Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Fixed Derails, 8442-8505 [E8-1933]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Rules and Regulations]
[Pages 8442-8505]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1933]



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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 Fixed 
Derails; Final Rule

Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / 
Rules and Regulations

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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 Fixed Derails

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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

DATES: This regulation is effective April 14, 2008.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background and Authority
II. Proceedings to Date
    A. Increase in Human Factor Caused Accidents and Noncompliance
    B. Accident at Graniteville, SC and Safety Advisory 2005-01
    C. Emergency Order No. 24
    D. Secretary of Transportation's Action Plan for Addressing 
Critical Railroad Safety Issues
    E. Railroad Safety Advisory Committee (RSAC) Overview
    F. Establishment of the Railroad Operating Rules Working Group 
and Development of the NPRM
    G. Development of the Final Rule
    1. Summary of the Comments
    2. RSAC's Working Group Reviewed the Comments
    3. Consideration of Underlying Principles in Emergency Order 24
    4. Recognition of the Need To Improve Railroad Programs of 
Operational Tests and Inspections
III. Remote Control Operations
    A. Background
    B. Situational Awareness
    C. Technology Aided Point Protection
IV. General Comments/Major Issues
    A. Enforcement
    B. Good Faith Challenge--Legal Issues
    1. FRA's Rulemaking Authority
    2. FRA's Enforcement Authority
    3. Multiple Enforcement Actions
    4. Anti-Retaliation Provision
    C. Preemptive Effect
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Act of 1995
    G. Energy Impact

I. Background and Authority

    The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 
20103, provides that, ``[t]he Secretary of Transportation, as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety supplementing laws and regulations in effect on 
October 16, 1970.'' The Secretary's responsibility under this provision 
and the balance of the railroad safety laws have been delegated to the 
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of 
operating rules and practices, FRA has traditionally pursued a very 
conservative course of regulation, relying upon the industry to 
implement suitable railroad operating rules and mandating in the 
broadest of ways that employees be ``instructed'' in their requirements 
and that railroads create and administer programs of operational tests 
and inspections to verify rules compliance. This approach was based on 
several factors, including a recognition of the strong interest the 
railroads have in avoiding costly accidents and personal injuries, the 
limited resources available to FRA to directly enforce railroad 
operating rules, and the apparent success of management and employees 
in accomplishing most work in a safe manner.
    Over the years, however, it became necessary to ``Federalize'' 
certain requirements, either to remedy shortcomings in the railroads' 
rules or to emphasize the importance of compliance and to provide FRA a 
more direct means of promoting compliance. These actions, which in most 
cases were preceded or followed by statutory mandates, included 
adoption of rules governing--
    1. Blue Signal Protection for employees working on, under or 
between railroad rolling equipment (49 CFR part 218, subpart B);
    2. Railroad Communications (49 CFR part 220);
    3. Prohibition of Tampering with Safety Devices (49 CFR part 218, 
subpart D); and
    4. Control of Alcohol and Drug Use in Railroad Operations (49 CFR 
part 219).
    In addition, FRA has adopted requirements for Qualification and 
Certification of Locomotive Engineers (49 CFR Part 240) that directly 
prohibit contravention of certain specified operating rules and 
practices.
    FRA believes these programs of regulation contribute positively to 
railroad safety, in part because they contribute significantly to good 
discipline among affected employees.
    FRA is not specifically required by statute to issue a regulation 
on the subjects covered by this final rule. However, FRA believes that 
establishing greater accountability for implementation of sound 
operating rules is necessary for safety. FRA initiated and finalized 
this rulemaking because it has recognized that human factor train 
accidents comprise the largest single category of train accident causes 
and because existing regulations have proven inadequate to achieve a 
significant further reduction in their numbers or severity. Moreover, 
the current situation in the railroad industry, which is characterized 
by strong market demand, extensive hiring of new employees, and rapid 
attrition of older employees now becoming eligible for retirement, 
demands a more substantial framework of regulations to help ensure that 
operational necessity will not overwhelm systems of safeguards relied 
upon to maintain good discipline.
    The theme of this final rule is accountability. It embodies both a 
broad strategy intended to promote better administration of railroad 
programs and a highly targeted strategy designed to improve compliance 
with railroad operating rules addressing three critical areas. Within 
this framework, FRA has

