(a)(1) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(1) Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of an operating rule which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section.
(2) Each railroad shall specify minimum requirements necessary for an adequate job briefing.
(b) General. (1) The normal position of fixed derails is in the derailing position except as provided in part 218, subpart B of this chapter, or the railroad's operating rules or special instructions.
(1) The normal position of fixed derails is in the derailing position except as provided in part 218, subpart B of this chapter, or the railroad's operating rules or special instructions.
(2) Fixed derails shall be kept in the derailing position whether or not any rolling and on-track maintenance-of-way equipment is on the tracks they protect, except as provided in paragraph (b)(1) of this section or when changed to permit movement.
(3) Movement must not be made over a fixed derail in the derailing position.
(c) Employees operating or verifying the position of a fixed derail shall:
(1) Conduct job briefings, before work is begun, each time a work plan is changed, and at completion of the work;
(2) Be qualified on the railroad's operating rules relating to the operation of the derail;
(3) Be individually responsible for the position of the derail in use;
(4) Determine that the target, if so equipped, corresponds with the derail's position;
(5) Determine that the derail is secured by:
(i) Placing the throw lever in the latch stand, if so equipped;
(ii) Placing the lock or hook in the hasp, if so equipped; and
(iii) Testing such latches, locks or hooks; and
(6) Ensure that when not in use, derails are locked, hooked, or latched in the normal position if so equipped.
Sec. Appendix A to Part 218--Schedule of Civil Penalties \1\ ------------------------------------------------------------------------
Willful
Section Violation violation------------------------------------------------------------------------Subpart B--Blue signal protection of workmen:
218.22 Utility employees:
(a) Employee qualifications........... $5,000 $7,500
(b) Concurrent service................ 5,000 7,500
(c) Assignment conditions.............
(1) No controlling locomotive......... 5,000 7,500
(2) Empty cab......................... 5,000 7,500
(3)(4) Improper communication......... 5,000 7,500
(5) Performing functions not listed... 2,000 4,000
(d) Improper release of utility 2,000 4,000
employee.............................
(f) More than three utility employees 2,000 4,000
with one crew........................
218.23 Blue signal display 5,000 7,500
218.24 One-person crew:
(a)(1) Equipment not coupled or 2,000 4,000
(1) Equipment not coupled or 2,000 4,000
insufficiently separated.............
(a)(2) Unoccupied locomotive cab not 5,000 7,500
(2) Unoccupied locomotive cab not 5,000 7,500
secured..............................
(b) Helper service.................... 2,000 4,000
218.25 Workmen on a main track 5,000 7,500
218.27 Workmen on track other than main
track:
(a) Protection provided except that 2,000 4,000
signal not displayed at switch.......
(b) through (e)....................... 5,000 7,500
218.29 Alternate methods of protection:
(a)(1) protection provided except that 2,000 4,000
(1) protection provided except that 2,000 4,000
signal not displayed at switch.......
(a)(2) through (a)(8)................. 5,000 7,500
(2) through (a)(8)................. 5,000 7,500
(b)(1) Protection provided except that 2,000 4,000
(1) Protection provided except that 2,000 4,000
signal not displayed at switch.......
(b)(2) through (b)(4)................. 5,000 7,500
(2) through (b)(4)................. 5,000 7,500
(c) Use of derails.................... 5,000 7,500
(d) Emergency repairs................. 5,000 7,500
218.30 Remotely controlled switches:
(a) and (b)........................... 5,000 7,500
(c)................................... 1,000 2,000Subpart C--Protection of trains and
locomotives:
218.35 Yard limits:
(a) and (b)........................... 5,000 7,500
(c)................................... 1,000 2,000
218.37 Flag protection:
(a)................................... 5,000 7,500
(b) and (c)........................... 5,000 7,500
218.39 Hump operations.................... 5,000 7,500
218.41 Noncompliance with hump operations 5,000 7,500
rule.....................................Subpart D--Prohibition against tampering with
safety devices:
218.55 Tampering.......................... ........... 7,500
218.57 (i) Knowingly operating or 2,500 ...........
permitting operation of disabled
equipment................................
(ii) Willfully operating or ........... 5,000
permitting operation of disabled
equipment............................
218.59 Operation of disabled equipment.... 2,500 5,000Subpart F--Handling Equipment, Switches and
Derails:
218.95 Instruction, Training, and
Examination:.............................
(a) Program........................... 9,500-12,50 13,000-16,0
0 00
(b) Records........................... 7,500 11,000
(c) Failure to timely or appropriately 9,500-12,50 13,000-16,0
amend program after disapproval...... 0 00
218.97 Good Faith Challenge Procedures:
(a) Employee Responsibility Failure... ........... 5,000
(b) through (d) Failure to adopt or 7,500
implement procedures.................
