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.
218.99--Shoving or Pushing Movements:
    --Required operating rule           687 Railroads...........  687 rule modific........  1 hour..................               687             \1\ 0
     compliant with this section.
    --General Movement Requirements:    100,000 RR employees....  60,000 briefings........  1 minute................             1,000            50,000
     Job briefings.
    --Point Protection: Visual          100,000 RR employees....  87,600,000 deter/         1 minute................         2,920,000       128,480,000
     determination of clear track and                              instructions +
     corresponding signals or                                      87,600,000 signals.
     instructions.
    --Remote Control Movements:         100,000 RR employees....  876,000 confirm.........  1 minute................            14,600           642,400
     Confirmations by Crew.
    --Remote Control zone, exceptions   100,000 RR employees....  876,000 deter/            1 minute................            14,600           642,400
     to point protection:                                          communications.
     Determination/Communication track
     is clear.
    --Operational exceptions:           6,000 RR Dispatchers....  30,000 verified/          1 minute................               500            22,000
     Dispatcher permitted movements                                permitted movements.
     that are verified.
218.101--Leaving Rolling and On-Track
 Maintenance-of-Way Equipment in the
 Clear:
    --Operating Rule that Complies      687 Railroads...........  687 amended op. rules 3.  30 minutes..............               344             \1\ 0
     with this section.
218.103--Hand-Operated Switches and
 Derails:
    --Operating Rule that Complies      687 Railroads...........  687 amended op. rules...  60 minutes..............               687             \1\ 0
     with this section.
    --Minimum requirements for          632 Railroads...........  632 modif rules.........  60 minutes..............               632             \1\ 0
     adequate job briefing.
    --Actual job briefings conducted    632 Railroads...........  1,125,000 brfngs........  1 minute................            18,750           825,000
     by employees operating hand-
     operated main track switches.

218.105--Additional Job Briefings for   687 Railroads...........  60,000 briefings........  1 minute................             1,000             \1\ 0
 hand-operated main track switches.
    --Exclusive track occupancy:        687 Railroads...........  100,000 reports +         1 minute................             3,334             \1\ 0
     Report of position of main track                              100,000 convey.
     switches and conveyance of switch
     position.
    --Releasing authority limits:       6,000 RR Dispatchers....  60,000 reports + 60,000   30 sec. + 5 sec.........               583             \1\ 0
     Acknowledgments and verbal                                    confirm.
     confirmations of hand-operated
     main track switches.
218.109--Hand-operated fixed derails--  687 Railroads...........  562,500 brfngs..........  30 seconds..............             4,688           234,400
 Job briefings.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Incl. RIA.

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER> or Gina Christodoulou at
202-493-6139, or via e-mail at
<EMAIL_ADDRESS>or<EMAIL_ADDRESS>

    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. Any comments should
be sent to: The Office of Management and Budget, 725 17th Street, NW.,
Washington, DC 20503, att: FRA Desk Officer. Comments may also be sent
via e-mail to OMB at the following address:
<EMAIL_ADDRESS>
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with Federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the proposed regulation. Where a regulation
has Federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
    This is a rule with preemptive effect. Subject to a limited
exception for essentially local safety hazards, its requirements will
establish a uniform Federal safety standard that must be met, and State
requirements covering the same subject are displaced, whether those
standards are in the form of State statutes, regulations, local
ordinances, or other forms of state law, including State common law.
Preemption is addressed in Sec. Sec.  217.2 and 218.4, both titled
``Preemptive effect.'' As stated in the corresponding preamble language
for Sec. Sec.  217.2 and 218.4, section 20106 of Title 49 of the United
States Code provides that all regulations prescribed by the Secretary
related to railroad safety preempt any State law, regulation, or order
covering the same subject matter, except a provision necessary to
eliminate or reduce an essentially local safety or security hazard that
is not incompatible with a Federal law, regulation, or order and that
does not unreasonably burden interstate commerce. This is consistent
with past practice at FRA, and within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132. FRA notes that the
above factors have been considered throughout the development of this
NPRM 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 RSAC has as permanent voting members two
organizations representing State and local interests: AASHTO and ASRSM.
The RSAC regularly provides recommendations to the FRA Administrator
for solutions to

regulatory issues that reflect significant input from its State
members. To date, FRA has received no indication of concerns about the
Federalism implications of this rulemaking from these representatives
or from any other representative. States and other governments were
afforded opportunity to consult by virtue of the NPRM and comment
period.
    It should be noted that on April 27, 2005, FRA received from the
State of California a petition for rulemaking on the subject of remote
control operations referred to in the Supplementary Information section
as ``Technology Aided Point Protection.'' The petition requested that
FRA initiate a rulemaking ``to formally approve and establish rules
affecting RCL [i.e., remote control locomotive] operations by railroads
over public highway-rail at-grade crossings.'' California's petition
did not raise an issue regarding preemption. On October 27, 2005, FRA
denied California's rulemaking petition because it was procedurally
deficient and it did not include sufficient information upon which to
base a rulemaking proceeding. See Docket No. FRA-2005-21094 (found at
http://dms.dot.gov/). Nevertheless, this final rule contains specific

provisions of the kind requested in the California petition.
    For the foregoing reasons, FRA believes that this final rule is in
accordance with the principles and criteria contained in Executive
Order 13132.

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this final rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of
FRA's Procedures, the agency has further concluded that no
extraordinary circumstances exist with respect to this regulation that
might trigger the need for a more detailed environmental review. As a
result, FRA finds that this final rule is not a major Federal action
significantly affecting the quality of the human environment.

F. Unfunded Mandates Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) currently $128,100,000 in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. The final rule would not result in
the expenditure, in the aggregate, of $128,100,000 or more in any one
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) that is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.

List of Subjects

49 CFR Part 217

    Penalties, Railroad safety, and Reporting and recordkeeping
requirements.

49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees,
Railroad safety, and Reporting and recordkeeping requirements.

The Final Rule

0
For the reasons discussed in the preamble, FRA amends parts 217 and 218
of Title 49, Code of Federal Regulations as follows:

PART 217--[AMENDED]

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.

0
2. Section 217.2 is added to read as follows:

Sec.  217.2  Preemptive effect.

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

confers Federal question jurisdiction for such State law causes of
action.

0
3. Section 217.4 is amended by adding the following definitions of
Associate Administrator for Safety, FRA, and Qualified in alphabetical
order to read as follows:

Sec.  217.4  Definitions.

* * * * *
    Associate Administrator for Safety means the Associate
Administrator for Safety of the Federal Railroad Administration or that
person's delegate as designated in writing.
* * * * *
    FRA means the Federal Railroad Administration.
    Qualified means that a person has successfully completed all
instruction, training, and examination programs required by the
railroad and this part and that the person, therefore, has actual
knowledge or may reasonably be expected to have knowledge of the
subject on which the person is expected to be competent.
* * * * *

0
4. Section 217.9 is revised to read as follows:

Sec.  217.9  Program of operational tests and inspections;
recordkeeping.