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

II. Proceedings to Date

A. Increase in Human Factor Caused Accidents and Noncompliance

    FRA has grown steadily more concerned over the past few years as 
the frequency of human factor caused accidents has increased. When 
these accidents are reported, the reporting railroad is required to 
cite the causes of the accident. In the case of a human factor caused 
accident, an employee or employees are typically associated with a 
failure to abide by one or more railroad operating rules. Over the past 
few years, FRA inspectors have simultaneously observed a substantial 
increase in noncompliance with those railroad operating rules that are 
frequently cited as the primary or secondary causes to these types of 
accidents.
    Accidents caused by mishandling of equipment, switches and derails 
rose from 370 to 640 per year from the years 1997 to 2004--an increase 
of 42 percent. The greatest causes of these accidents as identified by 
the railroads were (1) switch improperly lined and (2) absence of 
employee on, at or ahead of a shoving movement. These two issues alone 
account for over 60 percent of all accidents caused annually by 
employees mishandling of equipment, switches and derails.
    A grouping of four other causes saw steady increases from 133 per 
year in 1997 to 213 per year in 2004--a cumulative increase of 37 
percent; these causes are (1) failure to control a shoving movement, 
(2) switch previously run through, (3) cars left in the foul and (4) 
failure to apply or remove a derail. Two additional causes of 
accidents, (1) switch not latched or locked and (2) car(s) shoved out 
and left out of clear, were the cited cause of only 10 accidents in 
1997 and 40 accidents in 2004.
    While the accident data shows significant increases in these areas, 
the data collected by FRA during inspections suggests that the number 
of accidents could easily increase at an even greater rate. FRA 
inspection data shows that noncompliance related to mishandling of 
equipment, switches and derails rose from 319 to 2,954 per year from 
the years 2000 to 2004--a nine-fold increase. The most common areas of 
human factor noncompliance were (1) employee failed to observe switch 
points for obstruction before throwing switch; (2) employee failed to 
ensure all switches involved with a movement were properly lined; (3) 
employee failed to ensure switches were latched or locked; (4) employee 
failed to ensure switches were properly lined before movement began; 
and (5) employee left equipment fouling adjacent track.
    Several other related issues of noncompliance also saw substantial 
increases, although the overall number of incidents found by FRA was 
lower than the top five. These additional areas of noncompliance are: 
(1) Employee left derail improperly lined (on or off); (2) absence of 
employee on, at, or ahead of shoving movement; (3) employee failed to 
ensure train or engine was stopped in the clear; (4) employee failed to 
ensure switches were properly lined after being used; (5) employee 
failed to reapply hasp before making move over switch (if equipped); 
(6) employee failed to relock the switch after use; and (7) one or more 
employees failed to position themselves so that they could constantly 
look in the direction of movement.
    Some noncompliance data applies particularly to human factor 
mistakes FRA noted during inspections of operations involving remotely 
controlled locomotives. FRA assigned noncompliance codes to identify 
the following problems specifically associated with these remote 
control operations: (1) Employee operated equipment while out of 
operator's range of vision; (2) employee failed to provide point 
protection, locomotive leading; and (3) employee failed to provide 
point protection, car leading. In 2004, the first year that FRA 
collected data under those codes, FRA inspectors recorded 29 instances 
of noncompliance with the railroad's operating rules underlying the 
three codes. In 2005, the number of instances of noncompliance with 
those same codes recorded by FRA inspectors increased to 92. These 
types of noncompliance are continuing with some frequency as in 2006, 
FRA noted 43 instances of noncompliance with those cause codes and in 
the first half of 2007, FRA has noted 23 instances.

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

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

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railroad businesses, and expenses incurred related to claims from this 
accident.) NTSB determined that the probable cause of the collision was 
the failure of the crew of NS train P22 to return a main track switch 
to the normal position after the crew completed work at an industry.
    The crew's failure violated railroad operating rules but did not 
violate any Federal requirement. NS Operating Rule 104, in effect at 
the time, placed primary responsibility with the employee handling the 
switch and other crewmembers were secondarily responsible if they were 
in place to observe the switch's position. NTSB/RAR-05/04 at 8. In 
addition, NTSB concluded that NS rules required a job briefing which 
``would likely have included a discussion of the switches and 
specifically who was responsible for ensuring that they were properly 
positioned [and that] [h]ad such a briefing taken place, the relining 
of the switch might not have been overlooked.'' Id. at 44. FRA concurs 
that the lack of intra-crew communication regarding the switch's 
position was particularly significant at the time the crew was 
preparing to leave the site. Id. at 8-9.
    Four days after the Graniteville accident (and coincidentally, two 
days after a similar accident at Bieber, California with serious, but 
not catastrophic consequences), FRA responded by issuing Safety 
Advisory 2005-01, ``Position of Switches in Non-Signaled Territory.'' 
70 FR 2455 (Jan. 10, 2005). The issuance of a safety advisory is an 
opportunity for the agency to inform the industry and the general 
public regarding a safety issue, to articulate agency policy, and to 
make recommendations. FRA explained in the safety advisory that ``[a] 
review of FRA's accident/incident data shows that, overall, the safety 
of rail transportation continues to improve. However, FRA has 
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of 
railroad employees to return manual (hand-operated) main track switches 
to their normal position, i.e., usually lined for the main track, after 
use. As a result, rather than continuing their intended movement on the 
main track, trains approaching these switches in a facing-point 
direction were unexpectedly diverted from the main track onto the 
diverging route, and consequently derailed.''
    Safety Advisory 2005-1 strongly urged all railroads to immediately 
adopt and comply with five recommendations that were intended to 
strengthen, clarify and re-emphasize railroad operating rules so as to 
ensure that all main track switches are returned to their normal 
position after use. The recommendations emphasized communication both 
with the dispatcher and other crewmembers. FRA recommended that 
crewmembers complete and sign a railroad-created Switch Position 
Awareness Form (SPAF). Proper completion of a SPAF was expected to 
trigger specific communication relevant to critical elements of the 
tasks to be performed. Additional training and railroad oversight were 
also recommended.

