and at each division headquarters. This paragraph also explains that
the procedures shall be made available to representatives of the FRA
for inspection and copying during normal business hours.
    In paragraph (e)(2), FRA has added a new record retention
requirement for any written good faith challenge verification decision
made in accordance with paragraph (d)(4). The good faith challenge
procedures are designed so that most challenges will be resolved on the
spot through employee/officer discussions that will not produce a
written decision. When the conflict between the parties cannot be
resolved on the spot, a written decision is required. FRA needs to be
able to review those written verification decisions to analyze what
types of conflicts did not get resolved amicably. Those types of
challenges may have some merit and result in further FRA involvement to
resolve underlying safety issues. The written decision should provide
enough background to understand the challenge by citing the applicable
rules and procedures, and providing an in-depth explanation of any
interpretations necessary to analyze the factual circumstance. FRA is
also requiring that those decisions be retained for at least one
calendar year after expiration of the year during which the decision
was issued. The requirement for record retention, while not proposed,
follows as a logical requirement from proposed paragraph (c)(4)
permitting the employee to request that the railroad provide a written
decision. We cannot fathom that a railroad would produce such a written
decision and not retain it for some reasonable period thereafter in
order to retain an unaltered original and possibly to use as a
reference to help address future, similar challenges.
    Paragraph (e)(3) was added to clarify that each railroad is
authorized to retain any records required by this section in an
electronic format so long as the electronic records are kept in
accordance with the standards set forth in Sec.  217.9(g)(1) through
(5) of this chapter. Of course, any records required by this section
may be maintained in either written or electronic form at the option of
the railroad.
Section 218.99 Shoving or Pushing Movements
    Although the majority of this section remains the same as the
proposed rule, a number of changes have been made in consideration of
the comments received. Four commenters raised specific issues in
written comments: BMWED, AAR, UTU, and BLET. The discussions of these
comments are integrated into the paragraphs under which they apply.
    Generally, in conventional operations, shoving or pushing movements
occur when the controlling locomotive is not leading the movement
because the locomotive engineer is not in a position to have an
unobstructed view of the track in the direction of the shoving
movement. However, in remote control operations, there may be an issue
with respect to point protection in either direction of movement. The
terms ``shoving'' and ``pushing'' have the same meaning but FRA uses
both terms because our nation's railroads have split in the usage of
each term.
    The requirement proposed in paragraph (a) has been redesignated as
paragraph (a)(1) and revised, but the reasons behind the requirement
remains the same. The reasons behind this paragraph are to ensure that
(1) each railroad adopt and comply with an operating rule which
complies with the requirements of this section; and (2) when any person
including, but not limited to, each railroad, railroad officer,
supervisor, and employee violates any requirement of an operating rule
which complies with the requirements of this section, that person be
considered to have violated the requirements of this section. The NPRM
was not intended to mean, but could possibly have read, that each
person was only to uphold and comply with the railroad's operating rule
and not the regulation itself. The revisions to this paragraph are
intended to clarify FRA's intent.
    Paragraph (a)(2) adds a new requirement that the shoving or pushing
movement requirements of this section do not apply to free rolling
equipment--a clarification that was not in the proposed rule. FRA added
this clarification regarding free rolling equipment because several
participants at the RSAC working group meetings were unclear regarding
whether FRA intended the rule to apply to switching activities that
result in free rolling equipment, in which a shoving or pushing
movement is the initial movement that allows equipment to roll free
without power attached. The addition of paragraph (a)(2) is intended to
clarify that this section does not apply to the rolling equipment once
it is free rolling. It would be impossible to engage in this type of
acceptable switching activity if a determination would need to be made
that the ``track is clear'' prior to each release of a free

rolling car. Therefore, the rule does not apply to kicking, humping, or
dropping cars as FRA does not consider those activities to be
controlled shoving or pushing movements. Furthermore, FRA's experience
is that each railroad that permits these activities maintains operating
rules that require employees to protect free rolling equipment from
traveling over highway-rail grade crossings, pedestrian crossings, and
yard access crossings. FRA is rejecting the idea of regulating the
movement of free rolling equipment initiated by a shoving or pushing
movement because we have not seen an increase in the number of
accidents/incidents in this area attributed to human factor causes; of
course, if we document an increasing trend of such accidents/incidents,
FRA will consider whether to initiate a rulemaking.
    As specified in paragraphs (b) through (d), shoving or pushing
movements can be made safely if precautions are taken. This section
states those minimum precautions and requires that each railroad have
in effect specific operating rules incorporating the precautions. The
precautions take direct aim at those human factor causes that have been
identified as causing the increasing trend of noncompliance and
accidents. As specified in paragraph (e), there are other movements
that could be considered shoving or pushing movements but FRA believes
these other movements can be treated differently as they are safe if
certain operating conditions are met.
    Paragraph (b)(1) requires that prior to rolling equipment being
shoved or pushed, the locomotive engineer and the employee directing
the move shall be required to participate in a job briefing which will
cover the means of communication to be used and how protection will be
provided. The job briefing requirement in this paragraph, which remains
the same as the proposed paragraph, requires that the locomotive
engineer (conventional or remote control operator) shall have a job
briefing detailing the method of communication used to relay
information, e.g., radio, hand signals, or pitch and catch. If the
employee providing protection is not part of the crew, the job briefing
shall include how that qualified employee will provide that protection;
for example, if a yardmaster is the qualified employee, the conductor
directing the move would explain in the briefing that the yardmaster
intends to provide point protection by viewing a monitor that provides
a real-time image of the track from a camera set up in the yard. Under
this scenario, the yardmaster would be performing covered service under
the hours of service laws.
    Paragraph (b)(2) of the final rule contains the requirement that
during the shoving or pushing movement, the employee controlling the
movement shall not engage in any task unrelated to the oversight of the
shoving or pushing movement. This requirement, which was not in the
proposed rule, was added to address a concern brought to FRA's
attention following the fatal accident involving a remotely controlled
movement that led to FRA's issuance of Safety Advisory 2007-01. 72 FR
2333. It was also a position raised by BMWED, UTU and BLET in their
comments. In both the NPRM and this final rule, the preamble addresses
the problem that remote control operators may not always have complete
situational awareness of the movement even if the operator is observing
the movement. Obviously, if a remote control operator or other employee
controlling the shoving or pushing movement is distracted by engaging
in an unrelated task, that person's disengagement with the movement,
even briefly, may increase the probability or severity of an accident/
incident. For example, in the accident in Manlius, New York that was
the subject of Safety Advisory 2007-01, FRA raised the issues of
``multi-tasking'' and trying to accomplish other tasks that cause the
person to divert attention from providing point protection. These are
two separate issues. The issue of ``multi-tasking'' as raised in the
notice involved a remote control operator who allegedly operated from
the passenger seat of a moving motor vehicle; such moves are inherently
fraught with hazards, although this was not the cause of this accident/
incident. The issue of diverted attention occurred after the operator
determined that the track was clear for the entire length of the
movement; instead of looking down the track waiting for his train to
come into view, FRA's investigation suggested that the remote control
operator (RCO) may have been attending to duties unrelated to the
movement as the RCO did not observe the collision and initiated a brake
application only after hearing a radio transmission from the
yardmaster.
    By requiring that the employee directing the movement not engage in
any task unrelated to the oversight of the movement, the regulation
increases the probability that the controlling employee will be in a
position to reduce the severity of any accident that might occur. FRA
considers a ``task unrelated to the oversight of the movement'' to be
any activity that carries significant potential to distract the person
directing the movement from adequately overseeing the movement. The
unrelated task would most likely be a work related activity, but
certainly tasks of a personal nature could be considered significantly
distracting. Any unrelated task that would remove the person from a
location where oversight could be effectively performed is strictly
prohibited. The following are not significantly distracting activities
and are arguably not even ``tasks:'' momentary glances away from the
direction of movement; acknowledging another person's presence; and
sneezing. In contrast, the filling out of any form, e.g., a switch
list, would be a distracting, unrelated task that can not be safely
accomplished while the movement is occurring.
    FRA acknowledges that its adoption of the requirement in paragraph
(b)(2) will not prevent all accidents. A rule that requires a
controlling employee to continuously observe the leading end of the
movement might be more effective in preventing accidents; however, as
FRA stated earlier, a ``continuous observation'' requirement would
force more employees to either walk or ride the point--creating an even
greater vulnerability that someone could get hurt. An employee walking
the point could slip, trip, or fall, and an employee riding the point
could be injured or killed in any collision with another piece of
rolling equipment. In addition, this final rule's required
determination that the track is clear prior to initiating the shoving
or pushing movement should substantially reduce the likelihood of any
collisions. That is, a determination that the track is clear includes
the determination that ``the portion of the track to be used is
unoccupied by rolling equipment, on-track maintenance-of-way equipment,
and conflicting on-track movements.'' The application of FRA's final
rule reduces the likelihood of an accident between a carman operating a
pickup truck across a yard crossing if the pickup truck is crossing the
track at a type of yard crossing to be protected (i.e., a `highway-rail
grade crossing' or ``yard access crossing'' as those terms are defined
under Sec.  218.93). In addition, the severity of a collision between a
shoving or pushing movement and off-track maintenance-of-way equipment
may be reduced by an alert employee protecting the point who responds
quickly to stop the movement. Meanwhile, railroad employees operating
off-track machinery will need to continue to be careful to follow
railroad operating rules that require them to protect themselves when

