[Federal Register Volume 59, Number 161 (Monday, August 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20457]
[[Page Unknown]]
[Federal Register: August 22, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 217 and 220
[FRA Docket No. RSOR-12, Notice No. 3]
Railroad Operating Rules and Radio Standards and Procedures
RIN 2130-AA76
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
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SUMMARY: FRA is amending its Railroad Operating Rules and its Radio
Standards and Procedures by removing requirements that railroads file
their operational testing programs, operating rules instruction
programs, annual summaries on operational tests and inspections, and
their radio rules with the Federal Railroad Administrator and by
substituting requirements that railroads retain such records and make
them available to FRA representatives during normal business hours. FRA
is also amending the Railroad Operating Rules by eliminating the
requirement that Class III railroads file their operating rules,
timetables, and timetable special instructions with the Federal
Railroad Administrator. In addition, FRA is making technical changes to
require railroads to record specific information when conducting
operational tests and inspections of their employees. Finally, FRA is
changing the Railroad Operating Rules and the Radio Standards and
Procedures so as to allow retention of certain records by ``electronic
recordkeeping'' (i.e., retention of a computer record in lieu of a
paper record). These amendments are intended to eliminate nonessential
reporting requirements while enabling FRA to review meaningful data to
determine the safety of a railroad's operations.
EFFECTIVE DATE: The rule becomes effective on November 21, 1994.
FOR FURTHER INFORMATION CONTACT: Jon Kaplan, Trial Attorney, Office of
Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 20590
(telephone: (202) 366-0635) or Dennis R. Yachechak, Railroad Safety
Specialist, Office of Safety, FRA, 400 Seventh Street, SW., Washington,
DC 20590 (telephone: (202) 366-504).
SUPPLEMENTARY INFORMATION: On October 19, 1992, FRA published a Notice
of Proposed Rulemaking (``NPRM'') on amendments to its Railroad
Operating Rules (49 CFR Part 217) and Radio Standards and Procedures
(49 CFR Part 220). 57 FR 47603 (1992). FRA proposed to remove
requirements that railroads file their respective operating rules,
radio rules, operational testing programs, operating rules instruction
programs, and annual summaries on operational tests and inspections
with FRA in Washington, D.C. and to substitute requirements that
railroads retain these records and make them available upon request for
inspection by FRA personnel during regular business hours. FRA believed
that these proposed amendments, if adopted, would remove nonessential
filing and reporting requirements while concurrently reducing the
burden borne by the railroads in paperwork and mailing expenses.
FRA received written comments on the proposal from seven entities
and conducted a public hearing at the request of one. The public
hearing was held in Washington, DC, on December 14, 1992, at which four
organizations were represented. As a result of these comments and
further analysis of the amendments proposed, FRA now publishes its
final rule. FRA recognizes the importance of a railroad's operating
rules and its radio rules for moving trains and other pieces of rolling
equipment safely. The requirements promulgated in the final rule take
this factor into account by balancing FRA's interest in reviewing
pertinent documents against the railroads' interest in reducing their
paperwork burden.
The final rule reflects reconsideration of the proposals announced
in the NPRM. In the interest of reducing certain paperwork
requirements, FRA has adopted certain proposed revisions to the
regulations. FRA has also authorized railroads to retain information
electronically so long as the railroads satisfy the stated conditions.
Nevertheless, FRA has retained the filing requirements prescribed in
existing Sec. 217.7 for Class I railroads and Class II railroads. See
Interstate Commerce Commission (``ICC'') regulations at 49 CFR Part
1201 and ICC General Instructions 1-1. FRA has determined that its
headquarters office, located in Washington, DC, needs to continue
receiving copies of the operating rules of national and regional
railroads to remain apprised of such rules. Finally, FRA believes that
operational test and inspection records require more specific data
elements. FRA has concluded that the newly identified data points serve
to clarify the existing information requirements by defining the
individual sources comprising each operational test and inspection. See
Section-by-Section Analysis for details.
Discussion of Comments and Conclusions
FRA received written comments from the American Public Transit
Association, Association of American Railroads (``AAR''), The American
Short Line Railroad Association (``ASLRA''), Consolidated Rail
Corporation (``Conrail''), New Jersey Transit Rail Operations, Union
Pacific Railroad Company, and United Transportation Union (``UTU''). At
the public hearing held December 14, 1992, four organizations
participated: the Railway Labor Executives' Association (``RLEA''), the
Brotherhood of Locomotive Engineers (``BLE''), AAR, and Conrail. The
discussions that follow examine the issues raised by the commenters and
analyze the reasons behind the adoption of the final rule.
1. Whether FRA should abolish requirements that railroads file
their operating rules, radio rules, and certain other documents with
FRA.
Two unions representing railroad employees objected to the proposal
that railroads merely retain their operating rules, programs of
operational tests and inspections, programs of instruction on operating
rules, and annual summaries. The UTU declared that FRA was abdicating
its responsibility of reviewing the documents for regulatory
compliance. The UTU alleged that requiring the relocation of records to
the railroad's system headquarters and division headquarters would vest
FRA's field inspectors with total enforcement responsibility and that,
consequently, document inspection would be entirely discretionary and
no longer an integral part of FRA's safety assessment of a railroad. In
other words, the UTU claimed, FRA was sending a message that
administering the operating rules regulations was no longer a priority.