C. Emergency Order No. 24

    Safety Advisory 2005-1 did not have the long-term effect that FRA 
hoped it would. The Safety Advisory was intended to allow the industry 
itself a chance to clamp down on the frequency and severity of one 
subset of human factor accidents, i.e., those accidents involving hand-
operated main track switches in non-signaled territory. FRA credits the 
Safety Advisory with contributing to a nearly six-month respite from 
this type of accident, from January 12 through July 6, 2005, but 
following this respite there was a sharp increase in serious accidents.
    Three serious accidents over a 28-day period from August 19 to 
September 15, 2005, were the catalyst for FRA issuing an emergency 
order: Emergency Order No. 24 (EO 24); Docket No. FRA-2005-22796, 70 FR 
61496 (Oct. 24, 2005). The three accidents cited in EO 24 resulted in 
fatal injuries to one railroad employee, non-fatal injuries to eight 
railroad employees, an evacuation of civilians, and railroad property 
damage of approximately two million dollars. Furthermore, each of these 
accidents could have been far worse, as each had the potential for 
additional deaths, injuries, property damage or environmental damage. 
Two of the accidents could have involved catastrophic releases of 
hazardous materials as these materials were present in at least one of 
the train consists that collided.
    FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
immediately impose ``restrictions and prohibitions * * * that may be 
necessary to abate the situation.'' Id.
    EO 24 was necessary because despite the Safety Advisory, there was 
insufficient compliance with railroad operating rules related to the 
operation of hand-operated main track switches in non-signaled 
territory. FRA considered issuing another Safety Advisory, but that 
might at best only provide another temporary respite. The issuance of 
EO 24 was ``intended to accomplish what the Safety Advisory could not: 
implement safety practices that will abate the emergency until FRA can 
complete rulemaking.'' 70 FR at 61498. FRA further concluded that 
``reliance solely on employee compliance with railroad operating rules 
related to the operation of hand-operated main track switches in non-
signaled territory, without a Federal enforcement mechanism, is 
inadequate to protect the public safety.'' 70 FR at 61499.
    EO 24 is built on the foundation of FRA's regulations, at 49 CFR 
part 217, which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
With regard to hand-operated switches in non-signaled territory, EO 24 
requires that each railroad (1) instruct its employees, (2) allow only 
qualified employees to operate and verify switches, (3) require 
employees to confirm switch positions with the dispatcher prior to 
releasing the limits of a main track authority, (4) develop a Switch 
Position Awareness Form for employees to complete when operating 
switches, (5) require employees to conduct job briefings at important 
intervals, (6) require intra-crew communication of switch positions 
after a switch is operated, (7) enhance its program of operational 
tests and inspections under 49 CFR part 217, and (8) distribute copies 
of EO 24, and retain proof of distribution, to all employees affected. 
Minor clarifying amendments were made to EO 24 in a second notice, but 
the overarching requirements remained unchanged from the first notice. 
70 FR 71183 (Nov. 25, 2005).