    (a) Requirement to conduct operational tests and inspections. Each
railroad to which this part applies shall periodically conduct
operational tests and inspections to determine the extent of compliance
with its code of operating rules, timetables, and timetable special
instructions, specifically including tests and inspections sufficient
to verify compliance with the requirements of subpart F of part 218 of
this chapter, in accordance with a written program as required by
paragraph (c) of this section.
    (b) Railroad and railroad testing officer responsibilities. The
requirements of this paragraph are applicable on or after July 1, 2008.
    (1) Each railroad officer who conducts operational tests and
inspections (railroad testing officer) shall:
    (i) Be qualified on the railroad's operating rules in accordance
with Sec.  217.11 of this part;
    (ii) Be qualified on the operational testing and inspection program
requirements and procedures relevant to the testing and inspections the
officer will conduct;
    (iii) Receive appropriate field training, as necessary to achieve
proficiency, on each operational test or inspection that the officer is
authorized to conduct; and
    (iv) Conduct operational tests and inspections in accordance with
the railroad's program of operational tests and inspections.
    (2) Written records documenting qualification of each railroad
testing officer shall be retained at the railroad's system headquarters
and at the division headquarters for each division where the officer is
assigned and shall be made available to representatives of the FRA for
inspection and copying during normal business hours.
    (c) Written program of operational tests and inspections. Every
railroad shall have a written program of operational tests and
inspections in effect. New railroads shall have such a program within
30 days of commencing rail operations. The program shall--
    (1) Provide for operational testing and inspection under the
various operating conditions on the railroad. As of July 1, 2008, the
program must address with particular emphasis those operating rules
that cause or are likely to cause the most accidents or incidents, such
as those accidents or incidents identified in the quarterly reviews,
six month reviews, and the annual summaries as required under
paragraphs (e) and (f) of this section, as applicable;
    (2) Require a minimum number of tests and inspections per year
covering the requirements of part 218, subpart F of this chapter;
    (3) Describe each type of operational test and inspection required,
including the means and procedures used to carry it out;
    (4) State the purpose of each type of operational test and
inspection;
    (5) State, according to operating divisions where applicable, the
frequency with which each type of operational test and inspection is to
be conducted;
    (6) As of July 1, 2008, identify the officer(s) by name, job title,
and, division or system, who shall be responsible for ensuring that the
program of operational tests and inspections is properly implemented.
The responsibilities of such officers shall include, but not be limited
to, ensuring that the railroad's testing officers are directing their
efforts in an appropriate manner to reduce accidents/incidents and that
all required reviews and summaries are completed. A railroad with
divisions shall identify at least one officer at the system
headquarters who is responsible for overseeing the entire program and
the implementation by each division.
    (7) Include a schedule for making the program fully operative
within 210 days after it begins.
    (d) Records. (1) Each railroad to which this part applies shall
keep a record of the date, time, place, and result of each operational
test and inspection that was performed in accordance with its program.
Each record shall specify the officer administering the test and
inspection and each employee tested. These records shall be retained at
the system headquarters and at each division headquarters where the
tests and inspections are conducted for one calendar year after the end
of the calendar year to which they relate. These records shall be made
available to representatives of the FRA for inspection and copying
during normal business hours.
    (2) Each railroad shall retain one copy of its current program for
periodic performance of the operational tests and inspections required
by paragraph (a) of this section and one copy of each subsequent
amendment to such program. These records shall be retained at the
system headquarters and at each division headquarters where the tests
and inspections are conducted for three calendar years after the end of
the calendar year to which they relate. These records shall be made
available to representatives of the FRA for inspection and copying
during normal business hours.
    (e) Reviews of tests and inspections and adjustments to the program
of operational tests. This paragraph (e) shall apply to each Class I
railroad and the National Railroad Passenger Corporation effective July
1, 2008 and to all other railroads subject to this paragraph effective
January 1, 2009.
    (1) Reviews by railroads other than passenger railroads. Each
railroad to which this part applies shall conduct periodic reviews and
analyses as provided in this paragraph and shall retain, at each
division headquarters, where applicable, and at its system
headquarters, one copy of the following written reviews, provided
however that this requirement does not apply to either a railroad with
less than 400,000 total employee work hours annually or a passenger
railroad subject to paragraph (e)(2) of this section.
    (i) Quarterly review. The designated officer of each division
headquarters, or system headquarters, if no division headquarters
exists, shall conduct a written quarterly review of the accident/
incident data, the results of prior operational tests and inspections,
and other pertinent safety data for that division or system to identify
the relevant operating rules related to those accidents/incidents that
occurred during the quarter. The review shall also include the name of
each railroad testing officer, the number of tests and inspections
conducted by each officer, and whether the officer conducted the
minimum number of each type of test or

inspection required by the railroad's program. Based upon the results
of that review, the designated officer shall make any necessary
adjustments to the tests and inspections required of railroad officers
for the subsequent period(s). Quarterly reviews and adjustments shall
be completed no later than 30 days after the quarter has ended.
    (ii) Six month review. The designated officer of each system
headquarters office responsible for development and administration of
the program of operational tests and inspections shall conduct a review
of the program of operational tests and inspections on a six month
basis to ensure that it is being utilized as intended, that the
quarterly reviews provided for in this paragraph have been properly
completed, that appropriate adjustments have been made to the
distribution of tests and inspections required, and that the railroad
testing officers are appropriately directing their efforts. Six month
reviews shall be completed no later than 60 days after the review
period has ended.
    (2) Reviews by passenger railroads. Not less than once every six
months, the designated officer(s) of the National Railroad Passenger
Corporation and of each railroad providing commuter service in a
metropolitan or suburban area shall conduct periodic reviews and
analyses as provided in this paragraph and shall retain, at each
division headquarters, where applicable, and at its system
headquarters, one copy of the reviews. Each such review shall be
completed within 30 days of the close of the period. The designated
officer(s) shall conduct a written review of:
    (i) The operational testing and inspection data for each division,
if any, or the system to determine compliance by the railroad testing
officers with its program of operational tests and inspections required
by paragraph (c) of this section. At a minimum, this review shall
include the name of each railroad testing officer, the number of tests
and inspections conducted by each officer, and whether the officer
conducted the minimum number of each type of test or inspection
required by the railroad's program;
    (ii) Accident/incident data, the results of prior operational tests
and inspections, and other pertinent safety data for each division, if
any, or the system to identify the relevant operating rules related to
those accidents/incidents that occurred during the period. Based upon
the results of that review, the designated officer(s) shall make any
necessary adjustments to the tests and inspections required of railroad
officers for the subsequent period(s); and
    (iii) Implementation of the program of operational tests and
inspections from a system perspective, to ensure that it is being
utilized as intended, that the other reviews provided for in this
paragraph have been properly completed, that appropriate adjustments
have been made to the distribution of tests and inspections required,
and that the railroad testing officers are appropriately directing
their efforts.
    (3) Records retention. The records of periodic reviews required in
paragraphs (e)(1) and (e)(2) of this section shall be retained for a
period of one year after the end of the calendar year to which they
relate and shall be made available to representatives of FRA for
inspection and copying during normal business hours.
    (f) Annual summary of operational tests and inspections. Before
March 1 of each calendar year, each railroad to which this part
applies, except for a railroad with less than 400,000 total employee
work hours annually, shall retain, at each of its division headquarters
and at the system headquarters of the railroad, one copy of a written
summary of the following with respect to its previous calendar year
activities: The number, type, and result of each operational test and
inspection, stated according to operating divisions where applicable,
that was conducted as required by paragraphs (a) and (c) of this
section. These records shall be retained for three calendar years after
the end of the calendar year to which they relate and shall be made
available to representatives of the FRA for inspection and copying
during normal business hours.
    (g) Electronic recordkeeping. Each railroad to which this part
applies is authorized to retain by electronic recordkeeping the
information prescribed in this section, provided that all of the
following conditions are met:
    (1) The railroad adequately limits and controls accessibility to
such information retained in its electronic database system and
identifies those individuals who have such access;
    (2) The railroad has a terminal at the system headquarters and at
each division headquarters;
    (3) Each such terminal has a computer (i.e., monitor, central
processing unit, and keyboard) and either a facsimile machine or a
printer connected to the computer to retrieve and produce information
in a usable format for immediate review by FRA representatives;
    (4) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as
true and accurate copies of the electronically kept records; and
    (5) The railroad provides representatives of the FRA with immediate
access to these records for inspection and copying during normal
business hours and provides printouts of such records upon request.
    (h) Upon review of the program of operational tests and inspections
required by this section, the Associate Administrator for Safety may,
for cause stated, disapprove the program. Notification of such
disapproval shall be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program,
    (1) The railroad has 35 days from the date of the written
notification of such disapproval to:
    (i) Amend its program and submit it to the Associate Administrator
for Safety for approval; or
    (ii) Provide a written response in support of the program to the
Associate Administrator for Safety, who informs the railroad of FRA's
final decision in writing; and
    (2) A failure to submit the program with the necessary revisions to
the Associate Administrator for Safety in accordance with this
paragraph will be considered a failure to implement a program under
this part.

