect an operating rule that complies with the requirements in this 
section.
Subpart F--Handling Equipment, Switches and Derails
Section 218.91 Purpose and Scope
    As previously explained in the SUPPLEMENTARY INFORMATION, FRA has 
identified that non-compliance with a small number of railroad 
operating rules has caused an inordinate percentage of total human 
factor caused accidents. FRA's purpose is first to establish clear and 
unambiguous procedures that will provide for the safety of railroad 
employees and the public. In the RSAC Working Group discussions that 
preceded the preparation of this proposed rule, FRA noted significant 
variation in basic safety procedures followed on participating 
railroads. Although some variation is necessary to address local 
conditions, the presence of extensive joint operations in the railroad 
industry makes it essential that certain common procedures apply. Joint 
operations are not new to the railroad industry, as evidenced by the 
historic role of terminal companies. However, the practice has more 
recently expanded through mergers and consequent awards of trackage 
rights and through the creation of hundreds of small railroads that are 
often provided access to larger railroad's facilities to facilitate 
efficient interchange of cars.
    In order to support compliance with operating rules, it is 
essential that they be consistent, commonly understood, and applied in 
a predictable manner. Further, it must be understood that the rules may 
not be circumvented at the whim of a supervisor or employee to hasten 
completion of the work. The rules in this proposed subpart are intended 
to support these purposes.
    In addition, making these rules mandatory from a Federal standpoint 
implies an enforcement mechanism to discourage non-compliance.
    FRA proposes to standardize this small number of railroad operating 
rules by establishing minimum requirements. The minimum requirements 
proposed are based on accepted best practices and rules currently in 
use. Of course, railroads may choose to prescribe additional or more 
stringent requirements.
Section 218.93 Definitions
    The definitions proposed in this section only have applicability to 
this subpart so it should be easier for the reader to locate each 
definition in this section rather than in subpart A--General, Sec.  
218.5.
    FRA proposes several definitions that are consistent with other 
definitions of these terms in this chapter. These terms are Associate 
Administrator for Safety, controlled siding, employee, highway-rail 
grade crossing, locomotive, pedestrian crossing, qualified, and roadway 
worker. In an effort to be as clear as possible, FRA is including 
definitions of these terms in this subpart for the benefit of anyone 
unfamiliar with these terms.
    FRA proposes adding a definition for clearance point because this 
term is necessary to describe an important concept that is used several 
times in this subpart. The definition of ``clearance point'' means the 
location near a turnout beyond which it is unsafe for passage by 
equipment or a person riding the side of a car on an adjacent track. 
While clearance points may be identified by marks on the rail, signs, 
or other visible identifiers, these points are often referring to an 
approximate location that will need to be deduced by an employee. FRA 
proposes that railroads implement procedures for identifying such 
approximate locations and for waiting to line hand-operated switches 
away until equipment that has entered the track has passed this point. 
See Sec. Sec.  218.101(c) and 218.103(e). Without a definition of 
clearance point, it would be difficult to define what is meant by 
``foul or fouling a track''. Through the proper identification of 
clearance points, employees can avoid collisions and personal injury to 
other employees riding the sides of cars.
    FRA proposes a definition for correspondence of crossover switches 
that should be familiar to people working in the railroad industry. 
When straight tracks are connected so that rolling equipment may travel 
or ``cross over'' from one straight track to another, the equipment 
must pass over switches that control movement into the crossover track; 
these are the crossover switches. When both crossover switches are 
lined for the crossover, the crossover switches are in correspondence 
because the rolling equipment may cross over from one parallel track to 
another without running through either of the crossover switches. 
However, if one crossover switch is lined for the crossover and the 
other is lined for the straight track, the latter switch is lined 
against a train movement exiting the crossover track and thus is deemed 
out of correspondence. Similarly, if both crossover switches are lined 
for the straight track, the switches are considered in correspondence 
because no trains on the straight tracks should be diverted through a 
misaligned switch and potentially into another train or other rolling 
equipment.
    FRA proposes adding a definition for foul or fouling a track 
because this term is necessary to describe an important concept that is 
used several times in this subpart. Foul or fouling a track means 
rolling equipment or on-track maintenance-of-way equipment is located 
such that any part of the equipment is between the clearance point and 
the switch point leading to the track on which the equipment is 
standing. In other words, when equipment is left standing on a track in 
such a manner that a movement on an adjacent track would collide with 
it, i.e., ``fouling a track,'' the potential for an accident is great. 
Equipment, or a person riding a side of a car, on adjacent track could 
strike the fouling equipment. This type of accident is usually a side-
swipe type accident and the severity of the accident depends on the 
factors involved; e.g., the factors determining severity include, but 
are not limited to, the speed of the moving equipment, the type of 
equipment struck, the contents of the cars struck, whether a person was 
riding a car and whether an occupied locomotive struck the equipment. 
The issue of foul or fouling a track is addressed in Sec.  218.101, 
where it is proposed that certain scenarios of fouling are avoidable 
and thus should be prohibited.