crossing tracks at unprotected yard crossings.
    Former paragraph (b)(2), which has been redesignated as paragraph
(b)(3) states the requirements for establishing point protection during
shoving or pushing movements. The rule requires that only a crewmember
or other qualified employee shall provide point protection. In this
context, crewmembers or qualified employees include remote control
operators working together, members of other train crews, and other
employees, regardless of job title, who are qualified to perform the
job (see definitions of ``employee'' and ``qualified'' in this
subpart). The requirements of this section address work that is
``covered service'' under the hours of service laws. 49 U.S.C. 21101,
et seq. Thus, to be a qualified employee, the employee will need to
receive instruction and testing, be subject to Federal regulations
controlling alcohol and drug use and hours of service recordkeeping
provided for, respectively, in parts 217, 219 and 228 of this chapter.
The purpose of requiring a qualified employee, as opposed to any
employee, is to prevent persons that may not be qualified (e.g., taxi
drivers, crane operators, or clerks) from making safety sensitive
operating decisions without the proper instruction and safeguards in
place. Incidently, if an unqualified person were to perform this work
in violation of the rule, the person would still have to be accounted
for under the hours of service laws or the railroad would incur
additional liability.
    FRA has decided that some of the proposed requirements in paragraph
(b)(2)(i) needed alteration based on comments received and the
consideration of the facts surrounding the accident that led to the
issuance of Safety Advisory 2007-01. The purpose of this paragraph
remains the same, although the final rule's requirements are altered
from that originally proposed. Shoving accidents often occur because a
train crew makes a shoving movement without determining that the track
is clear in the direction of movement. The proposed rule suggested a
requirement that the employee providing point protection visually
determine, for the duration of the shoving or pushing movement, that
the track is clear within the range of vision or for the complete
distance to be shoved or pushed. AAR commented that the phrase ``the
duration of the shoving movement'' is problematic as there could be
instances where an employee's vision is momentarily obscured and so it
would not be possible to always provide a continuous, visual
observation for the entire duration of the movement. Further
discussions at the RSAC working group meetings raised additional
concerns. Both labor and management representatives were concerned that
the requirement meant that every shoving or pushing movement would
require an employee to be in position to watch the leading end of the
movement even when doing so would place the employee in danger. The
proposed rule would have required employees watching shoving and
pushing movements to walk greater distances than most current operating
rules and practices require, the result being a greater likelihood of
experiencing slip, trip or fall injuries. FRA agrees with these
comments. We certainly did not intend to reduce one kind of accident
only to increase another type.
    AAR suggested an alternative to ``the duration of the shoving
movement'' proposed requirement. AAR's suggestion was to change the
first sentence in paragraph (b)(2)(i) to read as follows: ``[v]isually
determining that the track is clear and will remain clear either within
the range of vision or for the complete distance the equipment is to be
shoved or pushed.'' This alternative is similar to FRA's proposal and
many current railroad operating rules, however, the plain meaning of
the alternative does not reflect how it is typically interpreted. The
plain meaning of this alternative appears to also contain the
expectation that a continuous, visual observation for the entire
duration of the movement is required even if the ``the duration of the
shoving movement'' language has been removed. Meanwhile, a near
universal position was that employees can safely make shoving or
pushing movements without continuously observing the leading car for
the entire distance of the movement. The key to a safe move is the
determination that the portion of the track to be used for the intended
move is clear. The determination that the track is clear will be made
prior to initiating a shoving or pushing movement, but additional
portions of track may be determined to be clear during the duration of
one continuous shoving or pushing movement. Furthermore, FRA did not
agree with AAR's suggestion to include the phrase ``and will remain
clear'' as this phrase adds a condition that is outside of the control
of the employee providing the point protection.
    After considering the comments, FRA realized that its proposed rule
was also flawed in that it was repetitive. The definition of ``track is
clear'' and the proposed point protection paragraph both required that
a crewmember or qualified employee make a visual determination. This
repetitive issue has been resolved by removing the visual determination
requirement from the ``track is clear'' definition.
    The final rule differs from the proposed rule in that the
determination that the track is clear no longer explicitly requires
that the determination can be made ``either within the range of vision
or for the complete distance the equipment is to be shoved or pushed.''
FRA believes this proposed phrase merely added extraneous language, and
thus it has been deleted from the final rule. As a practical matter,
the deletion of this phrase should not have any impact on how an
employee provides point protection. If a crewmember or other qualified
employee responsible for controlling a shoving or pushing movement can
ensure that every requirement specified in the definition of track is
clear has been met, the employee may initiate and continue the movement
for the full distance of the movement. For example, if a shoving
movement of less than 100 car lengths is to be made onto track that is
capable of holding 100 cars and a crewmember or other qualified
employee observes that the track is clear for the entire length of the
track, the employee may initiate movement onto or down the track; as
the shoving movement continues, the employee will provide updates to
the locomotive engineer, as necessary, until the entire movement is
complete. Meanwhile, if the employee providing the visual determination
that the track is clear can only see part of the way down the track to
be shoved or pushed, and does not have the option to travel ahead of
the movement to determine that the track is clear for the entire length
of the movement, the employee shall only be permitted to initiate
movement for the distance that the employee can visually ensure that
the track is clear. In this second example, the facts are the same
except that there is curvature in the track that does not allow the
observing employee to see more than 20 car lengths at a time; in this
situation, the employee may initiate movement onto or down the track
but must have either continuous visual contact with the locomotive
engineer or be in radio communication with the locomotive engineer, so
as to provide distance instruction on how far the locomotive engineer
may safely shove, until the shoving or pushing movement is complete. In
other words, there is nothing in this rule that prohibits

incremental or multiple determinations that the track is clear until
the complete distance to be shoved or pushed is traversed.
    In paragraph (b)(3), the term ``rolling equipment,'' which is
defined in Sec.  218.5, is used. The definition of ``rolling
equipment'' states that the term ``includes locomotives, railroad cars,
and one or more locomotives coupled to one or more cars.'' Thus, the
definition of ``rolling equipment'' explicitly includes locomotives.
Meanwhile, FRA is aware that some railroads may incorrectly consider
any movements involving consists made of locomotives alone not to be
shoving or pushing movements. By adding that lite locomotives are also
covered in paragraph (b)(3) and defining ``lite locomotive consist'' in
this subpart, FRA is ensuring that lite locomotive consists are covered
by the shoving or pushing movement requirements. To do otherwise would
permit lite locomotive consists to shove blind without adequate point
protection.
    FRA has expressed the intention to provide railroads and qualified
employees with the option of making the visual determination required
in paragraph (b)(3)(i) with the aid of monitored cameras or other
technological means, provided that the technological means and
attendant procedures provide an equivalent level of protection to that
of a direct visual determination. Railroads shall ensure that any
monitored camera have sufficient resolution and real time coverage to
provide protection equal to a direct visual determination. Concerning
attendant procedures, one such procedure may be for an employee viewing
a monitor to communicate updates to the locomotive engineer or
controlling crewmember at appropriate intervals. FRA equates the
employee monitoring the camera to the employee controlling the movement
who must not engage in any task unrelated to the oversight of the
movement; thus, each railroad utilizing such cameras shall implement
attendant procedures limiting any of the monitoring employee's
ancillary duties that might distract from the employee's ability to
provide continual visual determinations and communication.
    FRA also amended paragraph (b)(3)(i) to add a requirement that if a
railroad intends to use monitored cameras or other technology to
determine that the track is clear, the railroad is required to abide by
the procedures prescribed in this section as well as the additional
requirements prescribed in appendix D to this part. As explained in the
analysis to appendix D, the addition of this mandatory appendix is to
establish safeguards for establishing technology driven point
protection. The alternative would continue the haphazard application of
such technology, without appropriate assurances of Federal, State, or
local governmental input when such technology potentially impacts the
general public.
    Other technological means may include, but are not limited to, a
completely circuited track indicating track occupancy, and electronic
switch position indicators. AAR requested that FRA consider shove
lights to be an ``equivalent technological means.'' Shove lights are
lights that are sequentially circuited on the ends of tracks to
indicate a shoving movement's approach to the opposite end of a track.
Shove lights are limited, however, as they do not show if the track is
occupied between the entrance of the track and the beginning of the
track circuit; in other words, shove lights alone cannot provide
absolute notification that the track is clear of equipment.
Consequently, FRA is willing to consider shove lights as an acceptable
technological alternative to visually protecting the point as long as
either: (1) The track is completely circuited to indicate occupancy;
or, (2) a visual determination is made that the track is clear to the
beginning of the circuited section of the track.
    The requirements listed in proposed paragraph (b)(2)(ii),
redesignated as paragraph (b)(3)(ii), state that a crewmember or other
qualified employee give signals or instructions necessary to control
the movement. Such signals or instructions may be made verbally, i.e.,
either via face-to-face or radio communication. However, any effective
method of communication is acceptable. For example, some acceptable
forms of communication include, but are not limited to, hand signals,
whistle signals, and electronic signals utilizing remote control
technology.
    In paragraph (c), FRA requires that all remote control movements be
treated as shoving or pushing movements, except when the remote control
operation is being conducted like a conventional pulling operation such
that the operator controlling the movement is riding the leading
locomotive in a position to observe conditions ahead in the direction
of movement. Under this situation, the operator is riding the point in
a position to visually determine that the track ahead of the movement
is clear, and is certainly in a position to determine the direction the
equipment is moving. One particular reason for a remote control
operator to ride the point is to be in a position to observe that grade
crossings are not obstructed.
    Paragraph (c) also states two additional requirements for remote
control operations during shoving or pushing movements. The first
additional requirement, paragraph (c)(1), is necessary so that the
remote control operator, either directly or indirectly, can confirm
that the movement is observed moving in the direction intended. If the
remote control operator does not confirm or receive confirmation that
the equipment is traveling in the intended direction, the operator must
immediately stop the movement. Accident reports indicate that remote
control operators who have forgotten which way the controlling
locomotive is headed may unintentionally make a reverse movement when a
forward movement was intended, or vice versa; had these operators been
abiding by this rule, at least some of these types of accidents could
have been avoided by abiding by this rule. Further discussion on this
issue may be found in the Supplementary Information section titled
``Situational Awareness.''
    FRA suggests that each railroad instruct its remote control
operators that, whenever possible, the operator or crewmember should
view the controlling locomotive when determining the direction of
movement, as opposed to any other piece of equipment in the movement.
It is not always logistically possible or safe for the operator or
crewmember to have direct visual contact with the controlling
locomotive when initiating movement--which explains why FRA is not
requiring it. However, where it is logistically possible and safe to do
so, that should be the preferred method. If a person is viewing the
direction the controlling locomotive moves, the person would have a
greater chance of observing a problem with the locomotive becoming
uncoupled from the rest of the movement or a similar problem if a
coupler broke between other equipment in the movement. In the
alternative, as intended by paragraph (c)(1), an operator or crewmember
watching the equipment for the direction of movement will need to be
cognizant of time and distance from the controlling locomotive so that
immediate action may be taken to stop the movement if the movement is
initiated but not observed to be moving within expectations.
    The title of paragraph (c) has been changed from ``Remote control
movement requirements'' in the NPRM to ``Additional requirements for
remote control movements.'' The reason for the

