Brotherhood of Locomotive Engineers & Trainmen

December 10, 2004

Mr. Dennis Pierce

General Chairman, BNSF-MRL
801 Cherry Street, Suite 1010
Ft. Worth, TX 76102

Dear Sir and Brother:

Thank you for your letter that included the response from FRA Regional Administrator D.J. Tisor regarding the use of Conductors as pilots on certain maintenance equipment operated at track speed on Burlington Northern Santa Fe. You stated, "[i]n the past the Carrier has ordered a qualified, certified Engineer to perform such duties. The Carrier has since attempted to find a hole in the Federal Regulations which will allow such service to operate with an uncertified employee and the FRA has now verified the Carrier's action." You take exception to this ruling by FRA, stating, "We believe the very foundation of the Engineer certification argument, as well as rail safety in general, has been undermined as a result." You further request this Office to make every effort to rectify this error on the part of FRA.

This office has reviewed 49 CFR Part 240, Qualification and Certification of Locomotive Engineers, FRA's interpretation of existing regulations with respect to use of specialized roadway maintenance equipment, and discussed the events that were addressed in your correspondence with FRA officials. This office has concluded:

1. The language in §49 CFR 240.104, "Criteria for determining whether movement of roadway maintenance equipment or a dual purpose vehicle requires a certified locomotive engineer.", is the primary statutory or legal language pertaining to this subject matter and FRA has determined it is appropriate for this inquiry. That language follows.

"(a) A railroad is not required to use a certified locomotive engineer to perform the following functions:

(1) Operate specialized roadway maintenance equipment; or 

(2) Operate a dual purpose vehicle that is:

i) Being operated in conjunction with roadway maintenance and related maintenance of way functions, including traveling to and from the work site;

ii) Moving under authority of railroad operating rules designated for the movement of roadway maintenance equipment that ensure the protection of such equipment from train movements; and

iii) Being operated by an individual trained and qualified in accordance with §§ 214.341, 214.343, and 214.355 of this chapter. 

(b) A railroad is required to use a certified locomotive engineer when operating a dual purpose vehicle other than in accordance with paragraph (a)(2) of this section.

Source: [64 FR 60966, November 08, 1999]"

2. The movement in question that took place on 04/14/2004 on the BNSF between Brush, CO and Denver, CO involved a "rail grinder" which would be classified as a piece of specialized roadway maintenance equipment.

3. Specialized roadway maintenance equipment, according to the above referenced 240.104 (a)(1), does not require use of a certified locomotive engineer and according to FRA officials may not require a pilot of any kind.

4. To understand how FRA arrived at this questionable determination, the following language from the preamble of the 1999 Proposed Rule on Part 240 is provided. This discussion covers both the use of specialized roadway maintenance equipment and dual purpose vehicles. Note that dual purpose vehicles are equally problematic given their potential to be used to move rail equipment (cars) thereby infringing on our collective bargaining agreements.

"A.        Application of the Rule to Certain Service Vehicles

Since the rule's inception in 1993, there has been profound concern over whether certain service vehicles (or "specialized roadway maintenance equipment" as referred to in this proposed rule) should be considered locomotives for the purposes of this rule, and FRA promised to issue a notice of proposed rulemaking on this issue. 58 Fed. Reg. 18982, 18983 (Apr. 9, 1993). The definition of a locomotive found in § 240.7 of the final rule is sufficiently broad so that the rule would require certified operators at the controls of vehicles that are deemed locomotives for the purposes of FRA's locomotive safety standards. See 49 C.F.R. Part 229. However, in response to petitions filed by the AAR and Sperry Rail Services Incorporated (Sperry), FRA deferred its decision on whether to insist that certified engineers operate four types of vehicles that fit within that previous definition of a locomotive but which are commonly considered `service vehicles.'