0
5. Section 217.11(c) is revised to read as follows:

Sec.  217.11  Program of instruction on operating rules; recordkeeping;
electronic recordkeeping.

* * * * *
    (c) Each railroad to which this part applies is authorized to
retain by electronic recordkeeping its program for periodic instruction
of its employees on operating rules provided that the requirements
stated in Sec.  217.9(g)(1) through (5) of this part are satisfied.

0
6. Appendix A to part 217 is amended by revising the entry for Sec.
217.9 to read as follows:

           Appendix A to Part 217--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                             Willful
               Section                    Violation         violation
------------------------------------------------------------------------

                              * * * * * * *
217.9 Operational tests and
 inspections:
    (a) Failure to implement a           $9,500-12,500    $13,000-16,000
     program........................
    (b) Railroad and railroad
     testing officer
     responsibilities:
        (1) Failure to provide                   9,500            13,000
         instruction, examination,
         or field training, or
         failure to conduct tests in
         accordance with program....
        (2) Records.................             7,500            11,000
    (c) Record of program; program        7,500-12,500     11,000-16,000
     incomplete.....................
    (d) Records of individual tests              7,500  ................
     and inspections................
    (e) Failure to retain copy of or
     conduct:
        (1)(i) Quarterly review.....             9,500            13,000
        (1)(ii) and (2) Six month                9,500            13,000
         review.....................
        (3) Records.................             7,500            11,000
    (f) Annual summary..............             7,500            11,000
    (h) Failure to timely or              9,500-12,500     13,000-16,000
     appropriately amend program
     after disapproval..............

                              * * * * * * *
------------------------------------------------------------------------

PART 218--[AMENDED]

0
7. The authority citation for part 218 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.

0
8. Section 218.4 is added to read as follows:

Sec.  218.4  Preemptive effect.

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

0
9. Section 218.5 is amended by revising the definitions of Flagman's
signals and Locomotive to read as follows:

Sec.  218.5  Definitions.

* * * * *
    Flagman's signals means a red flag by day and a white light at
night, and fusees as prescribed in the railroad's operating rules.
* * * * *
    Locomotive means, except for purposes of subpart F of this part, a
self-propelled unit of equipment designed for moving other railroad
rolling equipment in revenue service including a self-propelled unit
designed to carry freight or passenger traffic, or both, and may
consist of one or more units operated from a single control.
* * * * *

0
10. Section 218.37 is amended by revising paragraphs (a)(1)(iii) and
(a)(1)(iv) to read as follows:

Sec.  218.37  Flag protection.

    (a) * * *
    (1) * * *
    (iii) When a train stops on main track, flag protection against
following trains on the same track must be provided as follows: A crew
member with flagman's signals must immediately go back at least the
distance prescribed by timetable or other instructions for the
territory and display one lighted fusee. The crew member may then
return one-half of the distance to the crew member's train where the
crew member must remain until the crew member has stopped the
approaching train or is recalled. When recalled, the crew member must
leave one lighted fusee and while returning to the crew member's train,
the crew member must also place single lighted fusees at intervals that
do not exceed the burning time of the fusee. When the train departs, a
crew member must leave one lighted fusee and until the train resumes
speed not less than one-half the maximum authorized speed (including
slow order limits) in that territory, the crew member must drop off
single lighted fusees at intervals that do not exceed the burning time
of the fusee.
    (iv) When required by the railroad's operating rules, a forward
crew member with flagman's signals must protect the front of the crew
member's train against opposing movements by immediately going forward
at least the distance prescribed by timetable or other instructions for
the territory, displaying one lighted fusee, and remaining at that
location until recalled.
* * * * *

0
11. Add new subpart F to part 218 to read as follows:
Subpart F--Handling Equipment, Switches, and Fixed Derails
Sec.
218.91 Purpose and scope.
218.93 Definitions.
218.95 Instruction, training, and examination.
218.97 Good faith challenge procedures.
218.99 Shoving or pushing movements.
218.101 Leaving rolling and on-track maintenance-of-way equipment in
the clear.
218.103 Hand-operated switches, including crossover switches.
218.105 Additional operational requirements for hand-operated main
track switches.
218.107 Additional operational requirements for hand-operated
crossover switches.
218.109 Hand-operated fixed derails.

Subpart F--Handling Equipment, Switches, and Fixed Derails

Sec.  218.91  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and
casualties that can result from the mishandling of equipment, switches,
and fixed derails.
    (b) This subpart prescribes minimum operating rule requirements for
the handling of equipment, switches, and fixed derails. Each railroad
may prescribe additional or more stringent requirements in its
operating rules, timetables, timetable special instructions, and other
instructions.

Sec.  218.93  Definitions.