The BLE echoed the UTU's concerns, stating that the removal of
agency review at the headquarters level represented a priority shift by
FRA to no longer monitor a railroad's compliance with its operating
rules or operational testing and inspection program (i.e., efficiency
testing program). The purpose of these regulations was to afford FRA
headquarters the opportunity to analyze the data from the submitted
documents. FRA needed to review incidents where railroad employees
violated their employers' operating rules to determine whether these
violations compromised railroad safety.
The AAR, however, fully endorsed FRA's proposals to eliminate
filing. The AAR saw the filing of operating rules and related documents
as unnecessary, burdensome, and serving no safety objective.
Furthermore, the AAR noted that the railroad divisions comprising each
railroad's system already provide the regulatory documents that FRA
field inspectors request for review. Requiring relocation of these
records to offices that are visited by FRA field personnel would
facilitate document accessibility and retrieval.
The ASLRA also supported an end to the filing requirements. The
ASLRA commented that these amendments would improve efficiency and
economy for the short line railroads and would promote review by
inspectors familiar with a railroad's operations. Three Class I
railroads agreed that these measures would relieve burdensome
requirements of photocopying and mailing these documents.
Although FRA proposed redesignating the locations of these records,
FRA has reconsidered the impact this measure would have on enforcement,
accident investigation, and other functions. A railroad's operating
rules and timetables are valuable resources that are used by personnel
of all disciplines in FRA's headquarters Office of Safety. For example,
at FRA headquarters, these documents are reviewed in conjunction with
accident reports filed at headquarters under 49 CFR Part 225 by the
railroad. The railroads' rules and timetables are also consulted during
FRA headquarters' analysis of draft accident investigation reports
submitted by FRA field personnel. By maintaining a copy of the
operating rules and timetables of major railroads, FRA retains its
ability to determine whether the operating rules themselves, or
violations of them, contributed to an accident. Retaining immediate
access to these documents in Washington, DC, provides FRA's
headquarters office with an efficient means to identify unsafe or
inadequate procedures and to recommend practices that will ensure
protection of train movements.
FRA believes that ensuring safe train and other movements requires
each Class I railroad, Class II railroad, the National Railroad
Passenger Corporation (Amtrak), and each railroad providing commuter
service in a metropolitan or suburban area to continue filing its
operating rules, timetables, and timetable special instructions with
FRA. These railroads conduct extensive operations, all of which are
governed by their operating rules. FRA's interest in reviewing these
documents outweighs the burdens imposed on the railroads to continue
filing these records. Therefore, FRA retains the existing filing
requirements for these railroads.
In order to ensure that the rules FRA is reviewing are current,
each railroad subject to this requirement must submit its operating
rules, timetables, and timetable special instructions to FRA by
December 21, 1994, and must submit each subsequent amendment to these
operating rules, timetables, and timetable special instructions issued
after November 21, 1994, to FRA within 30 days after it is issued.
On the other hand, FRA believes that the regulations on the
operational testing programs, operating rules instruction programs,
operational test and inspection records (i.e., efficiency tests), and
radio rules can be effectively enforced from the field. These records
are better utilized by FRA's regional personnel to monitor a railroad's
compliance with the regulatory requirements. The field staff are best
situated to observe a railroad's operations and determine whether the
operational testing programs, operating rules instruction programs,
operational test and inspections records, and radio rules are accurate
and current. Additionally, the field inspectors can examine the
operational test and inspection results in evaluating an employee's
performance of his or her duties in accordance with a railroad's rules
and instructions. FRA therefore adopts the proposal requiring railroads
to retain their programs of operational tests and inspections, programs
of instruction on railroad operating rules, records of operational
tests and inspections (including annual summaries on operational tests
and inspections), and radio rules at the designated locations provided.
2. Whether the three-year record retention requirements proposed in
the NPRM for operational testing programs and annual summaries of
operational tests and inspections will enhance railroad safety.
The NPRM proposed requiring railroads to retain their operational
testing programs under Sec. 217.9 and annual summaries of operational
tests and inspections under Sec. 217.13(a)-(c) for three calendar
years.
FRA received comments supporting and opposing this proposal. The
California Legislative Board of the UTU advocated record retention, but
argued that this information should be retained for a minimum of five
years. The BLE recommended that operational tests and inspections be
retained for only six months to one year. Both the UTU and BLE stated
that record retention would enable FRA to accurately assess a
railroad's history of safe operations by examining this collected data.
The unions believed that FRA could gain a wider perspective on a
railroad's results of its operational tests and inspections and thereby
target potential hazards in operating rules application, understanding,
and compliance.
The railroads generally disagreed with the unions. One railroad
urged FRA to modify its proposed retention requirement from three years
to one year. Likewise, the AAR and ASLRA concurred with this
recommendation. Specifically, the ASLRA claimed that the proposed
three-year record retention requirement was superfluous given the
recordkeeping requirements already imposed on railroads under the
Locomotive Engineer Qualification and Certification regulations (49 CFR
Part 240).
FRA disputes the ASLRA's judgment that these proposed requirements
are duplicative. Part 240 addresses only locomotive engineers (persons
who operate locomotives), but to ensure the safe movement of railroad
equipment, railroads also routinely test conductors, operators,
dispatchers, and maintenance-of-way personnel. All of these employees
are, at one time or another, placed in situations or conditions that
require knowledge and execution of a railroad's operating rules.