The basis for the deferment was thoroughly explained within the preamble of the interim final rule. 58 Fed. Reg. 18982, 18983 (April 9, 1993). Within that preamble, FRA identified four general types of service vehicles that are different from the types of vehicles traditionally considered locomotives. There is no question that the rule requires qualified and certified locomotive engineers to operate the types of vehicles traditionally considered locomotives. The proposed amendments to the rule attempt to resolve the issue of when other vehicles that may perform the same function as a traditional locomotive are required to be operated exclusively by certified locomotive engineers. 

During the Working Group's discussions, the question of FRA's legal authority was raised. FRA's position is that the legislative history of the Rail Safety Improvement Act of 1988 reflects that Congress did not intend to limit the certification rule to persons who operate traditional locomotives. Instead, the legislative history reflects that (1) the statute does not define "locomotive;" (2) Congressional committee reports and floor speeches do not explicitly define "locomotive;" and, (3) in a joint statement, managers on the part of the House and the Senate agreed that the intent of the bill was to "require the Secretary [of Transportation] ... to issue rules, regulations, standards, and orders concerning minimum qualifications for the operators of trains." House Conference Report No. 100-637, at 21 (May 19, 1988). As a result of these findings, FRA does not believe that the statute or the legislative history precludes the agency from regulating the operators of service vehicles that have similar operational characteristics to a train.

Given FRA's authority, one follow-up question is whether there is a need for certification of the operators of these vehicles as a general matter. To a great extent, the Working Group's opinion is influenced by the publication of the recently enacted Roadway Worker Protection rule. 61 Fed. Reg. 65959 (Dec. 16, 1996)(codified at 49 C.F.R. 214). The Working Group members recognize that the Roadway Worker Protection rule requires the training and qualification in on-track safety for operators of specialized roadway maintenance equipment. Hence, it would be duplicative, to some degree, to require that these operators of specialized roadway maintenance equipment also be certified as locomotive engineers.

Between 1989 and 1993, there were 188 injuries and five (5) fatalities as a result of workers being struck by maintenance-of-way (MOW) equipment. A review of roadway worker striking accidents indicates that roadway workers have been struck by MOW equipment during the performance of track and structures construction and maintenance performed jointly by ground employees and heavy on-track machinery. FRA expects that implementation of the Roadway Worker Protection rule will prevent at least half of such potential casualties. The probability of occurrence associated with the remaining casualties would not likely be affected by requiring exclusive operation by certified locomotive engineers. Based upon the history of roadway worker casualties, virtually all of these accidents occur at low speeds where train handling is not an issue.

After considering training, the Group's focus concentrated on categorizing the vehicles into two classes of service: (1) specialized roadway maintenance equipment, and (2) dual purpose vehicles. The Group could not document an accident history or any other reason to require certified operators of specialized roadway maintenance equipment when these vehicles are used "in conjunction with roadway maintenance and related maintenance of way functions, including traveling to and from the work site." § 240.104(a)(1). The sole purpose of this type of vehicle is to perform its intended MOW function.

On the other hand, dual purpose vehicles, by definition, can be used to perform a MOW function and haul cars. Thus, the need to have certified operators of these dual purpose vehicles is genuine where the vehicle is operating more like a locomotive than a service vehicle. The need is not a universal one and the Group did not see a need for a dual purpose vehicle to be operated by a certified locomotive engineer when the following conditions are met: (1) the vehicle is operated in conjunction with roadway maintenance and related MOW functions; (2) the vehicle's movement is being conducted "under the authority of rules designated by the railroad for maintenance of way equipment [and] under the direct supervision of an employee trained and qualified in accordance with § 214.353 of this chapter, which provides Exclusive Track Occupancy for the roadway equipment with respect to trains;" (3) the person operating the vehicle has received adequate training pursuant to safety laws regulating roadway workers; and (4) the vehicle has met a minimum standard for operative air brakes.