    As used in this subpart--
    Associate Administrator for Safety means the Associate
Administrator for Safety of the Federal Railroad Administration or that
person's delegate as designated in writing.
    Clearance point means the location near a turnout beyond which it
is unsafe for passage on an adjacent track(s). Where a person is
permitted by a railroad's operating rules to ride the side of a car, a
clearance point shall accommodate a person riding the side of a car.
    Correspondence of crossover switches means both crossover switches
are lined for the crossover or both are lined for the straight tracks.
    Crossover means, for purposes of this subpart only, a track
connection between two adjacent, but not necessarily parallel, tracks,
consisting of two switches, which is intended to be used primarily for
the purpose of crossing over from one track to another.
    Employee means an individual who is engaged or compensated by a
railroad or by a contractor to a railroad to perform any of the duties
defined in this subpart.
    Foul or fouling a track means rolling equipment or on-track
maintenance-of-way equipment is located such that the end of the
equipment is between the clearance point and the switch points leading
to the track on which the equipment is standing.
    FRA means the Federal Railroad Administration.
    Hand-operated switch means any type of switch when operated by
manual manipulation. For purposes of this subpart, a hand-operated
switch does not include switches operated by push button or radio
control when such switch is protected by distant switch indicators,
switch point indicators, or other visual or audio verification that the
switch points are lined for the intended route and fit properly.
    Highway-rail grade crossing means, for purposes of this subpart
only, an at-grade crossing where a public highway, road, street, or
private roadway, including associated sidewalks and pathways, crosses
one or more railroad tracks at grade, and is identified by a U.S. DOT
National Highway-Rail Grade Crossing Inventory Number, or is marked by
crossbucks, stop signs, or other appropriate signage indicating the
presence of an at-grade crossing.
    Industry track means a switching track, or series of tracks,
serving the needs of a commercial industry other than a railroad.
    Lite locomotive consist means two or more locomotive units coupled
without cars attached, regardless of whether the locomotive units are
connected so that they may be operated from a single control stand.
    Locomotive means, for purposes of this subpart only, a piece of on-
track equipment (other than specialized roadway maintenance equipment
or a dual purpose vehicle operating in accordance with Sec.
240.104(a)(2) of this chapter):
    (1) With one or more propelling motors designed for moving other
equipment;
    (2) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Pedestrian crossing means a separate designated sidewalk or pathway
where pedestrians, but not vehicles, cross railroad tracks. Sidewalk
crossings contiguous with, or separate but adjacent to, highway-rail
grade crossings, are presumed to be part of the highway-rail grade
crossings and are not considered pedestrian crossings.
    Qualified means that a person has successfully completed all
instruction, training, and examination programs required by the
railroad and this subpart and that the person, therefore, has actual
knowledge or may reasonably be expected to have knowledge of the
subject on which the person is expected to be competent.
    Remote control operator means a locomotive engineer, as defined in
Sec.  240.7 of this chapter, certified by a railroad to operate remote
control locomotives pursuant to Sec.  240.107 of this chapter.
    Remote control zone means one or more tracks within defined limits
designated in the timetable special instructions, or other railroad
publication, within which remote control locomotives, under certain
circumstances specified in this part, may be operated without an
employee assigned to protect the pull-out end of the remote control
movement, i.e., the end on which the locomotive is located.
    Roadway maintenance activity means any work limited to the duties
prescribed for a roadway worker by definition in this section,
including movement of on-track maintenance-of-way equipment other than
locomotives.
    Roadway worker means any employee of a railroad, or of a contractor
to a railroad, whose duties include inspection, construction,
maintenance or repair of railroad track, bridges, roadway, signal and
communication systems, electric traction systems, roadway facilities or
roadway maintenance machinery on or near track or with the potential of
fouling a track, and flagmen and watchmen/lookouts as defined in Sec.
214.7 of this chapter.
    Roadway worker in charge means a roadway worker who is qualified in
accordance with Sec.  214.353 of this chapter for the purpose of
establishing on-track safety for roadway work groups.
    Siding means an auxiliary track, adjacent and connected to a main
track, used for meeting or passing trains.
    Signaled siding means a siding within traffic control system (TCS)
territory or within interlocking limits where a signal indication
authorizes the siding's use.
    Switchtender means a qualified employee assigned to handle switches
at a specific location.
    Track is clear means:
    (1) The portion of the track to be used for the intended movement
is unoccupied by rolling equipment, on-track maintenance-of-way
equipment, and conflicting on-track movements;
    (2) Intervening public highway-rail grade crossings, private
highway-rail grade crossings outside the physical confines of a
railroad yard, pedestrian crossings outside of the physical confines of
a railroad yard, and yard access crossings are protected as follows:
    (i) Crossing gates are in the fully lowered position, and are not
known to be malfunctioning; or
    (ii) A designated and qualified employee is stationed at the
crossing and has the ability to communicate with trains; or
    (iii) At crossings equipped only with flashing lights or passive
warning devices, when it is clearly seen that no traffic is approaching
or stopped at the crossing and the leading end of the movement over the
crossing does not exceed 15 miles per hour;
    (3) Intervening switches and fixed derails are properly lined for
the intended movement; and

    (4) The portion of the track to be used for the intended movement
has sufficient room to contain the rolling equipment being shoved or
pushed.
    Yard access crossing means a private highway-rail grade crossing
that is located within the physical confines of a railroad yard and is
either:
    (1) Open to unrestricted public access; or
    (2) Open to persons other than railroad employees going about their
normal duties, e.g., business guests or family members.

Sec.  218.95  Instruction, training, and examination.

    (a) Program. Effective July 1, 2008, each railroad shall maintain a
written program of instruction, training, and examination of employees
for compliance with operating rules implementing the requirements of
this subpart to the extent these requirements are pertinent to the
employee's duties. If all requirements of this subpart are satisfied, a
railroad may consolidate any portion of the instruction, training or
examination required by this subpart with the program of instruction
required under Sec.  217.11 of this chapter. An employee who
successfully completes all instruction, training, and examination
required by this written program shall be considered qualified.
    (1) The written program of instruction, training, and examination
shall address the requirements of this subpart, as well as consequences
of noncompliance.
    (2) The written program of instruction, training, and examination
shall include procedures addressing how the railroad qualifies
employees in any technology necessary to accomplish work subject to the
requirements of this subpart. Such procedures shall include, but are
not limited to, those which explain:
    (i) The purpose for using the technology;
    (ii) How an employee will be expected to use the technology;
    (iii) How to detect malfunctioning equipment or deviations from
proper procedures;
    (iv) How to respond when equipment malfunctions or deviations from
proper procedures are detected; and
    (v) How to prevent unintentional interference with the proper
functioning of the technology.
    (3) Implementation schedule for employees, generally. Each employee
performing duties subject to the requirements in this subpart shall be
initially qualified prior to January 1, 2009. Employees hired between
April 14, 2008 and January 1, 2009, and all employees thereafter
required to perform duties subject to the requirements in this subpart
shall be qualified before performing duties subject to the requirements
in this subpart.
    (4) After January 1, 2009, no employee shall perform work requiring
compliance with the operating rules implementing the requirements of
this subpart unless qualified on these rules within the previous three
years.
    (5) The records of successful completion of instruction,
examination and training required by this section shall document
qualification of employees under this subpart.
    (b) Written records documenting successful completion of
instruction, training, and examination of each employee required by
this subpart shall be retained at its system headquarters and at the
division headquarters for each division where the employee is assigned
for three calendar years after the end of the calendar year to which
they relate and made available to representatives of the FRA for
inspection and copying during normal business hours. Each railroad to
which this part applies is authorized to retain a program, or any
records maintained to prove compliance with such a program, by
electronic recordkeeping in accordance with Sec. Sec.  217.9(g) and
217.11(c) of this chapter.
    (c) Upon review of the program of instruction, training, and
examination required by this section, the Associate Administrator for
Safety may, for cause stated, disapprove the program. Notification of
such disapproval shall be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program,
    (1) The railroad has 35 days from the date of the written
notification of such disapproval to:
    (i) Amend its program and submit it to the Associate Administrator
for Safety for approval; or
    (ii) Provide a written response in support of the program to the
Associate Administrator for Safety, who informs the railroad of FRA's
final decision in writing; and
    (2) A failure to submit the program with the necessary revisions to
the Associate Administrator for Safety in accordance with this
paragraph will be considered a failure to implement a program under
this part.