Therefore, FRA believes that maximizing safety requires each railroad
to retain its program of operational tests and inspections for all
employees covered by its operating rules.
FRA has concluded that a thorough analysis of a railroad's
operating procedures requires adopting the proposal as stated.
Accordingly, all railroads must retain their operational testing
programs and annual summaries on operational tests and inspections for
three calendar years. FRA believes that trend analysis of this data
will serve as an effective tool to assess a railroad's regulatory
compliance. Inspectors can better recognize patterns of rules
noncompliance and efforts railroads have made to remedy safety problems
uncovered by previous tests. The results of these tests may be used as
a barometer to measure the safety of a railroad and determine whether
its level of compliance is improving, deteriorating, or remaining
steady.
3. Whether FRA's proposal requiring railroads to retain their
operating rules, radio rules, operational testing programs, operating
rules instruction programs, and annual summaries on operational tests
and inspections at the system headquarters and all division
headquarters is overly burdensome.
The proposed rule identified two locations where railroads were
required to retain pertinent rules and programs: division headquarters
and system headquarters. The NPRM proposed that railroads would retain
their operating rules and Radio Standards and Procedures paperwork at
all of their division headquarters and at the system headquarters. See
proposed Secs. 217.7-217.13 (introductory text). FRA believed that most
railroads already maintained copies of these records at these locations
and that, therefore, FRA's enforcement personnel would be able to
effectively and efficiently enforce Parts 217 and 220 by visiting any
one of these sites.
This proposal prompted a number of parties to comment on its
usefulness. Four commenters argued that requiring the railroads to
retain the pertinent documents at their system headquarters and at all
of their division headquarters would impose additional administrative
costs with no offsetting safety benefits. Two organizations suggested
that the operational testing programs and annual summaries be retained
only at the railroad's system headquarters. Another two parties
recommended that each railroad's division headquarters retain only
information that applies to operations within that geographical
division.
FRA agrees with the commenters that the proposal was overbroad in
scope. The final rule departs from the NPRM by requiring that each
division headquarters retain only those documents that the division
applies and enforces (e.g., operational testing programs and operating
rules instruction programs). Likewise, each division headquarters must
retain the records of operational tests and inspections conducted by
that division. The proposal that each railroad retain its operational
testing program, operating rules instruction program, and annual
summaries on operational tests and inspections (for railroads with
400,000 or more total manhours) at the system headquarters has been
adopted unchanged.
FRA assumes that railroads with extensive operations conduct
operational tests and inspections at all division headquarters.
Railroad safety requires that all employees responsible for train
operations comply with a railroad's operating rules governing train
movements over a territory. Therefore, under final rule Sec. 217.9(d),
railroads with 400,000 or more total manhours will be required to
retain their annual summaries on operational tests and inspections
records at their system headquarters and at each of their division
headquarters. Although two parties asked that the regulation be amended
to require railroads to retain all of their annual summaries only at
the system headquarters level, FRA believes that this data must also be
available at all division headquarters in order for inspectors to
determine the extent of rules compliance in other divisions and system-
wide. This requirement will not impose any further burdens on the
railroads because, as one commenter noted, the railroads already
maintain copies of these documents at the division level and provide
copies for FRA inspectors upon request. FRA believes that effective
inspections of annual summaries are best served by examining these
records at a railroad's division headquarters and system headquarters.
4. Whether FRA should permit electronic retention of documents.
The NPRM never addressed this issue specifically. However, the
proposal's emphasis on deregulation encouraged several parties to
recommend that FRA allow railroads to retain records and reports by
electronic recordkeeping. Both the written and oral comments stressed
the cost savings that computer filing would provide to railroads.
Requiring railroads to retain the information in paper form would
impose additional administrative and storage costs. Computer storage of
these documents would also enable the railroads to immediately update
any amendments to their operational testing programs and operating
rules instruction programs. Moreover, one commenter argued that
retaining ``hard copies'' that contained historical data could create
confusion in the offices that utilize the information.
After reviewing the written comments and the transcript of the
public hearing, FRA agrees with the commenters that electronic
retention is a practical alternative for railroads to comply with the
regulatory recordkeeping requirements. FRA thus authorizes railroads to
retain their operational testing programs, operational test and
inspection records (including annual summaries), and instruction
programs on operating rules by electronic recordkeeping provided that
certain conditions are met to safeguard the data entered and stored in
a computer system. These stipulations are stated in Sec. 217.9(e) and
explained in the Section-by-Section Analysis. Railroads that elect to
use electronic data processing systems to store their operating rules
information must be certain that proper security measures are
implemented to ensure the integrity of the documents retrieved for
inspection. Moreover, the information produced by computer must be
organized in a usable format to afford FRA inspectors complete access
to the records. FRA believes that electronic record retention is a
viable option for the railroads provided that FRA's monitoring
activities to measure compliance remain unimpeded.
Section-by-Section Analysis
The final rule contains substantial revisions to the proposal to
amend the Railroad Operating Rules and the Radio Standards and
Procedures (49 CFR Parts 217 and 220) in response to the written
comments received, the testimony at the public hearing, and further
review and reflection within FRA. Where terms or paragraphs in the
final rule differ from those in the NPRM, the final rule provides
designations or citations to reflect these amendments.