None of the Working Group members submitted statistics showing that when dual purpose vehicles are being used for maintenance purposes they are causing accidents or incidents that could be prevented by requiring that such vehicles be operated by certified locomotive engineers. Meanwhile, the Group did identify one potential problem. One of the proposed conditions for a non-certified locomotive engineer to operate a dual purpose vehicle that will be hauling cars involves a requirement that "not less than 85% of the total cars designed for air brakes shall have operative air brakes." §' 240.104(a)(2)(iv). The Group's intent is to make sure that when a dual purpose vehicle is hauling cars, to or from a work site, under the direction of qualified supervision, and operated by a trained roadway worker, that the movement has sufficient air brakes to stop the train within the normal stopping distance for that equipment. This requirement addresses safety concerns raised by a fatal accident involving a burro crane hauling cars from a work site on November 5, 1996 which did not have brake pipe hoses connected between the locomotive crane and the three freight cars being hauled.

FRA wants to be clear that whenever a dual purpose vehicle is hauling cars in a train movement, regardless of whether the train is traveling to or from a work site, it must comply with the safety regulations found in part 232 of this chapter. These proposed revisions to part 240 are not intended to change this requirement, rather the proposed rule is merely aimed at determining when a person who is not a certified locomotive engineer is able to operate a train under certain limited conditions. That is, it is within a railroad's discretion as to whether a locomotive engineer or other person, pursuant to § 240.104(a)(2)(iv), should operate a dual purpose vehicle hauling cars; however, regardless of whether the operator is a certified locomotive engineer or not, a railroad is required to operate, inspect and equip all trains in accordance with the requirements regarding power brakes contained in part 232 of this chapter. Thus, while this proposed part 240 exception provides railroads with the discretion to use other than certified locomotive engineers under certain limited circumstances, the railroads would not be granted an exception from complying with part 232 of this chapter." (See attachment #1 from FRA clarifying when a dual purpose vehicle is a "locomotive")

5.  As can be seen by this discussion from FRA they did not believe there was a valid safety argument made that allowed for certified locomotive engineers only, to operate specialized roadway maintenance equipment. Therefore, while we may agree there is a potential for severe consequences to occur if specialized roadway maintenance equipment is operated by other than certified locomotive engineers or, in this case, piloted by persons other than certified locomotive engineers, the law allows it.

6.   The reason FRA did not act to regulate the operation of specialized roadway maintenance equipment is, in part, the absence of data to indicate there is a problem with the manner in which they are operated today. In other words, the government chose not to regulate because there is no data to indicate the existence of a faulty practice or equipment. In spite of the logical arguments we made at the rulemaking about the speed of the equipment, the forces involved with respect to tonnage, the need to know the physical characteristics of the road, etc. the use of this equipment was limited and railroads could show they were taking appropriate measures to ensure safety. In fact, the use of pilots was one of those safety measures and became a strong argument made by BLE for using certified locomotive engineers exclusively.


7.   To fully understand the difficulty of requiring certified locomotive engineers to operate this equipment or, in this case "pilot" the movement, some basic understanding about FRA's thinking on when a pilot must be used and who is qualified to be a pilot is worthwhile.FRA, as a general statement of policy, believes explicitly that, unless an exception applies, only certified engineers who are also qualified on the territory upon which they are to operate are truly qualified.

8. The FRA has diminished the qualification standard for pilots and under many circumstances eliminated them altogether. FRA has been able to do so because of an absence of data demonstrating the need for highly qualified pilots. It may well be argued the reason for this is the high level of basic training and qualification of existing locomotive engineers. (by "existing" we mean engineers that have been in service for the past 10 to 25 years).

10. With diminished pilot oversight it is likely a catastrophic event will occur. If we are to gain ground on this issue through a regulatory process we must be prepared to act as soon as that happens. In order to achieve involvement by FRA we must acquire sufficient data in advance of that event to learn the scope of the use of specialized roadway maintenance equipment outside their usual functions associated with track and roadway maintenance. We should also track the frequency of movements without pilots. We need to differentiate when certified locomotive engineers are used and on which specific types of equipment.

