as applicable). The officer may be designated either by name or job
title, as long as the designation clearly identifies a responsible
person that FRA can contact when FRA audits the program. The officer
shall also have oversight responsibility to ensure that the program is
being implemented properly across each division and system-wide. FRA's
expectation is that this officer will at least manage the program to
ensure that the overall direction of the program is sound. This
designated officer would be expected to take an active role in ensuring
that divisions and the entire system are meeting program requirements
and ordering changes when expectations are not met. To the degree that
a system-level officer can identify a division, or a specific railroad
testing officer, that is failing to appropriately direct efforts, the
designated officer is expected to take corrective action. In order to
ensure that the railroad's testing officers are properly directing
their efforts to reduce accidents/incidents, the designated officer or
officers will need to make adjustments to the implementation of the
program based on any reviews that might be required in paragraph (e),
as well as the annual summary produced in accordance with former
paragraph (d), which has been redesignated as paragraph (f).
    Additionally, former paragraph (b)(6) has been redesignated as
paragraph (c)(7) without any changes from the

prior existing rule. Former paragraph (c) has been redesignated as
paragraph (d) also without change.
    Paragraph (e) adds requirements for periodic reviews for any
railroad with at least 400,000 total employee work hours annually. FRA
has decided to provide each Class I railroad (including the National
Railroad Passenger Corporation) until July 1, 2008 to comply with this
paragraph and, the remaining railroads to which this paragraph applies,
shall comply with an applicability date of January 1, 2009. The NPRM
only would have provided until the effective date of the rule to comply
with this section and FRA decided to heed the concerns raised during
the RSAC working group meetings that the effective date of the rule
would not provide sufficient time for each railroad to implement the
reviews required by this paragraph.
    FRA has decided to exclude freight railroads that have less than
400,000 total employee work hours annually from conducting periodic
reviews and analyses as provided in paragraph (e)(1) because only 135
smaller railroads that meet this criterion reported any human factor
caused rail accidents, and of those 135 that reported such accidents,
only 20 railroads reported five (5) or more human factor caused rail
accidents during the years 2002 through 2005. During this four year
period, these 135 smaller railroads experienced 334 human factor caused
rail accidents amounting to 7 percent of all human factor caused rail
accidents. It should also be considered that there are almost 600
smaller railroads that fit this criterion and yet only 135 reported any
human factor caused rail accidents at all. On that basis, FRA is
excepting the smallest railroads, based on the less than 400,000
employee work hours threshold, from the monthly and quarterly reviews.
Of course, if FRA accumulates evidence to suggest that railroads with
less than 400,000 employee work hours are experiencing a significant
number of human factor caused accidents, FRA will consider whether to
initiate a new rulemaking revising this final rule.
    Similarly, Amtrak and the railroads providing commuter service in a
metropolitan or suburban area also experience a relatively low number
of human factor caused rail accidents compared to the freight railroads
with greater than 400,000 employee work hours annually. During the
years 2002-2004, Amtrak and the commuter railroads experienced a total
of 270 accidents attributed to human factor causes. At a meeting held
with members of APTA on April 27, 2006, (notes of this meeting are in
the docket of this proceeding) APTA explained that many of its member
railroads do not keep accident/incident data and/or operational testing
data electronically and, thus, conducting periodic reviews greater than
annually would create a substantial burden for those railroads that
could not simply run a report from a computer. In addition, APTA
members reminded FRA that a commuter railroad's budget is dependant on
the generosity of local and state governments, which may not want to
upgrade computers and software which would permit quicker and more
efficient accident/incident reviews. Passenger railroads are generally
more stable in their organizations and experience greater continuity
with respect to staffing at the line officer level (where many problems
often develop).
    With regard to six month reviews, however, there is a definite
benefit for Amtrak and the commuter railroads to conduct a thorough
system level review to achieve some degree of accountability.
Meaningful reviews should help drive proper implementation of the
program of operational tests and inspections--thus driving down the
number of accidents/incidents attributable to human factors. APTA
explained in its comments that there are funding and development issues
that will require a period of training on these new regulations and any
new automated reporting system that is created in response to the rule;
consequently, APTA requested 12 months to implement the first six-month
review under paragraph (e)(2). FRA has decided to deny APTA's request
to delay implementation of the six-month review for a year. FRA does
not agree with APTA that the six-month review requires a ``new
automated reporting system'' for any railroad that does not already
have one up and running. The records and reviews required by this
section could be maintained by old-fashioned written records, and the
analysis required could be completed without the aid of a computer or
with software readily available in stores now. That said, we agree that
an automated system would likely provide for more efficiently completed
analysis. FRA, however, has not required such automation. Finally, FRA
has not excepted even the smallest commuter railroads from the
requirement that reviews be conducted, because in FRA's experience no
railroad is free from the risk that good discipline will erode over
time, and the consequences of a passenger train accident can be very
serious indeed. The benefits of the review are too important to
postpone for a year.
    For the major freight railroads, the quarterly review is to be
developed and conducted at the division level unless no division
headquarters, or its equivalent, exists. Most larger railroads have
created division headquarters (see current definition in Sec.  217.4 of
this part) to manage portions of the railroad and, certainly, railroads
that have divisions do so because it is more efficient. That is, it is
easier for an officer at a division headquarters to know what safety
issues are problematic in his or her division than an officer of a
large railroad at the system level.
    AAR asserted in its comments an overall objection to paragraph (e)
as it deems the reviews and recordkeeping requirements of this section
as ``micro-management''and ``command-and-control regulation at its
worst.'' AAR maintains that monthly, quarterly, and six-month reviews
are not typically conducted by freight railroads as FRA asserted in its
proposed rule and that FRA is wrong to maintain that it is a best
practice for freight railroads to adjust its program of tests and
inspections based on one quarter's worth of data. Furthermore, AAR
asserts that even if some railroads voluntarily conducted the same
types of reviews without regulation, FRA is not justified to impose
this ``regulatory straitjacket, with the formality and recordkeeping
that are byproducts of regulatory requirements,'' on each railroad.
    FRA appreciates the comments of AAR with regard to paragraph (e)
and certainly has given AAR's counterpoint due consideration. The main
focus of this rule is to reduce the number of human factor caused
accidents, and FRA's experience has been that one way to do that is to
impose these types of review requirements which force needed
improvements on a railroad's operational testing and inspection
program. Prior to the publication of this rule, when FRA has identified
significant problems with such a program and there has also been a
correlation of noncompliance with important safety laws, FRA has shown
some restraint in enforcement while working with some railroads in
trying to improve compliance. On a case-by-case basis, FRA has entered
into a voluntary compliance agreement with a railroad so that it is
clear what enforcement action FRA will take if the operational testing
and monitoring changes requested by FRA are not completed by a specific
deadline.
    Although voluntary compliance agreements are typically effective in
improving safety on a particular railroad

or division, FRA's experience has been that the problems that trigger
the need for such agreements are fairly common in the industry. The
regulatory approach in this rule is significantly more efficient than
entering into tens or hundreds of individual agreements. The
implementation of this rule will effectively require the implementation
of best practices that should aid in the reduction of accidents/
incidents before FRA is able to pinpoint any problem associated with a
particular railroad's system of tests and inspections. Rather than
changing one railroad, or one division on a large railroad, at a time,
this rule will require all but the smallest freight railroads to place
greater emphasis on human factor caused accidents in each operational
test and inspection program.
    AAR also commented that FRA should not require that a designated
officer for each division shall be the sole officer who may perform the
required monthly and quarterly reviews of tests and inspections, if a
railroad has divisions. AAR suggests that the rule permit each railroad
the flexibility to choose whether an officer at headquarters can
perform the required reviews. FRA is rejecting AAR's comment as it
applies to the quarterly review. In order to comply with the
requirements for the quarterly review under paragraph (e)(1)(i), an
officer would need to have a detailed knowledge of the operation. It is
our experience that railroads that have divisions are too large for a
person at the system headquarters to have the kind of mastery over each
division to conduct the kind of in-depth analysis required of the
quarterly review. Where FRA has audited strong programs, division
officers are conducting periodic analysis of accidents/incidents at the
division level and making appropriate adjustments at the division level
as remedial action. We are surprised at AAR's comments because the
divisions typically operate semi-autonomously from system headquarters,
albeit with regular coordination on system-wide matters. As a practical
matter, if a division headquarters exists, an officer at the division
level will be in the best position to perform the types of reviews
required by the quarterly review.
    Meanwhile, FRA has responded to AAR's comment by deleting the
requirement for a monthly review. Instead, the review to determine
whether each railroad testing officer is conducting the minimum number
of each type of test or inspection required by the railroad's program
will only be required on a quarterly basis, as opposed to a monthly
basis. What was formerly referred to as the monthly review, but is now
part of the quarterly review, is not expected to be an onerous task. It
is merely a quick written tally of the number of tests performed by
each railroad testing officer, including the railroad operating rules
tested for, and a determination made whether the tally shows adherence
to the written program of operational tests and inspections. When this
type of review reveals noncompliance with the program, the designated
officer is required to make any necessary adjustments to the tests and
inspections required of railroad officers for the subsequent period(s).
The designated railroad officer in paragraph (c)(5) may or may not be
the officer who performs this review, but this designated railroad
officer would be required to ensure that the quarterly review is
properly completed. As FRA would expect that this aspect of the
quarterly review would be derived from data collected at the division
level, FRA does not anticipate any problems for a division officer
producing this information in a quarterly review.
    FRA is mandating a comprehensive quarterly review for freight
railroads under paragraph (e)(1)(i). In addition to the scorecard for
each railroad testing officer (i.e., the formerly proposed monthly
review), it shall include a ``review of the [railroad's] accident/
incident data, the results of prior operational tests and inspections,
and other pertinent safety data for that division or system to identify
the relevant operating rules related to those accidents/incidents that
occurred during the quarter.'' The focus of the quarterly review is to
identify those operating rules which pose the greatest risk of being
violated--which should then be targeted for regular tests and
inspections. That is why FRA is requiring that based upon the results
of the quarterly review, the designated officer shall make any
necessary adjustments to the tests and inspections required of railroad
officers for the subsequent period. The quarterly review must be in
writing and include the data upon which any conclusions are based. In
response to several comments, FRA has clarified that any review, record
or other information required by this section to be in writing may be
retained electronically pursuant to paragraph (g).
    FRA expects that in order to conduct a meaningful quarterly review,
each railroad will review accident/incident data, operational test
data, and other pertinent data. For example, a railroad should identify
the relevant facts for each category of data. The relevant facts are
usually covered if a railroad can answer the questions signifying who,
what, where, when, why, and how often. For accident/incident data,
these questions would involve identifying all the employees involved in
the accident/incident, a description of the accident/incident, the
location where it occurred, the time it occurred, the root cause and
any secondary causes, and whether the division or system has suffered
this type of accident/incident often, sometimes or never. For
operational test data, the issues include identifying the railroad
testing officer(s) responsible for the particular location, whether the
testing officers are testing for the operating rules responsible for
any recent accidents/incidents, whether the testing officers conducted
any tests where any recent accidents/incidents occurred, whether the
testing officers are testing during the hours of highest incident
rates, whether any railroad officers are briefing the employees as to
the root or secondary causes and the fact that the railroad will be
testing for compliance, and how often the officers are conducting any
follow-up testing and job briefings.
    FRA believes there are at least five other types of pertinent
safety data that should be included in a proper quarterly review. One,
if FRA has conducted any recent inspections, the railroad should check
whether its officers' tests reflect FRA's findings. Two, if an employee
is involved in an accident/incident, the employee's safety record may
provide insight. Three, the railroad should determine if there is any
correlation between the training or experience of the local railroad
testing officers and the locations where accidents/incidents have
occurred. Four, a railroad should similarly consider the extent to
which employee experience plays a part in any given accident/incident.
Fifth, a railroad's review should consider whether any operational
conditions have recently changed that increased the likelihood of
either noncompliance with the operating rules or accidents/incidents.
Special attention to all these details in the quarterly or six month
review, as applicable, should lead a railroad to meaningful application
of its written program of operational tests and inspections with a
greater potential for driving down the frequency and severity of
accidents/incidents.
    Although it would be best if quarterly reviews were completed
immediately following the end of each quarter, FRA is requiring
completion no later than 30 days after the quarter has ended. We did
not receive any negative comments regarding the 30 day period. FRA
originally considered requiring the quarterly review in half that time
but railroads participating at a Railroad