change in title is to emphasize that the requirements in paragraph (c)
apply to shoving movements implemented with remote control locomotives
and adds additional requirements to those general movement requirements
described in paragraph (b). In other words, by changing the title, we
are hoping to avoid confusion that some railroads might perceive
paragraph (c) as the only requirements for shoving movements
implemented with remote control locomotives. Comments were not received
regarding paragraph (c).
    Paragraph (c)(2) adds another requirement for remote control
movements that was suggested in the preamble of the NPRM, but was not
part of the proposed regulatory text. At the end of the section-by-
section analysis for this section in the NPRM, FRA raised concerns
regarding the reliance on technology used to contain remote control
operations within zones, where remote control operators cannot directly
observe the far end of the pull-out movement. Such technology is used
to prevent incursions into other rail operations. The NPRM noted that
``[a]lthough the rule text does not contain language on this point, FRA
requests comment on whether such technology should be required to fail
safe in design or at least include redundant safeguards.'' FRA did not
receive any comments on this issue and has decided to act to address
the concern. The safety concern is that without a specific requirement
some railroads might try to implement technology that is not
demonstrated to be safe and therefore provides a false sense of
protection to remote control crews. Without some kind of standard for
concluding that the technology has either been demonstrated to be
failsafe or demonstrated to provide suitable redundancy to prevent
unsafe failure, a remote control crew could unreasonably conclude that
the technology is safe enough to stop a movement when such reliance is
unfounded. Given this inevitable reliance, failsafe or redundant
technology is required to prevent collisions and derailments at the
perimeter of these zones. The pull-out protection technology would not
likely be relied upon as the typical method of stopping the movement
from leaving the zone, but might be used to expedite a movement where
the crew would ordinarily be slowed down by having to count cars and
estimate the length of the movement in relation to the configuration of
the facility. When determining whether the technology, such as
transponders backed up by a global positioning system (GPS) with a
facility database is acceptable, FRA finds that 49 CFR part 236,
subpart H and the corresponding appendix C to part 236 (``Safety
Assurance Criteria and Processes'') contains appropriate safety
analysis principles.
    In paragraph (d), FRA recognizes that many railroads utilizing
remote control technology will create a designated area of track,
controlled by a remote control operator, that can make a remote control
operation more efficient; this area is called a remote control zone and
it is defined in this subpart. When a remote control zone is activated,
a designated remote control operator has the authority to deny other
movements entry into the tracks designated as within the zone. However,
it is not until the remote control crewmembers determine that a
particular segment meets the definition of ``track is clear'' that the
operation may shove, push, or pull cars into the cleared track segment
of the zone as required in paragraph (b)(3).
    Paragraph (d) permits the point protection required by paragraph
(b)(3) to be provided by a prior determination that the track is clear
for a remote control operation that is shoving within an activated
remote control zone, as long as the movement will take place on the
pull-out end, the zone is not jointly occupied, and certain conditions
are met for the prior determination that provides a reasonable
assurance that the track is clear. If conditions change, such that the
track is no longer clear, a new determination that the track is clear
must be made. This paragraph has undergone substantial revision from
the NPRM, although the underlying concept has remained unchanged. In
the NPRM, the proposed rule mis-characterized this requirement as an
exception to the point protection requirement, when we intended and
described a point protection requirement. The final rule clarifies
FRA's intent that point protection, and all the general movement
requirements under paragraph (b), are applicable to remote control
movements in the zone when the remote control movement is to take
advantage of the zone setup. Thus, when the movement occurs in an
activated zone, on the pull-out end, and is not jointly occupied, it is
possible for the remote control operator to rely on a prior
determination that the track is clear rather than making a separate
determination for each shoving or pushing movement.
    Paragraph (d) states the obvious that, at some point in time, after
the zone is activated, an initial determination must be made that the
track is clear. If there is no initial determination, then the crew
certainly does not have any prior determination to fall back on.
Paragraph (d)(3) provides the requirements for determining that a prior
determination that the track is clear may be relied on. These changes,
which are further described below, should better reflect, in hopefully
what will be considered plain language, what a remote control crew
needs to do to determine that the track is clear so that railroads may
take advantage of shoving or pushing within a remote control zone.
    Paragraph (d)(1) specifies that the remote control zone exception
to a separate track is clear determination for each shoving or pushing
movement applies only when the controlling locomotive of the remote
control movement is on the leading end in the direction of movement.
This describes a movement that is typically referred to as a remote
control movement occurring on the pull-out end, and that reference is
made in this paragraph. When the controlling remote control locomotive
is not located on the leading end in the direction of movement, the
remote control crew cannot rely on a prior determination that the track
is clear and shall, instead make a separate track is clear
determination for each shoving or pushing movement regardless of
whether the operation is to take place within the remote control zone.
FRA does not subscribe to the view that an entire yard can be
characterized as a remote control zone and, as long as it is not
jointly occupied, the remote control crewmembers are free to shove or
push anywhere in the zone without determining that the track is clear
for each shoving or pushing movement; again, the reason FRA disagrees
with this view is that we believe that is an unsafe practice and that
is why the rule only permits the zone exception to apply to remote
control movements when the controlling locomotive of the remote control
movement is on the leading end in the direction of movement.
    Paragraph (d)(1) is changed from the NPRM to reflect that the
remote control movement does not need to be ``operated from a
controlling locomotive'' to fit the exception, but instead ``the
controlling locomotive'' of the movement shall be on the leading end in
the direction of the movement. This change was made to prevent future
confusion that the proposed language might be interpreted to only apply
when a remote control operator was actually on the controlling
locomotive, when it was intended to allow for the operator to either be
on the locomotive or someplace else when the controlling locomotive on
the leading end in the

direction of movement is operated. In other words, the amendment is
made to specifically include remote control operations no matter where
the operator is located.
    FRA has switched the numbers of proposed paragraphs (d)(2) and
(d)(3) in an effort to lay out the sequence of determinations in a
logical order.
    Paragraph (d)(2) requires that the zone may not be jointly occupied
at the time that a remote control crew exercises the exception
permitting the reliance on a prior determination that the track is
clear. This condition is directed to prevent collisions between a
remote control operation that is controlling the zone, and any
equipment or switches controlled or manipulated by a jointly occupying
crew. Thus, this condition means that if there is a jointly occupying
crew, the remote control crewmembers shall determine that the track is
clear for each shoving or pushing movement and shall not rely on a
prior determination that the track is clear. FRA has deleted from the
proposed requirement the phrase ``and has not been jointly occupied
since the last determination that the track is clear.'' This condition
has been deleted because an amendment to proposed paragraph (d)(2),
redesignated (b)(3)(iii) addresses the issue by diverting from this
proposed requirement. That is, paragraph (b)(3)(iii) permits the last
jointly occupying crew to make a direct relay of the track is clear
determination to the remote control crewmembers. The basis for this
latter change is that accidents have generally occurred when jointly
occupying crews did not seek permission into the remote control zone,
not that the jointly occupying crews failed to provide accurate
information regarding whether the track was left clear. This issue is
explained in more detail below.
    Paragraph (d)(3) describes the three methods for a remote control
crew to determine whether a prior determination that the track is clear
is acceptable when the controlling locomotive of the remote control
movement is on the leading end in the direction of movement and the
zone is not jointly occupied. Paragraph (d)(3)(i) describes that, if
the remote control crewmembers themselves made the prior determination,
it is acceptable and a separate determination is unnecessary for each
movement. Paragraph (d)(3)(ii) carries over the option from the
proposed rule that one remote control crew may pass onto a relieving
remote control crew an activated zone that meets the definition of
track is clear. Some railroads currently allow for this transfer for
efficiency purposes; otherwise, any relieving crew would need to make
an initial determination that the pull-out end of the track is clear.
    FRA has added a third option, not proposed, that would permit the
crewmembers from a jointly occupying crew to directly communicate to a
remote control crewmember that the zone is no longer jointly occupied
and meets the requirements for track is clear. This option is based on
an RSAC consensus item that recommended allowing the verbal
determination that the ``track is clear'' between the crews jointly
occupying the remote control zone, provided that it is a direct
communication between the crews involved, and not through a third
party. The RSAC's rationale is that a verbal, direct communication to
determine ``track is clear'' between remote control crews is currently
permitted at shift changes, so why not after a joint occupancy? After
further review of FRA's accident database, we cannot find sufficient
justification to disallow this practice. If FRA develops any accident
data to suggest that the practices permitted by paragraphs (d)(3)(ii)
or (iii) are unsafe, we will consider amending the rule. The addition
of this third option is largely based on comments received by the AAR
stating that this option is currently implemented safely by its
members. We want to emphasize that the ``direct'' communication
requirement means that the crew that completed its joint occupation of
the zone must speak directly with one of the remote control
crewmembers. Thus, it is unacceptable for a yardmaster or other
employee to relay the information between the two sets of crewmembers.
    There is a greater chance of a communication error if information
is allowed to be relayed from someone who does not have firsthand
information. Indirect communication reduces the likelihood that a
remote control crewmember would have the option to ask the crew that
previously jointly occupied the zone a follow up question. ``Directly
communicate,'' in this instance, does not mean that crewmembers are
prohibited from communicating by radio, or any other communication that
is not face-to-face. As further clarification, the rule includes the
description that ``directly communicates'' means ``not through a third
party.'' To illustrate this point, please consider the situation where
two remote control operations are working side-by-side in the same
remote control area. The two operations cannot share a pull-out end
safely, because that would mean there is joint occupation, and, thus,
each operation must be in control of different zones. (For the
difference between a remote control area and a remote control zone,
please see the section analysis for the definition of ``remote control
zone'' under Sec.  218.93). Likewise, if another crew enters and
departs the remote control zone, that last jointly occupying crew
cannot contact just any remote control crewmember working in the area,
but instead is required to directly communicate with a remote control
crewmember from the crew of the zone just departed. To allow otherwise
would mean that, at best, the last jointly occupying crew would pass on
the determination that the track is clear indirectly, and, at worst,
not at all.
    As specified in paragraph (e), shoving or pushing movements are
safe under certain operating conditions and, thus, FRA chooses to
exempt these listed operations from the requirements in paragraphs (b)
through (d) under the specified conditions. One, paragraph (e)(1)
exempts push-pull operations when operated from the leading end in the
direction of movement because if a cab control car is on the leading
end of a movement and a locomotive engineer is operating the train from
the cab control car, the operation is as safe as a conventional
locomotive operation that does not involve shoving or pushing. Two,
paragraph (e)(2) also describes a situation where a locomotive engineer
is operating a train from the leading end in the direction of movement,
albeit with assistance from other power. That other power assisting in
the movement may be occupied and operated by a locomotive engineer,
i.e., a manned helper locomotive, or an unmanned locomotive, i.e., a
distributed power locomotive. Because the additional power may be
located in the back or the middle of the train, this type of operation
could be considered a shoving or pushing movement. The exception
clarifies that as long as a manned locomotive is being operated from
the leading end of the train in the direction of movement, this type of
operation will not be considered a shoving or pushing movement that
must comply with paragraphs (b) through (d). FRA has made minor changes
to this paragraph from the NPRM in order to clarify that the manned
helper locomotives or distributed power shall be ``assisting a train''
when ``the train is being'' operated from the leading end in the
direction of movement for the exception to apply.
    Pursuant to paragraph (e)(3), the third operational exception to
the shoving or pushing minimum requirements set out in paragraphs (b)
through (d) of this section is the allowance of the

performance of roadway maintenance activity under the direct control of
a roadway worker performing work in accordance with railroad operating
rules specific to roadway workers. In other words, a crewmember or
qualified employee is not required to provide point protection when a
train crew is working under the direct control of a roadway worker and
that roadway worker can provide adequate point protection. For example,
if a ballast or work train is operated by a train crew, a roadway
worker may direct the ballast or work train crew to move the train in
order to perform the maintenance activity. This exception would not
permit a railroad to have an operating rule allowing a roadway worker
to direct a train crew on logistical or revenue moves and such action
would violate paragraph (c) of this section.
    Paragraph (e)(4) permits an exception from the shoving and pushing
rules because few of the shoving or pushing accidents have occurred on
a main track or signaled siding. From 2002 through 2005, only about 5
percent of shoving or pushing accidents occurred on main track.
However, in order to make this exemption work, a long list of
conditions apply that would provide an equivalent level of safety to
that of the requirements found in paragraphs (b) through (d) of this
section. The requirements should look familiar to the industry as the
requirements follow commonly used railroad operating rules. See General
Code of Operating Rules (GCOR) 5th Edition, (effective Apr. 3, 2005)
Rules 6.5, 6.6, and 6.32, and Northeast Operating Rules Advisory
Committee (NORAC) Rules 116 and 138e. The following clarification is
provided for a few of the requirements that may not be quite as evident
as the others. Paragraph (e)(4)(i)(A) requires that if another movement
or work authority is in effect within the same or overlapping limits,
the shoving or pushing movement shall not be initiated until the
leading end of the movement is protected by a qualified employee.
Paragraph (e)(4)(ii) requires that movement is limited to the train's
authority because the danger of an accident increases substantially
when a train shoves beyond the limits of its current authority. The
requirement in paragraph (e)(4)(iv) is met by meeting either (A), (B),
or (C), as meeting any one of these three requirements should ensure
safe movement into and over a highway-rail grade crossing or pedestrian
crossing as those terms are defined in the definitions section of this
subpart. To meet the requirement of paragraph (e)(4)(iv)(B), a
designated and qualified ``employee,'' as defined in this subpart, must
be stationed at the crossing and have the capability to communicate
with trains in sufficient time to inform the train of the condition of
the crossing; the rule does not specify the method of communication as
the key issue is that the communication be effective. In paragraph
(e)(4)(v), FRA uses the terms ``interlocking limits,'' which is defined
in Sec.  218.5 of this part, and ``controlled point limits,'' which is
undefined but FRA considers as having the same meaning as
``interlocking limits.'' Interlocking limits means the tracks between
the opposing home signals of an interlocking. In paragraph
(e)(4)(v)(C), a crewmember is in a position to determine that the
train's movement has occupied the circuit controlling a signal such
that the crewmember has the ability to determine that it is the leading
wheels of his or her own movement that has activated the signal
circuit.
Section 218.101 Leaving Rolling and On-Track Maintenance-of-Way
Equipment in the Clear
    The title of this section has changed from the NPRM, as well as a
corresponding change in paragraph (b), to clarify that the section is
intended to apply to both rolling and on-track maintenance-of-way
equipment. In the NPRM, FRA used the generic term ``equipment'' and
assumed that the term would be understood to include both types of
equipment. Rather than risk confusion regarding whether the regulation
only applies to rolling equipment, the rule now specifies that both
rolling equipment and on-track maintenance-of-way equipment are covered
by this section.
    The requirement proposed in paragraph (a) has been revised, but the
reasons behind the requirement remains the same. The reasons behind
this paragraph are to ensure that (1) each railroad adopt and comply
with an operating rule which complies with the requirements of this
section; and (2) when any person including, but not limited to, each
railroad, railroad officer, supervisor, and employee violates any
requirement of an operating rule which complies with the requirements
of this section, that person shall be considered to have violated the
requirements of this section. The NPRM was not intended to mean, but
could possibly have read, that each person was only to uphold and
comply with the railroad's operating rule and not the regulation
itself. The revisions to this paragraph are intended to clarify FRA's
intent that each railroad adopt and comply with an operating rule which
establishes minimum requirements for preventing equipment from fouling
connecting tracks unsafely, and that each railroad implement procedures
that will enable employees to identify when the equipment is fouling.
The purpose for requiring that each railroad, railroad officer,
supervisor, and employee shall be considered in violation of this
section when a railroad operating rule that complies with this section
is violated is so that FRA has the authority to enforce this regulation
as opposed to merely requiring that each railroad maintain and have in
effect such a rule. In order to fully understand this section, one must
consider FRA's definitions of ``clearance point'' and ``foul or fouling
a track'' under Sec.  218.93.
    Paragraph (b) sets forth the general rule that rolling and on-track
maintenance-of-way equipment not be left where it will foul a
connecting track except as permitted in paragraphs (b)(1) through
(b)(4) discussed below. This paragraph differs from FRA's proposed rule
in that each of the two proposed exceptions were divided into two
simpler exceptions. We hope that by breaking out the two proposed
exceptions into four exceptions that the section will be easier to
understand.
    Paragraph (b)(1) permits equipment standing on a main track to foul
a siding track switch if the fouling switch is lined for the main track
on which the equipment is standing. For example, it is permissible for
a train on the main track to be stopped at an absolute signal with the
rear of the train fouling a siding switch lined for the main track upon
which the train is standing. Additionally, this would prohibit the
switch that is being fouled from being thrown underneath the train
while it is fouling the switch. See also Sec.  218.103(b)(4) and
(b)(7). Signal systems and main track authority rules should protect
such movements from approaching trains.
    Paragraph (b)(2) permits equipment standing on a siding to foul a
main track switch if the fouling switch is lined for the siding on
which the equipment is standing. While this is permissible, it is
obviously not safe to do so unless movements on the main track are
required to operate prepared to stop for the switch.
    Paragraph (b)(3) permits equipment that is standing on a yard
switching lead track (commonly referred to as a lead track, switching
lead, or ladder track) to foul a yard track if the switch is lined for
the yard switching lead track upon which the equipment is standing.
Conversely, it is not permissible for equipment to be standing on a
yard track and foul the yard switching lead