Sec.  218.97  Good faith challenge procedures.

    (a) Employee Responsibility. An employee shall inform the railroad
or employer whenever the employee makes a good faith determination that
the employee has been directed to either take actions that would
violate FRA regulations regarding the handling of equipment, switches,
and fixed derails as required by this subpart, or to take actions that
would violate the railroad's operating rules implementing the
requirements of this subpart.
    (b) General procedures. Each railroad or employer is responsible
for the training of and compliance by its employees with the
requirements of this subpart.
    (1) Each railroad or employer shall adopt and implement written
procedures which guarantee each employee the right to challenge in good
faith whether the procedures that will be used to accomplish a specific
task comply with the requirements of this subpart or any operating rule
relied upon to fulfill the requirements of this subpart. Each railroad
or employer's written procedures shall provide for prompt and equitable
resolution of challenges made in accordance with this subpart.
    (2) The written procedures required by this section shall indicate
that the good faith challenge described in paragraph (b)(1) of this
section is not intended to abridge any rights or remedies available to
the employee under a collective bargaining agreement, or any Federal
law including, but not limited to, 29 U.S.C. 651 et seq., 6 U.S.C.
1142, or 49 U.S.C. 20109.
    (3) Each affected employee shall be instructed on the written
procedures required by this paragraph as part of the training
prescribed by Sec.  217.11 of this chapter.
    (4) A copy of the current written procedures shall be provided to
each affected employee and made available for inspection and copying by
representatives of the FRA during normal business hours.
    (c) The written procedures shall--
    (1) Grant each employee the right to challenge any directive which,
based on the employee's good faith determination, would cause the
employee to violate any requirement of this subpart or any operating
rule relied upon to fulfill the requirements of this subpart;
    (2) Provide that the railroad or employer shall not require the
challenging employee to comply with the directive until the challenge
resulting from the good faith determination is resolved;
    (3) Provide that the railroad or employer may require the
challenging employee to perform tasks unrelated to the challenge until
the challenge is resolved;

    (4) Provide that the railroad or employer may direct an employee,
other than the challenging employee, to perform the challenged task
prior to the challenge being resolved as long as this other employee is
informed of the challenge and does not also make a good faith
determination that the challenged task would violate FRA regulations
regarding the handling of equipment, switches, and fixed derails as
required in this subpart, or a railroad's operating rules implementing
the requirements of this subpart;
    (5) Provide that a challenge may be resolved by:
    (i) A railroad or employer officer's acceptance of the employee's
request;
    (ii) An employee's acceptance of the directive;
    (iii) An employee's agreement to a compromise solution acceptable
to the person issuing the directive; or
    (iv) As further determined under paragraph (d) of this section.
    (d) In the event that the challenge cannot be resolved because the
person issuing the directive determines that the employee's challenge
has not been made in good faith or there is no reasonable alternative
to the direct order, the written procedures shall:
    (1) Provide for immediate review by at least one officer of the
railroad or employer, except for each railroad with less than 400,000
total employee work hours annually. This immediate review shall:
    (i) Not be conducted by the person issuing the challenged
directive, or that person's subordinate; and
    (ii) Provide that a challenge may be resolved by using the same
options available for resolving the challenge as the initial officer as
well as the option described in paragraph (d)(2) of this section,
except that the reviewing officer's decision shall not be subject to
further immediate review, unless provided for in the railroad's or
employer's written procedures;
    (2) Provide that if the officer making the railroad's or employer's
final decision concludes that the challenged directive would not cause
the employee to violate any requirement of this subpart or the
railroad's or employer's operating rule relied upon to fulfill the
requirements of this subpart and directs the employee to perform the
challenged directive, the officer shall further explain to the employee
that Federal law may protect the employee from retaliation if the
employee refuses to do the work and if the employee's refusal is a
lawful, good faith act;
    (3) Provide that the employee be afforded an opportunity to
document electronically or in writing any protest to the railroad or
employer's final decision before the tour of duty is complete. The
employee shall be afforded the opportunity to retain a copy of the
protest;
    (4) Provide that the employee, upon written request, has a right to
further review by a designated railroad or employer officer, within 30
days after the expiration of the month during which the challenge
occurred, for the purpose of verifying the proper application of the
regulation, law, procedure or rule in question. The verification
decision shall be made in writing to the employee.
    (e) Recordkeeping and record retention. (1) A copy of the written
procedures required by this section shall be retained at the employer
or railroad's system headquarters and at each division headquarters,
and made available to representatives of the FRA for inspection and
copying during normal business hours.
    (2) A copy of any written good faith challenge verification
decision, made in accordance with paragraph (d)(4) of this section,
shall be retained at the employer or railroad's system headquarters and
at the division headquarters to which the employee was working when the
challenge was initiated, and made available to representatives of the
FRA for inspection and copying during normal business hours for at
least one calendar year after expiration of the year during which the
decision was issued.
    (3) Each employer or railroad to which this subpart applies is
authorized to retain by electronic recordkeeping the information
prescribed in this subpart in accordance with the electronic
recordkeeping standards set forth in Sec.  217.9(g)(1) through (5) of
this chapter.

Sec.  218.99  Shoving or pushing movements.

    (a)(1) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (2) The following requirements for shoving or pushing movements do
not apply to rolling equipment intentionally shoved or pushed to permit
the rolling equipment to roll without power attached, i.e., free
rolling equipment, during switching activities known as kicking,
humping, or dropping cars.
    (b) General movement requirements.--(1) Job briefing. Rolling
equipment shall not be shoved or pushed until the locomotive engineer
participating in the move has been briefed by the employee who will
direct the move. The job briefing shall include the means of
communication to be used between the locomotive engineer and the
employee directing the move and how point protection will be provided.
    (2) No unrelated tasks. During the shoving or pushing movement, the
employee directing the movement shall not engage in any task unrelated
to the oversight of the shoving or pushing movement.
    (3) Point protection. When rolling equipment or a lite locomotive
consist is shoved or pushed, point protection shall be provided by a
crewmember or other qualified employee by:
    (i) Visually determining that the track is clear. The determination
that the track is clear may be made with the aid of monitored cameras
or other technological means, provided that it and the procedures for
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 as prescribed in this
section and appendix D to this part; and
    (ii) Giving signals or instructions necessary to control the
movement.
    (c) Additional requirements for remote control movements. All
remote control movements are considered shoving or pushing movements,
except when the remote control operator controlling the movement is
riding the leading end of the leading locomotive in a position to
visually determine conditions in the direction of movement. In addition
to the other requirements of this section,
    (1) When initiating a remote control shoving or pushing movement:
    (i) The remote control operator shall visually determine the
direction the equipment moves; or
    (ii) A member of the crew shall visually determine the direction
the equipment moves and confirm the direction with the remote control
operator. If no confirmation is received, the movement shall be
immediately stopped; and
    (2) If technology is relied upon, whether primarily or as a
safeguard, to provide pull-out protection by preventing the movement
from exceeding the limits of a remote control zone, the technology
shall be demonstrated
    (i) To be failsafe; or
    (ii) To provide suitable redundancy to prevent unsafe failure.
    (d) Remote control zone, exception to track is clear requirements.
After an