218.99 Shoving or Pushing Movements:
(a) Failure to implement required 9,500
operating rule.......................
(b) Failure to conduct job briefing, 7,500-9,500 11,000-13,0
use a qualified employee, or 00
establish proper protection..........
(c) Failure to observe equipment 9,500 13,000
direction............................
(d) Failure to properly establish 9,500 13,000
point protection within a remote
control zone.........................
(e) Failure to abide by operational 9,500 13,000
exception requirements...............
218.101 Leaving Equipment in the Clear:
(a) Failure to implement required 9,500
operating rule.......................
(b) Equipment left improperly fouling. 9,500 13,000
(c) Failure to implement procedures 9,500 13,000
for identifying clearance points.....
218.103 Hand-operated switches, including
crossover switches:
(a) Failure to implement required 9,500
operating rule.......................
(b) through (d) Railroad and employee 7,500
failures.............................
218.105 Additional operational
requirements for hand-operated main track
switches:
(a) Failure to implement required 9,500
operating rule.......................
(b) and (c) Railroad and employee 7,500 11,000
failures.............................
(d) Failure to properly release 12,500
authority limits.....................
218.107 Additional operational
requirements for hand-operated crossover
switches:
(a) Failure to implement required 9,500
operating rule.......................
(b) and (c) Railroad and employee 7,500 11,000
failures.............................
218.109 Hand-operated fixed derails:
(a) Failure to implement required 9,500 13,000
operating rule.......................
(b) and (c) Railroad and employee 7,500 11,000
failures.............................------------------------------------------------------------------------\1\ Except as provided for in Sec. 218.57, a penalty may be assessed
against an individual only for a willful violation. The Administrator
reserves the right to assess a penalty of up to $105,000 for any
violation where the circumstances warrant. See 49 CFR part 209,
appendix A. [53 FR 52928, Dec. 29, 1988, as amended at 54 FR 5492, Feb. 3, 1989; 58 FR 43293, Aug. 16, 1993; 60 FR 11050, Mar. 1, 1995; 63 FR 11621, Mar. 10, 1998; 72 FR 51196, Sept. 6, 2007; 73 FR 8503, Feb. 13, 2008; 73 FR 79701, Dec. 30, 2008; 77 FR 24420, Apr. 24, 2012]
Sec. Appendix B to Part 218--Statement of Agency Enforcement Policy on
Blue Signal Protection for Utility Employees
The following examples of the application of the train or yard crew exclusion from required blue signal protection for utility employees are provided to clarify FRA's enforcement policy. In the first four examples, the utility employee is properly attached to and functioning as member of a train or yard crew and is excluded from blue signal protection, provided all the conditions specified in Sec. 218.22 are met:
Example 1: A utility employee assists a train crew by adding or reducing railroad cars to or from the train. The utility employee may perform any duties which would normally be conducted by members of the train crew, i.e., setting or releasing handbrakes, coupling air hoses and other connections, prepare rail cars for coupling, and perform air brake tests.
Example 2: A utility employee is assigned to assist a yard crew for the purpose of classifying and assembling railroad cars. The yard crew onboard their locomotive arrives at the location in the yard where the work is to be performed. At that time, the utility employee may attach himself to the yard crew and commence duties as a member of that yard crew.
Example 3: A utility employee is assigned to inspect, test, remove and replace if necessary, a combination rear end marking device/end of train device on a through freight train. The utility employee attaches himself to the train crew after the arrival of the train and its crew at the location where this work is to be conducted. He may then perform duties as a member of that crew.
Example 4: A railroad manager who properly attaches himself as a utility employee to a train or yard crew, in accordance with Sec. 218.22, may then function as a member of the train or yard crew under the exclusion provided for train and yard crews.
Note: In the last four examples, any railroad employee, including regularly assigned crew members, would need blue signal protection to perform the described function.
Example 5: Prior to the arrival of a through freight train, a utility employee installs an end-of-train device on one end of a block of railroad cars that are scheduled to be picked up by the freight train.
Example 6: A railroad employee attaches himself to a train or yard crew while the crew is in the ready room preparing to take charge of their train. Prior to the train crew leaving the ready room and taking charge of the equipment, the employee couples air hoses and other connections between the locomotives.
Example 7: A railroad employee is attached to a train crew after the train crew has taken charge of the train. It is necessary for the employee to perform a repair on a rail car, such as replacing a brake shoe, in addition to those duties normally performed by train or yard crew members.