track, regardless of the position of the switch on which the equipment
is standing (fouling). In simple terms, it is permissible to occupy a
yard switching lead track and foul a track connected to it, but it is
not permissible to occupy the connecting track in a manner that fouls
the yard switching lead track.
    Paragraph (b)(4) permits equipment to be left where it will foul a
connecting track when the equipment is on an industry track beyond the
clearance point of the switch leading to the industry. During the RSAC
process, several commenters raised the issue that when picking up or
setting off cars at an industry customer, a railroad is often faced
with limited industry track on which to set off or pick up cars. The
problem of limited track at some industries would make compliance with
this rule extremely difficult within those industries and could
potentially have a detrimental economic effect on those industry
customers, as well as the railroads that service those industry
customers. FRA's accident/incident data does not reflect that fouling
within an industry has been a problem. FRA accident data indicates that
of the 5% total human factor accidents caused by equipment left in the
foul during the four-year period 2003 through 2006, only 0.5% (\1/2\ of
one percent) occurred on industry tracks. Further, industries are
constantly moving equipment around within their plants for loading/
unloading, or for other purposes, thereby rendering the enforceability
of the regulation within industry tracks somewhat dubious at best.
Meanwhile, if an industry has limited track, and that track is crowded
with rolling equipment, FRA expects railroads servicing those
industries to operate at extremely slow speeds and with particularly
careful observation to protect all movements from anything that may be
potentially fouling the track. This change from the NPRM is based on an
RSAC recommendation. FRA will certainly consider initiating a new
rulemaking to include industry tracks in this section if accident/
incidents increase due to fouling equipment.
    Paragraph (c) requires that each railroad, whether at the system,
division, or terminal level, shall implement procedures for instructing
employees who handle equipment so that the employees can identify
clearance points and avoid leaving equipment out to foul. One way to
implement such procedures is to show employees that there are readily
observable clearance points on or near the track, e.g., marks on the
rails or ties indicating a clearance point. When clearance points are
not identified on or near the track, railroads must institute
procedures for instructing employees on how to calculate clearance
points; e.g., a railroad may choose to implement a procedure requiring
employees to stand next to the rail and extend an arm to simulate the
width of equipment. Great care should be used in instituting procedures
for determining clearance points so that the margin of error is
appropriate where employees are permitted to ride the side of a car and
as the clearance point would be further back on the track for employees
with bigger or longer bodies than the average person. This section is
not intended to apply to close clearance as it relates to buildings,
loading docks, or doorways, although a railroad may choose to provide
procedures for implementing safe operations under such circumstances.
    FRA received a comment from the AAR to delete this entire section
because, in AAR's view, this section duplicates requirements found in
other sections of the NPRM. After discussions in the RSAC process, the
RSAC achieved consensus that this section is necessary, and recommended
that FRA retain it. The requirement that equipment not be left where it
will foul other tracks is a long-standing operating rule in the
industry which is merely being Federalized to strengthen
enforceability. Leaving equipment in the foul accounted for 5% of all
human factor accidents during the four-year period 2003 through 2006.
The RSAC acknowledged that there are other elements in the NPRM that
require the track to be clear prior to a pushing or shoving movement,
and for all hand-operated switches to be properly lined before fouling
a track, and that these requirements might appear, perfunctorily, to
obviate the need for a fouling rule. However, the RSAC also recognized
that leaving equipment in the foul sets the stage for a potential
accident in the event one or more of the ancillary requirements in the
regulation are overlooked. In light of RSAC's consensus recommendation,
and FRA's view that a specific rule is useful to reducing the many
accidents attributed to failing to leave equipment in the clear, FRA is
retaining this section.
    FRA received several comments from BLET suggesting operational
situations where it may be possible to leave equipment in the clear
safely. For example, BLET suggested that FRA prohibit leaving equipment
in the foul where the authorized speed is greater than restricted
speed. Another BLET suggestion was for FRA to add a requirement that
permission must be obtained from the employee controlling the track
prior to leaving equipment in the foul. FRA appreciates BLET's
suggestions because each suggestion provided the basis for useful RSAC
discussions exploring the intricacies of leaving equipment in the
clear. In the end, though, FRA did not adopt BLET's suggestions because
adding such suggestions would likely complicate what FRA believes is a
fairly clear and concise rule.
    Finally, FRA acknowledges that some railroads have yard tracks or
other types of track arrangements outside of a yard which are not
described as exceptions to the general requirement in paragraph (b),
and fouling equipment under these particular track arrangements may not
pose a real safety concern. Because of the many different types of
track arrangements that are atypical, it would be difficult to craft a
rule that fully encompasses every such arrangement and excepts those
that pose no danger. Where there is truly an atypical arrangement that
appears to violate this section but poses no true safety hazard, FRA
intends to consider the safety implications when deciding whether to
exercise its enforcement authority.
Section 218.103 Hand-Operated Switches, Including Crossover Switches
    In the NPRM, this section was titled ``Hand-operated Switches and
Derails.'' After the RSAC process had concluded, FRA considered the
scope of this section and decided that it covered several interrelated
but separate issues. By including so many requirements in one section,
the section appeared disjointed. Consequently, this section differs
from the proposed section because it contains only a portion of the
requirements found in proposed Sec.  218.103. The rest of the proposed
requirements have been redesignated within Sec. Sec.  218.105, 218.107,
and 218.109. Although each of these sections contains slight
modifications from the proposed requirements, overall, the final rule
does not differ greatly in its requirement from what was proposed.
    The requirement proposed in paragraph (a) has been revised, but the
reasons behind the requirement remains the same. The reasons behind
this paragraph are to ensure that (1) each railroad adopt and comply
with an operating rule which complies with the requirements of this
section; and (2) when any person including, but not limited to, each
railroad, railroad officer, supervisor, and employee violates any
requirement of an operating rule which complies with the requirements
of this section, that person