Operating Rules Working Group meeting suggested that additional time
would be needed for those railroads that do not maintain their safety
data electronically. For those railroads that keep records
electronically, FRA encourages quarterly reviews to take place
contemporaneously with the conclusion of the quarter. Regardless of how
long it takes to complete the quarterly review, each division or system
should be prepared to redirect its railroad testing officers in order
to appropriately react to any accidents/incidents of noncompliance
during the previous quarter. Even where a division or system has had a
particularly safe quarter, railroad testing officers should be
instructed to adjust the way in which they are conducting their tests
so that employees cannot easily anticipate the types of tests to be
conducted, nor the dates and locations of such tests. Because freight
railroads with divisions might find it difficult to do the system-wide
six month review in only 30 days, especially since the quarterly
reviews might not be completed until the 30th day, FRA has amended the
proposed rule by allowing freight railroads 60 days after the review
period has ended to complete the six month review. Passenger railroads
with divisions are not quite as large or complex that completion of the
six month review should take more than 30 days.
    In paragraphs (e)(1)(ii) and (e)(2), six month reviews are only
required for each Class I railroad, Amtrak, and each railroad providing
commuter service in a metropolitan or suburban area. The basis for the
requirement is that the identified freight railroads are so large that
each would benefit from an officer, likely at the system headquarters,
who is identifiable by name or job title, who will oversee whether each
division, line or segment is complying with the program of operational
tests and inspections. It is expected that such an officer would have
the authority to intervene in division, line or segment operations to
the extent that this officer could order changes to the way divisions
are implementing the program. The purpose for such intervention would
be to require certain types of operational tests or inspections based
on observations made system-wide that may not be apparent to each
designated division officer armed only with data from his or her own
division.
    In the case of Amtrak and the commuter railroads, paragraph (e)(2)
requires reviews equivalent to those for the freight railroads in
paragraph (e)(1), however all the reviews are to take place at least
every six months. Of course, these are minimum requirements and
passenger railroads are free to initiate more frequent reviews. For
example, paragraphs (e)(2)(i) and (ii) describe reviews that are
equivalent to the review required for freight railroads on a quarterly
basis and certainly passenger railroads may perform that review on a
quarterly basis as well; however, the passenger railroads are required
to comply with those two requirements at least every six months.
Paragraph (e)(2)(iii) describes a review that is to be completed at
least once every six months and is the equivalent of the six month
review required for freight railroads. As it is required that the
passenger railroads conduct the same reviews as the freight railroad
with the exception of the timing of those reviews, the prior section-
by-section analysis description for each review is applicable here.
    Because FRA needs to be assured that each railroad is complying
with any required reviews, the regulation requires that the reviews be
retained for one year after the end of the calendar year to which they
relate and shall be made available to FRA upon request. FRA also
encourages railroads to store these records electronically, pursuant to
paragraph (g), as long as the information can be produced upon request.
    Former paragraph (d), which is redesignated as paragraph (f), is
being amended in two respects. One amendment is merely to change the
term ``manhours'' to ``employee work hours'' as the latter is gender
neutral. The second amendment would clarify that this requirement does
not apply to ``a railroad with less than 400,000 total'' employee work
hours annually, as the current rule accidentally fails to include the
qualification of the time period.
    In the NPRM, FRA questioned the necessity of retaining the annual
summary requirement in paragraph (f) and FRA received several comments,
including from AAR, APTA, and UTU, supporting the elimination of the
annual summary on operational tests and inspections requirement. After
further consideration, FRA realizes that the annual review requires
different information than the other reviews and that eliminating it
would have a serious detrimental effect on FRA's ability to audit a
railroad's program. The annual summary requires all but the smallest
railroads to create a written summary of 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. This written record may be kept
in an electronic format pursuant to paragraph (g). Generally, railroads
keep the data used to create this report in an electronic database
which makes it relatively simple to generate the required annual
summary.
    Former paragraph (e) is redesignated paragraph (g) with one
amendment. The former rule specified that the railroad maintain a
``desk-top'' computer upon which the railroad can retrieve data. As
laptop and notebook computers have become more common, and their
computing abilities now rival desk-top models, there is no reason to
restrict railroads from using any computer to retrieve records for FRA
under this section.
    Proposed paragraph (h), which suggested a requirement specifying
that railroads and individuals can be liable for falsifying or
deliberately mutilating records required by this section, has been
deleted as unnecessary for two reasons. One, if FRA has sufficient
evidence to prove that a railroad or individual has falsified a program
required under this section or a record kept for such a required
program, then that railroad or individual could be cited by FRA for a
willful violation of the underlying section. The penalty assessed would
be greater than a typical civil penalty assessment. See 49 CFR 217.5
and app. A to Part 217. Thus, even with the deletion of this proposed
paragraph, FRA retains the authority to assess civil penalties for
falsification of the required records pertaining to this section. Two,
the activity at issue is also prohibited by criminal law. See, e.g., 49
U.S.C. 21311. Consequently, FRA has decided to remove this paragraph
from the final rule and would expect that the existing criminal law and
this final rule will provide sufficient disincentives for railroads and
individuals to complete the programs and records required under this
part without falsifying, mutilating, or destroying such a record.
    Proposed paragraph (i), which has been redesignated as paragraph
(h) requires that FRA have some specific oversight mechanism for
disapproving a railroad's program of operational tests and inspections.
It also requires minimum procedures and structure for the review
process. The paragraph requires that the Associate Administrator for
Safety only disapprove programs required by this section for cause
stated. As the disapproval decision is made for cause, it is
significant for the railroad to understand exactly why FRA is
disapproving the program; thus, notification of such disapproval will
be made in writing and specify the basis for the disapproval decision.
If the Associate Administrator for Safety disapproves the program, the
railroad

has 35 days from the date of the written notification of such
disapproval to either (1) amend its program and submit it to the
Associate Administrator for Safety for approval, or (2) provide a
written response in support of the program to the Associate
Administrator for Safety. If the railroad chooses the second option to
defend the allegedly defective program, the Associate Administrator for
Safety will inform the railroad of FRA's final decision in writing.
Although the rule is silent regarding whether a railroad may request an
extension, FRA intends for the Associate Administrator for Safety, as
the agency's decision-maker, to have the flexibility to decide
procedural issues, such as having the ability to grant or deny requests
for extensions of time, as the issues arise. The Associate
Administrator for Safety renders a final decision in writing which will
specify the terms and conditions under which the program will be
considered approved or disapproved. If the decision denies the
railroad's request in whole or in part, FRA intends for the railroad to
amend its program and submit it to the Associate Administrator for
Safety for approval within 35 days of the final decision as that is the
period of time accorded for amending programs when a railroad chooses
not to appeal the disapproval. Again, a railroad may request an
extension of time to amend its program and submit it to the Associate
Administrator for Safety for approval, and FRA intends for the
Associate Administrator for Safety to have the flexibility to decide
whether to grant or deny such procedural requests. Although enforcement
action is always discretionary, FRA believes that enforcement action is
warranted when a railroad fails to appropriately and timely amend its
program; for this reason, FRA is requiring in paragraph (h)(2) that a
failure to submit the program with the necessary revisions to the
Associate Administrator for Safety will be considered a failure to
implement a program under this part.
    The approach in paragraph (h) recognizes that FRA will want to
review such written programs during audits or investigations and that
FRA should have the authority to request changes to the program if it
does not meet the minimum requirements of this rule. Although FRA
retains the authority to review in detail each railroad's program, FRA
is not requiring that each railroad submit its program for prior review
and approval. Rather, FRA intends to review the programs of the major
railroads over a multi-year cycle to determine if they are effective.
In BLET's written comment, it requested that FRA reconsider this
approach and instead advocated that each railroad be required to submit
its operational tests and inspections program for FRA's explicit
approval. BLET's reason for requiring a submission and approval process
is that employees need to be afforded no less than the highest degree
of assurance that a railroad's compliance monitoring is appropriate if
the employee can be held responsible for noncompliance. A similar
comment was raised by UTU in the context that FRA should prohibit
testing officers from performing operational tests that violate
operating rules or endanger employees. While FRA appreciates these
comments, we are not adopting them for the following reasons. Although
FRA has found deficiencies with some railroads' programs from time-to-
time, if a railroad has a program, it will typically contain all the
requirements necessary to be deemed approved. Most problems with a
program cannot be determined until an audit or investigation reveals
inadequacies. Thus, a mandatory approval process is both a drain on the
agency's resources and also unlikely to reveal many programmatic
deficiencies. The best time to request a programmatic change is when an
inadequacy is revealed. However, the NPRM did not provide for specific
procedures for FRA to take place when an inadequacy was identified. The
rule has been strengthened to provide for specific oversight authority
vesting with the Associate Administrator for Safety. It is also helpful
to remember that FRA is requiring railroad testing officers to conduct
tests and inspections in accordance with a railroad's program, and that
it is implicit that an improperly conducted test shall not be
considered a valid test toward satisfying any requirement under the
program.
    In the proposed rule, FRA solicited comments as to whether the
final rule should require each railroad to instruct its employees on
operating rules at least once every three years. BLET submitted a
comment supporting triennial qualification of employees on all
Federalized operating rules. As BLET points out, adding this
requirement would merely expand the proposal to require each railroad
to qualify its employees on Part 218, subpart F in this chapter, and
many employees are already covered as locomotive engineers are
currently required to be qualified every three years pursuant to Sec.
240.210(c) of this chapter. FRA would add that a triennial operating
class is the typical standard requirement on most railroads today.
However, FRA also recognizes that our definition of qualified might be
deemed to lead to more extensive or rigorous instruction, training, and
examination than is currently in practice. While that might be a
positive development, FRA recognizes that there might be costs involved
with assuring the additional qualifications are met, and FRA has not
found a correlation between the lack of operating rules training in
general and accidents/incidents. FRA's decision only requires such
periodic instruction as it applies to those operating rules that would
be required by part 218, subpart F because the rules set out in that
subpart do have a direct correlation to a substantial number of
accidents/incidents and other noncompliance detected by FRA. See Sec.
218.95(a)(5). FRA will consider implementing another rulemaking if
noncompliance with other operating rules are identified that are
causing a significant number of accidents/incidents. Based on available
information, the current requirement, that each railroad periodically
instruct each employee on the meaning and application of the railroad's
operating rules, appears to be sufficient. See Sec.  217.11.
Section 217.11 Program of Instruction on Operating Rules;
Recordkeeping; Electronic Recordkeeping
    FRA did not propose any changes to this section in the NPRM;
however, after the NPRM's publication we realized that it contained a
cross-cite to Sec.  217.9(e)(1) through (e)(5), which has been
redesignated as Sec.  217.9(g)(1) through (5). This citation change is
the only amendment to this section.