1. Definitions. In new Sec. 217.4, definitions of ``Class I,''
``Class II,'' and ``Class III'' railroads are included to explain the
classifications by which regulatory requirements are assigned. The
definitions of ``division headquarters'' and ``system headquarters''
have been discussed earlier in this preamble.
2. Operating rules; filing and recordkeeping.
Section 217.7 contains the filing and recordkeeping requirements
with regard to operating rules, timetables, and timetable special
instructions.
Paragraph (a) provides that Class I railroads, Class II railroads,
the National Railroad Passenger Corporation (Amtrak), and railroads
providing commuter service in a metropolitan or suburban area must
continue to file their operating rules, timetables, and timetable
special instructions with the Federal Railroad Administrator. The
deadline for filing these documents is November 21, 1994. Most
railroads are in compliance with FRA's existing provisions concerning
such filings. For such railroads, it is not FRA's intent that another
copy of already filed material be given to the agency. If a railroad
currently has its documents on file with the agency, FRA will deem that
railroad to be in compliance with this section, if the documents are in
effect on November 21, 1994. (In other words, if previously filed
documents are still in effect on November 21, 1994, then a railroad has
complied with the new provision, having filed before December 21,
1994.)
Paragraph (b) provides that railroads subject to the filing
requirements must also submit to FRA a copy of any amendment to these
documents issued after November 21, 1994, within 30 days after it is
issued.
Under paragraph (c), Class III railroads and all other railroads
subject to this part but not subject to paragraphs (a) and (b) of this
section must retain one copy of their current operating rules,
timetables, and timetable special instructions at their respective
system headquarters. These documents must be made available to FRA
representatives for inspection and photocopying during normal business
hours.
3. Program of operational tests and inspections; recordkeeping;
annual summary on operational tests and inspections; electronic
recordkeeping. Proposed amendments to Sec. 217.9 called for railroads
to retain one copy of their operational test and inspection programs at
all division headquarters and at the system headquarters. The final
rule adopts this proposal with some significant modifications.
Proposed paragraph (a) is adopted unchanged, with one exception: A
railroad must now conduct its operational tests and inspections in
accordance with a program that it retains.
Paragraph (b) also departs from the proposed text. After November
21, 1994, a railroad must retain one copy of its current program of
operational tests and inspections. The program must be updated with any
subsequent amendments. These programs must be retained at the system
headquarters of the railroad and at the division headquarters for each
division where the tests prescribed in the program are conducted (i.e.,
the records availability may be division specific). In other words, if
certain tests are not conducted in a certain division, that division
headquarters need not retain a copy of the program prescribing those
particular tests. The operational testing program must be made
available to FRA representatives for inspection and photocopying during
normal business hours and must be retained for three calendar years
following the end of the year to which it relates.
The criteria requirements stated in existing Sec. 217.9(b) (1)-(4)
and (6) remain unchanged, and a conforming change is made to paragraph
(b)(5): deletion of the reference to a program ``filed with'' FRA.
Under final rule paragraph (b)(5), a railroad must begin conducting
operational tests and inspections within 30 days after November 21,
1994 or the date of commencing operations, whichever is later. This
requirement will not affect railroads that are currently in operation,
given that the existing regulations already require railroads to begin
their programs within 30 days after they file their operational testing
programs.
Redesignated Sec. 217.9(c) (formerly Sec. 217.9(d)) requires a
railroad to keep a record of the date, time, place, and result of each
operational test and inspection that was performed in accordance with
its program. Each record must identify the officer administering the
operational test and inspection and each employee tested. These
requirements clarify the information requirements provided under
existing Sec. 217.9(d) by identifying specific data points each record
must provide. These revisions will promote the examination of relevant
information from captured data sources, enabling FRA to determine the
effectiveness of a railroad's operational testing program. The
operational test and inspection records must be retained for one
calendar year after the end of the year to which they relate at the
system headquarters of the railroad and at the division headquarters
for each division where the tests are conducted (i.e., the records
availability may be division specific). Additionally, railroads must
make their operational test and inspection records available to FRA
representatives for inspection and photocopying during normal business
hours.
FRA has decided to organize all provisions in Part 217 pertaining
to operational tests and inspections under Sec. 217.9; therefore,
Sec. 217.13 introductory text and paragraphs (a) through (c) are
removed and redesignated as Sec. 217.9(d). New paragraph (d) requires
railroads with 400,000 or more total manhours per year to compile an
``annual summary'' recounting the number, type, and result of each
operational test and inspection conducted, stated according to
operating divisions where applicable, which are the same requirements
as provided under existing Sec. 217.13(b). The summaries should be
indexed in a well organized format to facilitate efficient and
manageable review. FRA has also concluded that annual compilations of
the total number of train miles and of the rate at which the railroad
conducts operational tests and inspections provide limited useful
information; therefore, these existing requirements are removed from
the final rule. These compilations, redesignated ``annual summaries on
operational tests and inspections,'' must be made available at each
division headquarters and at the system headquarters by March 1 of each
calendar year. Such annual summaries are required to be retained at
these locations for three calendar years after the end of the year to
which they relate and made available to FRA representatives for
inspection and photocopying during normal business hours.