be considered to have violated the requirements of this section. The
NPRM was not intended to mean, but could possibly have read, that each
person was only to uphold and comply with the railroad's operating rule
and not the regulation itself. The purpose for requiring that each
railroad, railroad officer, supervisor, and employee shall be
considered in violation of this section when a railroad operating rule
that complies with this section is violated is so that FRA has the
authority to enforce this regulation as opposed to merely requiring
that each railroad maintain and have in effect such a rule. This
section applies to all hand-operated switches, as that term is defined
in Sec.  218.93, including hand-operated crossover switches. This
represents a departure from FRA's current enforcement scheme which is
limited to hand-operated switches in non-signaled territory as
specified in EO 24.
    Paragraph (a)(2) has been added to require that each railroad
specify minimum requirements for an adequate job briefing concerning
hand-operated switches, including crossover switches. This requirement
was found in the proposed rule in paragraph (i), but was redesignated
in paragraph (a)(1). Because this is such a fundamental requirement, it
was redesignated at the beginning of the section. As previously
mentioned in the SUPPLEMENTARY INFORMATION section titled ``Accident at
Graniteville, SC and Safety Advisory 2005-01,'' NTSB found that
catastrophic accidents, such as the one at Graniteville, SC, could be
prevented by adequate job briefings. The requirement is for each
railroad to have its own rules and procedures governing the minimum
requirements for a satisfactory job briefing, which to FRA's knowledge,
nearly all railroads already do. It is essential that employees working
together know exactly what each person's role is in the job, what the
methods of operation and protection will be, and the order in which
segments of the job are to be accomplished. With such knowledge, one
employee could recognize the mistakes of another and correct them
before any operating rule violation or serious accident occurred.
    Paragraph (b) sets forth certain general rules for employees who
operate or verify the position of a hand-operated switch. A reference
to Sec.  218.93 has been added so that anyone reading this section will
understand that ``hand-operated switch'' has a specific meaning for
this section and subpart. Proposed paragraph (i)(2) has been
redesignated as paragraph (b)(1). Paragraph (b)(1) requires frequent
job briefings at important junctures. It is critical that employees
know what is expected of them before they start working, know what is
expected to happen if the work plan changes after work is initiated but
before the work is completed, and to confirm whether all the work was
completed to everyone's satisfaction and according to the operating
rules. For experienced employees, each job briefing should not be a
particularly long meeting; in fact, FRA expects that some job briefings
may last less than one minute, but the length of an adequate briefing
will most likely depend on the complexity of the job.
    Proposed paragraph (b)(1) has been redesignated as paragraph
(b)(2). This paragraph sets forth the fundamental requirement that an
employee operating or verifying a hand-operated switch's position shall
be ``qualified,'' as that term is defined in this subpart. It would be
easy for an unqualified person to make a mistake in switch alignment or
fail to recognize a defective switch because, unlike a qualified
employee, the unqualified person is not trained on proper switch
operation or on how to detect a defective switch. It is exactly these
types of defective conditions that cause accidents and may be
preventable by promulgation of this rule.
    Proposed paragraph (b)(2) has been redesignated as paragraph
(b)(3). This paragraph establishes a requirement that each railroad
have an operating rule warning employees that each person who operates
or verifies the position of a hand-operated switch is individually
responsible for the position of the switch in use. The purpose of this
paragraph is to remind an employee that FRA may take enforcement action
against the employee personally for a willful violation. FRA hopes that
the personal liability aspect of this rule will reinforce among
employees the critical importance of ensuring that hand-operated
switches are left properly lined before leaving the location of the
switch.
    Proposed paragraphs (b)(3) and (b)(4) have been redesignated as
paragraphs (b)(4) and (b)(5) respectively. These paragraphs require
employees to make certain observations. A slight modification has been
made to each of these paragraphs by changing the phrase ``visually
ensure'' to ``visually determine.'' The reason for this change is to
maintain consistent terminology throughout this subpart. The
requirements listed are to ``visually determine'' that hand-operated
switches are properly lined for the intended route, that no equipment
is fouling the switches, that the points fit properly, and the target,
if so equipped, corresponds with the switch's position. These
requirements specify the need for the operating/verifying employee to
take a good, hard look at the switch. For example, a proper observation
would deduce whether the switch points fit properly against the stock
rail, i.e. no gaps. The operating/verifying employee should certainly
not be relying on second-hand knowledge of the switch or derail's
position in verifying its position.
    Paragraph (b)(4) differs from the proposed requirement in that FRA
has added that when an employee visually determines that hand-operated
switches are properly lined for the intended route that the employee
also visually determine that ``no equipment is fouling the switches.''
If there is rolling equipment close by, an employee may have to
identify the clearance points to determine whether the equipment is in
fact fouling or it is safe to operate over the switch. See Sec.
218.101. For example, if an employee can see that the switch is
properly lined from the locomotive cab but is not absolutely certain
that rolling equipment is in the clear, this rule prohibits movement
over the switch until a proper determination can be made; in this
example, the situation will likely require that the movement be stopped
and a crew member get off the locomotive or train to determine the
clearance points. If there is another method to safely determine the
clearance points, e.g., if the rail is marked, then the requirement may
be satisfied by this alternative method for determining the clearance
points. FRA is not requiring that an employee disembark from a movement
in all instances to determine clearance points, but is instead
requiring that employees act responsibly when making this visual
determination.
    The issues addressed by proposed paragraphs (b)(5) and (b)(6) have
been addressed by redesignated paragraph (b)(6). Paragraph (b)(5) had
proposed a requirement that if the switch or derail is equipped with a
lock, hook or latch, it must be in the hasp, before making movements in
either direction over the switch. Proposed paragraph (b)(6) referred to
physically testing a hand-operated switch or derail's lock to ensure it
is secured. FRA stated in the proposed section-by-section analysis, and
we restate here that this regulation does not require switches to be
equipped with locks, hooks or latches. FRA's intention remains that
employees must ensure that the switch is secured from unintentional
movement of the switch points before making movements in either
direction over the switch. Rather than confuse the requirements by

getting into the tedium of explaining how to lock, hook, or latch when
FRA does not even require such securement devices, FRA has decided to
set forth a rule that distinguishes the securement with a lock, hook,
or latch from the securement of the switch from unintentional movement
over it. For example, some switches do not have locks, hooks, or
latches but are considered secure from unintentional movement when the
switch handle is rotated down parallel to the ground. If the
requirement in paragraph (b)(6) is followed, it should prevent
derailments and accidental misalignments caused by the switch points
moving under equipment.
    FRA has also added the phrase ``after operating a switch'' to
clarify that the requirement in paragraph (b)(6) does not apply to an
employee who is merely verifying the position of a hand-operated
switch, as opposed to actually operating the position of such a switch.
Operations would be significantly delayed if every time a train crew
needed to verify the position of a hand-operated switch it would also
have to ensure that the switch is secure from unintentional movement of
the switch points. Such a requirement would require that the train be
stopped prior to movement over the switch, and a crewmember disembark
to check the switch. It is reasonable to expect that the last employee
who operated the switch ensured that the switch was properly secured.
If certain types of switches are found to regularly fail to protect
against unintentional movements, FRA will consider whether to initiate
a rulemaking then.
    A new requirement has been added to paragraph (b)(7). The final
rule adds the prohibition of operating the switch while rolling and on-
track maintenance-of-way equipment is fouling the switch. FRA
overlooked this straightforward prohibition in the NPRM, although the
NPRM arguably covered the issue through other proposed requirements.
See Sec. Sec.  218.101(c) and 218.103(d). However, following the fatal
accident of a remote control operator riding the side of a car on
August 30, 2007, in BNSF's Mormon Yard in Stockton, California, FRA
realized that, from an enforcement perspective, neither of these other
requirements explicitly covered an employee who operated a switch when
someone else left equipment fouling the switch. (Although FRA's
investigation of the Morman Yard accident is on-going, preliminary
information indicates that a crew left some cars fouling a crossover
switch, and the crossover switch was later lined for the crossover by
one member of a remote control crew without moving the fouling cars.
The other remote control crewmember, while riding the side of a car,
operated through the crossover and was struck and killed by the static
fouling equipment.) By adding this prohibition to the final rule, each
railroad employee who operates or verifies the position of hand-
operated switches will be required to ensure that before a switch is
operated or verified, and a movement over the switch is initiated, the
employee is responsible for checking that equipment is not fouling the
switch, whether or not the employee had left the equipment fouling.
    Paragraph (b)(7) has also been amended for clarification purposes.
The proposed requirement stated that an employee shall ``ensure that
switches are not operated while the equipment is standing or moving
over a switch.'' The final rule requires that an operating/verifying
employee shall ensure that a switch is not operated while rolling and
on-track maintenance-of-way equipment is fouling the switch, or
standing or moving over the switch. Thus, in addition to the added
prohibition previously discussed, the final rule clarifies what it
meant by ``equipment.'' The reason for this rule is that operating a
switch under a moving train or while rolling and on-track maintenance-
of-way equipment is standing over it is an obvious recipe for disaster
but apparently occurs with enough frequency that a requirement is
necessary to discourage taking this risk. The NPRM contained a related
proposed requirement that several commenters believed was ambiguous,
and BMWED described as unnecessary. Given the retention of the
requirement in paragraph (b)(7), we agree with the comments. This
related proposed requirement was found in paragraph (f) of the NPRM.
Proposed paragraph (f) mirrored an operating rule many railroads have
which requires an employee, who has lined a hand-operated switch to let
equipment enter or leave the main track, to stand at least 20 feet from
that switch until the movement is complete. Upon further reflection,
FRA believes the proposed paragraph (f) is not practical to comply with
and enforce in all situations due to physical restrictions.
    Under paragraph (b)(8), it is required that after operating a
switch, an employee ensure that each switch , when not in use, is
locked, hooked, or latched, if so equipped. This means that if the
switch is equipped with a latch or hook, it must be applied and secured
after it is operated. For locks, this means the lock is in the hasp,
and the lock is locked. If it is a latch or hook, the latch or hook
must be in the hasp. For purposes of this section, ``not in use'' means
that there is either no crew or equipment in the vicinity of the switch
or there is a crew in the vicinity of the switch but the crew has no
intention of using the switch. FRA has also added the phrase ``after
operating a switch'' to clarify that the requirement in paragraph
(b)(8) does not apply to an employee who is merely verifying the
position of a hand-operated switch, as opposed to actually operating
the position of such a switch.
    Proposed paragraph (d) has been redesignated as paragraph (c). This
paragraph requires that when rolling and on-track maintenance-of-way
equipment has entered a track, approaching a hand-operated switch not
lined for its intended movement, it shall not foul a track (see
definition of ``foul or fouling a track'' in this subpart) until the
switch is properly lined for the intended movement. If the switch is
intended to be trailed through, such as with a spring switch, or a yard
type switch commonly referred to as a ``rubber switch,'' a ``run-
through switch,'' or a ``variable switch,'' movement shall not trail
through the switch until the route is seen to be clear or the equipment
has been granted movement authority by the employee in charge of that
track segment or switch. Additionally, if a train, rolling equipment or
on-track maintenance-of-way equipment is closely approaching a switch
and an employee observes a conflicting movement also closely
approaching the switch, the track with the approaching conflicting
movement shall not be fouled.
    Proposed paragraph (e) has been redesignated as paragraph (d).
Paragraph (d) specifies that when rolling and on-track maintenance-of-
way equipment has entered a track, it is required that the hand-
operated switch to that track shall not be lined away from the track
until that equipment has passed the ``clearance point'' (as defined in
this subpart) of that track. If complied with, this requirement will
prevent an employee from operating a switch while equipment is fouling
it, directly on it, or in close proximity to it. The purpose of this
requirement is to prevent injuries and accidents caused by improper
operation of switches. Injuries should be reduced by this requirement
because when switches are operated with equipment fouling a switch, or
directly on a switch, a switch can be hard to operate or may be put
under tension such that when an employee begins to operate the switch
handle, it may move unexpectedly; thus, back injuries and other muscle
strains may be reduced. In