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

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

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Rail Safety Action Plan to address this need. FRA acknowledged in the 
plan that ``recent train accidents have highlighted specific issues 
that need prompt government and industry attention.'' Action Plan at 1 
(published on FRA's Web site at 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 first five years of this decade, and human factor accidents 
were growing in number at the time the action plan was implemented. 
Furthermore, FRA's plan takes aim at reducing human factor accidents 
because in recent years most of the serious events involving train 
collisions or derailments resulting in release of hazardous materials, 
or harm to rail passengers, have been caused by human factors or track 
problems.
    FRA's analysis of train accident data has revealed that a small 
number of particular kinds of human errors are accounting for an 
inordinate number of human factor accidents. For example, the eight 
human factor causes involving mishandling equipment, switches and 
derails that FRA is addressing in this final rule accounted for nearly 
48 percent of all human factor accidents in 2004; these eight causes, 
which resulted in accidents causing over $113 million in damages to 
railroad property from 2001-2005, can be grouped into three basic areas 
of railroad operations: (1) Operating switches and derails; (2) leaving 
equipment out to foul; and (3) the failure to protect shoving or 
pushing movements. Thus, this rulemaking is meant to address nearly 
half of all human factor caused accidents on all classes of track.
    Of the 118 human factor causes that are tracked, the leading cause 
was improperly lined switches, which alone accounted for more than 16 
percent of human factor accidents in 2004. The next two leading causes 
were shoving cars without a person on the front of the movement to 
monitor conditions ahead, i.e., lack of point protection, and shoving 
cars with point protection but still resulting in a failure to control 
the movement; these two shoving related causes together accounted for 
17.6 percent of human factor accidents in 2004. The remaining five 
causes addressed in this final rule account for nearly 14 percent of 
the total number of accident causes; these causes involve leaving cars 
in a position that fouls an adjacent track, operating over a switch 
previously run through, a failure to apply or remove a derail, a 
failure to latch or lock a switch, and a failure to determine before 
shoving that the track is clear ahead of the movement. The two catch-
all general causes that might be cited when a railroad believes one or 
more related causes may apply or is unsure of the exact cause are: (1) 
Other general switching rules; and (2) other train operation/human 
factors.
    The human factor causes that are the central focus of this final 
rule are of a type that involve noncompliance with established railroad 
operating rules related to fundamental railroad operations. In each 
case, compliance can be objectively and conclusively determined. For 
example, it can be definitively determined whether switches are 
properly lined, locked, latched or had been previously run through. It 
can be determined whether a shoving movement was made without point 
protection or without the signals or instructions necessary to control 
the movement. Similarly, it can be determined whether a car is left 
fouling a track such that it is causing an unsafe operating condition, 
or whether the track is clear ahead for a shoving movement. Finally, it 
can also be determined with certainty whether there has been a failure 
to apply or remove a derail.
    The top human factor causes that FRA is choosing not to address 
with this final rule are already regulated, to some extent, or would be 
significantly more difficult to regulate. For example, several human 
factor causes relate to the failure to apply a sufficient number of 
hand brakes; that issue is already covered by regulation at 49 CFR 
232.103(n). Speeding issues, including restricted speed, are regulated 
to discourage clearly excessive speeding by imposing revocation periods 
or civil penalties for locomotive engineer violators. 49 CFR 
240.117(e)(2) and 240.305(a)(2). Establishing a clear rule for 
regulating a train handling issue, such as a locomotive engineer's 
improper use of an independent brake or air brakes to prevent excess 
buff or slack action, can pose difficulties as train handling is an 
area where locomotive engineers exercise discretion. 58 FR 18982, 18992 
(Apr. 9, 1993) (describing in section-by-section analysis why FRA 
amended the qualification and certification of locomotive engineer's 
rule to require revocation only when there is a failure to conduct 
certain brake tests as opposed to the more general, original 
requirement to revoke for ``failure to adhere to procedures for the 
safe use of train or engine brakes.'' 56 FR 28228, 28259 (June 19, 
1991)). Likewise, the operating conditions related to improper coupling 
are too numerous to easily address through regulation, and 
determination of responsibility related to train handling and train 
make-up involves often complex technical issues that are still subject 
to study. See Safe Placement of Train Cars, Report to the Senate 
Committee on Science, Commerce and Transportation and the House 
Committee on Transportation and Infrastructure (June 2005), published 
at https://www.fra.dot.gov.
    Developing close call data. As part of its mission to improve 
railroad safety, FRA is sponsoring the Confidential Close Call 
Reporting System Demonstration Project to demonstrate the effectiveness 
of a confidential close call reporting system for the railroad 
industry. ``Close calls'' in this context are unsafe events that do not 
result in a reportable accident but very well could have. In other 
industries such as aviation, implementation of close call reporting 
systems that shield the reporting employee from discipline (and the 
employer from punitive sanctions levied by the regulator) have 
contributed to major reductions in accidents. In March of 2005, FRA 
completed an overarching memorandum of understanding with railroad 
labor organizations and railroad management to develop pilot programs 
to document close calls. Participating railroads will be expected to 
develop corrective actions to address the problems that may be 
revealed. The aggregate data may prove useful in FRA's decision-making 
concerning regulatory and other options to promote a reduction in human 
factor-caused accidents. However, the project has not yet produced 
sufficient data to consider in this final rule.

E. Railroad Safety Advisory Committee (RSAC) Overview

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

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

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

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

Transportation Security Administration*;
American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.
*Indicates associate, non-voting membership.

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

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

    On April 14, 2005, FRA held a Human Factors Workshop which convened 
members of RSAC for the purpose of developing a task statement to be 
presented at the next RSAC meeting. FRA explained that current 
regulations do not address compliance with the relevant operating rules 
that cause the preponderance of human factor accidents. The agency 
expressed a desire to standardize and adopt these rules as Federal 
requirements with greater accountability being the goal. It was also 
raised that training and qualification programs should be included as 
part of the task because employee compliance is certainly directly 
related to how well employees are instructed and tested. FRA suggested 
that one area of consideration was to improve its regulations (49 CFR 
part 217) which require each railroad to instruct its employees on the 
meaning and application of its code of operating rules, and to 
periodically test its employees to determine their level of compliance. 
Many participants expressed a preference for non-regulatory action.
    On May 18, 2005, the RSAC accepted a task statement and agreed to 
establish the Railroad Operating Rules Working Group whose overall 
purpose was to recommend to the full committee how to reduce the number 
of human factor caused train accidents/incidents and related employee 
injuries. The working group held eight two-day conferences, one per 
month from July 2005 through February 2006. The vast majority of the 
time at these meetings involved review of an FRA document suggesting 
language that could form the basis of proposed regulatory text.
    The draft proposed rule text that FRA developed for the working 
group was the agency's first attempt to address several broad concerns. 
One, FRA set out to propose regulations that addressed those human 
factors that are the leading cause of train accidents. This involved 
analyzing the accident/incident data, identifying the relevant causes, 
identifying the relevant operating rules and procedures, and 
synthesizing those railroad rules and procedures in clear and 
enforceable language. Two, FRA's issuance of EO 24 was intended to 
address the emergency created by the mishandling of hand-operated main 
track switches in non-signaled territory that caused several tragic 
accidents; however, EO 24 was never intended to be a permanent 
arrangement, and the initiation of an informal rulemaking was necessary 
to provide the public and the regulated community an opportunity to 
provide comment on preferences for a final rule. Three, as the agency 
with oversight of railroad safety, FRA was aware of both the successes 
and failures of each railroad's program of operational tests and 
inspections required pursuant to 49 CFR 217.9. The draft proposed rule 
text was designed to close loopholes and impose specific reviews to 
focus testing and inspection programs on the