New Sec. 217.9(e) authorizes railroads to retain their operational
testing programs, operational test and inspection records, and annual
summaries on operational tests and inspections by electronic
recordkeeping, subject to conditions stated in that provision. This
provision provides an alternative for railroads retaining certain
information as required in the regulations.
Each participating railroad must have the essential components of a
computer system (i.e., a desk-top computer and either a facsimile
machine or a printer connected to the computer to retrieve and produce
records for immediate review). The material retrieved in hard copy form
must contain relevant information organized in a usable format to
render the data completely understandable. The documents must be made
available for FRA inspection during normal business hours, which FRA
interprets as the time, any day of the week, when railroads conduct
their regular business transactions. Nevertheless, FRA reserves the
right to review and examine the documents prepared in accordance with
the Railroad Operating Rules and Radio Standards and Procedures
regulations at any reasonable time if situations warrant.
Additionally, each railroad must provide adequate security measures
to limit employee access to its electronic data processing system and
must prescribe who can create, modify, or delete data from the data
base. Although FRA does not identify the management position capable of
instituting changes in the data base, each railroad must indicate the
source authorized to make such changes. Each railroad must also
designate who will be authorized to authenticate the hard copies
produced from the electronic format. In short, each railroad electing
to electronically retain its records must ensure the integrity of the
information and prevent possible tampering of data, enabling FRA to
fully execute its enforcement responsibilities.
4. Program of instruction on operating rules; recordkeeping;
electronic recordkeeping. Section 217.11 is revised to require that a
railroad retain a copy of its instruction program on operating rules
instead of filing a copy with the Federal Railroad Administrator.
Paragraph (a), which mandates periodic instruction of employees whose
activities are governed by the railroad's operating rules in accordance
with a written program, remains unchanged, with the exception that the
system headquarters of the railroad is to retain a copy of the entire
instruction program and that the division headquarters for each
division where an employee is instructed is to retain all portions of
the copy of the program that the division applies and enforces. (In
other words, the records availability at the division headquarters may
be division specific.) Paragraph (b) mandates that after November 21,
1994, or 30 days before commencing operations, whichever is later, a
railroad must make one copy of its current program and one copy of any
subsequent revision available to FRA for inspection and photocopying
during normal business hours. Paragraph (c) is added to authorize a
railroad to retain by electronic recordkeeping its instruction program
on operating rules, provided that certain conditions specified in
Sec. 217.9(e) (1)-(5) are met.
5. Annual report on enforcement of part 219; information collection
requirements. The requirements formerly provided under Sec. 217.13(d),
``Annual report on enforcement of part 219,'' have been transferred to
part 219 with the final rule publication of 49 CFR Sec. 219.803. See
final rule at 58 FR 68235 (1993). Because existing Sec. 217.13 (a)-(c)
is redesignated as Sec. 217.9(d), Sec. 217.13 is removed and existing
Sec. 217.15, ``Information collection requirements,'' is redesignated
as Sec. 217.13. The removal of existing Sec. 217.13 eliminates the
information collection requirements provided under existing
Sec. 217.15(b)(4), redesignated Sec. 217.13(b)(4), which is, therefore,
removed.
6. Definitions. Section 220.5 is amended by adding paragraphs (d)
and (e), which define ``division headquarters'' and ``system
headquarters.'' These terms also appear in Sec. 217.4 and are discussed
previously in the preamble.
7. Railroad operating rules; radio communications; recordkeeping.
Section 220.21(b) is amended by requiring railroads subject to Part 220
to retain one copy of their current radio operating rules and any
subsequent revisions at the locations prescribed in newly added
subparagraphs (1) and (2). Subparagraph (1) provides that Class I
railroads, Class II railroads, the National Railroad Passenger
Corporation, and railroads providing commuter service in a metropolitan
or suburban area must retain their radio rules at all division
headquarters and at the system headquarters. Under subparagraph (2),
Class III railroads and all other railroads subject to this part but
not subject to subparagraph (1) are required to retain their radio
rules at their respective system headquarters. These records are
required to be made available to FRA representatives for inspection and
photocopying during normal business hours.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies
This final rule has been evaluated in accordance with existing
regulatory policies. The regulatory document is considered to be a
nonsignificant regulatory action under E.O. 12866 and is a
nonsignificant rule under Sec. 5(a)(4) of DOT Regulatory Policies and
Procedures [44 FR 11034, February 26, 1979] because it eliminates
nonessential reporting requirements while maintaining a high level of
safety. FRA has prepared and placed in the rulemaking docket a
regulatory evaluation addressing the economic impact of this rule. A
copy of the regulatory evaluation may be reviewed and copied in Room
8201, 400 Seventh Street, S.W., Washington, D.C. 20590.
In its regulatory analysis, FRA found that railroads will derive
several benefits with the implementation of this rule. First, the final
rule eliminates or narrows the applicability of various requirements
that railroads reproduce and mail to FRA certain records and reports of
operating rules and practices, thereby reducing administrative and
postage expenses. Although certain railroads will still have to submit
particular documents to FRA, the final rule removes most processing and
handling expenditures associated with filing the paperwork requirements
under existing Part 217. Second, the final rule reduces Federal
government labor costs necessary to examine, organize, and compile the
information since most of the records will be retained at the
appropriate railroad offices. Finally, railroads will be permitted to
retain required information in an electronic format, thereby reducing
storage and overhead costs and facilitating access to selected records.