    FRA proposes a broad definition for hand-operated switch to 
identify any type of switch when operated by manual manipulation, 
including when operated by a push button or radio control, when such 
switch is not protected by distant switch indicators, switch point 
indicators or other visual or audio verification that the switch points 
are lined for the intended route and fit properly. The definition 
includes all switches which are normally operated by manual 
manipulation of the switch lever. In this proposed rule, FRA has used 
the term ``hand-operated'' to characterize the types of switches 
normally operated by conductors, brakemen and switchmen whether or not 
there is some electronic aspect to the operation of the switch. 
Maintenance-of-way and mechanical

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employees also have occasion to operate these switches. For lack of 
better terminology, we are characterizing these other types of switches 
as ``hand-operated'' even though a push button or radio control may be 
used to throw the switch; for these types of switches, the ``manual 
manipulation'' aspect is that the employee is required to throw the 
switch and the electronic aspect of the switch manipulation is 
primarily an option for avoiding personal injuries due to the throwing 
of a switch lever. FRA reserves the right to include provisions in the 
final rule to address these and related issues concerning power-
assisted switches. FRA does not intend to address issues related to 
power-assisted switches operated from central consoles, whether within 
or outside of signaled territory, when so operated. Finally, the 
proposed requirements set forth for hand-operated switches in Sec.  
218.103 are unnecessary when an employee can verify that the switch 
points are lined for the intended route and fit properly, which can be 
accomplished without observing the switch points in the case where the 
switch is protected by distant switch indicators, switch point 
indicators or other visual or audio verification. For example, the two 
types of indicators provide a visual indication of the switch alignment 
and other electronic advancements are capable of sending a message to a 
receiver indicating the switch's alignment such that a visual check by 
an employee to determine that the switch is properly aligned would be 
redundant after receiving an electronic message that has already served 
that purpose.
    FRA proposes adding a definition of qualified which is identical to 
the definition proposed for 49 CFR 217.4 in this notice. It is proposed 
that a person cannot be qualified unless he or she has successfully 
completed all ``instruction, training and examination'' programs 
required by both the railroad and this subpart. Where FRA specifies 
that a qualified employee is to do the work, it is because we want some 
assurance that the person either has actual knowledge, or may 
reasonably be expected to have knowledge, such that there is no 
question the person should be able to do the work in accordance with 
the railroad's operating rules. It is imperative that only employees 
who have been qualified should do such work that the proposed rule 
restricts to qualified employees because a railroad that allows 
unqualified employees to do such work is increasing the likelihood of 
an accident/incident.
    FRA proposes a definition for remote control operator merely to aid 
in the clarification of shoving or pushing movement requirements 
involving remote control operations versus the requirements for 
conventional operations. Remote control operators are ``locomotive 
engineers'' per FRA's regulations found at 49 CFR part 240. Traditional 
engineers, i.e., those persons qualified to operate conventional 
locomotives, may be trained on remote control equipment--and are thus 
qualified for remote control operations; in that situation, the term 
remote control operator applies to the conventional engineer. Hence, 
the term ``remote control operator'' is not limited to those persons 
who only are certified to operate remote control locomotives but to 
anyone certified to operate such locomotives. The industry uses the 
shorthanded term ``remote control operator'' to refer to ``remote 
control locomotive operators;'' unless FRA receives comments to the 
contrary, we trust that no one is confused by the dropping of the 
reference to ``locomotives'' in the terminology.
    FRA proposes a definition for remote control zone in order to 
permit a shoving or pushing operation that is safe and yet protected 
differently from conventional shoving or pushing operations. This zone 
is a term adopted by railroads that designate one or more segments of 
track, typically in a yard, where remote control operations can safely 
switch cars without point protection. Point protection is unnecessary 
because other safeguards are put in place. Although the location for a 
remote control zone may be permanent, the proposed regulation would 
require certain conditions to be met each time a zone is used for its 
intended purpose of allowing an operation without an employee assigned 
to protect the leading end in the direction of movement, i.e., the 
pull-out end, of the remote control movement. See Sec.  218.99(d).
    FRA has noticed some confusion over the ``remote control zone'' 
terminology, and that it might help to distinguish it from a ``remote 
control area.'' A ``zone'' is an integral part of remote control 
operations, whereas an ``area'' describes for informational purposes 
only a location within which remote control operations occur and does 
not directly affect such operations. The ``area'' is usually created by 
putting up signs to warn employees working in the vicinity that moving 
locomotives may be unmanned. The ``area'' is typically larger than the 
``zone'' as it covers anywhere the remote control operation could take 
place. It is important to create these areas so that employees are 
warned to use care in moving around the yard with the knowledge that 
using hand signals to convey a message to a moving locomotive may be in 
vain as there may not be an engineer in the cab to see them. Thus, 
these terms do not mean the same thing and should not be used 
interchangeably.
    FRA proposes a