Part 218--[Amended]

Section 218.4 Preemptive Effect
    This section informs the public of FRA's intention and views on the
preemptive effect of the rule. The preemptive effect of this rule is
broad, as its purpose is to create a uniform national standard. Section
20106 of Title 49 of the United States Code provides that all
regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except an additional or more stringent 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. Section 20106 permits
State tort actions arising from events or activities occurring on or
after January 18, 2002, for the following: (a) A

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); (b) 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 (c) 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. The NPRM language has
been amended to reflect the changes made to Section 20106.
    Only one comment addressed this paragraph and that comment has been
discussed in the preamble. See IV. General Comments/Major Issues, C.
Preemptive Effect.
Section 218.5 Definitions
    FRA is amending the definition of flagman's signals in order to
eliminate a reference to ``torpedoes.'' Torpedoes are antiquated
signaling devices which have fallen into disuse in the industry.
Likewise, we are amending Sec.  218.37, which refers to this definition
and the placing of torpedoes when providing flag protection.
    FRA is also amending the definition of locomotive to explain that
this particular definition of locomotive does not apply to subpart F.
The definition of locomotive in this section is a more mechanically-
minded definition than the definition contained in 49 CFR 218.93. This
definition continues to apply to the requirements in part 218, with the
exception of subpart F.
Section 218.37 Flag Protection
    FRA is eliminating references to ``torpedoes'' as these are
antiquated signaling devices which have fallen into disuse in the
industry. The former rule required each railroad to have in effect an
operating rule which complies with this section, and thus contains
references to the use of torpedoes, even though the railroad could meet
other flagging requirements without ever needing to carry or use
torpedoes. In the former section, there are two paragraphs that
reference torpedoes. Former paragraph (a)(1)(iii) states, in part, that
``[w]hen a train stops on main track, flag protection against following
trains on the same track must be provided as follows: A crew member
with flagman's signals must immediately go back at least the distance
prescribed by timetable or other instructions for the territory, place
at least two torpedoes on the rail at least 100 feet apart and display
one lighted fusee.'' The language in italics has been deleted by this
final rule. Former paragraph (a)(1)(iv) states that ``[w]hen required
by the railroad's operating rules, a forward crew member with flagman's
signals must protect the front of his train against opposing movements
by immediately going forward at least the distance prescribed by
timetable or other instructions for the territory placing at least two
torpedoes on the rail at least 100 feet apart, displaying one lighted
fusee, and remaining at that location until recalled.'' Again, the
language in italics has been deleted by this final rule. Elimination of
the references to torpedoes does not eliminate the requirement that
each railroad have in effect an operating rule that complies with the
requirements in this section. Furthermore, FRA has made minor
amendments to make the regulatory language gender neutral.

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

Section 218.91 Purpose and Scope
    As previously explained in the supplementary information, FRA has
identified that noncompliance with a small number of railroad operating
rules has caused an inordinate percentage of total human factor caused
accidents. FRA's purpose is first to establish clear and unambiguous
procedures that will provide for the safety of railroad employees and
the public. In the RSAC Working Group discussions that preceded the
preparation of the proposed rule, FRA noted significant variation in
basic safety procedures followed on participating railroads. Although
some variation is necessary to address local conditions, the presence
of extensive joint operations in the railroad industry makes it
essential that certain common procedures apply. Joint operations are
not new to the railroad industry, as evidenced by the historic role of
terminal companies. However, the practice has more recently expanded
through mergers and consequent awards of trackage rights and through
the creation of hundreds of small railroads that are often provided
access to larger railroad's facilities to facilitate efficient
interchange of cars.
    In order to ensure compliance with operating rules, it is essential
that they be consistent, commonly understood, and applied in a
predictable manner. Further, it must be understood that the rules may
not be circumvented at the whim of a supervisor or employee to hasten
completion of the work. The rules in this subpart are intended to
support these purposes.
    In addition, making these rules mandatory from a Federal standpoint
provides an enforcement mechanism to discourage noncompliance.
    FRA is standardizing this small number of railroad operating rules
by establishing minimum requirements. The minimum requirements are
based on accepted best practices and rules currently in use. Of course,
railroads may choose to prescribe additional or more stringent
requirements.
    FRA received one comment regarding this section. AAR proposed that
FRA add a paragraph that exempts employees subject to blue signal
protection under subpart B of this chapter, or to employees moving
equipment within the confines of a locomotive repair or servicing area,
or a car shop repair track area. FRA disagrees with AAR's premise that
employees performing these functions do not need to be qualified on the
requirements of this subpart. It is absolutely imperative that all
employees operating a hand-operated switch or fixed derail understand
how to properly operate and determine the position of such switches and
derails. We do not share AAR's belief that there is any conflict with
the blue signal requirements of this chapter. Additionally, FRA did
carve out one exception under proposed Sec.  218.103(g)(2)(a),
redesignated as Sec.  218.107(c)(1)(i), so that hand-operated crossover
switches could be left out of correspondence when used to provide blue
signal protection under Sec.  218.27.
    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 and does not apply to ``portable 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. Fixed
derails are also used on industry tracks to prevent rolling equipment
from unintentionally rolling out onto a main track.
Section 218.93 Definitions
    The definitions in this section only have applicability to this
subpart so it should be easier for the reader to locate each definition
in this section rather than in subpart A--General, Sec.  218.5.
    Several definitions are consistent with other definitions of these
terms in this chapter. These terms are Associate Administrator for
Safety, employee, locomotive, pedestrian crossing, qualified, and
roadway worker. In an effort to be as clear as possible, FRA is
including definitions of these terms in this subpart for the benefit of
anyone unfamiliar with these terms.
    FRA is defining the term clearance point because this term is
necessary to describe an important concept that is used several times
in this subpart. ``Clearance point'' means the location near a turnout
beyond which it is unsafe for passage by equipment or a person riding
the side of a car on an adjacent track. While clearance points may be
identified by marks on the rail, signs, or other visible identifiers,
these points are often referring to an approximate location that will
need to be deduced by an employee. Railroads shall implement procedures
for identifying such approximate locations and for waiting to line
hand-operated switches away until equipment that has entered the track
has passed this point. See Sec. Sec.  218.101(c) and 218.103(d).
Without a definition of clearance point, it would be difficult to
define what is meant by ``foul or fouling a track.'' Through the proper
identification of clearance points, employees can avoid collisions and
personal injury to other employees riding the sides of cars.
    The definitions for correspondence of crossover switches and
crossover are interrelated, and should be familiar to people working in
the railroad industry. FRA defined the term ``correspondence of
crossover switches'' in the NPRM and no comments were filed suggesting
that the industry was confused by the term. Crossover switches are
considered in correspondence under two conditions: (1) When it is
desired to travel from one adjacent track to another, both crossover
switches would need to be lined for the crossover movement; or (2) if
no crossover movement is desired or intended, both crossover switches
must be lined for the straight-away movement, i.e., straight track.
    FRA is adding a definition of crossover because, while drafting
this final rule, we realized that the industry has not settled on one
common definition of the term. Some railroads define the term crossover
in their rule books as ``a combination of two switches that connect two
adjacent tracks.'' One railroad adds the following sentence to that
definition: ``When lined, this switch combination allows movements to
cross from one track to the other.'' Other railroads simply define a
crossover as ``a track connection between two adjacent tracks.''
Meanwhile, Christoper Schulte's Dictionary of Railway Track Terms, (3d
ed. 2003), defines a crossover as ``a pair or group of turnouts which
allows rolling stock and on-track equipment to cross from one track to
another.'' Still another dictionary of railway terms, Don Dressel's
Railroad Terminology, Definitions, & Slang, (4th ed.1994), defines a
crossover as ``two turnouts * * * connecting two nearby and usually
parallel tracks.'' FRA is aware that there are many variations of track
configurations that may resemble a crossover, or may fall generally
within the parameters of one of the definitions referenced above but,
as a practical matter, are not crossovers in the purest sense that FRA
and most of the industry understand and intend the term to mean.
Therefore, in the application of this subpart, the term crossover
applies to 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. Categorically excluded from this application are track
connections between adjacent tracks that, while they may physically
permit equipment to pass from one track to another, are of sufficient
length so as to be able to store or hold rolling equipment on them, or
to set out bad order cars, or to store track equipment, or for any
other purpose than solely for crossover movements. Of course, it is
possible to have a crossover that holds just a few pieces of rolling
equipment and that is not typically used for allowing other movements
to pass or used for storage, but yet is used for such purpose. In
response to these atypical situations, FRA intends to use its
enforcement discretion on a case by case basis.
    A definition for foul or fouling a track is provided because this
term is necessary to describe an important concept that is used several
times in this subpart. Foul or fouling a track means rolling equipment
or on-track maintenance-of-way equipment is located such that the end
of the equipment is between the clearance point and the switch points
of the switch leading to the track on which the equipment is standing.
The potential for an accident is great when equipment is left standing
on a track in such a manner that a movement on an adjacent track would
collide with it; this is especially true when the standing equipment is
left so that it appears that equipment might be able to pass by on the
adjacent track. Equipment, or a person riding a side of a car, on
adjacent track could strike fouling equipment. This type of accident is
usually a side-swipe type accident and the severity of the accident
depends on the factors involved; e.g., the factors determining severity
include, but are not limited to, the speed of the moving equipment, the
type of equipment struck, the contents of the cars struck, whether a
person was riding a car and whether an occupied locomotive struck the
equipment. The issue of foul or fouling a track is addressed in Sec.
218.101 titled ``Leaving Rolling and On-Track Maintenance-of-Way
Equipment in the Clear,'' because certain scenarios of fouling are
avoidable and FRA believes that each railroad should have an operating
rule that prohibits this dangerous practice. The final rule was amended
from the NPRM to clarify an issue raised during the RSAC process. FRA
was asked to clarify what it meant by the term ``any part of the
equipment.'' Some commenters questioned whether FRA would consider a
high-and-wide load, or a shifted load of lumber protruding from the
side of a flat car, as ``fouling'' an adjacent track even though the
end of the car might still be within the clearance point of the switch.
FRA's experience has been that when there are high-and-wide or shifted
loads, railroads have implemented proper procedures for employees to
take appropriate action and address the safety concerns. The situation
FRA intends to address in this rule by defining ``foul and fouling''
occurs when the end of a car itself is fouling and struck by a movement
on an adjacent track; the reason for FRA's narrower focus is because
that situation is the type of accident described universally in the
accident/incident reports filed with FRA that are categorized as ``cars
left foul'' or ``car(s) shoved out and left out of clear.'' By
referring to the end of the equipment, FRA's regulation is patterned
after the long-standing operating rule, and we would hope make it
easier to understand for employees. This