The regulatory evaluation does not quantify the reduction in costs
available to railroads electing to exercise this option; therefore,
this analysis does not reflect the economic benefits gained from
electronic recordkeeping.
FRA estimates that, over a twenty-year period, this rule will cost
the railroad industry a total of $786. The cost to the railroads to
comply with this rule is about $311 for the first year and $25 for
every year thereafter. This cost burden is attributed to the changes in
recordkeeping requirements provided in the rule. The total benefits of
this rule over a twenty-year period amount to about $449,628 for
reduced labor, copying, and postage costs in both the railroad industry
and government sector. In the first year, the savings are estimated to
be $22,432 and $22,484 for each subsequent year. The benefits will be
about 447.52 times the costs.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. Sec. 601 et seq.)
requires a review of rules to assess their impact on small entities. In
reviewing the economic impact of the rule, FRA concluded that it will
not have any measurable impact on small entities. There are no direct
or indirect economic impacts for small units of government, businesses,
or other organizations. Therefore, it is certified that this rule will
not have a significant economic impact on a substantial number of small
entities under the provisions of the Regulatory Flexibility Act.
Paperwork Reduction Act
The final rule contains information collection requirements. FRA is
submitting these information collection requirements to the Office of
Management and Budget for approval in accordance with the Paperwork
Reduction Act of 1980 (44 U.S.C. Secs. 3501 et seq.) FRA has endeavored
to minimize the paperwork burden associated with this rule. The
regulatory provisions that contain information collection requirements
and the estimated time necessary to fulfill these requirements are as
follows:
----------------------------------------------------------------------------------------------------------------
Estimated
Section Brief description time (hours)
----------------------------------------------------------------------------------------------------------------
217.7(a).................... Filing one copy of a railroad's operating rules, timetables, and 1
timetable special instructions with FRA.
Note: Railroads may inform FRA in writing that the latest operating
rules, timetables, and timetable special instructions filed with
FRA remain currently in effect. The estimated time to prepare the
letter is 30 minutes. Section 217.7(a)-(b) applies only to Class I
railroads, Class II railroads, National Railroad Passenger
Corporation (Amtrak), and commuter railroads.
217.7(b).................... Filing one copy of each amendment to a railroad's operating rules, .33
timetables, and timetable special instructions with FRA.
217.7(c).................... Retaining one copy of a railroad's operating rules, timetables, and .92
timetable special instructions at the railroad's system
headquarters.
Note: Section 217.7(c) applies only to Class III railroads.
217.7(c).................... Retaining one copy of each amendment to a railroad's operating .25
rules, timetables, and timetable special instructions at the
railroad's system headquarters.
217.9(b).................... Preparing and making one copy of a railroad's program for periodic 9.92
performance of operational tests and inspections. The program must
be retained at the railroad's system headquarters and all
applicable division headquarters.
217.9(b).................... Preparing and making one copy of each amendment to a railroad's 1.92
program for periodic performance of operational tests and
inspections. The amendments must be retained at the railroad's
system headquarters and all applicable division headquarters.
217.9(c).................... Conducting operational tests and inspections and recording the .25
results thereof. The records must be retained at the railroad's
system headquarters and all applicable division headquarters.
217.9(d).................... Compiling information and preparing the railroad's annual summary on 7
operational tests and inspections. The annual summary must be
retained at the railroad's system headquarters and all division
headquarters.
Note: Section 217.9(d) applies only to railroads with 400,000 or
more manhours
217.11(b)................... Preparing and making one copy of a railroad's program of instruction 9.92
on operating rules. The program must be retained at the railroad's
system headquarters and all applicable division headquarters.
217.11(b)................... Preparing and making one copy of each amendment to a railroad's .92
program of instruction on operating rules. The amendments must be
retained at the railroad's system headquarters and all applicable
division headquarters.
220.21(b)................... Retaining one copy of a railroad's operating rules with respect to (*)
radio communications. The radio rules, and any subsequent
amendments thereto, must be retained at the railroad's system
headquarters and all division headquarters (Class I railroads,
Class II railroads, Amtrak, and commuter railroads) and system
headquarters (Class III railroads).
----------------------------------------------------------------------------------------------------------------
*Although Sec. 220.21(b) requires railroads to collect certain information, FRA assumes that most railroads
prepare their radio rules in conjunction with their operating rules as required by Sec. 217.7. Therefore, FRA
believes that the radio rules requirements will not impose any additional burden on the railroad industry than
what is already required under Sec. 217.7.
The estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and reviewing the collection of information. FRA solicits
comments on the accuracy of the estimates, the utility of the
information, and other methods that might be less burdensome to obtain
this information.
Persons desiring to comment regarding the burden estimate or any
other aspect of this collection of information, including suggestions
for reducing this burden, should submit their views in writing to: Ms.
Gloria Swanson, Office of Safety, RRS-21, Federal Railroad
Administration, 400 Seventh Street, S.W., Room 8301, Washington, D.C.
20590; and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, ATTN: Desk Officer for FRA (OMB No. 2130-
0035), New Executive Office Building, 726 Jackson Place, N.W., Room
3201, Washington, D.C. 20503. Copies of any such comments should also
be submitted to the Docket Clerk, Office of Chief Counsel, Federal
Railroad Administration, 400 Seventh Street, S.W., Room 8201,
Washington, D.C. 20590.