addition, accidents may be reduced as employees will not be allowed to
operate switches under tension, i.e., when cars are on a switch.
Section 218.105 Additional Operational Requirements for Hand-Operated
Main Track Switches
    As explained in the section-by-section analysis to Sec.  218.103,
FRA has divided proposed Sec.  218.103 into several sections so that
the requirements will be easier to follow and be in a more logical
order. The requirements found in this section were derived from
proposed Sec.  218.103.
    The requirement proposed in paragraph (a) has been revised, but the
reasons behind the requirement remains the same. The reasons behind
this paragraph are to ensure that (1) each railroad adopt and comply
with an operating rule which complies with the requirements of this
section; and (2) when any person including, but not limited to, each
railroad, railroad officer, supervisor, and employee violates any
requirement of an operating rule which complies with the requirements
of this section, that person be considered to have violated the
requirements of this section. The NPRM was not intended to mean, but
could possibly have read, that each person was only to uphold and
comply with the railroad's operating rule and not the regulation
itself. The purpose for requiring that each railroad, railroad officer,
supervisor, and employee shall be considered in violation of this
section when a railroad operating rule that complies with this section
is violated is so that FRA has the authority to enforce this regulation
as opposed to merely requiring that each railroad maintain and have in
effect such a rule.
    Proposed Sec.  218.103(c)(1) titled ``Hand-operated Main Track
Switches'' has been redesignated as Sec.  218.105(b) and retitled
``Designating switch position,'' but has otherwise remained unchanged.
This paragraph provides regulatory authority over the hand-operated
main track switches so that FRA regulates the positioning of all such
switches. In contrast, FRA only prescribes requirements for hand-
operated main track switches in non-signaled territory in EO 24.
    The rule specifies that each railroad will retain discretion
regarding the normal position of a hand-operated main track switch.
Generally, railroad operating rules pertaining to the operation of
switches provide that the normal position for a main track switch is
lined and locked for movement on the main track when not in use. The
purpose of this rule is so that trains traveling on main track will not
be inadvertently diverted onto another track. (Of course, this can be
avoided if all trains were required to approach all main track switches
prepared to stop, but that requirement would impose a substantial
burden on railroads under most circumstances and would also introduce
other safety concerns.) Railroads may designate a different position as
normal, as some operations may be more efficient with a hand-operated
main track switch's ``normal'' position designated in what would
otherwise be referred to as the ``reverse'' position. No matter what
position a railroad designates as the normal position of each hand-
operated main track switch, the requirement is for such designations to
be made in writing. The railroad may designate the normal position of
the switch in its operating rules, system special instructions,
timetables, general orders, or any other written documentation that
will provide adequate notice to employees operating and verifying hand-
operated main track switches.
    FRA is unaware of any railroads that do not require locking of main
track switches as a safeguard against unauthorized use. Paragraph (b)
requires that employees operating and verifying hand-operated main
track switches should pay careful attention to ensure that these
switches, when not in use, are lined and locked in that position except
under two circumstances. The first circumstance under which the
employee does not need to return the switch to the designated normal
position occurs when the train dispatcher directs otherwise; thus, the
train dispatcher, with movement control over that main track segment,
directs the crew using the switch to leave the switch in other than the
normal position. The dispatcher would then be responsible for the
switch and must follow railroad operating procedures for the necessary
protection of the switch. Such ``necessary protection'' entails that
the dispatcher take steps to ensure that the next train crew
approaching the switch has a track warrant informing that the switch
has been left reversed. In some instances, the dispatcher will need to
make a note in a log of train movements, or other similar document, to
ensure that subsequent dispatchers have access to the reversed switch
information. The second circumstance under which the employee does not
need to return the switch to the designated normal position occurs when
the switch is left in the charge of a crewmember of another train, a
switchtender, or a roadway worker in charge. Paragraph (b)(2) should be
an alternative safe procedure because these other employees will
likewise be individually responsible for the safe and proper operation
of that hand-operated main track switch; the employees performing these
jobs shall be qualified on operating switches and verifying switch
position according to this subpart, so there should be no inherent
problems with the transfer of responsibility for the switch. Regardless
of the position of the switch when the train dispatcher directs
otherwise or the switch is left in the charge of another qualified
employee, it must still be locked, hooked or latched, if so equipped,
when not in use, as required by Sec.  218.103(b)(8).
    Just in case there is any confusion that the operation of a hand-
operated main track switch is a function requiring job briefings,
paragraph (c), formerly proposed Sec.  218.103(i)(3), sets forth the
requirements for such briefings where employees should be engaging in
meaningful communication. Thus, in paragraph (c)(1), FRA specifically
requires that before a train leaves the location where any hand-
operated main track switch was operated, all crewmembers shall have
verbal communication to confirm the position of the switch. Similarly,
paragraph (c)(2) addresses that communication amongst employees is
vital when roadway workers are working within the same work limits and
operate hand-operated main track switches. Thus, when any roadway work
group is working under the protections of the specified form of working
limits, any employee who operates a hand-operated main track switch
within such limits shall do so under the direction of the roadway
worker in charge. Further, it is required that the employee operating
the hand-operated main track switch shall report to the roadway worker
in charge the position of all hand-operated main track switches the
employee has operated to the roadway worker in charge prior to the
expiration of the authority limits.
    In some roadway work group situations, a roadway worker may be
instructed during a job briefing to convey switch position information
to an employee who is not the roadway worker in charge. In this
alternative situation, the contact person is acting as an intermediary
between the employee operating the switch and the roadway worker in
charge. This intermediary person is commonly referred to as an
``employee in charge.'' The rule permits the employee in charge to pass
on the switch position information from the employee operating the
switch to the roadway worker in charge without firsthand verification
of the switch

position. The important aspect of this requirement is that the work
group members are communicating the switch position and not who conveys
the information. The allowance of this option reflects the reality of
current operations.
    A recurring concern raised by the labor organizations was that some
railroads permit a maintenance-of-way employee to operate a hand-
operated main track switch in non-signaled territory, typically for
purposes of servicing the switch, without contacting the dispatcher or
the crewmembers of any potentially on-coming trains. The concerns
regarding this practice centered on whether appropriate protection was
being afforded to on-coming trains that potentially could be diverted
from the main track if the employee servicing the switch was unable to
restore the switch to the normal position prior to the train's arrival.
BMWED questioned whether it made sense to require strict communication
requirements to verify the position of switches prior to the expiration
of exclusive track occupancy authority but not require any
communication under this other circumstance. FRA views these situations
as completely different as the former applies to job briefings among a
roadway worker group, not a communication with a dispatcher or control
operator as BMWED is arguing for in the latter. BMWED was also
concerned with the liability the rule would have for the employee who
failed to restore a switch being serviced if a train came along. With
regard to the liability issue, FRA has not added any regulatory
requirement for such an employee servicing a switch and thus the
employee's liability is unaffected by this rule.
    FRA's decision not to require an employee servicing a switch to
communicate with the dispatcher or control operator is based on several
factors. One of the biggest factors is that FRA learned of this
practice through discussions with the RSAC working group but could not
find any data to support that this practice has been a problem or cause
of accidents/incidents. It is FRA's understanding that this is a
practice mainly on the western railroads where employees can often see
on-coming trains great distances away. In the situations where
employees may not be able to easily view an on-coming train, it is a
common practice for a maintenance-of-way employee to contact a
dispatcher or control operator in order to obtain a sense of when the
next train is likely to come along. An employee working under such
conditions would likely maintain a high level of situational awareness
to on-coming trains as the employee understands that he or she is
providing his or her own protection, and the information obtained is
not always accurate. FRA is concerned with promulgating a requirement
that the employee contact the dispatcher or control operator in every
instance as the formality of making that communication mandatory could
lead maintenance-of-way employees to develop a false sense of safety
when true block protection is not being provided.
    Unless a switch is broken, it should take seconds, not minutes, to
operate a switch back to normal if a train is known to be approaching.
FRA assumes that a maintenance-of-way employee who realizes that a
switch is broken, as opposed to needing some oil or routine
maintenance, would immediately contact a dispatcher or control operator
in order to obtain the authority to set up working limits or other
adequate protection that would allow the employee the time to repair
the switch. Certainly, FRA would not expect railroads to permit the
servicing of a switch when heavy train traffic is expected. FRA would
also expect railroads to coordinate such work when train schedules are
available and adequate time for such service can be planned. Although
FRA is not implementing any regulations on this issue, we recommend
that railroads implement procedures to safeguard employees and trains
when a switch requires servicing.
    Proposed Sec.  218.103(c)(2) has been redesignated as Sec.
218.105(d). This paragraph requires that in non-signaled territory,
before an employee releases the limits of a main track authority and a
hand-operated switch is used to clear the main track, and, prior to
departing the switch's location, certain conditions be met. An employee
is prohibited from releasing the limits after departing the switch's
location so that the employee who has any question about the condition
of the switch has access to verifying its condition. This requirement
is intended to prevent an employee from releasing the limits while
located in the yard office or while traveling away from the switch's
location in a taxi.
    In paragraph (d)(1), the first proposed condition that must be met
is that the employee releasing the limits, after conducting a job
briefing in accordance with this subpart, must report to the train
dispatcher that the hand-operated main track switch has been restored
to its normal position and locked, unless the train dispatcher directs
that the hand-operated main track switch be left lined and locked in
the reverse position. The reference to another paragraph in this
section is intended to remind the employee releasing the limits that
before a train, train crew, or maintenance-of-way employee leaves the
location where any hand-operated main track switch was operated, all
crewmembers and maintenance-of-way employees shall have a verbal
communication to confirm the position of the switch. Soon after this
job briefing, it is time to call the dispatcher and confirm the same
information that should have been included in the train crew or
maintenance-of-way employees' job briefing. If the train dispatcher
wants the employee to leave the switch in the reverse position, this
communication is the train dispatcher's opportunity to inform the
employee of such a request. It is required that the employee and
dispatcher confirm with each other the switch position and that the
switch is locked so that there is little chance that any trespasser
with a key or bolt cutters could tamper with the switch. As in
paragraph (b)(1), a train dispatcher who directs that the switch be
left in the reverse position must provide the protection necessary to
ensure that the subsequent train crew or operator of on-track equipment
that will approach the switch has a track warrant informing them of the
switch's reverse position. Again, such ``necessary protection'' entails
that the dispatcher take steps to ensure that the next train crew or
operator of on-track equipment approaching the switch has a track
warrant informing that the switch has been left reversed. In some
instances, the dispatcher will need to make a note in a log of train
movements or other similar document to ensure that subsequent
dispatchers have access to the reversed switch information.
    Paragraphs (d)(2) and (3) detail two more conditions that must be
met when main track authority limits are being prepared for release.
The second condition is that if the employee's report of the switch
position is correct, i.e., matches the operating rule or dispatcher's
direction, the train dispatcher shall repeat the reported switch
position information to the employee releasing the limits and ask
whether the repeated information is correct. Typically, railroad
procedures require the train dispatcher to ask whether ``that is
correct'' with regard to confirming this type of information, so the
regulation is intended to reflect those commonly used procedures. The
third condition is that the employee releasing the limits then confirm
that

this information is correct with the train dispatcher. Railroads and
employees who currently release such limits should recognize that these
requirements follow the traditional rules of such release. The purpose
of the dispatcher and employee repeating the switch's condition is so
that both employees can confirm that the other is repeating the correct
information regarding the position of the switch and that it is locked.
    The 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. With the 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
rule has placed emphasis on addressing the problem at those locations.
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 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.
    The requirements in paragraph (d) carry over certain employee/
dispatcher communication requirements from EO 24 that provide
additional checks to ensure that hand-operated main track switches are
left properly lined and locked. The requirement is carefully tailored
to address the switches at the location being released because FRA has
determined that many of the accidents are occurring at that location.
As several comments were received in response to EO 24 regarding an
equivalent requirement carried over in paragraph (d), it should be
helpful to describe what FRA means by the term ``releasing the limits
of a main track authority.'' The term means releasing all or a portion
of the limits (i.e., rolling up the limits) of an existing main track
authority.
Section 218.107 Additional Operational Requirements for Hand-Operated
Crossover Switches
    As explained in the section-by-section analysis to Sec.  218.103,
FRA has broken up proposed Sec.  218.103 into several sections so that
the requirements will be easier to follow and be in a more logical
order. The requirements found in this section were derived from
proposed Sec.  218.103.
    The requirement proposed in paragraph (a) has been revised, but the
reasons behind the requirement remain the same. The reasons behind this
paragraph are to ensure that (1) each railroad adopt and comply with an
operating rule which complies with the requirements of this section;
and (2) when any person including, but not limited to, each railroad,
railroad officer, supervisor, and employee violates any requirement of
an operating rule which complies with the requirements of this section,
that person be considered to have violated the requirements of this
section. The NPRM was not intended to mean, but could possibly have
read, that each person was only to uphold and comply with the
railroad's operating rule and not the regulation itself. The purpose
for requiring that each railroad, railroad officer, supervisor, and
employee shall be considered in violation of this section when a
railroad operating rule that complies with this section is violated is
so that FRA has the authority to enforce this regulation as opposed to
merely requiring that each railroad maintain and have in effect such a
rule.
    Paragraph (b) was formerly proposed Sec.  218.103(g)(1). This
paragraph sets forth the general rule that both hand-operated switches
of a crossover shall be properly lined before equipment begins a
crossover movement. Properly lined means that switches at both ends of
the crossover are lined for the crossover movement. As train crews
expect crossover switches to be properly lined, i.e., in correspondence
(see definition of ``correspondence of crossover switches''), an
accident can easily occur when crossover switches are out of
correspondence. A related concern that is addressed by this paragraph
is what to do when equipment is traversing a crossover; the rule
requires that all equipment be clear of both ends of the crossover
before restoring the switches to the normal position. If employees
apply a railroad operating rule that incorporates this rule, the
requirement should prevent the unintentional running through of
crossover switches or unintentional movements onto another track that
could potentially strike other rolling equipment.
    Paragraph (c) was formerly proposed Sec.  218.103(g)(2). This
paragraph identifies four exceptions to the general rule that hand-
operated crossover switches should be in correspondence. The reason for
the exceptions is that each operation is safe or safer with the
crossover switches out of correspondence than in correspondence. That
is, each exception identifies a situation in which employees on the
track are protected by diverting trains and equipment without slowing
down operations.
    FRA is aware that some configurations of crossover switches are
quite complicated, typically due to the location of adjacent or
adjoining tracks and other attendant switches. Railroads should address
these complicated configurations of crossover switches when employees
are instructed on the physical characteristics of the territory.
Without proper instruction on how to apply a railroad's operating rule
for correspondence of crossover switches, it will be difficult to hold
employees accountable. However, railroads can be held accountable if
employees do not properly apply such an operating rule and lack of
instruction is one of the causes. Of course, if a railroad provided
instruction but a violation was committed due to the complexities of
the crossover configuration, FRA will exercise discretion regarding
whether any enforcement action is necessary.
    Paragraph (c)(1)(i) was formerly proposed Sec.
218.103(g)(2)(i)(A). This paragraph permits mechanical department
workers to line one end of a crossover away from the track under blue
signal protection to allow workers on, under, or between rolling
equipment. See 49 CFR 218.27. Similarly, paragraph (c)(1)(ii), formerly
proposed Sec.  218.103(g)(2)(i)(B), permits providing track protection
for roadway workers on track that is considered ``inaccessible'' under
Sec.  214.327 of this chapter. Paragraph (c)(1)(iii), formerly proposed
Sec.  218.103(g)(2)(i)(C), permits those railroads that have the
technology, in traffic control system (TCS) territory to allow a signal
maintainer to perform maintenance, testing or inspection of the switch
at only one end of a crossover while continuing to operate trains over
the other crossover switch. FRA does not have any evidence to suggest
this exception is an unsafe practice. Finally, the fourth exception,
found in paragraph (c)(1)(iv), which was formerly proposed at the end
of proposed paragraph (g)(1), recognizes that a safe operation is
probable during continuous switching operations where