[[Page 8447]]

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

G. Development of the Final Rule

    As mentioned previously in this preamble, FRA's main purpose in 
issuing this rule is to reduce the number of accidents/incidents 
attributed to human factor causes and this regulation is narrowly 
tailored to accomplish that goal. The correlation between these 
accidents/incidents and the final rule have been established. This 
final rule is the product of FRA's decisions regarding the most 
effective way to regulate after review and consideration of input from 
both the comments filed in the docket and the RSAC. This final rule is 
also the product of FRA's experience with EO 24; FRA is adopting many 
of its requirements and revising others. Furthermore, this final rule 
requires revisions to each railroad's operational testing and 
inspection program to ensure that each railroad's officers are better 
qualified to conduct tests and inspections and each railroad is, in 
fact, focusing its program on the most serious safety concerns.
1. Summary of the Comments
    The NPRM specified that written comments must be received by 
December 11, 2006, and that comments received after that date would be 
considered to the extent possible without incurring additional expense 
or delay. FRA received 12 comments by the deadline and two comments 
after the deadline. As an aid to further discussion at a meeting of the 
RSAC Operating Practices Working Group held in early February 2007, FRA 
prepared two comment summaries which have been added to the docket. 
These documents contained the same information but one document 
arranged the comments by commenter and the other by section commented 
on. The 14th comment received, i.e., the comment of Mr. Walter C. 
Rockey filed on February 5, 2007, was received too late to include in 
these summary documents, although the comment was reviewed and 
considered. Thus, FRA considered all 14 comments filed with the docket.
    The 14 commenters touched upon nearly every section of the NPRM, 
including some who made general comments that applied to the overall 
nature or approach of the NPRM. Some of the comments are addressed in 
the section of this preamble titled ``IV. General Comments/Major 
Issues.'' Most of the comments, however, were specific to a particular 
proposed section and thus it made greater sense to address the comment 
in the section of the preamble titled ``V. Section-by-Section 
Analysis.'' FRA believes that it has addressed each of the comments 
made by the 14 commenters, either directly or indirectly, and has 
consequently considered all known reasonable alternatives to the NPRM.
2. RSAC's Working Group Reviewed the Comments
    The Railroad Operating Rules Working Group held two multi-day 
meetings (February 8-9, 2007 and April 4-5, 2007) in an attempt to 
achieve consensus recommendations based on the proposed rule and the 
comments received. The RSAC participants were able to achieve limited 
consensus on a few items and those consensus items were agreed to by 
the full RSAC. In the areas where RSAC was able to achieve a consensus 
recommendation, FRA honored the principle of each recommendation and 
generally sought to carry forward the elements of the discussion draft 
that had benefited from thoughtful comment by RSAC participants. The 
final rule's text, however, might be slightly different in light of 
regulatory drafting requirements. FRA developed a greater appreciation 
for the nuances of each of the railroad operating rules and practices 
discussed; and, armed with that additional insight, FRA has sought to 
put forth a reasonable final rule that reflects real world railroading.
    FRA has noted in the section-by-section analysis where we have 
adopted an RSAC recommendation or deviated from it. FRA also refers to 
comments and suggestions made by members of the Working Group, full 
RSAC, or other commenters so as to show the origin of certain issues 
and the nature of discussions concerning those issues. FRA believes 
these references serve to illuminate factors it has weighed in making 
its regulatory decisions, as well as the logic behind those decisions. 
The reader should keep in mind, of course, that only the full RSAC 
makes recommendations to FRA, and it is the consensus recommendation of 
the full RSAC on which FRA is acting. However, FRA is in no way bound 
to follow the recommendation, and the agency exercises its independent 
judgment on whether the recommendations achieve the agency's regulatory 
goal, is soundly supported, and is in accordance with policy and legal 
requirements.
3. Consideration of Underlying Principles in Emergency Order 24
    EO 24 illuminated the problems associated with mishandling of hand-
operated main track switches in non-signaled territory. While there may 
be more than one cause that contributes to noncompliance with the 
operating rules, accidents could be prevented by strict employee 
compliance with those rules. Accidents involving this type of switch 
often occur when the employee operating the switch loses focus on the 
task at hand. In an effort to refocus the attention of employees who 
operate switches, EO 24's seven sections can be boiled down to three 
major components: (1) Instruction, (2) communication, and (3) 
verification through testing. FRA's final rule incorporates these three 
major components but with a broader application.
    Instruction. It is fundamental that an employee cannot be expected 
to properly abide by operating rules without proper instruction, 
especially when those operating rules have been amended. To that end, 
EO 24 provides an outline for essential initial instruction and 
periodic instruction. Likewise, FRA is requiring enhanced instruction, 
training, and examination, i.e., qualification, for employees on the 
relevant operating rules, pertaining to handling equipment, switches 
and fixed derails.
    Communication. FRA agrees with the general principle that mistakes 
can be prevented or corrected by proper communication. Communication 
prevents noncompliance and accidents because it generally is how people 
working together know what each other is doing. For example, EO 24 
stressed the importance of communication by requiring job briefings at 
certain crucial intervals: Before work is begun; each time a work plan 
is changed; and at completion of the work. Such regular