Environmental Impact
FRA has evaluated this final rule in accordance with its procedures
for ensuring full consideration of the potential environmental impacts
of FRA actions, as required by the National Environmental Policy Act
and related directives. This final rule meets the criteria that
establish this as a non-major action for environmental purposes.
Federalism Implications
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the final rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
List of Subjects
49 CFR Part 217
Railroad operating rules, Railroad safety, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 220
Radio standards and procedures, Railroad operating rules, Radio
communications, Reporting and recordkeeping requirements.
The Final Rules
In consideration of the foregoing, part 217, title 49, Code of
Federal Regulations is amended to read as follows:
PART 217--[AMENDED]
1. The authority citation for Part 217 is revised to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304,
21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L.
103-272 (1994); and 49 CFR 1.49(m).
2. Section 217.4 is added to read as follows:
Sec. 217.4 Definitions.
As used in this part--
Class I, Class II, and Class III have the meaning assigned by
regulations of the Interstate Commerce Commission (49 CFR part 1201;
General Instructions 1-1), as those regulations may be revised and
applied by order of the Commission (including modifications in class
thresholds based revenue deflator adjustments).
Division headquarters means the location designated by the railroad
where a high-level operating manager (e.g., a superintendent, division
manager, or equivalent), who has jurisdiction over a portion of the
railroad, has an office.
System headquarters means the location designated by the railroad
as the general office for the railroad system.
3. Section 217.7 is revised to read as follows:
Sec. 217.7 Operating rules; filing and recordkeeping.
(a) On or before December 21, 1994, each Class I railroad, Class II
railroad, the National Railroad Passenger Corporation, and each
railroad providing commuter service in a metropolitan or suburban area
that is in operation on November 21, 1994, shall file with the Federal
Railroad Administrator, Washington, DC 20590, one copy of its code of
operating rules, timetables, and timetable special instructions which
were in effect on November 21, 1994. Each Class I railroad, each Class
II railroad, and each railroad providing commuter service in a
metropolitan or suburban area that commences operations after November
21, 1994, shall file with the Administrator one copy of its code of
operating rules, timetables, and timetable special instructions before
it commences operations.
(b) After November 21, 1994, each Class I railroad, each Class II
railroad, the National Railroad Passenger Corporation, and each
railroad providing commuter service in a metropolitan or suburban area
shall file each new amendment to its code of operating rules, each new
timetable, and each new timetable special instruction with the Federal
Railroad Administrator within 30 days after it is issued.
(c) On or after November 21, 1994, each Class III railroad and any
other railroad subject to this part but not subject to paragraphs (a)
and (b) of this section shall keep one copy of its current code of
operating rules, timetables, and timetable special instructions and one
copy of each subsequent amendment to its code of operating rules, each
new timetable, and each new timetable special instruction, at its
system headquarters, and shall make such records available to
representatives of the Federal Railroad Administration for inspection
and copying during normal business hours.
4. Section 217.9 is amended by revising paragraphs (a), (b)
introductory text, (b)(5), (c) and (d), and adding paragraph (e) to
read as follows:
Sec. 217.9 Program of operational tests and inspections;
recordkeeping; annual summary on operational tests and inspections;
electronic recordkeeping.
(a) Requirement to conduct operational tests and inspections. Each
railroad to which this part applies shall periodically conduct
operational tests and inspections to determine the extent of compliance
with its code of operating rules, timetables, and timetable special
instructions in accordance with a written program retained at its
system headquarters and at the division headquarters for each division
where the tests are conducted.
(b) Written program of operational tests and inspections. On or
after November 21, 1994, or 30 days before commencing operations,
whichever is later, each railroad to which this part applies shall
retain one copy of its current program for periodic performance of the
operational tests and inspections required by paragraph (a) of this
section and one copy of each subsequent amendment to such program.
These records shall be retained at the system headquarters of the
railroad and at the division headquarters for each division where the
tests are conducted, for three calendar years after the end of the
calendar year to which they relate. These records shall be made
available to representatives of the Federal Railroad Administration for
inspection and copying during normal business hours. The program
shall--* * *
(5) Begin within 30 days after November 21, 1994, or the date of
commencing operations, whichever is later; and
* * * * *
(c) Records of individual tests and inspections. Each railroad to
which this part applies shall keep a record of the date, time, place,
and result of each operational test and inspection that was performed
in accordance with its program. Each record shall specify the officer
administering the test and inspection and each employee tested. These
records shall be retained at the system headquarters of the railroad
and at the division headquarters for each division where the tests are
conducted for one calendar year after the end of the calendar year to
which they relate. These records shall be made available to
representatives of the Federal Railroad Administration for inspection
and copying during normal business hours.
(d) Annual summary on operational tests and inspections. Before
March 1 of each calendar year, each railroad to which this part
applies, except for a railroad with less than 400,000 total manhours,
shall retain, at each of its division headquarters and at the system
headquarters of the railroad, one copy of a written summary of the
following with respect to its previous year's activities: The number,
type, and result of each operational test and inspection, stated
according to operating divisions where applicable, that was conducted
as required by paragraphs (a) and (b) of this section. These records
shall be retained for three calendar years after the end of the
calendar year to which they relate and shall be made available to
representatives of the Federal Railroad Administration for inspection
and copying during normal business hours.