This office will need considerable assistance from the General Committees of Adjustment and State Legislative Boards in order to change the status of this issue with FRA. The regulatory climate in that Agency and everywhere in government makes our work very difficult. The information that may exist to help in this struggle can only come from the field. It will take teamwork to bring it together to make a difference.

Fraternally yours,

/s/ DM Hahs

President

cc:    Pat Williams, GC
        Rick Gibbons, GC
        Austin Morrison, GC

Attachment #1

MPE-98-71

Federal Railroad Administration
Technical Bulletin

Date: August 3, 1998

Reply to the Attention of: MPE-98-71
Subject: §229 §231 §232 §223
 

Self Propelled Vehicles Considered to Be Locomotives

            From: E. R. English

Director, Office of Safety Assurance and Compliance

To:          All Regional Administrators, Deputy Administrators,

Motive Power & Equipment Specialists and MP&E Inspectors

Recently, we have had several inquiries about equipment requirements for self propelled vehicles used to haul revenue freight on the main line. Self propelled vehicles are used in a variety of railroad functions. These vehicles include those built by Trackmobile Inc., Shuttle Wagon, Mitchell Equipment Corporation and Brandt Roadrailer.

Section 229.5 (k) states:

Locomotive means a piece of on-track equipment other than hi-rail, specialized maintenance, or other similar equipment

1) With one or more propelling motors designed for moving other equipment;

2) With one or more propelling motors designed to carry freight or passenger traffic or both; or

3) Without propelling motors but with one or more control stands.

A hi-rail vehicle is defined as a truck or automobile with retractable flanged wheels so it may be used on either the highway or track. Specialized maintenance or other similar equipment includes track motor cars, cranes, derricks, pile drivers, ballast cleaners, etc. When self propelled vehicles are used only in the performance of typical maintenance-of-way functions, or if they are used to move cars or equipment within the confines of repair facilities, they are to be considered specialized maintenance equipment and are exempt from many Federal Railroad Administration (FRA) regulations.

When a self propelled vehicle is used to move freight over the railroad, outside the limits established for maintenance-of-way operations and repair facilities, it will be considered a locomotive and must comply with applicable regulations. Even though these vehicles do not resemble a standard locomotive, the purpose for which they are being used ' requires compliance with 49 CFR Sections 223, 229, 231 and 232.

The self propelled vehicles are unique in construction, appearance and use. Many of these vehicles currently being used have already been modified by the manufacturers (as closely as construction would permit) to bring them into compliance with Federal regulations. FRA acknowledges that this equipment has a place in a well rounded rail transportation system. In an effort to recognize the unique characteristics of these vehicles, FRA inspectors should exercise enforcement discretion and good judgement in analyzing an operation where self propelled vehicles are used for train movements.

The following specifications should be used by inspectors for enforcement guidance:

1. The vehicle glazing material must comply with Part 223.

2. Each self propelled vehicle shall be inspected each calendar day when used and an inspection report and record shall be completed as described in Section 229.21.

3. Each self propelled vehicle shall receive a periodic inspection as described in Section 229.23, and all pertinent data is to be entered on a F6180.49A Locomotive Inspection and Repair Report, which shall be displayed under a transparent cover in a conspicuous place in the cab of the vehicle.

4. The vehicle's air brake equipment must be cleaned and tested as often as conditions require, but not less frequently than required in Sections 229.25, 229.27 and 229.29.

5. The main air reservoir must comply with Section 229.31 regarding either hammer and hydrostatic testing or pre-drilling of the reservoir.

6. Vehicle must meet general Safety Requirements of Section 229.41, 229.43 and 229.45.

7. Fuel safety cut off devices, Section 229.93.

8. The vehicle must have a speed indicator if it is operated at a speed that exceeds 20 mph. Section 229.117.

9. Interior cab noise must comply with Section 229.121.

10. Vehicle headlights must be fully functional and if operated at speeds in excess of 20 mph over one or more public highway-rail crossings, must comply with auxiliary light requirements Section 229.129.