initial track is clear determination has been made in an activated
remote control zone, it is not necessary to make a new determination
prior to each subsequent shoving or pushing movement provided that:
    (1) The controlling locomotive of the remote control movement is on
the leading end in the direction of movement, i.e., the movement occurs
on the pull-out end;
    (2) The remote control zone is not jointly occupied; and
    (3) The initial determination was made by a crewmember of either:
    (i) The remote control crew;
    (ii) A relieved remote control crew who has transferred the remote
control zone directly to the relieving crew; or
    (iii) The last jointly occupying crew who directly communicates,
i.e., not through a third party, to a remote control crewmember that
the remote control zone is no longer jointly occupied and meets the
requirements for track is clear.
    (e) Operational exceptions. A railroad does not need to comply with
paragraphs (b) through (d) of this section in the following
circumstances:
    (1) Push-pull operations when operated from the leading end in the
direction of movement, i.e., push mode;
    (2) Shoving or pushing operations with manned helper locomotives or
distributed power locomotives assisting a train when the train is being
operated from the leading end in the direction of movement;
    (3) During 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; or
    (4) When the leading end of a shoving movement is on a main track
or signaled siding, under the following conditions:
    (i) The train dispatcher gives authority or permission to make the
movement and verifies that:
    (A) Another movement or work authority is not in effect within the
same or overlapping limits unless conflicting movements are protected;
and
    (B) A main track is not removed from service by a work authority
within the same or overlapping limits;
    (ii) Movement is limited to the train's authority;
    (iii) Movement shall not be made into or within yard limits,
restricted limits, drawbridges, or work authority limits;
    (iv) Movement shall not enter or foul a highway-rail grade crossing
or pedestrian crossing except when:
    (A) Crossing gates are in the fully lowered position; or
    (B) A designated and qualified employee is stationed at the
crossing and has the ability to communicate with trains; or
    (C) At crossings equipped only with flashing lights or passive
warning devices, when it is clearly seen that no traffic is approaching
or stopped at the crossing and the leading end of the movement over the
crossing does not exceed 15 miles per hour; and
    (v) Movement shall not be made into or within interlocking limits
or controlled point limits unless the following conditions are met:
    (A) The signal governing movement is more favorable than
restricting aspect;
    (B) Each signal governing movement into and through interlocking
limits or controlled point limits shall be continuously observed by a
member of that crew who is in a position to determine that the train's
movement has occupied the circuit controlling that signal as evidenced
by that signal assuming its most restrictive aspect; and
    (C) The movement does not exceed the train's length.

Sec.  218.101  Leaving rolling and on-track maintenance-of-way
equipment in the clear.

    (a) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (b) Rolling and on-track maintenance-of-way equipment shall not be
left where it will foul a connecting track unless:
    (1) The equipment is standing on a main track and a siding track
switch that the equipment is fouling is lined for the main track on
which the equipment is standing; or
    (2) The equipment is standing on a siding and a main track switch
that the equipment is fouling is lined for the siding on which the
equipment is standing; or
    (3) The equipment is standing on a yard switching lead track, and
the yard track switch that the equipment is fouling is lined for the
yard switching lead track on which the equipment is standing; or
    (4) The equipment is on an industry track beyond the clearance
point of the switch leading to the industry.
    (c) Each railroad shall implement procedures that enable employees
to identify clearance points and a means to identify locations where
clearance points will not permit a person to safely ride on the side of
a car.

Sec.  218.103  Hand-operated switches, including crossover switches.

    (a)(1) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (2) Each railroad shall specify minimum requirements necessary for
an adequate job briefing.
    (b) General. Employees operating or verifying the position of a
hand-operated switch shall:
    (1) Conduct job briefings, before work is begun, each time a work
plan is changed, and at completion of the work;
    (2) Be qualified on the railroad's operating rules relating to the
operation of the switch;
    (3) Be individually responsible for the position of the switch in
use;
    (4) Visually determine that switches are properly lined for the
intended route and that no equipment is fouling the switches;
    (5) Visually determine that the points fit properly and the target,
if so equipped, corresponds with the switch's position;
    (6) After operating a switch and before making movements in either
direction over the switch, ensure that the switch is secured from
unintentional movement of the switch points;
    (7) 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; and
    (8) After operating a switch, ensure that when not in use, each
switch is locked, hooked, or latched, if so equipped.
    (c) Rolling and on-track maintenance-of-way equipment shall not
foul a track until all hand-operated switches connected with the
movement are properly lined, or in the case of hand-operated switches
designed and permitted to be trailed through, until the intended route
is seen to be clear or the train has been granted movement authority.
When a conflicting movement is approaching a hand-operated switch, the
track shall not be fouled or the switch operated.
    (d) When rolling and on-track maintenance-of-way equipment has
entered a track, the hand-operated switch to that track shall not be
lined

away from the track until the equipment has passed the clearance point
of the track.

Sec.  218.105  Additional operational requirements for hand-operated
main track switches.

    (a) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (b) Designating switch position. The normal position of a hand-
operated main track switch shall be designated by the railroad in
writing and the switch shall be lined and locked in that position when
not in use except when:
    (1) The train dispatcher directs otherwise with respect to the
position of a hand-operated main track switch and the necessary
protection is provided; or
    (2) The hand-operated switch is left in the charge of a crewmember
of another train, a switchtender, or a roadway worker in charge.
    (c) Additional job briefing requirements for hand-operated main
track switches.
    (1) Before a train or a train crew 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.
    (2) In the case of exclusive track occupancy authority established
under Sec.  214.321, foul time under Sec.  214.323, or train
coordination under Sec.  214.325, when a roadway worker qualified to
operate hand-operated main track switches is granted permission by the
roadway worker in charge to occupy or otherwise use the limits of the
exclusive track occupancy, such employee receiving permission to occupy
the working limits shall report the position of any such switches
operated upon expiration of the authority limits to the roadway worker
in charge or to a designated intermediary employee who shall convey the
switch position to the roadway worker in charge.
    (d) Releasing Authority Limits. 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, the following conditions are required:
    (1) The employee releasing the limits, after conducting a job
briefing in accordance with this subpart, shall 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 and the necessary protection is provided;
    (2) If the report of the switch position is correct, the train
dispatcher shall repeat the reported switch position information to the
employee releasing the limits and ask whether that is correct; and
    (3) The employee releasing the limits shall then confirm to the
train dispatcher that this information is correct.