(e) Electronic recordkeeping. Each railroad to which this part
applies is authorized to retain by electronic recordkeeping the
information prescribed in paragraphs (b) through (d) of this section,
provided that all of the following conditions are met:
(1) The railroad adequately limits and controls accessibility to
such information retained in its electronic database system and
identifies those individuals who have such access;
(2) The railroad has a terminal at the system headquarters and at
each division headquarters;
(3) Each such terminal has a desk-top computer (i.e., monitor,
central processing unit, and keyboard) and either a facsimile machine
or a printer connected to the computer to retrieve and produce
information in a usable format for immediate review by FRA
representatives;
(4) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as
true and accurate copies of the electronically kept records; and
(5) The railroad provides representatives of the Federal Railroad
Administration with immediate access to these records for inspection
and copying during normal business hours and provides printouts of such
records upon request.
5. Section 217.11 is amended by revising the heading and by
revising paragraphs (a), (b) introductory text, (b)(4), and (c) to read
as follows:
Sec. 217.11 Program of instruction on operating rules; recordkeeping;
electronic recordkeeping.
(a) To ensure that each railroad employee whose activities are
governed by the railroad's operating rules understands those rules,
each railroad to which this part applies shall periodically instruct
each such employee on the meaning and application of the railroad's
operating rules in accordance with a written program retained at its
system headquarters and at the division headquarters for each division
where the employee is instructed.
(b) On or after November 21, 1994, or 30 days before commencing
operations, whichever is later, each railroad to which this part
applies shall retain one copy of its current program for the periodic
instruction of its employees as required by paragraph (a) of this
section and one copy of each subsequent amendment to that program. The
system headquarters of the railroad shall retain one copy of all these
records; the division headquarters for each division where the
employees are instructed shall retain one copy of all portions of these
records that the division applies and enforces. These records shall be
made available to representatives of the Federal Railroad
Administration for inspection and copying during normal business hours.
This program shall--* * *
(4) Begin within 30 days after November 21, 1994, or the date of
commencing operations, whichever is later; and
* * * * *
(c) Each railroad to which this part applies is authorized to
retain by electronic recordkeeping its program for periodic instruction
of its employees on operating rules provided that the requirements
stated in Sec. 217.9(e)(1) through (5) of this part are satisfied.
6. Section 217.13, ``Annual report,'' is removed, and Sec. 217.15,
``Information collection,'' is redesignated as Sec. 217.13.
7. Redesignated Sec. 217.13 is amended by removing paragraph
(b)(4).
8. Appendix A to Part 217 is revised to read as follows:
Appendix A to Part 217--Schedule Of Civil Penalties1
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
217.7 Operating rules:
(a)........................................... $2,500 $5,000
(b)........................................... $2,000 $5,000
(c)........................................... $2,500 $5,000
217.9 Operational tests and inspections:
(a) Program................................... $5,000 $7,500
(b) Record of program......................... 2,500 $5,000
(c) Record of tests and inspections........... $5,000 $7,500
(d) Annual summary............................ $5,000 $7,500
217.11 Program of instruction on operating rules:
(a)........................................... $5,000 $7,500
(b)........................................... $2,500 $5,000
------------------------------------------------------------------------
1A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $20,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A.
In consideration of the foregoing, part 220, title 49, Code of
Federal Regulations is amended to read as follows:
PART 220--[AMENDED]
1. The authority citation for Part 220 is revised to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 21301, 21304,
21311 (1994) (formerly codified at 45 U.S.C. 431, 437, 438); Pub. L.
103-272 (1994); and 49 CFR 1.49(m).
2. In Sec. 220.5, paragraphs (d) and (e) are added to read as
follows:
Sec. 220.5 Definitions.
* * * * *
(d) Division headquarters means the location designated by the
railroad where a high-level operating manager (e.g., a superintendent,
division manager, or equivalent), who has jurisdiction over a portion
of the railroad, has an office.
(e) System headquarters means the location designated by the
railroad as the general office for the railroad system.
3. Section 220.21 is amended by revising the heading and paragraph
(b) to read as follows:
Sec. 220.21 Railroad operating rules; radio communications;
recordkeeping.
* * * * *
(b) On or after November 21, 1994, or 30 days before commencing to
use radio communications in connection with railroad operations,
whichever is later, each railroad shall retain one copy of its current
operating rules with respect to radio communications, and of each
amendment to these rules, at the locations prescribed in paragraphs (b)
(1) and (2) of this section. These records shall be made available to
representatives of the Federal Railroad Administration for inspection
and copying during normal business hours.
(1) Each Class I railroad, each Class II railroad, the National
Railroad Passenger Corporation, and each railroad providing commuter
service in a metropolitan or suburban area shall retain such rules at
each of its division headquarters and at the system headquarters of the
railroad; and
(2) Each Class III railroad and any other railroad subject to this
part but not subject to paragraph (b)(1) of this section shall retain
such rules at the system headquarters of the railroad.
Issued in Washington, D.C. on August 12, 1994.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 94-20457 Filed 8-19-94; 8:45 am]
BILLING CODE 4910-06-P