clarification is based on an RSAC recommendation. FRA will consider
initiating a new rulemaking amending the definition of ``foul or
fouling'' if future data reveals that high-and-wide or shifted loads
become an increasing explanation for accidents/incidents.
    FRA defines hand-operated switch broadly to identify any type of
switch when operated by manual manipulation including traditional hand-
operated (rigid) switches, power switches, and spring switches.
Excluded from this definition are switches operated by push button or
radio control if the 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. The
definition includes all switches which are normally operated by manual
manipulation of the switch lever. As FRA has defined this term, ``hand-
operated switch'' includes switches operated by push button or radio
control, but only when such switch is not protected by distant switch
indicators, switch point indicators, or other visual or audio
verification that the switch points are lined for the intended route
and fit properly. For example, the two types of indicators provide a
visual indication of the switch alignment; and other electronic
advancements are capable of sending a message to a receiver indicating
the switch's alignment; such that a visual check by an employee to
determine that the switch is properly aligned would be redundant after
receiving an electronic message that has already served that purpose.
For switches that use push button or radio control technology, the
``manual manipulation'' aspect is that the employee is required to
throw the switch; and the electronic aspect of the switch manipulation
is primarily an option for avoiding personal injuries due to the
throwing of a switch lever. FRA does not intend to address issues
related to power-assisted switches operated from central consoles,
whether within or outside of signaled territory, when so operated.
    With regard to the definition of hand-operated switch, several
members of the RSAC Operating Rules Working Group requested that FRA
explain which employees would be required to comply with the
requirements for hand-operated switches. FRA explained that the
definition intended to characterize the types of switches normally
operated by operating employees, whether or not there is some
electronic aspect to the operation of the switch. Such operating
employees include, but are not limited to, conductors, brakemen,
trainmen, switchmen and remote control operators. On rare occasions, a
conventional locomotive engineer might operate a switch, although, with
push button and radio control technology, it is possible that
locomotive engineers may find themselves operating a greater number of
switches in future years. Maintenance-of-way and mechanical employees
also have occasion to operate these switches. That being said, the rule
is focused on the type of switch that is operated and not the job title
of the person operating; thus, regardless of a person's job
classification, a person who operates a switch fitting the definition
of a ``hand-operated switch'' is required to comply with the
requirements of this subpart.
    BRS commented that the proposed definition of hand-operated switch
was problematic. In general, the view raised by BRS, in comments and
discussions during the RSAC working group, was that the definition did
not accurately describe what signalmen would consider a ``hand-operated
switch.'' In BRS's view, FRA's definition included other types of
switches and was thus over-inclusive. BRS also raised a concern that if
FRA has a definition of ``hand-operated switch'' in this subpart, that
this definition might eventually be adopted by FRA in other parts of
the chapter. FRA gave great consideration to this request and attempted
to draft the definition according to the preferences expressed by BRS
in its comments; however, FRA has decided not to amend the rule for the
following reasons. In attempting to craft an alternative that defined
hand-operated switch more narrowly, FRA found itself having to create
and define at least three other terms as well (e.g., power switch,
dual-control power switch, and manually-operated switch), in order to
cover all of the types of switches FRA wanted the rule to cover. In our
view, the regulation would be more complicated with four definitions
when one will do. The definitions located in this section are
explicitly identified as to be ``used in this subpart;'' any rule that
FRA promulgates concerning the maintenance of different types of
switches will be written in a separate part or subpart of this chapter
and may require more technically detailed descriptions. Certainly, FRA
is not required to maintain this definition of hand-operated switch
throughout all of its regulations if it requires greater detail in
other contexts. Considering all of the different crafts of workers,
signalmen should have the least amount of difficulty understanding how
to properly operate and verify switches. This regulation is geared more
for the perspective of operational railroad workers who simply need to
know that no matter what the signal department calls the switch, FRA
requires it to be treated as the equivalent of a hand-operated switch
if it is unprotected by any type of indicator or verifier, and has some
manual operation aspect to it--regardless of whether that manual
operation is by push button or radio control. BRS's concern is a valid
one, but is one that is likely to perplex more signalmen than
operations employees. Finally, we make the observation that EO 24 was
issued without ever defining what FRA meant by a ``hand-operated
switch'' in non-signaled territory; this emergency order, which this
final rule supercedes, has been in effect since November 22, 2005,
without any person requesting interpretive guidance on this term and
yet FRA's experience has been that every railroad has applied EO 24 to
those types of switches defined by the ``hand-operated switch''
definition FRA has promulgated in this rule.
    Finally, BRS requested that FRA use this rulemaking to regulate the
design, inspection, and maintenance of the signals that are protected
by distant switch indicators, switch point indicators, or other visual
or audio verification, i.e., all those non-hand-operated switches. FRA
agrees that use of substandard technology can lead to inappropriate
reliance on audible or visual indications that a switch is in the
desired position and locked when it is not properly aligned and
secured. FRA further notes that failure to provide fouling circuits in
cases where employees cannot visually confirm that no equipment is out
to foul the intended route could substantially undercut the redundant
safety protections intended by this rule. Finally, we acknowledge that
this rule fails to adequately address the ability of employees to
confirm that conflicting movements are not approaching a switch
location when radio controlled switches are employed and approach
circuits are not in place. FRA also agrees with BRS that there is a
safety concern if any railroad is failing to regularly inspect or
maintain these ``other signal arrangements.'' However, FRA believes any
such regulation of these other signal arrangements should be part of a
separate rulemaking, not one intended to solely focus on railroad
operating rules and practices. FRA has not yet initiated a rulemaking
in this area, but held a technical conference on April 19, 2007, in
Washington, DC to address the technical aspects of this issue (72 FR
14641; March 28, 2007). Interested parties may wish to file

comments to Docket No. FRA-2007-27623. Until FRA is able to provide
suitable regulations to address technology being employed to perform
functions described in this final rule, and similar functions,
railroads should exercise caution and prudence in implementing that
technology. FRA was encouraged to note that many participants in the
Special Safety Inquiry appeared sensitive to this need.
    FRA defined highway-rail grade crossing in the NPRM, but has
refined the definition for purposes of this final rule. The definition
in the NPRM mirrored the definition in Sec.  234.5 of this chapter. FRA
originally intended to try and keep the definition simple by carrying
the same definition for this term used in the Grade Crossing Signal
System Safety rule found at 49 CFR part 234; however, upon further
reflection, FRA realized that the proposed definition would include
many ad hoc crossings on private property that are often created and
removed in short order. Some of these temporary crossings may also be
illegal or built without consent of the railroad that owns the track.
As the term ``highway-rail grade crossing'' is used in this rule in the
context of protecting shoving or pushing movements, the proposed
definition would have required that a railroad and its employees be
responsible for determining that such ad hoc crossings are protected
during shoving or pushing movements. It is conceivable that the
proposed requirement could have created enforcement dilemmas,
especially when a crossing is created without any notification to the
railroad or train crew, or the operation occurs at night, on a curve,
or there is some other reason that the ad hoc crossing would be
difficult to spot without prior knowledge of its existence.
    Consequently, to avoid setting this trap, FRA has changed the
definition to exclude the type of ad hoc crossings that are not part of
the DOT National Highway-Rail Grade Crossing inventory or are unmarked
by signage indicating the presence of an at-grade crossing. If a
crossing has a DOT inventory number but is not an ``at-grade
crossing,'' the crossing does not fall within this definition. In
contrast, if a crossing does not have a DOT inventory number, but has
signage (e.g., crossbuck or stop sign) indicating the presence of an
at-grade crossing, the crossing would fall within the definition.
Although it is possible that a private property owner might quickly
construct a crossing that included appropriate signs of the newly
established at-grade crossing without the track owner's permission, it
would seem ill-advised to absorb such expenses without proper
permission; thus, we would expect that at nearly every crossing with
crossbucks, stop signs, or other appropriate signage indicating the
presence of an at-grade crossing, the railroad will be able to identify
these crossings and alert its employees of the need to protect such
crossings during shoving or pushing movements pursuant to Sec.  218.99.
    FRA did not propose, but has added, a definition of industry track
in order to refine the requirements in Sec.  218.101 ``Leaving Rolling
and On-Track Maintenance-of-Way Equipment in the Clear.'' Industry
track is defined as a switching track, or series of tracks, serving the
needs of a commercial industry other than a railroad. Thus, it should
be absolutely clear that a railroad yard does not contain industry
track, even though, admittedly, there might be industry track connected
to the yard. The RSAC recommended this definition as it distinguishes
industry track from other types of tracks used for similar purposes
(e.g., yard tracks, team tracks, sidings, etc.). The definition RSAC
recommended, and which is the definition FRA is promulgating, is the
same definition FRA uses in its Guide for Preparing Accident/Incident
Reports.
    FRA has maintained from the NPRM a definition of locomotive that is
consistent with the definition contained in 49 CFR 240.7. FRA has
promulgated this definition because the shoving and pushing
requirements of this subpart apply to certified locomotive engineers
who may be operating vehicles that meet this definition, but do not
fall within the more mechanically-minded definition used elsewhere in
this chapter and part. FRA is aware that this part already contains a
more mechanically-minded definition, see Sec.  218.5, and intends that
the definition used in this subpart supercede that other definition. To
clarify that there are two definitions of this term with different
applicability, FRA has added language to the definitions to clarify
which definition is applicable to subpart F and which is applicable to
the part ``except for purposes of subpart F.''
    FRA has added a definition of qualified which is identical to the
definition added for 49 CFR 217.4 in this rule. A person cannot be
qualified unless he or she has successfully completed all
``instruction, training, and examination'' programs required by both
the railroad and this subpart. Where FRA specifies that a qualified
employee is to do the work, it is because we want some assurance that
the person either has actual knowledge, or may reasonably be expected
to have knowledge, such that there is no question the person should be
able to do the work in accordance with the railroad's operating rules.
It is imperative that only employees who have been qualified should do
such work that the rule restricts to qualified employees because a
railroad that allows unqualified employees to do such work is
increasing the likelihood of an accident/incident.
    FRA defines remote control operator merely to aid in the
clarification of shoving or pushing movement requirements involving
remote control operations versus the requirements for conventional
operations. Remote control operators are ``locomotive engineers'' per
FRA's regulations found at 49 CFR part 240. Traditional engineers,
i.e., those persons qualified to operate locomotives in a conventional
manner, may be trained on remote control equipment--and are thus also
certified for remote control operations; in that situation, the term
remote control operator applies to the conventional engineer. Hence,
the term ``remote control operator'' is not limited to those persons
who only are certified to operate remote control locomotives, but to
anyone certified to operate such locomotives. The industry uses the
shorthanded term ``remote control operator'' to refer to ``remote
control locomotive operators'' and, because FRA solicited but did not
receive any comments to the contrary, we trust that no one is confused
by the dropping of the reference to ``locomotives'' in the terminology.
FRA received one comment from AAR raising two concerns with regard to
this definition. First, AAR correctly noted that the proposed
definition mistakenly cited Sec.  240.5 when Sec.  240.7 is the
accurate cite; FRA has corrected this mistake. Second, AAR suggested an
alternative definition of remote control operator because it stated
that the industry does not normally describe such operators as
locomotive engineers. AAR's suggestion for an alternative definition
eliminates the term locomotive engineer from the definition, and refers
to the operator as ``an employee certified by a railroad to operate
remote control locomotives pursuant to part 240 of this chapter.'' FRA
rejects AAR's second suggestion because we do not agree with the
distinction AAR is trying to make. Functionally, a locomotive engineer
operating from a control stand in a cab and a remote control locomotive
operator play the same role in switching operations, and, in some
cases, they play the same role in train movements.

