FRA rules on Part 218 reconsideration petitions

On June 16, the Federal Railroad Administration (FRA) responded to several Petitions for Reconsideration of its February 13 Final Rule, which federalized railroad operating practices pertaining to point protection for shoving movements, operating switches and fixed derails, and leaving equipment in the foul. The revised Final Rule is effective immediately.

The Petitions for Reconsideration were filed by the Association of American Railroads (AAR); the American Public Transportation Association (APTA); and jointly by the American Train Dispatchers Association, the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Maintenance of Way Employes Division, the Brotherhood of Railway Carmen, the Brotherhood of Railroad Signalmen, and the United Transportation Union.

The APTA Petition, and one section of the AAR Petition, requested a 6-month extension of the deadline for completion of training on the regulation and associated railroad operating rules, because publication of the original Final Rule occurred too late for the industry to amend its training programs in time to comply with the original training deadline. FRA granted this request, and training now must be completed by July 1, 2009.

The Joint Labor Petition, which was supported by the AFL­CIO's Transportation Trades Department (TTD), questioned the need for civil penalties in cases of willful violation of the regulation. The unions pointed out that human factor accident rates by last year had declined to levels not seen since the mid-1990s, and that the potential for individual liability would suppress self-reporting of inadvertent violations.

FRA termed Labor's argument "a model of railroad safety scholarship, describing in broad strokes the major changes in the industry that, in the view of the writers, may have influenced safety trends." In the end, however, FRA denied the request, stating that "civil penalty sanctions are a statutorily-imposed consequence of regulatory non-compliance," and not driven by accident data. FRA also disagreed that its power to disqualify someone from a safety-sensitive position pursuant to 49 CFR Part 209 was an appropriate alternative to a civil penalty, and reasserted its published position that "FRA would consider self-reporting a strong reason for mitigation of the civil penalty, disqualification order, or other enforcement remedy."

FRA also denied AAR's request for repeal of the Good Faith Challenge (GFC) requirements or, alternatively, replacing the requirements with those in effect for roadway workers. FRA reiterated its finding that "there is a need for the good faith challenge regulation." Moreover, FRA ruled, a more robust process was necessary for these operating procedures because "roadway workers generally share a more cooperative working relationship with their supervisors than operating employees do with yardmasters, trainmasters and their other railroad officer supervisors."

In this regard, FRA also addressed the issue of GFC procedures in joint operations territory, which was not included in the original Final Rule. It is FRA's position that "railroads who operate in joint operations will need to ensure that its employees know which railroad's procedures apply and what those procedures require," and "unless otherwise specified in a railroad's procedures, the host railroad's procedures will apply and it will be the host railroad's obligation to provide review of the alleged non-complying order and to maintain a record when necessary."

The Final Rule also addressed two other issues raised in the AAR's Petition. The industry's request for a broader use of shove lights without point protection, which Labor opposed, was granted in part and denied in part by FRA. Prior to reaching its decision, FRA reviewed procedures and accident/injury data, and observed operations on departure tracks with shove light systems throughout the country. Ultimately, FRA concluded that, under certain circumstances, shove light systems can maintain an acceptable degree of safety, and posed less of a risk of personal injury than someone riding the point.

The revised Final Rule will permit shoving movements without point protection when made in the direction of the circuited end of a designated departure track equipped with a shove light system under certain specified conditions. Section 218.99(e)(5) permits such movements when:

However, FRA denied that portion of AAR's petition that requested the inclusion of shove warning systems that rely solely on radio signal warnings because radio signals offer a lower level of safety than a shove light system.

Lastly, FRA addressed the issue raised in AAR's Petition concerning the point protection technology standard for remote control zones (RCZ). Clarifying Preamble language that AAR thought was vague, FRA noted that the citation to 49 CFR Part 236, Subpart H - FRA's standards for processor-based signal and train control systems - was advisory, and declined to modify the Final Rule in the manner proposed by AAR. FRA also denied Labor's request to modify the language to apply 236-H to all RCZ point protection technology not currently in service, holding that this rulemaking was not the appropriate forum for determining the formal applicability of Part 236.


© 2008 Brotherhood of Locomotive Engineers and Trainmen