[[Page 8448]]

job briefings ensure that employees working together understand the 
task they are intending to perform and exactly what role is expected of 
them and their colleagues. Through proper job briefings, employees can 
prevent some mishaps and contain others from worsening a bad situation. 
For these reasons, FRA proposes a job briefing component to this 
rulemaking.
    In the background section of EO 24, FRA described a recurrent 
scenario of noncompliance where a train crew's mistake in leaving a 
main track switch lined for movement to an auxiliary track was the last 
act or omission that resulted in an accident; and yet these types of 
accidents are preventable through reliable communication of the actual 
switch position. This scenario ``occurs when a train crew has exclusive 
authority to occupy a specific track segment until they release it for 
other movements and [yet] that train crew goes off duty without lining 
and locking a hand-operated main track switch in its normal position.'' 
70 FR at 61497. It is unfortunate that FRA has to clarify that the 
communication be reliable and accurately reflect the switch position, 
but some accident investigations have revealed employees whose actions 
implied more of an interest in quitting work for the day than taking 
the safe route to verify a switch's position and whether it was 
properly locked. FRA's final rule retains EO 24's emphasis on intra-
crew communication or intra-roadway worker group communication. See 70 
FR at 61499-50 and Sec.  218.105.
    Perhaps the most controversial aspect of EO 24 is the requirement 
that employees operating hand-operated main track switches in non-
signaled territory complete a Switch Position Awareness Form (SPAF). 
The SPAF requirement is controversial because it creates a paperwork 
burden for employees and railroads. Switches may be lined and locked 
properly, but a violation of EO 24 may occur for merely failing to fill 
out a single component on the form. Critics of the form may not 
appreciate that FRA's intention for requiring a SPAF is to create a 
contemporaneous communication that reminds the employee of the 
importance of properly lining and locking such main track switches.
    In the case of a train crew, the contemporaneous communication 
created by the SPAF is twofold: (1) The SPAF itself is a written 
communication that reminds the employee operating the switch to keep 
track of the switch's position and (2) another crewmember, typically 
the locomotive engineer, serves as a secondary reminder to the employee 
operating the switch because that other crewmember is also required to 
request information as to the switch's alignment. As FRA clarified in 
EO 24's second notice, it is immaterial how crewmembers communicate, 
e.g., whether in-person, by radio, by hand signals, or other effective 
means, as long as the communication takes place. 70 FR 71186 and 71188. 
By requiring both the SPAF and the intra-crew communication, FRA is 
requiring some redundancy, i.e., two communication reminders to 
properly line and lock such switches in the case of a train.
    For purposes of EO 24, the paperwork burden and the redundancy in 
communication created by the introduction of the SPAF was acceptable. 
The very sharp increase in collisions, deaths and injuries resulting 
from improperly lined main track switches required FRA to take decisive 
action. Prior to EO 24, many railroads had already adopted the use of a 
SPAF voluntarily as a best practice suggested in Safety Advisory 2005-
1. However, the inclusion of a SPAF in EO 24 does not bind the agency 
to forever require it; and the final rulemaking promulgates an 
alternative approach that does not include it. Of course, as this 
subpart prescribes minimum standards and each railroad may prescribe 
additional or more stringent requirements, each railroad has the choice 
to decide whether to continue using a SPAF after the effective date of 
this rule.
    FRA decided not to require a SPAF in this final rule because the 
comprehensive communication requirements contained in Sec. Sec.  
218.103 and 218.105, create a direct enforcement mechanism that makes 
enforcement through a SPAF redundant. For example, the final rule 
includes a requirement that all crewmembers verbally confirm the 
position of a hand-operated main track switch that was operated by any 
crewmember of that train before it leaves the location of the switch. 
See Sec.  218.105(c)(1). Likewise, the final rule requires that upon 
the expiration of exclusive track occupancy authority for roadway 
workers, roadway workers who operate hand-operated main track switches 
report the position of any such switches operated to the roadway worker 
in charge. See Sec.  218.103(c)(2).
    NTSB also ``does not believe that * * * the use of forms [such as a 
SPAF] is sufficient to prevent recurrences of accidents such as the one 
at Graniteville.'' NTSB/RAR-05/04 at 45. In support of this position, 
NTSB cites to the example of railroads that require train crews to 
record signal indications as they are encountered en route in order to 
lessen the chance that a block or other fixed signal will be missed or 
misinterpreted by a crew. Meanwhile, NTSB states that it ``has 
investigated a number of accidents in which such forms, although 
required and used, did not prevent crews from missing signals and 
causing accidents.'' Id.
    Although NTSB does not support the use of a SPAF, it did express 
agreement with the emergency order in two respects. That is, NTSB 
supported EO 24's requirements directing that job briefings be held at 
the completion of work and that a train crewmember who repositions a 
hand-operated main track switch in non-signaled territory communicate 
with the engineer regarding the switch position. In support of this 
position, NTSB explains that ``a comprehensive safety briefing was not 
held before the work at Graniteville [and] [h]ad such a briefing been 
held before and, more importantly, after the work (as required by the 
FRA emergency order), the accident might have been avoided.'' Id. at 
46. As stated previously, FRA is retaining these two aspects from the 
emergency order in its rule.
    The EO 24 requirements for employees releasing the limits of a main 
track authority in non-signaled territory to communicate with the train 
dispatcher have, for the most part, carried over to this final rule and 
been strengthened. The final rule retains the requirement in EO 24 that 
an employee releasing the limits of a main track authority in non-
signaled territory communicate with the train dispatcher that all hand-
operated main track switches operated have been restored to their 
normal position, unless the train dispatcher directs otherwise, but 
only to the extent that the switches are at the location where the 
limits are being released. 70 FR at 61499 and Sec.  218.105(d). With 
the elimination of the requirement for a SPAF, it would be difficult 
for an employee to recall the condition of any particular hand-operated 
main track switch operated and there would likely be a reaction for an 
employee to believe he or she left all such switches in proper 
position--without much opportunity to double-check the condition of 
those faraway switches at that time. As mentioned previously, accidents 
often occur where the limits are being released and that is why the 
final rule has placed emphasis on addressing the problem prior to 
departing the train's location. The switches located at the point of 
release of the limits should be readily accessible for any employee who 
is unsure of the condition the switch was last left in. The final rule 
also adds the requirement that the employee report