only one crew is using both tracks connected by the crossover.
    FRA has eliminated the stated requirement in proposed Sec.
218.103(g)(2)(ii) that crossover switches shall be immediately restored
to correspondence after the protection afforded by one of the four
exceptions in paragraph (c) is no longer required. After further
consideration, FRA concluded that this requirement is implicit and it
would be redundant to state it. If one of the paragraph (c) exceptions
no longer applies, the general rule in paragraph (b) must be complied
with--meaning that both hand-operated switches of a crossover shall be
properly lined before rolling and on-track maintenance-of-way equipment
begins a crossover movement.
Section 218.109 Hand-Operated Fixed Derails
    As explained in the section-by-section analysis to Sec.  218.103,
FRA has broken up proposed Sec.  218.103 into several sections so that
the requirements will be easier to follow and be in a more logical
order. The requirements found in this section were derived from
proposed Sec.  218.103.
    FRA has also clarified in the title to this subpart, the purpose
and scope section, and in Sec.  218.109, that this subpart applies to
``fixed'' derails. In the NPRM, FRA did not distinguish between the two
general types of derails, i.e., fixed and portable. FRA is using the
term ``fixed derails'' to contrast it with derails that are portable.
Portable, or temporary, derails can easily be transported and applied
at different locations throughout the day in order to protect workers
and equipment as needed. Fixed, or permanent, derails cannot be easily
transported because they are typically affixed to the track structure
in some manner. Fixed derails are normally found prior to entering a
locomotive servicing area or car shop repair area, where they are used
to protect workers in those areas from encroachment by unauthorized
movements of rolling equipment, and on most industry tracks at or near
the switch connecting with the main track. By clarifying that this
subpart and section applies to fixed derails, FRA is providing up front
notification that this subpart does not apply to the operation of
portable derails.
    During the nearly four and a half year period from January 2003
through May 2007, 154 accidents/incidents were reported by railroads to
have been caused, either primarily or secondarily, by a person's
failure to apply or remove a derail. Only 3 of these 154 accidents were
reported as caused by a failure to apply or remove a portable derail
and thus 98% of the reportable accidents/incidents were caused by the
misapplication of the railroad's operating rules for fixed derails. As
the primary reason for issuing this rule is to reduce accidents/
incidents attributed to human factor causes, this rule's focus on
reducing accidents/incidents attributed to mishandling fixed derails is
appropriately targeted.
    The requirement proposed in paragraph (a)(1) has been revised, but
the reasons behind the requirement remains the same. The reasons behind
this paragraph are to ensure that (1) each railroad adopt and comply
with an operating rule which complies with the requirements of this
section; and (2) when any person including, but not limited to, each
railroad, railroad officer, supervisor, and employee violates any
requirement of an operating rule which complies with the requirements
of this section, that person be considered to have violated the
requirements of this section. The NPRM was not intended to mean, but
could possibly have read, that each person was only to uphold and
comply with the railroad's operating rule and not the regulation
itself. The purpose for requiring that each railroad, railroad officer,
supervisor, and employee shall be considered in violation of this
section when a railroad operating rule that complies with this section
is violated is so that FRA has the authority to enforce this regulation
as opposed to merely requiring that each railroad maintain and have in
effect such a rule.
    Paragraph (a)(2) carries over the proposed requirement from Sec.
218.103 that each railroad specify minimum requirements for an adequate
job briefing concerning hand-operated fixed derails. The requirement is
for each railroad to have its own rules and procedures governing the
minimum requirements for a satisfactory job briefing, which to FRA's
knowledge, nearly all railroads already do. It is essential that
employees working together know exactly what each person's role is in
the operation, what the methods of operation and protection will be,
and the order in which segments of the job are to be accomplished. With
such knowledge, one employee could recognize the mistakes of another
and correct them before any operating rule violation or serious
accident occurred.
    Paragraph (b) derives from proposed Sec.  218.103(h). This
paragraph sets forth the general rules for hand-operated fixed derails.
Paragraph (b)(1) requires that the normal position of fixed derails is
in the derailing position; but, a railroad may specify in its operating
rules or special instructions that the normal position of a fixed
derail is in the non-derailing position. Paragraph (b)(2) requires that
fixed derails shall be kept in the derailing position whether or not
any rolling or on-track maintenance-of-way equipment is on the tracks
they protect, except as provided in paragraph (b)(1) or when changed to
permit movement. Thus, the general rule requires that the fixed derails
be returned to the derailing position once the movement is complete
while the rule still allows for the flexibility of a railroad to
designate otherwise or an exception in paragraph (b)(1) to apply in
less common circumstances. If fixed derails are being used for
protection of workers using blue signals, these rules would not be
applicable as FRA already has other regulations governing derails in
that circumstance. See 49 CFR part 218, subpart B.
    The entire purpose of a derail, whether fixed or portable, is to
protect something or someone. Derails are typically used to prevent
equipment from rolling out onto main tracks in front of trains. They
are also used to protect workers who are on a track to repair track or
equipment. Derails may be placed in addition to warnings provided by
signs, flags, gates, and notices in timetables and special
instructions; thus, derails protect employees when other employees
operating equipment or a train fail to heed these other warnings, or
unattended equipment rolls freely. Although a properly applied derail
that stops equipment or a train has served its purpose, FRA prohibits
movements over a fixed derail in the derailing position under paragraph
(b)(3). Paragraph (b)(3) will permit FRA to take enforcement action
when a railroad or person causes a movement to be made over a derail in
the derailing position. As the typical situation involving movement
over a derail occurs at low speeds and does not result in serious
injuries or excessive damage to railroad property, the industry has
accepted, in FRA's view, too much tolerance for this type of incident.
Consequently, while FRA plans to use its enforcement discretion, the
purpose of this requirement is to reverse the permissive culture of the
railroad industry that has accepted operating over a derail.
    Paragraph (c) derives from Sec.  218.103(b) and (h)(3). This
paragraph addresses the same type of list of requirements that FRA is
requiring for hand-operated switches, but applies them to hand-operated
fixed derails. For instance, paragraph (c)(1) requires that

employees operating or verifying the position of a fixed derail shall
conduct job briefings before work is begun, each time a work plan is
changed, and at completion of the work. It is essential that employees
performing these tasks communicate with one another at key intervals to
prevent error free operations over derails. Paragraph (c)(2) requires
that employees operating or verifying the position of a fixed derail
shall be qualified on the railroad's operating rules relating to the
operation of the derail. In FRA's view, it seems intuitive that a
railroad cannot expect an employee to know how to properly operate or
verify the position of a hand-operated fixed derail without qualifying
the employee. Once qualified, an employee will be held individually
responsible for the position of the derail in use; for the purpose of
paragraphs (c)(3) and (c)(6), a fixed derail is considered ``in use''
if a movement is either operating over the derail, or continuously or
intermittently operating over the derail while it is in the non-
derailing position. Paragraph (c)(6) addresses that employees operating
or verifying the position of a fixed derail shall ensure that when not
in use, derails are locked, hooked, or latched in the normal position
if so equipped. As FRA mentioned in the analysis to Sec.  218.103,
FRA's rule does not require switch or derail targets, latches, locks or
hooks; however, if a switch or derail is equipped with any of these
devices, FRA requires that the employees check that these devices are
properly placed or correspond as intended. If the derail is so
equipped, it shall be locked in the normal position regardless of
whether the normal position is designated by the railroad as in the
derailing position or non-derailing position.

Appendix D to Part 218--Requirements and Considerations for
Implementing Technology Aided Point Protection

    In the preamble to the NPRM, FRA restated its policy on using
technology, such as cameras and monitors, to assist crews in providing
point protection during shoving or pushing movements. The NPRM was the
first proposed regulatory provision on this subject, and, in addition
to the preamble discussion, the issue was also directly raised by
proposed Sec.  218.99(b)(2)(i). FRA received some comments on this
policy and it was discussed with the RSAC working group. Generally
speaking, the railroads wanted to continue using such technology
without seeing any need for further regulation; meanwhile, the labor
organizations were concerned that without adequate safeguards, i.e.,
regulations, the use of such technology posed too many questions
related to adequate functionality and reliability. After further
consideration, FRA has concluded that implementing the policy as
mandatory requirements is necessary to assure Federal, State and local
governments, that adequate safeguards are in place to protect the
general public.
    The first section of appendix D addresses the general requirements
and considerations for all point protection aided by technology. One of
the big concerns with not having a qualified employee protecting the
point is determining that the technology, and the procedures for its
use, provide an equivalent level of protection to that of a direct
visual determination by a crewmember or other qualified employee
properly positioned to make the observation. To do that, a person must
be properly qualified. FRA has addressed the qualifications issue by
carrying over from the proposed rule, in Sec.  218.95(a)(2), the
requirement that each railroad must qualify employees ``in any
technology (and related procedures) necessary to accomplish work
subject to the particular requirements, actions required by the
employee to enable and use the system, means to detect malfunctioning
of equipment or deviations from proper procedures, actions to be taken
when malfunctions or deviations are detected, and information needed to
prevent unintentional interference with the proper functioning of such
technology.'' In summary, the rule requires employees to be qualified
on proper use of the technology and what to do when the technology does
not work as intended. Most malfunctions of the technology should be
detectable, and result in abandoning the use of the technology for
determining point protection until the malfunction can be corrected.
    Although each railroad will retain some flexibility in implementing
technological aids to provide point protection, the stated requirements
and considerations will provide FRA with the ability to more quickly
and directly enforce a change if a railroad attempts to implement a
setup that does not adequately address all of the factual circumstances
noted for consideration. For instance, a railroad shall not permit a
camera/monitor setup that utilizes a black and white monitor that does
not allow the person viewing the monitor to adequately determine a
signal indication for the shoving or pushing movement. Similarly, FRA
could take enforcement action against a railroad or individual for
using a camera/monitor setup during severe weather conditions that did
not permit adequate camera views of whether a crossing's gates were
down or the track is, in fact, clear of equipment. Another
consideration before implementing technology aided point protection is
who will be allowed to view the monitor and assist the crew; thus, FRA
will consider enforcement action if employees do not conduct adequate
job briefings or maintain adequate lines of communication between the
employee controlling the movement and the employee viewing the monitor.
    It is also worth mentioning that each railroad shall ensure that
the technology provides ``real time coverage,'' i.e., a view without
any delay that could impact the safety of the operation and provide
less protection than that of a direct visual determination. With that
regard, we are concerned with internet or web-based monitoring systems
that do not provide a direct feed to the monitor and could potentially
be delayed by routing through a third party server or other internet
portal. Although FRA is not prohibiting such web-based monitoring
systems, additional safeguards would need to be employed in order to
ensure that real time coverage can be obtained and the setup relied
upon.
    The second section of appendix D specifies additional requirements
for the scenario in which remote control locomotive operations will be
using technology aided point protection at highway-rail grade
crossings, pedestrian crossings, and yard access crossings. All of the
general requirements and considerations of the first section are also
applicable to these remote control operations over grade crossings
except that there should be less of a chance of a communication problem
as FRA is instituting a new requirement that the remote control
operator controlling the movement shall be the only person permitted to
view the monitor during such operations. As the appendix explains, the
purpose of this new requirement is to protect the general public, which
is at greater risk of being struck by equipment at the crossings
specified than employees qualified to operate in a yard environment. If
the remote control operator controlling the movement is viewing the
monitor, that operator should be able to react more quickly if a
vehicle or pedestrian enters the crossing being viewed than if the
information first had to be relayed by another person. Shaving a few
precious seconds off the reaction time by eliminating the need for the
relaying of information may be enough to mitigate the severity of an
accident. FRA realizes