Thus, we consider it fundamental to both part 240 of this chapter and
this final rule that a remote control operator be considered a
locomotive engineer.
    FRA defines remote control zone in order to permit a shoving or
pushing operation that is safe and yet protected differently from
conventional shoving or pushing operations. This zone is a term adopted
by railroads that designate one or more segments of track, typically in
a yard, where remote control operators can safely switch cars without
continually determining that the track is clear for the movement, as
long as a prior determination has been made. Although the location of a
remote control zone may be permanent, the regulation requires certain
conditions to be met each time a zone is used for its intended purpose
of allowing an operation without an employee assigned to protect the
leading end in the direction of movement, i.e., the pull-out end, of
the remote control movement. See Sec.  218.99(d).
    FRA has noticed some confusion between the terms ``remote control
zone'' and ``remote control area.'' A ``zone'' is an integral part of
remote control operations, whereas an ``area'' describes for
informational purposes only a location within which remote control
operations occur and does not directly affect such operations. The
``area'' is usually created by putting up signs to warn employees
working in the vicinity that moving locomotives may be unmanned. The
``area'' is typically larger than the ``zone'' as it covers anywhere
the remote control operation could take place. It is important to
create these areas so that employees are warned to use care in moving
around the yard with the knowledge that using hand signals to convey a
message to a moving locomotive may be in vain as there may not be an
engineer in the cab to see them. Thus, these terms do not mean the same
thing and should not be used interchangeably.
    FRA defines roadway maintenance activity to distinguish between
those duties prescribed for roadway workers, including movement of on-
track maintenance-of-way equipment other than locomotives, and other
types of duties that a roadway worker may perform which are not so
limited. In other words, a person designated a ``roadway worker'' may
engage in an activity that is not a ``roadway maintenance activity.''
This term is used to describe an exception to the general shoving and
pushing requirements found in Sec.  218.99(e)(3).
    FRA defines roadway worker in charge in order to provide a generic
title to the roadway worker who is in charge of a roadway work group.
The designation of such a worker enables FRA to require leaving main
track switches in such a person's charge as well as being the conduit
for switch alignment information when other workers in the group have
operated switches. The communication among group members is similar in
importance to the communication that is required between train
crewmembers. FRA intends this term to have the same general usage as in
subpart C of 49 CFR part 214.
    FRA has added a definition of the term siding to describe an
auxiliary track, adjacent and connected to a main track, used for
meeting or passing trains. In Sec.  218.101, the term ``siding'' is
used in connection with an exception to leaving equipment in the clear.
FRA understands that, in conversational or common usage, the term
``siding'' can also be taken to mean a customer's siding or an
industry's siding. Meanwhile, the regulation exempts operations from
abiding by the requirements for leaving equipment in the clear on
industry tracks beyond the clearance point of the switch leading to the
industry. By adding the definition of the term ``siding,'' FRA intends
to clarify the narrow meaning of the term in this subpart from its
broader, conversational usage.
    FRA has added a definition of signaled siding to this rule to
describe a siding within a traffic control system (TCS) territory or
within interlocking limits where a signal indication authorizes the
siding's use. In the NPRM, this definition was used to define a
controlled siding, but, upon further reflection, FRA realizes that this
definition actually defines a ``signaled siding.'' The NPRM used the
term ``controlled siding'' in its exceptions to making a shoving or
pushing movement on main tracks and controlled sidings, without
requiring point protection, if certain conditions or prerequisites were
met. The reason for the change to signaled siding is because the term
controlled siding is not consistently applied to mean the same thing on
all railroads. The term signaled siding, however, more accurately
captures FRA's meaning and intent, which is a siding that is circuited
(bonded) throughout its length. FRA also changed the term ``centralized
traffic control (CTC)'' to ``traffic control system (TCS)'' to use the
generic term rather than one specific brand of TCS.
    FRA defines switchtender because a few railroads still utilize a
worker with responsibilities for lining specific switches for trains
and a person with this position is not a crewmember. FRA defines this
term because we want to acknowledge that this type of worker may be
qualified to operate switches, so switches can be safely left in a
switchtender's charge. FRA has not defined ``switchtender'' in order to
suggest that railroads create such positions or that there is any sort
of requirement to employ switchtenders.
    FRA defines the term track is clear to describe the required
condition of the track prior to initiating or continuing a shoving or
pushing movement under Sec.  218.99. If the four conditions for
determining that the track is clear are met, then if an accident
occurs, it is unlikely to be the fault of the person making the
determination. That is, when the portion of the track to be used is
clear there should not be any rolling equipment, on-track maintenance-
of-way equipment or conflicting on-track movements that could collide
with the shoving or pushing movement; there should be no intervening
motor-vehicles or pedestrians to strike as all 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 to be protected; there should be no intervening switches
or fixed derails to run through or over as these devices should all be
properly lined for the intended movement; and, the shoving or pushing
movement should not accidentally collide with cars on a connecting
track if the portion of the track to be used has sufficient room to
contain the equipment being shoved or pushed.
    Within the definition of track is clear are the conditions for
determining that 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 shoving or
pushing movements typically occur without a locomotive engineer in a
locomotive leading the movement, it is vital to protect crossings to
prevent easily avoidable accidents. The definition for track is clear
considers the crossing protected if the gates are in the fully lowered
position, and have not been observed or known to be malfunctioning.
Whether or not there are working gates, a crossing may be protected by
stationing a designated and qualified employee at the crossing who has
the ability to communicate with trains. A third option for protecting a
crossing would be available when crossings are equipped only with

flashing lights or passive warning devices; in that situation, the
crossing would be considered protected 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.
    In response to AAR's comment and input during the RSAC process, FRA
has modified the definition of ``track is clear'' from the NPRM in
several places. FRA has removed the requirement that a crewmember or
other qualified employee make a visual determination because that
requirement is already found in redesignated Sec.  218.99(b)(3),
formerly paragraph (b)(2). FRA has changed the term ``conflicting
movements'' in the proposed first numbered condition to ``conflicting
on-track movements'' in the final rule. The purpose for this change is
to reflect that the track can be considered clear even if maintenance-
of-way equipment is in the vicinity of the track to be shoved or pushed
onto; instead, if the equipment is not on a track at the time the move
is commencing or continuing, it is not considered a conflicting
movement that would prevent the movement from being initiated. As
discussed previously, a definition of ``yard access crossing'' has been
added to ensure that railroads protect the crossings in railroad yards
that someone other than an employee is likely to use. FRA has amended
paragraph (2)(i) to reflect the proposed section analysis that
crossings are protected when the crossing gates are in the fully
lowered position but only when the gates have not been observed or
known to be malfunctioning; FRA notes that the employees involved in
the shoving or pushing move in which a determination that the track is
clear is required need to share any information regarding
malfunctioning grade crossings and may collectively be responsible for
improperly protecting an observed or known to be malfunctioning
crossing. Finally, FRA has added the qualifier in the third condition
that any intervening ``fixed'' derails, as well as intervening
switches, shall be lined for the intended movement when determining
that track is clear; although FRA would also expect employees to be on
the lookout for portable derails before determining that the track is
clear, there certainly is no excuse for operating over an intervening
fixed derail.
    FRA is defining, for purposes of this subpart, the term yard access
crossing in order to further define what grade crossings must be
protected to ensure that the ``track is clear'' (another term defined
in this section) during shoving and pushing movements under Sec.
218.99. A yard access crossing is a highway-rail grade crossing that is
located within a 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. A
yard access crossing is one of the types of crossings that must be
protected. The name is intended to describe a crossing in a railroad
yard, that is regularly used by people who are not railroad employees
(although railroad employees will, of course, also use these
crossings). For example, one or more crossings in a yard may be open to
anyone needing to get to a yard office or building. Family members and
others may need to come drop off or pick up railroad employees, or make
other pick-ups and deliveries; if that activity is permitted by the
railroad and a crossing in the yard must be traversed, then the
crossing shall be considered a yard access crossing for purposes of
this rule. If the crossing is located away from yard buildings such
that they would not need to be traversed by non-employees, then the
crossing should not be considered a yard access crossing. FRA does not
intend for every crossing in a yard to be considered a yard access
crossing just because a non-employee might be foolish enough to take an
unmarked or circuitous, unconventional route to the yard office. Of
course, FRA advises each railroad to provide adequate signs for
visitors to its yards so that there is no confusion about where to go--
and thus no confusion for employees regarding which crossings are
required to be protected. Generally speaking, we would expect that a
crossing that consists of ballast thrown down to allow maintenance-of-
way vehicles and employees to cross a track within a yard would not be
the type of crossing a railroad would expect the members of the general
public to cross; thus, those ad hoc crossings would nearly always not
be considered a yard access crossing and would not need to be protected
in accordance with the shoving and pushing requirements in this rule.
Section 218.95 Instruction, Training, and Examination
    In paragraph (a), FRA requires that each railroad maintain a
written program that will qualify its employees for compliance with
operating rules implementing the requirements of this subpart to the
extent these requirements are pertinent to the employee's duties. Thus,
the pool of employees that would need to be covered by the program are
those employees involved in shoving or pushing operations, remote
control operations, and any operation where equipment might be left
fouling a connecting track--as well as any employee that may be
required to operate hand-operated switches and fixed derails. The
written program may be a stand-alone program or consolidated with the
program of instruction required under Sec.  217.11 of this chapter. FRA
anticipates that most railroads would choose to consolidate this
program with the part 217 requirement. Although FRA encourages the
efficiencies consolidation is sure to bring, FRA's expectation is that
the consolidated written program will sufficiently emphasize the
requirements of this subpart. Each railroad is required to establish
the program no later than July 1, 2008, and continue to maintain it
thereafter.
    Paragraphs (a)(1) and (a)(2) provide more details regarding what
should be included in the written program. Paragraph (a)(1) requires
that the program include instruction on consequences of noncompliance,
i.e., that FRA can take enforcement action through civil penalties or
disqualification from safety sensitive service. See 49 CFR part 209,
subpart D-Disqualification Procedures. Paragraph (a)(2) requires that
the written program address the need to qualify employees on all
aspects of the technology the employees will be utilizing when
complying with the operating rules required by this subpart. For
example, employees may be expected to operate a variety of hand-
operated switches and must be taught how to properly operate them as
well as what to do if a malfunction or deviation is detected. This
final rule differs slightly from the proposal. In the NPRM, FRA
requested comments regarding whether the final rule should include any
specific reference to qualification of employees on the territory where
they will be working. FRA explained in the proposal that it was not
immediately obvious how this concept should be applied in the subpart F
context. During the RSAC discussions and in comments, labor
representatives asked for a more explicit recognition of this
requirement and suggested revising paragraph (a)(2) to require that
each worker be ``qualified,'' rather than just ``trained,'' on the
items listed in that paragraph. FRA agrees and has changed the relevant
proposed phrasing from ``shall include training'' to ``shall include
qualifying the employee.'' Although this change does not amount to a
specific requirement that every employee shall be territorially
qualified, it is implicit that this type of qualification is required
when necessary