11. Vehicle must be equipped with an audible warning device, Section 229.129.

12. If operated at speeds in excess of 30 mph while hauling cars, vehicle must be equipped with working event recorder in compliance with Section 229.135.

14. Four horizontal handholds secured to the back and front ends of the vehicle, secured by bolts or other acceptable mechanical fastener. Section 231.30.

15. Vertical handholds painted in contrasting colors and secured by bolts or other acceptable fasteners, Section 231.30.

16. Must be equipped with automatic couplers, to prevent the necessity of a someone going between the vehicle and car for the purpose of coupling or uncoupling, Section 231.30.

17. If conditions warrant, a two-way end-of-train device must be used, Section 232.19 - 25.

18. As with any train movement, the vehicle must be equipped with a brake system that permits the operator to apply and release the brakes on cars being hauled. The brake equipment must also be arranged so that proper air brake leakage tests can be conducted as applicable, Sections 232.12 and 232.13.

Items deemed to be safety related, that can not meet specified requirements, will have to be addressed through the waiver process.

Attachment #2

240.231 Requirements for locomotive engineers unfamiliar with physical characteristics in other than joint operations.

a) Except as provided in paragraph (b) of this section, no locomotive engineer shall operate a locomotive over a territory unless he or she is qualified on the physical characteristics of the territory pursuant to the railroad's certification program.

b) Except as provided in paragraph (c) of this section, if a locomotive engineer lacks qualification on the physical characteristics required by paragraph (a) of this section, he or she shall be assisted by a pilot qualified over the territory pursuant to the railroad's certification program.

(1) For a locomotive engineer who has never been qualified on the physical characteristics of the territory over which he or she is to operate a locomotive or train, the pilot shall be a person qualified and certified as a locomotive engineer who is not an assigned crew member.

(2) For a locomotive engineer who was previously qualified on the physical characteristics of the territory over which he or she is to operate a locomotive or train, but whose qualification has expired, the pilot may be any person, who is not an assigned crew member, qualified on the physical characteristics of the territory.

(c) Pilots are not required if the movement is on a section of track with an average grade of less than 1% over 3 continuous miles, and

1) The track is other than a main track; or

2) The maximum distance the locomotive or train will be operated does not exceed one mile; or

3) The maximum authorized speed for any operation on the track does not exceed 20 miles per hour; or

4) Operations are conducted under operating rules that require every locomotive and train to proceed at a speed that permits stopping within one half the range of vision of the locomotive engineer.

Attachment #3

Federal Railroad Administration

Operating Practices Technical Bulletin (OP-04-21)

49 CFR Part 240

1. Territorial Qualifications...

Question 6: Under what conditions may an engineer operate over territory on which he or she is not qualified?

Answer 6: As a threshold issue, it is important to distinguish between whether the engineer in question is operating in joint operations territory or not.

If an engineer is operating in joint operations territory over which he or she is not qualified, the engineer could operate a locomotive or train:

(1) with a qualified person as a pilot pursuant to Section 240.229(e). Qualified person is defined in that section to mean "either a designated supervisor of locomotive engineers or a certified train service engineer determined by the controlling railroad to have the necessary knowledge concerning the controlling railroad's operating rules and to have the necessary operating skills including familiarity with its physical characteristics concerning the joint operations territory;" or,

(2) without a qualified person as a pilot pursuant to Section 240.229(f as long as a minimal joint operation is involved. Minimal joint operation is defined in this section.
More commonly, a railroad may have a need for a territorially unqualified engineer to operate a locomotive or train in other than joint operations territory. Like a railroad's options when an engineer is operating in joint operations territory, some circumstances do not require a pilot but other situations do. Who may serve as a pilot and when a pilot is unnecessary are specifically addressed in Section 240.231. (see attachment 42)