Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Derails, 60372-60412 [06-8568]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Proposed Rules]
[Pages 60372-60412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8568]



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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

Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / 
Proposed Rules

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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: https://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 https://
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 https://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 https://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.

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    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

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(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

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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 
https://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 https://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