to provide the knowledge required to comply with the subject rules.
Locomotive engineers, including those that are remote control
operators, are already required to be territorially qualified pursuant
to part 240 of this chapter. Furthermore, FRA hopes to allay labor's
fears by reminding interested parties that if territorial qualification
is a necessary component for complying with one of the subpart F
operating rule requirements and that qualification was not provided to
an employee, FRA is unlikely to bring an enforcement action against the
employee because FRA would likely have difficulty proving that the
violation was ``willful.'' See 49 CFR part 209, app. A. Finally, FRA
has revised paragraph (a)(2) by changing the word ``employed'' to
``necessary'' because, in context, the word ``employed'' implied
``used;'' the change clarifies that an employee cannot be deemed
qualified to accomplish the work without satisfying the qualifications
requirements in the program that specify any instruction, training and
examination needed to operate the technology and understand any related
procedures.
    Paragraphs (a)(3) and (a)(4) address the implementation schedule
for this subpart. Paragraph (a)(3) requires that prior to January 1,
2009, employees performing duties subject to these requirements shall
be qualified per the minimum requirements in this subpart. It is
further required under paragraph (a)(3) that employees who are hired
during the period following April 14, 2008 through January 1, 2009,
would not be provided such a grace period; instead, is required that
new hires receive the proper qualification training before being
allowed to perform duties subject to the requirements of this subpart.
Furthermore, under paragraph (a)(4), after January 1, 2009, no further
grace period is provided and employees shall receive recurrence
training at least every three years. FRA is requiring this three year
window because it is becoming a standard industry practice to re-
qualify employees on operating rules at least every three years and
that is a reasonable time period in which to conduct continuing
education. The dates in paragraphs (a)(3) and (a)(4) were extended so
that they would coincide with the calendar year, rather than the
effective date of the final rule. Finally, pursuant to paragraph
(a)(5), the record for each employee shall document qualification of
employees under this subpart by including any records of required
instruction, examination and training.
    Both AAR and APTA requested that FRA change the training schedule
through a longer grandfather provision than the one year proposed and
extend all the schedules for implementation so that the required
training could be accomplished during the normal three year cycle. The
latter concern is that a large railroad with many employees to qualify
will only need to train about a third of its employees each year, while
FRA proposed requiring all current employees to be trained within one
year from the date of the rule's publication. FRA is not adopting the
suggestions because one full year should be sufficient time for a
railroad to modify its operating rules according to this subpart and
qualify its employees on the small number of operating rules covered by
this subpart. Many railroads may find little difference, if any,
between the subpart F requirements and their existing operating rules.
Experienced employees should have little difficulty understanding the
nuances of any of the new rules, so FRA does not envision qualifying
existing employees to be greater than a refresher course with limited
subjects to be covered. FRA perceives that the commenters may be
expressing a frustration that the railroads will need to schedule this
qualification class and not be able to logistically combine it with a
regularly scheduled operating rules training class under Sec.  217.11
for every one of its employees; i.e., employees scheduled to receive
operating rules training this year would be covered, but not those
previously scheduled for the following two years. FRA permits railroads
to combine the training under this subpart with the Sec.  217.11
training, but not to extend the deadlines for the subpart F training.
Again, AAR and APTA's requests are denied mainly because the
qualifications requirements under this subpart cover a limited number
of operating rules and subject areas that experienced employees should
readily comprehend without many questions or concerns.
    Paragraph (b) requires that qualification records required by this
subpart be retained at a railroad's system headquarters and at the
division headquarters, if any, where the employee is assigned. This
will enable FRA to quickly obtain such qualification records upon
request. FRA has not required a retention schedule for these records as
we believe the section mandates that at a minimum: (1) Records must be
kept for each employee qualified and (2) when an employee is
requalified, there is no longer a need for a railroad to retain the old
record as it has been superceded by the new one. Paragraph (b) also
includes the option to allow a railroad to retain these records
electronically in accordance with Sec. Sec.  217.9(g) and 217.11(c) of
this chapter; this option was added to address a comment from APTA for
FRA to specify that electronic recordkeeping would be acceptable.
    Paragraph (c) provides a mechanism for FRA to review and disapprove
of a railroad's written program required under paragraph (a). It also
requires minimum procedures and structure to the review process. The
paragraph provides that the Associate Administrator for Safety will
only disapprove programs of instruction, training, and examination
required by this section for cause stated. As the disapproval decision
is made for cause, it is significant for the railroad to understand
exactly why FRA is disapproving the program; thus, notification of such
disapproval will be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Safety
disapproves the program, the railroad has 35 days from the date of the
written notification of such disapproval to either (1) amend its
program and submit it to the Associate Administrator for Safety for
approval, or (2) provide a written response in support of the program
to the Associate Administrator for Safety. If the railroad chooses the
second option to defend the allegedly defective program, the Associate
Administrator for Safety will inform the railroad of FRA's final
decision in writing. Although the rule is silent regarding whether a
railroad may request an extension, FRA intends for the Associate
Administrator for Safety, as the agency's decision-maker, to have the
flexibility to decide procedural issues, such as having the ability to
grant or deny requests for extensions of time, as the issues arise. The
Associate Administrator for Safety renders a final decision in writing
which will specify the terms and conditions under which the program
will be considered approved or disapproved. If the decision denies the
railroad's request in whole or in part, FRA intends for the railroad to
amend its program and submit it to the Associate Administrator for
Safety for approval within 35 days of the final decision as that is the
period of time accorded for amending programs when a railroad chooses
not to appeal the disapproval. Again, a railroad may request an
extension of time to amend its program and submit it to the Associate
Administrator for Safety for approval, and FRA intends for the
Associate Administrator for Safety to have the flexibility to decide
whether to

grant or deny such procedural requests. Although enforcement action is
always discretionary, FRA believes that enforcement action is warranted
when a railroad fails to appropriately and timely amend its program;
for this reason, FRA is requiring in paragraph (c)(2) that a failure to
submit the program with the necessary revisions to the Associate
Administrator for Safety will be considered a failure to implement a
program under this part.
    The approach in paragraph (c) recognizes that FRA will typically
want to review such written programs during audits or investigations
and that FRA should have the authority to request changes to the
program if it does not meet the minimum requirements of this rule. The
oversight authority vests with the Associate Administrator for Safety.
Although FRA would have authority to review in detail each railroad's
program, FRA is not requiring each railroad to submit its program for
review and explicit approval. Rather, FRA will review the qualification
programs of the railroads over a multi-year cycle, in connection with
review of the overall program of operating rules, to determine if they
are effective. Among the factors that would be considered would be the
extent to which the program is founded on appropriate task analysis,
the completeness of the curriculum, the types of instructional methods,
appropriateness of written and other tests, criteria for successful
completion, and--most importantly--the ability of employees said to be
qualified to apply the rules in practical situations. The final rule
contains more details than in the NPRM but the overall approach is not
significantly different.
Section 218.97 Good Faith Challenge Procedures
    FRA received a wide-variety of comments pertaining to the proposed
good faith challenge procedures section. In short, the labor
organizations generally supported the procedures and offered small
suggestions for improvement, while the associations representing
railroad management generally requested more significant changes based
on legal and policy concerns. The legal concerns raised by the comments
are addressed earlier in this rule in the preamble. See IV. General
Comments/Major Issues, Good Faith Challenge--Legal Issues. While most
of the procedures in this paragraph are maintained from the proposed
rule, FRA has amended this section to allay valid concerns raised by
the comments and to correct deficiencies in enforcing the challenge.
    The main purpose of requiring that each railroad establish
operating rules containing certain minimum requirements under this
subpart is to ensure safe handling requirements of certain operations
by employees where human factor caused accidents have historically
occurred. Codifying these requirements will enable FRA to take
enforcement action when necessary, and will therefore discourage
noncompliance with these important safety rules. FRA is convinced that
human factor caused accident rates and incidents of noncompliance would
be significantly lower if each railroad were properly qualifying
employees and consistently enforcing its own operating rules. FRA's
perception is that on occasion some railroad officers are permissive in
allowing occasional violations of operating rules in order to achieve
short-term perceived efficiencies. For example, a railroad officer may
order an employee to shove blind, i.e., without ensuring that the track
is clear for the movement, in an effort to finish a job quickly and get
a train out of the yard. If the move originated from a direct order by
a railroad official, the employee might fear challenging the railroad
official on the order or might have complied with so many similar
orders in the past as to not perceive the danger in occasionally
violating an operating rule. Another example could occur when an
employee is told he or she may leave work early as soon as a particular
assignment is complete. Rather than taking the longer but safer route
to determine that a switch was left properly lined, the employee
assumes the switch was left properly lined, even though some time has
passed since the employee last observed it. This rule is intended to
check emergence of the culture that occasionally accepts some degree of
noncompliance with a railroad's operating rules.
    One essential aspect of changing this undesirable culture of
complacency with some noncompliance is to establish better lines of
communication between employees and railroad officers. Section 218.95
requires that railroads have a written program that will ensure that
employees are well trained and qualified to do the work. A qualified
employee should readily recognize when a railroad officer has given the
employee an order that does not comply with the railroad's own
operating rules. In order to address this issue further, FRA is
requiring good faith challenge procedures.
    The good faith challenge procedures are about establishing
dialogues between employees and railroad officials. A good faith
challenge is initiated by an employee who believes that if he or she
obeys a particular order issued by a railroad official, the employee
would violate one or more of the operating rules required by this
subpart. At its core, the good faith challenge and its attendant
procedures should force a railroad official to listen to an employee's
concern regarding such an order and to reconsider the validity of the
order. FRA has created a mechanism for appealing the first official's
order to a second official in the situation where dialogue and
compromise do not resolve the discrepancy.
    FRA has added paragraph (a) so that the regulation sets forth the
responsibility of employees to provide consistence with other good
faith challenge regulations promulgated by FRA. See 49 CFR 214.503(a)
and 214.313. This paragraph clarifies that whenever an employee makes a
good faith determination that the employee has been directed to violate
either FRA regulations or a railroad's operating rules regarding the
handling of equipment, switches, and fixed derails, the employee shall
inform the railroad or employer (as not all rail employees work
directly for a railroad) of the belief that the order may be in
violation. Thus, in the interest of safety, an employee has a duty to
raise challenges to perceived non-complying orders. With the addition
of paragraph (a), all of the proposed paragraphs required renumbering.
    As explained in the proposed rule, FRA refers to the challenge as
the ``good faith'' challenge because we do not intend for employees to
abuse it. We expect bad faith challenges to never or rarely occur and
for the challenge to provide, in part, for a dialogue between employee
and supervisor that railroads should be permitting and encouraging
without being prompted by regulation. That said, it is possible for bad
faith challenges to occur. For example, if several experienced
employees in a particular yard were all to initiate separate challenges
where no real dispute could be articulated, this concerted effort to
create a work stoppage or slowdown would be in bad faith. It might also
be considered bad faith, or at least cause for concern, if an employee
repeatedly made similar challenges that were without merit; in such an
instance, the facts and circumstances of each incident would need
evaluation as the problem could be inadequate qualifications or
experience--not necessarily a challenge made in bad faith. It is
certainly not an act of bad faith for an employee who