Sec.  218.107  Additional operational requirements for hand-operated
crossover switches.

    (a) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (b) Hand-operated crossover switches, generally. Both hand-operated
switches of a crossover shall be properly lined before rolling and on-
track maintenance-of-way equipment begins a crossover movement. A
crossover movement shall be completed before either hand-operated
crossover switch is restored to normal position.
    (c) Correspondence of hand-operated crossover switches. Hand-
operated crossover switches shall be left in corresponding position
except when:
    (1) Used to provide blue signal protection under Sec.  218.27 of
this part; or
    (2) Used for inaccessible track protection under Sec.  214.327 of
this chapter; or
    (3) Performing maintenance, testing or inspection of crossover
switches in traffic control system (TCS) territory; or
    (4) One crew is using both tracks connected by the crossover during
continuous switching operations.

Sec.  218.109  Hand-operated fixed derails.

    (a)(1) Each railroad shall adopt and comply with an operating rule
which complies with the requirements of this section. 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.
    (2) Each railroad shall specify minimum requirements necessary for
an adequate job briefing.
    (b) General. (1) The normal position of fixed derails is in the
derailing position except as provided in part 218, subpart B of this
chapter, or the railroad's operating rules or special instructions.
    (2) Fixed derails shall be kept in the derailing position whether
or not any rolling and on-track maintenance-of-way equipment is on the
tracks they protect, except as provided in paragraph (b)(1) of this
section or when changed to permit movement.
    (3) Movement must not be made over a fixed derail in the derailing
position.
    (c) Employees operating or verifying the position of a fixed derail
shall:
    (1) Conduct job briefings, before work is begun, each time a work
plan is changed, and at completion of the work;
    (2) Be qualified on the railroad's operating rules relating to the
operation of the derail;
    (3) Be individually responsible for the position of the derail in
use;
    (4) Determine that the target, if so equipped, corresponds with the
derail's position;
    (5) Determine that the derail is secured by:
    (i) Placing the throw lever in the latch stand, if so equipped;
    (ii) Placing the lock or hook in the hasp, if so equipped; and
    (iii) Testing such latches, locks or hooks; and
    (6) Ensure that when not in use, derails are locked, hooked, or
latched in the normal position if so equipped.

0
12. Appendix A to part 218 is amended by adding entries for subpart F,
consisting of Sec. Sec.  218.95, 218.97, 218.99, 218.101, 218.103,
218.105, 218.107 and 218.109, to read as follows:

           Appendix A to Part 218--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                             Willful
               Section                    Violation         violation
------------------------------------------------------------------------

                              * * * * * * *
Subpart F--Handling Equipment,
 Switches and Derails: 218.95
 Instruction, Training, and
 Examination:
    (a) Program.....................      9,500-12,500     13,000-16,000
    (b) Records.....................             7,500            11,000
    (c) Failure to timely or              9,500-12,500     13,000-16,000
     appropriately amend program
     after disapproval..............
218.97 Good Faith Challenge
 Procedures:
    (a) Employee Responsibility       ................             5,000
     Failure........................
    (b) through (d) Failure to adopt             7,500  ................
     or implement procedures........
218.99 Shoving or Pushing Movements:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) Failure to conduct job             7,500-9,500     11,000-13,000
     briefing, use a qualified
     employee, or establish proper
     protection.....................
    (c) Failure to observe equipment             9,500            13,000
     direction......................
    (d) Failure to properly                      9,500            13,000
     establish point protection
     within a remote control zone...
    (e) Failure to abide by                      9,500            13,000
     operational exception
     requirements...................
218.101 Leaving Equipment in the
 Clear:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) Equipment left improperly                9,500            13,000
     fouling........................
    (c) Failure to implement                     9,500            13,000
     procedures for identifying
     clearance points...............
218.103 Hand-operated switches,
 including crossover switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) through (d) Railroad and                 7,500  ................
     employee failures..............
218.105 Additional operational
 requirements for hand-operated main
 track switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
    (d) Failure to properly release             12,500  ................
     authority limits...............
218.107 Additional operational
 requirements for hand-operated
 crossover switches:
    (a) Failure to implement                     9,500  ................
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
218.109 Hand-operated fixed derails:
    (a) Failure to implement                     9,500            13,000
     required operating rule........
    (b) and (c) Railroad and                     7,500            11,000
     employee failures..............
------------------------------------------------------------------------

0
13. Appendix D to Part 218 is added to read as follows:

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

Introduction

    This appendix provides further explanation and requirements for
exercising the option to provide point protection with the aid of
technology as permitted in Sec.  218.99(b)(3)(i). The regulation
permits the visual determination necessary to provide point
protection, i.e., a determination that the track is clear, for a
shoving or pushing movement to ``be made with the aid of monitored
cameras or other technological means, provided that it and the
procedures for 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 as prescribed
in this section and appendix D to this part.'' This appendix
addresses the general requirements and considerations for all
technology aided point protection as well as specific additional
requirements for those operations involving remote control
operations at public highway-rail grade crossings, private highway-
rail grade crossings outside the physical confines of a railroad
yard, pedestrian crossings outside the physical confines of a
railroad yard, and yard Access Crossings.

I. General Requirements and Considerations

    A. Although railroading is now one of the nation's older forms
of mechanized transportation, equipment, components and operations
all have evolved through new and improved technologies. Installing
cameras in yards so that a location could be remotely monitored from
somewhere else has become a railroading reality as cameras have
become smaller, less expensive, and have increased resolution. It is
possible to set up these cameras and monitors so that they provide
at least an equivalent level of safety to that of an employee
protecting the point. Part 218, subpart F permits such an operation
to substitute for an employee's direct visual determination where
the technology provides an equivalent level of protection to that of
a direct visual determination. See Sec.  218.99(b)(3)(i). Of course,
to provide an equivalent level of protection, an employee needs to
be properly qualified (see Sec.  218.95(a)(2)) and the technology
must 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.
    B. The substitution of such technology for a direct visual
determination is dependent on many factors. Each situation will have
its own particular factual circumstances that shall require
consideration in determining whether an equivalent level of safety
can be achieved. For instance, with regard to the basic camera
setup, a railroad shall consider whether an operator must see in
color (largely a necessity if viewing signals), the width of the
angle of view, the size and location of the monitor, whether the
technology is for day-time use only, and whether its use should be
limited to fair weather conditions. However, under all
circumstances, the monitor shall display sufficient information to
enable the viewer to make a determination that the track ahead of
the shoving or pushing move is clear pursuant to the definition of
``track is clear'' in Sec.  218.93.
    C. Each railroad that chooses to implement such camera/monitor
setups shall implement attendant procedures and qualify each
employee who will be utilizing the technology. Railroads shall
ensure that any monitored camera has sufficient resolution and real
time coverage to provide protection equal to a direct visual
determination. See Sec.  218.99(b)(3)(i). 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 visually determine that the track is clear and provide
continuous communication to the employee controlling the movement.
    D. There is also the consideration of whether the person viewing
the monitor is