[[Page 8449]]

that the switch has been locked; locking of the main track switch 
should prevent easy access to unauthorized users.
    Hand-in-hand with the EO 24 requirement that the employee contact 
the dispatcher to release main track authority in non-signaled 
territory is the corresponding requirement in EO 24 for train 
dispatchers; that is, EO 24 requires that the train dispatcher must 
also confirm the switch positions with the employee releasing the 
limits before clearing the limits of the authority and confirm that the 
SPAF was initialed as required. The final rule also requires the train 
dispatcher to verify the switch position information with the employee 
and the requirement for the dispatcher to confirm that the switch is 
locked in the intended position by repeating to the employee releasing 
the limits the report of the switch position and asking whether that is 
correct. The final rule also strengthens the current requirement in EO 
24 by requiring that the employee then confirm this information with 
the train dispatcher.
    Verification through testing. The third major component of EO 24's 
requirements involves the verification of compliance through testing. 
FRA's regulations, at 49 CFR Part 217, require each railroad to 
instruct its employees on the meaning and application of its code of 
operating rules, and to periodically test its employees to determine 
their level of compliance. Compliance with railroad operating rules is 
critical, especially when technology does not provide a fail safe 
option.
4. Recognition of the Need To Improve Railroad Programs of Operational 
Tests and Inspections
    Most railroads have excellent written programs of operational tests 
and inspections, but FRA has identified weaknesses in the oversight and 
implementation of nearly all of these programs. For example, some 
railroad testing officers lack the competency to perform operational 
tests and inspections. Likewise, some railroads do not perform 
operational tests that address the root cause of human factor 
accidents, while others view the requirement as a numbers-generating 
exercise, and consequently conduct relatively few meaningful tests. 
That is, while it may be important that employees come to work with the 
proper equipment (and FRA considers that a basic requirement which, of 
course, must be satisfied), FRA's concern is that not enough 
verification testing is occurring on the operating rules most likely to 
cause accidents, including but not limited to rules addressing handling 
of switches.
    In EO 24, FRA's verification through testing and inspection 
requirements were narrowly focused on those operating rules involving 
the operation of hand-operated main track switches in non-signaled 
territory. The purpose of this narrow focus was to create a special 
obligation for only those types of rules violations that were causing 
the emergency situation. FRA still believes compliance with these types 
of rules should be verified. The final rule replaces EO 24's 
requirements and adds requirements for verification of testing on a 
broader number of operating rules directly related to the root cause of 
human factor accidents; that is, the final rule requires testing of all 
the rules related to part 218, subpart F, not just those rules related 
to hand-operated main track switches in non-signaled territory.
    The final rule also amends Sec. Sec.  217.4 and 217.9 to require 
competency of railroad testing officers. In FRA's view, it is 
unfathomable that railroad testing officers would be allowed to conduct 
tests and inspections without proper instruction, on-the-job training, 
and some kind of written examination or observation to determine that 
the person is qualified to do the testing; however, Federal regulations 
currently do not require that railroad testing officers be qualified in 
such a manner. Railroads should already be shouldering this burden 
without Federal requirements so we do not view this as a substantial 
burden; instead, we view the qualification of railroad testing officers 
as a necessary expense of operating a railroad.
    Furthermore, railroad officers that test for noncompliance are 
typically the same officers who are in charge of operations. In that 
regard, a railroad officer, who is knowledgeable of Federal 
requirements and the government's enforcement authority over individual 
officers, should be discouraged from ordering an employee to violate 
any operating rule inconsistent with proposed part 218, subpart F. In 
other words, if all railroad testing officers on a particular railroad 
are properly qualified, it will be more difficult for railroad officers 
to accept inconsistency in the application of operating rules.
    FRA is amending 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 is 
requiring that each railroad conduct one or more reviews of operational 
tests and inspections that should help guide each railroad in the 
implementation of its program. The quarterly and six-month reviews for 
freight railroads, as well as the reviews for passenger railroads, in 
Sec.  217.9(e) would formalize a best practice from some of the largest 
and safest railroads nationwide. These reviews are intended to ensure 
that each railroad is conducting tests and inspections directed at the 
causes of human factor train accidents and employee casualties. Each 
program will be specifically required to include appropriate tests and 
inspections addressing the rules dealing with handling of switches, 
leaving equipment in the clear, and protecting the point of the shove. 
Structured tests or observations permit railroads to find employees 
that need additional training or who may benefit from a reminder that 
it is not acceptable to take shortcuts that violate the operating 
rules.
    Furthermore, the final rule's requirements to amend the program of 
operational tests and inspections, by emphasizing its purpose to focus 
on operating rules violations that cause accidents, should cut down on 
the disparity between the few instances of noncompliance found by many 
railroads with the many instances of noncompliance found through FRA 
inspections on the same railroads (see discussion in ``Increase In 
Human Factor Caused Accidents and Noncompliance''). While railroads 
have universally done an acceptable job of taking corrective action 
following an accident, railroads have not done as well in consistently 
testing for the variety of operating rules, at a variety of locations, 
and at different times of the day, in order to meet FRA's expectations 
for an effective testing and inspection program. Accidents and 
incidents of noncompliance should be prevented by the formalization of 
the process of verification through testing and FRA's ability to 
inspect each railroad's program of operational tests and inspections, 
as well as its records.
    Finally, FRA emphasizes that it is retaining an enforcement 
mechanism, as it did in EO 24, because prior reliance on the railroad 
to ensure employee compliance with railroad operating rules without a 
Federal enforcement mechanism has repeatedly proven to be inadequate to 
protect the public and employee safety. Under current regulations, FRA 
has been able to effectively intervene in railroad operating rules 
compliance issues (apart from those already codified as obligations 
under existing regulations) only indirectly, through use of substantial 
resources, and in the case of