makes a challenge to have simply misinterpreted the operating rule or
practice, and we would have serious concerns with a railroad that
sought to punish an employee merely for asserting the challenge and
being wrong. Again, we emphasize that we do not anticipate abuse of the
challenge as FRA has not heard any anecdotal discussions of abuse with
the already existing good faith challenges. Furthermore, if the good
faith challenge is found to be regularly abused, FRA would consider
amending the challenge to reduce the likelihood of abuse or abolishing
the challenge during a future rulemaking.
    FRA is promulgating good faith challenge procedures that are more
detailed than those established for roadway workers because the
officer/employee relationship dynamic is different for roadway work
versus operations work. That is, the strict chain of command is more
prevalent in operations than roadway work. Thus, a supervisor of
roadway work may be more accepting of a challenge than an operations
supervisor, e.g., a yardmaster.
    The concept of a good faith challenge applied to operations is not
wholly unknown in the railroad industry. For example, we applaud the
efforts of Metro-North Railroad, which has instituted a good faith
challenge that is much broader than what FRA is requiring through this
rule. Metro-North allows good faith challenges to any directive that
would violate an operating rule or instruction in the following areas:
operating rules, timetable, equipment operating instructions,
electrical instructions, hazardous material instructions, safety
instructions, and bulletin orders and general notices. Metro-North
provides its employees the right to have a second supervisor review the
challenge and lists the titles of the supervisors who are able to
perform a second review: Operations Managers, District Superintendents,
Line Superintendents, General and System Road Foremen, Chief Rail
Traffic Controllers, and Operating Rules Department Supervisors. Metro-
North also pledges that it will not subject an employee to discipline
for a violation of a rule or instruction when being ordered to comply
by a second supervisor, provides for the right to document the
challenge prior to the completion of the tour of duty, and the right to
a written decision if requested promptly. Metro-North has also
instituted its own form for tracking each challenge. Of course, FRA is
prescribing minimum good faith challenge requirements only and each
railroad may prescribe additional or more stringent requirements. See
49 CFR 218.1.
    Proposed paragraph (a) is redesignated as paragraph (b). Paragraph
(b) provides the general procedures for implementing a good faith
challenge specific to the requirements of this subpart; railroads or
employers of railroad employees subject to this subpart, of course, are
free to implement a good faith challenge in areas not subject to this
subpart as Metro-North has done. Paragraph (b) requires that each
employer be responsible for the training and compliance by its
employees with the requirements of this subpart. Obviously, railroads
will have to instruct employees on all aspects of the good faith
challenge or it will have no effect. The good faith challenge
procedures must be made available to roadway workers as the definition
of ``employee'' includes ``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. Although FRA does not anticipate that
roadway workers would be involved in many, if any, shoving or pushing
movements, the regulations pertaining to switches, fixed derails and
leaving equipment in the clear would likely be applicable. FRA intends
to take enforcement action where a railroad fails to properly instruct
employees or a railroad's officers fail to comply with implementation
of the good faith challenge procedures.
    Paragraph (b)(1) requires that each employer 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.
Therefore, it is not enough for an employer to maintain such a
guarantee in its written procedures as the employer has a duty to
implement this guarantee. If an employee is denied the right to make a
challenge, or is denied any aspect of the required procedures, FRA may
seek enforcement action against the employer or individual responsible
for denying the employee's right. Of course, the requirement's
applicability would only be for a challenge to any order that violates
a requirement in subpart F.
    Paragraph (b)(1) of the rule also requires a railroad to adopt and
implement written procedures as the mechanism for instituting the good
faith challenge. Such written procedures should not lead to protracted
arguments that are unusually disruptive to operations as FRA is
requiring that each railroad's procedures provide for ``prompt''
challenges. FRA's expectations are that such challenges should be
resolved in a matter of minutes, certainly not an hour or more. It is
within this context that FRA also specified the concept that a
railroad's written procedures provide for ``equitable resolution of
challenges;'' by this requirement, FRA meant for a railroad officer to
give deference to an employee's challenge if the employee has suggested
a safe way to do the work that is in compliance with the relevant
operating rules. Follow-up to clarify the correct application of the
rule leading to the challenge can be done at a later time or date so
that a definitive answer may be provided by the railroad to the
railroad officer and employee involved; e.g., a railroad's manager of
operating rules may want to issue a bulletin generically outlining the
challenge and the proper application of the rule. As a good practice, a
railroad should take this extra step to clarify a definitive answer
even if the employee does not request such a review, as provided for in
paragraph (d)(4), as it may be used as a learning experience for other
employees and supervisors.
    FRA is revising proposed paragraph (a)(2), which has been
redesignated as paragraph (b)(2). The proposed paragraph would have
required that a railroad's good faith procedures indicate that the
challenge is not intended to supplant any rights or remedies available
to the employee under a collective bargaining agreement or under the
statute providing for employee protections found at 49 U.S.C. 20109. As
discussed earlier, the employee protections of this statute have been
expanded and the authority to investigate whistleblower complaints has
been transferred to DOL. The paragraph's revisions require that the
written procedures required by this section shall indicate that the
good faith challenge described in paragraph (b)(1) 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.
The citation to 29 U.S.C. 651 et seq. is a reference to the
Occupational Safety and Health Act of 1970 (OSH Act of 1970) that is
implemented by DOL's Occupational Safety and Health Administration
(OSHA) and is designed to regulate employment conditions relating to
occupational safety and health and to achieve safer and more healthful
workplaces. Section 11(c) of the OSH Act of 1970, found at 29 U.S.C.

660(c), generally protects employees from retaliation for raising
concerns or filing complaints alleging workplace safety or health
violations under the Act. The citations to 6 U.S.C. 1142 and 49 U.S.C.
20109 are references to protections afforded to public transportation
employees and employees of a railroad carrier engaged in interstate or
foreign commerce respectively, including employees of contractors and
subcontractors. Both of these provisions are implemented by DOL.
Although FRA views these statutory provisions as wholly separate from
the regulation we are promulgating and FRA's enforcement authority, the
statutory provisions provide employees with rights and remedies in
cases of retaliation for refusing to violate or assist in the violation
of any Federal law, rule, or regulation related to railroad safety as
well as taking other enumerated actions. The citation to these laws in
the written procedures is a reminder to employees of their rights and
remedies which provide an opportunity to pursue an assortment of
relief, including punitive damages, against an employer for an improper
action.
    FRA's decision to expand paragraph (b)(2) is being made in
conjunction with the deletion of proposed (b)(2). Proposed paragraph
(b)(2) would have required that each railroad's good faith written
procedures contain a requirement that would provide that an employee
making a good faith challenge shall not be discharged or in any way
discriminated against for making the challenge. FRA viewed the proposal
as an essential aspect of the good faith challenge procedures as
employees would certainly be discouraged from raising a challenge if
the employer is not prohibited from retaliating against an employee for
making a challenge. However, as explained in the preamble, the recently
amended statutory employee protection provisions changed the landscape
of whistleblower protection for railroad employees such that FRA no
longer perceives a need for a separate regulatory requirement against
retaliatory conduct. See B. Good Faith Challenge--Legal Issues, 4.
Anti-Retaliation Provision.
    Proposed paragraph (a)(3) is redesignated as paragraph (b)(3). This
paragraph requires that a railroad instruct affected employees on the
good faith challenge procedures contemporaneously with the training
railroads are required to provide under 49 CFR 217.11. The idea is that
an employee's chance of understanding the proper application of the
good faith challenge should be greatest at the time the employee is
receiving instruction on the relevant operating rules. Of course, FRA
does not expect a railroad to instruct an employee whose duties do not
involve handling equipment, switches and derails. If an employee's
duties change to include these activities, the railroad will have to
provide the instruction prior to assigning the new duties.
    The good faith challenge procedures are a critical component of
this final rule, which is narrowly tailored with the intention to drive
down the number of accidents caused by human factors. Employees learn
in the classroom but there are often so many topics covered in an
operating rules class that it could be difficult for an employee to
retain everything taught. To compensate, railroads traditionally
provide operating rule books not only to put employees on notice that
compliance with these rules is expected, but also, as a reference so
that each employee can check the rules and be reminded of their
requirements. In similar fashion, FRA is requiring in paragraph (b)(4),
previously proposed paragraph (a)(4), that each railroad provide a
current copy of its written good faith procedures to each affected
employee. By requiring a current copy, FRA has incorporated the idea in
the proposed rule that each railroad provide each affected employee
with any amendments to its written procedures prior to the effective
date of the amendments. Also, like any other record FRA requires, a
railroad would need to make the written procedures available for
inspection by FRA during normal business hours.
    Proposed paragraph (b) has been redesignated as paragraph (c).
Paragraph (c) requires additional procedures for each railroad to
include in its written good faith procedures. Each of these more
specific requirements lays the framework for what FRA envisions as a
respectful dialogue between two individuals with differences of opinion
on an operations issue with a safety component; the two individuals
are, of course, an employee and an officer of the railroad or employer.
    Paragraph (c)(1) requires written procedures granting 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. The good faith challenge
procedures should eliminate any stigma employees have regarding
challenging railroad officers on safety issues pertaining to handling
equipment, switches and derails. Likewise, standardization of the
challenge should cause railroad officers to truly reflect on the orders
issued and whether any aspect of an order would result in noncompliance
with the relevant railroad operating rules.
    Proposed paragraph (b)(3) contained two components, one of which
has been redesignated as paragraph (c)(2). Paragraph (c)(2) contains a
similar requirement to the first component of proposed (b)(2), but with
some important differences. Several railroads, and the associations
that represent them, objected to the proposed paragraph in that it
stated that the good faith written procedures include a provision
``that no work is to be performed with respect to the challenged task
until the challenge is resolved.'' The proposal was intended to
duplicate a similar provision found in the roadway worker rule that
required allowing the challenging employee ``to remain clear of the
track until the challenge is resolved.'' 49 CFR 214.311(b). And while
this requirement has not posed any problems for employers of roadway
workers, many railroads expressed dismay at this provision and sought
additional amendment or deletion of this paragraph.
    The amendments to paragraph (c)(2) are intended to protect the
employee who made the challenge from being required to comply with the
challenged directive while the challenge is unresolved. The first part
of the paragraph requires that the written program ``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.'' This language more closely conforms
to FRA's other good faith challenge regulations than the NPRM.
    In RSAC Working Group meetings, FRA heard two related complaints
from railroads regarding proposed paragraph (b)(3). One, several
railroads commented that the proposed regulatory text did not address
whether the challenging employee could be ordered to do other work
while the challenge is unresolved. As it was FRA's intent to allow for
this type of work, we have added paragraph (c)(3) to address this
issue. Paragraph (c)(3) requires that the written procedures shall
provide that the railroad or employer may require the challenging
employee to perform tasks unrelated to the challenge until the
challenge is resolved. Of course, whether or not a railroad or employer
chooses to exercise the option of switching an employee's duties while