that the few railroads using this technology prior to implementation of
this rule will each likely need to amend any relevant operating rules
or procedures. As many of these operations involve two crewmembers who
have the ability to control the movement, complying with this
requirement should not be significantly burdensome. In fact, this
requirement may cut down on the odd practice of having one remote
control operator/crewmember controlling the movement when a second,
equally capable operator/crewmember is in the best possible position to
view the equipment ahead of the movement.
    FRA has converted the policy statement published in the NPRM into a
list of mandatory requirements for remote control locomotive operations
utilizing camera/monitor setups at the types of crossings specified.
The list has been altered slightly to rephrase each item as a mandatory
requirement. The first requirement, to have a Crossing Diagnostic Team
evaluate the crossing, is arguably the most important. Each railroad
cannot be permitted to setup remote cameras at crossings for use by
remote control operators without consulting FRA, and relevant State and
local government officials. All types of information related to the
safety of the crossing would need evaluation prior to deciding whether
technology could be used safely at that crossing and determining
exactly what modifications are necessary to ensure the operation is
safe. Because we are requiring the expertise of a diagnostic team, FRA
is permitting the diagnostic team to conclude that some or all of
requirements 2, 4, 5, and 6 do not need to be complied with when a
crossing is equipped with supplemental safety devices that prevent
motorists from driving around lowered gates; however, the diagnostic
team cannot waive the requirement that the remote control operator
controlling the movement be the person viewing the monitor (requirement
number 3), nor the requirement that the railroad notify the Associate
Administrator for Safety in writing when this type of protection has
been installed and activated at a crossing (requirement number 7). This
latter requirement to contact FRA in writing has been added to ensure
that FRA grade crossing specialists and signal inspectors can be made
aware of when these setups have been activated and, thus, may begin
monitoring the safety of such operations.
    If a railroad implemented a remote camera setup to be used by a
remote control operation at a highway-rail grade crossing, pedestrian
crossing, or yard access crossing prior to April 14, 2008, i.e., the
effective date of this final rule, the railroad may continue to use
that setup without a new crossing diagnostic team evaluation as long as
a diagnostic team was previously used to make the necessary
determinations. However, even if a diagnostic team was used prior to
that date, compliance is required with the other requirements unless
specified by a diagnostic team.
    As FRA explains in its conclusion, we expect that technology will
develop and improve over time. The use of new technology is typically
driven by efficiencies achieved, of which safety may only be one
component. Meanwhile, FRA cannot always keep up with the latest
technologies without notification and we have a duty to determine
whether a new technology to aid point protection provides an equivalent
level of protection to that of a direct visual determination. Thus, FRA
is requiring that railroads wishing to utilize the latest technologies
contact the Associate Administrator for Safety in writing prior to
implementation.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing
policies and procedures, and determined to be non-significant under
both Executive Order 12866 and DOT policies and procedures (44 FR
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of this final
rule. Document inspection and copying facilities are available at the
Docket Management Facility: U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., West Building Ground Floor, Room W12-140,
Washington, DC 20590-0001. Access to the docket may also be obtained
electronically through the Federal eRulemaking Portal at http://www.regulations.gov.
 Photocopies may also be obtained by submitting a

written request to the FRA Docket Clerk at Office of Chief Counsel,
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW.,
Washington, DC 20590; please refer to Docket No. FRA-2005-23080.
    FRA analyzed the foregoing final rule and found that there will be
relatively little change in the burden upon railroads, however, the FRA
believes that much greater compliance with rules which are almost
identical to what the railroads have promulgated as their own operating
rules will likely result in a reduction in human factor accidents,
especially those human factors causes most directly targeted by the
rulemaking. FRA believes that most railroads can achieve average
reductions of 35% in these accidents, because there is one Class I
railroad with better than average compliance with its own operating
rules which routinely has human factor accident rates 35% below the
industry average. The costs of the foregoing are minimal, because most
of the procedures mandated are already incorporated in the railroads'
own operating rules. The biggest costs will be related to publication
of changed language, and management of the operating rules programs.
The rule would have even less impact on small entities, as they are
excused from most of the burdens which regulate management of their
operating rules testing programs. The final rule would generate twenty-
year discounted benefits of $191,189,965, and twenty-year discounted
costs of $20,756,051, for a twenty-year discounted net benefit of
$170,433,914, if the assumptions in this analysis are correct.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket an Analysis of Impact on Small Entities (AISE) that assesses the
small entity impact of this final rule. Document inspection and copying
facilities are available at the Docket Management Facility: U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. Access
to the docket may also be obtained electronically through the Federal
eRulemaking Portal at http://www.regulations.gov. Photocopies may also

be obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No.
FRA-2005-23080.
    FRA notes that the impact on small entities have been considered
throughout the development of this final rule both internally and
through consultation within the RSAC forum, as described in Section II
of this preamble. After the Railroad Operating Rules Working Group
failed to reach a consensus recommendation, FRA reported the Working
Group's unofficial areas of agreement and disagreement to the RSAC.

    The AISE developed in connection with this final rule concludes
that this proposal would not have a significant economic impact on a
substantial number of small entities. Thus, FRA certifies that this
final rule is not expected to have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act or Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Average time per        Total annual      Total annual
          CFR Section--49 CFR              Respondent universe     Total annual responses           response            burden hours       burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
217.7--Operating Rules; Filing and
 Recordkeeping:
    --Filing rules, timetables, and     1 New Railroad..........  1 submission............  1 hour..................                 1               $43
     special instructions.
    --Amendments to operating rules,    55 Railroads............  165 amendments..........  20 minutes..............                55             2,365
     timetables, and timetable special
     instructions by Class I, Class
     II, Amtrak, and Commuter
     Railroads.
    --Class III and Other Railroads:    20 New Railroads........  20 submissions..........  55 minutes..............                18               774
     Copy of Current Operating Rules,
     Timetables, and Special
     Instructions.
    --Class III Railroads: Amendments   632 Railroads...........  1,896 amendment.........  15 minutes..............               474            20,382
     to operating rules.
217.9--Program of Operational Tests:
    --Railroad and railroad officer     687 Railroads...........  4,732 training sessions.  8 hours.................            37,856         1,892,800
     testing responsibilities: Field
     Training.
    --Written records of officer        687 Railroads...........  4,732 records...........  2 minutes...............               158             \1\ 0
     testing qualifications.
    --Written program of operational    20 New Railroads........  20 programs.............  9.92 hours..............               198             8,514
     tests/inspections.
    --Amendments to operational tests/  55 Railroads............  165 amendments..........  1.92 hours..............               317            13,631
     insp. programs.
    --Records of individual tests/      687 Railroads...........  9,180,000 rcds..........  5 minutes...............           765,000        38,250,000
     inspections.
    --Review of tests/inspections/      687 Railroads...........  37 reviews..............  1 hour..................                37             \1\ 0
     adjustments to the program of
     operational tests--Quarterly
     reviews.
    --Officer designations & Six Month  687 Railroads...........  37 designations + 74      5 seconds + 1 hour......                74             \1\ 0
     reviews.                                                      reviews.
    --Passenger Railroads: Officer      20 Railroads............  20 designations + 34      5 seconds + 1 hour......                34             \1\ 0
     designations & Six-Month reviews.                             reviews.
    --Records retention: Periodic       687 Railroads...........  589 review rcds.........  1 minute................                10             \1\ 0
     reviews.

    --Annual summary on operational     37 Railroads............  37 summary rcds.........  61 minutes..............                38             1,634
     tests/inspections.
217.11--Program of Instruction on
 Operating Rules:
    --Railroads instruction of          687 Railroads...........  130,000 instr. employees  8 hours.................         1,040,000        52,000,000
     employees.
    --Current copy of employee          20 New Railroads........  20 programs.............  8 hours.................               160             6,880
     periodic instruction prog.
    --Amendments to current employee    687 Railroads...........  220 amendments..........  .92 hour................               202             8,686
     instruction prog.
218.95--Instruction, Training, and
 Examination:
    --Records of instruction,           687 Railroads...........  98,000 empl. rcds.......  5 minutes...............             8,167           351,181
     training, examination.
    --FRA disapproval of program:       687 Railroads...........  50 submissions..........  1 hour..................                50             2,150
     Railroad responses.
    --Amended programs................  687 Railroads...........  20 amended docs.........  30 minutes..............                10               730
218.97--Good Faith Challenge            687 Railroads...........  687 procedures..........  2 hours.................             1,374             \1\ 0
 Procedures.
    --Copies to employees of good       687 Railroads...........  130,000 copies..........  6 minutes...............            13,000             \1\ 0
     faith procedures.
    --Copies of amendments to good      687 Railroads...........  130,000 copies..........  3 minutes...............             6,500             \1\ 0
     faith procedures.
    --Good faith challenges to          98,000 Employees........  15 challenges...........  10 minutes..............                 3             \1\ 0
     railroad directives.
    --Resolution of challenges........  687 Railroads...........  15 responses............  5 minutes...............                 1             \1\ 0
    --Direct order to proceed           687 Railroads...........  5 reviews...............  15 minutes..............                 1             \1\ 0
     procedures: Immediate review by
     railroad testing officer/employer.
    --Documentation of employee         687 Railroads...........  10 protest docs.........  15 minutes..............                 3             \1\ 0
     protests to direct order.
    --Copies of protest documentation.  687 Railroads...........  20 copies...............  1 minute................               .33             \1\ 0
    --Further review by designated      687 Railroads...........  3 reviews...............  15 minutes..............                 1             \1\ 0
     railroad officer.
    --Employee requested written        687 Railroads...........  10 written decisions....  10 minutes..............                 2                88
     verification decisions.
    --Recordkeeping/Retention--Copies   687 Railroads...........  760 copies..............  5 minutes...............                63             2,709
     of written procedures.
    --Copies of good faith challenge    687 Railroads...........  20 copies...............  5 minutes...............                 2                86
     verification decisions.