[[Page 8450]]

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

III. Remote Control Operations

A. Background

    Remote control devices have been used to operate locomotives at 
various locations in the United States for many years, primarily within 
certain industrial sites. Railroads in Canada have made extensive use 
of remote control locomotives for more than a decade. FRA began 
investigating remote control operations in 1994 and held its first 
public hearing on the subject in February 1995 to gather information 
and examine the safety issues relating to this new technology. On July 
19, 2000, FRA held a technical conference in which all interested 
parties, including rail unions, remote control systems suppliers, and 
railroad industry representatives, shared their views and described 
their experiences with remote control operations. This meeting was 
extremely beneficial to FRA in developing its subsequent Safety 
Advisory.
    On February 14, 2001, the FRA published recommended guidelines for 
conducting remote control locomotive operations. See 66 FR 10340, 
Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing 
these recommendations, FRA sought to identify a set of ``best 
practices'' to guide the rail industry when implementing this 
technology. As this is an emerging technology, FRA believes this 
approach serves the railroad industry by providing flexibility to both 
manufacturers designing the equipment and to railroads in their 
different operations, while reinforcing the importance of complying 
with all existing railroad safety regulations. All of the major 
railroads have adopted these recommendations, with only slight 
modifications to suit their individual requirements.
    Regarding the enforcement of Federal regulations as they apply to 
remote control locomotive operations, the Safety Advisory explains 
that: ``although compliance with this Safety Advisory is voluntary, 
nothing in this Safety Advisory is meant to relieve a railroad from 
compliance with all existing railroad safety regulations [and] 
[t]herefore, when procedures required by regulation are cited in this 
Safety Advisory, compliance is mandatory.'' Id. at 10343. For example, 
the Safety Advisory clearly states that ``each person operating an RCL 
[remote control locomotive] must be certified and qualified in 
accordance with 49 CFR Part 240 [FRA's locomotive engineer rule] if 
conventional operation of a locomotive under the same circumstances 
would require certification under that regulation.'' Id. at 10344.
    In November 2001, all six major railroads submitted to FRA their 
training programs for remote control operators as required by Part 240. 
Since that initial filing, several railroads have made changes to their 
remote control training programs at FRA's request. FRA is closely 
monitoring this training and making additional suggestions for 
improvement on individual railroads as they become necessary. These 
training programs currently require a minimum of two weeks classroom 
and hands-on training for railroad workers who were previously 
qualified on the railroad's operating and safety rules. Federal 
regulations require that locomotive engineers be trained and certified 
to perform the most demanding type of service they will be called upon 
to perform. Thus, a remote control operator who will only be called 
upon to perform switching duties using a remote control locomotive 
would not need to be trained to operate a locomotive on main track from 
the control stand of the cab. Major railroads are currently reviewing 
their remote control operator training plans in light of discussions 
with labor representatives and FRA regarding the requirements of these 
positions.
    In addition to the required training, the regulations require 
railroads to conduct skills performance testing of remote control 
operators that is comparable to the testing required of any other 
locomotive engineer performing the same type of work. Federal 
regulations also hold remote control operators responsible for 
compliance with the same types of railroad operating rules and 
practices that other locomotive engineers are required to comply with 
in order to retain certification. See 49 CFR 240.117. Any alleged 
noncompliance triggers an investigation and review process. If a 
violation is f