the challenge is being resolved is a decision for the railroad or
employer.
    The second of the two complaints from railroads regarding proposed
paragraph (b)(3) involved a concern that the NPRM indicated that nobody
could do the work with respect to the challenged task until the
challenge was resolved. FRA did not agree that the NPRM prohibited
another employee from doing the challenged task prior to resolving the
challenge. Meanwhile, we had, and still have, reservations about
providing a railroad or employer with a clear path to order some other
employee to do work that another employee is challenging as non-
complying--and thus unsafe. In response to the requests for
clarification, paragraph (c)(4) has been added. This paragraph requires
the written procedures to provide that the 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. Thus, paragraph (c)(4)
prohibits an employer from ordering a second employee to do the work
without verbally notifying this second employee that another employee
has asserted a good faith challenge. At a minimum, for purposes of this
paragraph being ``informed of the challenge'' means that the person
giving the directive shall explain that another employee has made a
good faith determination that the task does not comply with an
operating rule or FRA regulation, as well as provide a synopsis of the
specifics of the challenge. This option permits an employer, who is
certain that the challenging employee is wrong, an opportunity to get
the work done by another qualified person. Of course, any employee
asked to perform a task that does not comply with this subpart has the
same right to challenge the task, regardless of whether any other
employee has also challenged that task. Also, all employees have the
same responsibility under paragraph (a) to inform the employer of
directives that violate this subpart or any operating rules
implementing this subpart.
    The second part of proposed paragraph (b)(3), which has been
redesignated as (c)(5), identifies the ways that a challenge may be
``resolved.'' Each of the ways that a challenge may be resolved has
been designated in its own paragraph numbered (i) through (iv). One, we
expect that some railroad officers when challenged will realize that
the employee's suggested alternative method of operation is an
acceptable option that is in compliance with this subpart and the
carrier's operating rules implementing this subpart. The officer may or
may not agree that the original directive was non-complying but the
challenge in this case can be resolved amicably. Two, after making a
challenge and receiving an explanation or recitation of the rule from
the officer, an employee may likewise realize that the officer's
directive was in compliance and decide to comply with the directive.
Three, in some situations, the challenge may lead to a discussion of
options on how the task can be performed in compliance with the
operating rules. That discussion may lead to a realization either that
both persons were only partially correct or there is another option not
previously asserted. Under those circumstances, an amicable resolution
would be the advancement of a third option that was reached through
communication and compromise, and is therefore satisfactory to both
parties. Four, there may be instances when an officer believes the
directive is permitted by the operating rules, and that either the
employee's challenge is being made in bad faith or there is no
reasonable alternative to the direct order; in those situations, the
written procedures will provide for review as further determined under
paragraph (d) of this section.
    Proposed paragraph (c), which was redesignated as paragraph (d),
requires each railroad to provide additional written procedures in the
event that a challenge cannot be resolved amicably. Thus, the
additional procedures in this paragraph are required to be complied
with when 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. As it is often difficult to
determine that a person is acting in bad faith, the person issuing the
directive should typically give the challenging employee the benefit of
the doubt that the challenge is being made in good faith and attempt to
resolve the challenge without the need for further review.
    In the event of a stalemate, where the challenging employee and the
person issuing the directive cannot agree to resolve the challenge,
paragraph (d) requires that the written procedures provide that four
additional requirements be met. Paragraph (d)(1) carries over from the
NPRM the requirement that an immediate review by another railroad or
employer officer be provided. The immediate review must be held by
another officer who cannot be unduly influenced by the officer who
issued the challenged directive or the review will not have the
appearance of fairness. FRA expects that fair review will be
accomplished if the reviewing officer is a different officer who is not
a subordinate of the officer who issued the challenged directive. FRA
envisions this immediate review as a quick check with another officer
that should not be unduly burdensome.
    In the NPRM, FRA requested comments regarding whether some smaller
railroads might have difficulty complying with an immediate review
requirement. FRA did receive comments, mostly oral during the RSAC
Railroad Operating Rules Working Group meetings, explaining that the
smallest railroads would likely encounter problems providing an
immediate review when so few officers would be available to conduct
them. Consequently, FRA has decided to revise the requirement in
paragraph (d)(1) so that the immediate review will not be mandatory for
each railroad with less than 400,000 total employee work hours
annually.
    In paragraph (d)(1)(i), FRA retains from the NPRM the requirement
that the immediate review not be conducted by the person issuing the
challenged directive, or that person's subordinate. APTA commented that
it is not always clear what other officers are in another's chain of
command, and whether one officer is subordinate to another. Although
not directly addressed in the rule, the rule's silence on this issue is
intended to provide each railroad with the flexibility to describe its
approach in its procedures and how the intent of the rule will be
followed. Similarly, during the RSAC Railroad Operating Rules Working
Group meetings, AAR and APTA voiced opposition to the idea of the
promulgation of a good faith challenge. Both associations were
concerned that implementation of such a challenge would pose numerous
logistical difficulties as well as a perceived high potential for abuse
by employees. One concern raised was that on-time performance could
easily be compromised if an employee raised a challenge and a quick
compromise solution could not be reached. The rule does not need to
address this issue as each railroad or employer needs to address it by
setting up effective protocols for supervisors to follow when issuing
direct orders to proceed; i.e., each yardmaster or other supervisor
should know who to contact in the event that an immediate review is

needed. A railroad may wish to provide contact lists to each supervisor
of other supervisors so that each supervisor has multiple people to
contact in the event a challenge needs immediate review. Again, the
intent of the rule is to provide for an immediate review by a railroad
officer who cannot be unduly influenced by the officer who issued the
initial order so that a fair review may be perceived. As explained
previously in this analysis, Metro-North has addressed this issue in
its good faith challenge program and has thus provided an example of
how to address this issue.
    The requirement in paragraph (d)(1)(ii) is based on a requirement
in proposed paragraph (c)(1). During an immediate review, the reviewing
officer has the same options to resolve the challenge as the person who
issued the challenged directive, however, the officer making the
immediate review shall also have the option described in paragraph
(d)(2). FRA believes that there has to be some finality to the
immediate review process and that one review is enough. Of course,
paragraph (d)(1) provides the minimum immediate review requirements and
a railroad is not prohibited from providing a second immediate review
or other additional requirements.
    Paragraph (d)(2) provides 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. This paragraph is based on the option in
proposed paragraph (b)(3) that suggested permitting an officer to
resolve a challenge by issuing a direct order to proceed with the work
as initially ordered. There may be situations where the officer making
the final decision concludes that the direct order would not violate
this subpart, or any operating rule relied upon to fulfill the
requirements of this subpart; in that situation, the officer may direct
the employee to perform the challenged directive after explaining 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. This notification requirement serves several
purposes. One, it reminds the employee of the statutory anti-
retaliation protection prior to the employee choosing between doing or
refusing to do the work. Two, it reminds the employee that if he or she
refuses to do the work, the statutory protections will not protect him
or her from retaliation if the employee is acting unlawfully or in bad
faith. Three, the officer's act of providing this notification to the
employee also provides a reminder to the officer that the employee is
likely protected from retaliation for refusing to do the work except
where there is evidence proving that the employee's refusal is unlawful
or made in bad faith. An officer ordering an employee to do such work
would be expected to have a high degree of confidence in issuing such
an order, and we would expect railroads and employers to carefully
instruct officers on these procedures, as a challenging employee might
file a complaint or lawsuit based on the failure to follow proper good
faith challenge procedures or for later retaliation based on a refusal
to do the work.
    Paragraph (d)(3) maintains a similar requirement from proposed
paragraph (c)(2) that the written procedures provide the employee with
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 also be afforded the opportunity to retain
a copy of the protest. Examples of electronic records may include, but
are not limited to, recorded radio communications, electronic mail
(i.e., e-mail), or filling out a computer form or database. If
electronic recording is permitted by the railroad's program, railroads
will need to maintain methods for providing the employee with a copy of
that record. Maintaining such a record facilitates the employee's
ability to follow-up on any further review requested under paragraph
(d)(3). FRA considered whether to require that the employee be provided
with the opportunity to create this record immediately following the
direct order to proceed with the task, however, FRA has accepted
several railroads' arguments that this could prove too disruptive to
operations, especially passenger and commuter operations where on-time
performance is critical. Additional time delays would result if an
employee had the right to immediately document the challenge before
returning to work. FRA has addressed this issue by requiring in
paragraph (d)(3) that the employee be afforded an opportunity to
document the protest electronically (e.g., by radio transmission to be
recorded) or in writing any time ``before the tour of duty is
complete.'' This additional requirement also reflects an existing
statutory requirement that entitles an individual to document a protest
of a direct order of a railroad carrier official or supervisor under
protest communicated to the official or supervisor. 49 U.S.C. 21304. Of
course, ``the absence of such a protest will not be viewed as
warranting a presumption of willfulness on the part of the employee who
might have communicated it.'' 49 CFR part 209, app. A, ``Civil
Penalties Against Individuals.'' Paragraph (d)(3) does not supercede
the statutory requirement nor does it exceed it. Given the existing
statutory requirement, the time needed to document a protest should not
pose a new burden on railroads.
    FRA has deleted proposed paragraph (c)(3) which stated that the
written program ``provide that the employee be orally advised that
completing the work as ordered will not subject the employee to
penalties or consequences for noncompliance with this subpart.'' When
FRA published the NPRM, this paragraph was intended to further clarify
existing statutory rights under 49 U.S.C. 21304. Upon further
reflection, FRA found the proposed paragraph could be confusing in that
it might suggest that a railroad officer or supervisor could bind the
FRA in the use of the agency's enforcement discretion. This might be
true even where the railroad official misapplied the law, or the
individual was not entitled to the right. APTA also raised a valid
concern that the proposed paragraph could easily be misinterpreted in
another way; e.g., an employee who invokes a good faith challenge on a
shoving move may believe that he can't be disciplined, or have
certification revoked if the employee is a locomotive engineer, for
passing a stop signal related to that same movement even though the
officer did not give the crew authority or permission to pass the
signal. Despite the fact that this paragraph was deleted and that
employees are not required to be orally advised that completing the
work as ordered will be a defense to penalties or consequences of
noncompliance under this subpart, section 21304 is still applicable.
Thus, ``[a]n individual is deemed not to have committed a willful
violation if the individual was following the direct order of a
railroad carrier official or supervisor under protest communicated to
the official or supervisor.'' 49 U.S.C. 21304.

    Proposed paragraph (c)(4), redesignated as paragraph (d)(4),
requires that the direct order procedures shall also provide the
employee with the right to one more review by a railroad officer
designated by name or title in the written procedures who will make the
final interpretation of the applicable operating rule. The railroad is
not prohibited from designating more than one individual by name or
title, although it would likely be useful to have one person or office
overseeing these interpretations. In the proposed rule, FRA did not
specify a deadline for issuing the verification decision; after further
consideration, FRA has decided that some reasonable time limit should
be imposed to prevent a railroad from taking an inordinate amount of
time to respond to an employee's request. FRA has decided to require
that a railroad issuing a verification decision must do so within 30
days after the expiration of the month during which the challenge
occurred. Thus, regardless of whether the challenge occurred on
November 1st or 30th, the verification decision must be provided to the
employee no later than December 30. FRA considered imposing a strict
30-day deadline, but decided that this type of deadline, patterned
after the one found in 49 CFR 225.11, for reporting of accidents/
incidents, provides greater flexibility without unduly delaying the
verification decision. This paragraph was also changed to require that
the employee make the request for further review in writing; the
proposed paragraph left open the possibility of a verbal request which,
if left unanswered, could potentially lead to arguments over whether
the request was actually made. FRA is not requiring that the written
request be on a form, but a railroad may choose to create one. However,
rather than permit the employee to decide whether or not the railroad
should provide the employee with a written decision as in the NPRM, the
railroad is required to provide the employee with a written decision so
that there is no dispute regarding whether the railroad fulfilled this
obligation. A final written decision will also permit FRA with the
opportunity to more easily investigate claims that the challenge had
merit or the railroad is not properly applying the Federal regulations.
    FRA did not propose, but has added, paragraph (e) to address
recordkeeping and record retention issues pertaining to the good faith
challenge procedures. For example, in the NPRM, FRA required each
railroad to maintain written procedures, but did not specify where the
procedures needed to be kept so FRA could inspect or copy them.
Paragraph (e)(1) addresses this issue by requiring a copy of the
procedures to be retained at both the railroad's system headquarters