the locomotive engineer, remote control operator, other crewmember
or other qualified person, such as a yardmaster. If the monitor is
not being viewed by the operator who is controlling the movement,
then, there shall be a clear understanding and channel of
communication between the operator and the employee who is viewing
the monitor--as the latter would be protecting the movement.
Providing an equivalent level of protection to that of a direct
visual determination requires a thorough job briefing in which there
is an understanding of who is observing the movement, what is the
observer's range of vision, at what locomotive speed can the
observation be made and how information will be conveyed to the
operator/engineer, if that person is not the one viewing the
monitor.
    E. There may be occasions when a railroad finds it advantageous
to use a non-crewmember, e.g., a yardmaster, to provide point
protection, line switches, or check the status of a derail for a
remote control crew; however, several potential problems may result
when non-crewmembers are used to carry out some crewmember
functions. Of foremost concern is the great potential for an error
in communication or a misunderstanding between the non-crewmember
and the crewmembers regarding the activity or status of equipment. A
yardmaster who is occupied with his or her other responsibilities
might not give the task the attention it deserves, or could be
distracted and give an incorrect answer to a question by a
crewmember (e.g., ``is the move lined?''). The result could be that
the task does not get completed or there is an error in task
execution. Further, the crewmembers might not have any alternative
way of determining that there is a problem with the point protection
provided by the non-crewmember until it is too late. Consequently,
to the extent they will be called upon to perform these duties, each
railroad shall include yardmasters and other non-crewmembers in any
operating rule promulgated in accordance with Sec.  218.99(b)(2).

II. Additional Requirements for Remote Control Locomotive Operations at
Highway-Rail Grade Crossings, Pedestrian Crossings, and Yard Access
Crossings

    A. In addition to the general requirements and considerations
for all technology aided point protection in lieu of direct visual
determinations, additional requirements are necessary to address
concerns specific to the use of camera/monitor setups for remote
control locomotive operations to protect the point at highway-rail
grade crossings, pedestrian crossings, and yard access crossings.
Railroad operating rules currently permit a movement to travel over
a crossing without the physical presence of a crewmember if a
crossing is equipped with gates, if it can be determined that the
gates are in the fully lowered position, and if the crossing is
clear of vehicles and pedestrians. Remote control movements at
highway-rail grade crossings, pedestrian crossings, and yard access
crossings that utilize camera/monitor setups pose a greater direct
risk to members of the general public than yard movements utilizing
camera/monitor setups to check whether a track is clear. In
addition, such setups can rapidly develop problems with motor
vehicles and pedestrians unaccustomed to railroad operating rules
and procedures. For these reasons, additional safeguards are
necessary.
    B. In consideration of the dangers posed by the use of camera/
monitor setups for remote control locomotive operations at highway-
rail grade crossings, pedestrian crossings, and yard access
crossings, the following procedures shall be complied with in order
to establish an equivalent means of safety in accordance with Sec.
218.99(b)(3)(i):
    1. Before camera-assisted remote control locomotive operations
are permitted at highway-rail grade crossings, pedestrian crossings,
and yard access crossings, a Crossing Diagnostic Team shall evaluate
the crossing. The diagnostic team shall have representatives from
the railroad, FRA, the State department of transportation (or
another State agency having jurisdiction over the highway-rail grade
crossing, pedestrian crossing, or yard access crossing), and local
government authorities. The diagnostic team shall evaluate the
suitability of each crossing for remote camera operations. Among the
factors it shall consider are the following: the average annual
daily traffic counts; the number of highway lanes; highway speed
limits; the presence of adjacent signalized highway intersections;
the number of railroad tracks; the angle of the roadway
intersection; the volume of school bus, transit bus, emergency
vehicle, commercial motor vehicle, and hazardous materials traffic
over the crossing; the minimum remote control locomotive operator
sight distances of roadway approaches to the crossing; and other
relevant factors that could affect the safety of the crossing. The
diagnostic team shall also consider the appropriate number of
cameras and appropriate camera angles needed to provide for the
remote operation of remote control locomotives over the crossing.
The diagnostic team shall agree to a written diagnostic evaluation
summary of the factors considered and shall provide the railroad
with agreed upon parameters by which the camera-assisted remote
control operation may continue in operation if the factors required
for suitability change; thus, any change in the factors considered
by the diagnostic team outside of the acceptable parameters shall
require the railroad to receive a revised evaluation approval from a
diagnostic team before continuing any such operation. In addition,
any of the Federal, State, or local governmental authorities may
trigger review of a prior evaluation approval at any time there is a
question of the suitability of the operation. It is possible that,
of the requirements listed below, requirements numbered 2, 4, 5, and
6 would be unnecessary at highway-rail grade crossings or yard
access crossings equipped with approved supplemental safety devices
(see 49 CFR part 222, app. A) that prevent motorists from driving
around lowered gates; under such circumstances, the diagnostic team
shall make such determinations. If a Crossing Diagnostic Team, as
described in this paragraph, evaluated a crossing for the factors
described herein, prior to April 14, 2008, another diagnostic team
evaluation is not required to comply with this rule; however, the
requirements listed below shall still apply to any such remotely
controlled movements over that crossing.
    2. Camera-assisted remote control locomotive operations shall
only be permitted at crossings equipped with flashing lights, gates,
and constant warning time train detection systems where appropriate,
based on train speeds.
    3. A crewmember or other qualified employee shall not view the
monitor in place of the remote control operator, as is permitted for
other shoving or pushing movements. See Sec.  218.99(b)(3). For
purposes of remote control locomotive operations with camera/monitor
setups to protect the point at highway-rail grade crossings,
pedestrian crossings, and yard access crossings, the remote control
operator controlling the movement shall view the monitor during such
operations.
    4. The cameras shall be arranged to give the remote control
locomotive operator controlling the movement a view of the rail
approaches to the crossing from each direction so that the operator
can accurately judge the end of the movement's proximity to the
crossing.
    5. The cameras shall be arranged to give the remote control
locomotive operator a clear view to determine the speed and driver
behavior (e.g., driving erratically) of any approaching motor
vehicles.
    6. Either the camera resolution shall be sufficient to determine
whether the flashing lights and gates are working as intended or the
crossing shall be equipped with a remote health monitoring system
that is capable of notifying the remote control locomotive operator
immediately if the flashing lights and gates are not working as
intended.
    7. The railroad shall notify the Associate Administrator for
Safety in writing when this type of protection has been installed
and activated at a crossing.

III. Conclusion

    The technology used to aid point protection will undoubtedly
develop and improve over time. FRA encourages the use and
development of this technology as is evidenced by the option in this
rule to utilize such technology. Meanwhile, as a regulating body,
FRA cannot determine whether a new technology to aid point
protection provides an equivalent level of protection to that of a
direct visual determination unless we are made aware of the new
technology. Consequently, aside from the camera/monitor setups
described in this appendix, each railroad that intends to implement
a technology used to aid point protection shall notify the Associate
Administrator for Safety in writing of the technology to be used
prior to implementation.

    Issued in Washington, DC, on January 29, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-1933 Filed 2-12-08; 8:45 am]

BILLING CODE 4910-06-P