Example 8: A train or yard crew, supplemented by three utility employees, has an assigned locomotive and train. The regular crew, including the engineer, has left the train to eat lunch. The utility employees have remained with the train and are coupling air hoses between rail cars in the train. [58 FR 43293, Aug. 16, 1993]
Sec. Appendix C to Part 218--Statement of Agency Enforcement Policy on
Tampering
The Rail Safety Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988) (``RSIA'') raised the maximum civil penalties available under the railroad safety laws and made individuals liable for willful violations of those laws. Section 21 of the RSIA requires that FRA adopt regulations addressing three related but distinct aspects of problems that can occur when safety devices are tampered with or disabled. It requires that FRA make it unlawful for (i) any individual to willfully tamper with or disable a device; (ii) any individual to knowingly operate or permit to be operated a train with a tampered or disabled device; and (iii) any railroad to operate such a train.
Because the introduction of civil penalties against individuals brings FRA's enforcement of the rail safety laws into a new era and because the changes being introduced by this regulation are so significant, FRA believes that it is advisable to set forth the manner in which it will exercise its enforcement authority under this regulation.
Safety Devices Covered by This Rule
FRA has employed a functional description of what constitutes a safety device under this rule. FRA's wording effectively identifies existing equipment and is sufficiently expansive to cover equipment that may appear in the future, particularly devices associated with advanced train control systems currently undergoing research testing.
FRA has been advised by portions of the regulated community that its functional definition has some potential for confusing people who read the rule without the benefit of the preamble discussions concerning the meaning of this definition. Since this rule is specifically intended to preclude misconduct by individuals, FRA wants this rule to be easily comprehended by all who read it. To achieve that clarity, FRA has decide to specify which types of equipment it considers to be within the scope of this rule and provide some examples of equipment that is not covered. In addition, FRA is ready and willing to respond in writing to any inquiry about any other devices that a party believes are treated ambiguously under this rule. This regulation applies to a variety of devices including equipment known as ``event recorders,'' ``alerters,'' ``deadman controls,'' ``automatic cab signals,'' ``cab signal whistles,'' ``automatic train stop equipment,'' and ``automatic train control equipment.'' FRA does not consider the following equipment to be covered by this rule: Radios; monitors for end-of-train devices; bells or whistles that are not connected to alerters, deadman pedals, or signal system devices; fans for controlling interior temperature of locomotive cabs; and locomotive performance monitoring devices, unless they record data such as train speed and air brake operations. Although FRA considers such devices beyond the scope of the regulation, this does not imply that FRA condones the disabling of such devices. FRA will not hesitate to include such devices at a later date should instances of tampering with these devices be discovered. FRA does not currently perceive a need to directly proscribe tampering with such devices because there is no history of these devices being subjected to tampering.
Subsequent Operators of Trains With Disabled Devices
Section 218.57 addresses instances in which one individual has tampered with a safety device and a second individual (a ``subsequent operator'') knowingly operates a train or permits it to be operated, notwithstanding the presence of the disabled or tampered-with unit. The most common occurrence addressed by this provision is the situation in which a train crew encounters a locomotive with a safety device that has been tampered with prior to the crew's assuming responsibility for the locomotive. FRA has structured this provision and its attendant enforcement policy to reflect the fact that instances in which one individual encounters a locomotive that someone else has tampered with are relatively infrequent occurrences.
FRA's regulatory prohibition for subsequent operator conduct reflects the legal standard for individual culpability set forth in the RSIA. Under the relevant statutory standard (``knowingly operates or permits to be operated a train on which such devices have been tampered with or disabled by another person'')--now incorporated into Sec. 218.57--individuals could be held to a simple negligence standard of conduct, i.e., a standard of reasonable care under the circumstances. FRA's conclusion about the proper interpretation of the word ``knowingly'' stems from both normal canons of statutory construction and analysis of decisional law concerning the use of similar statutory constructs in the civil penalty context. It is also consistent with other Departmental interpretations of the word as used in similar contexts. (See 49 CFR 107.299, defining ``knowingly'' under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq.)
Under that statutory language, the responsible members of the crew could be culpable if either (1) due to their failure to exercise reasonable care, they failed to determine that the safety device was not functioning, or (2) having ascertained that the device was not functioning, still elected to operate the train. Similarly, railroad supervisors who permit or direct that a train with a disabled device be operated after having learned that the safety device is not functioning or after having failed to use reasonable care in the performance of their duties could also be subject to sanction.
However, as a matter of enforcement policy, application of a negligence standard in this particular context presently appears unwarranted. We have seen no evidence of an employee's negligent failure to detect another employee's tampering having caused a safety problem. FRA can effectively attack the known dimensions of the tampering problem by employing an enforcement policy that limits its enforcement actions to situations where individuals clearly had actual knowledge of the disabled device and intentionally operated the train notwithstanding that knowledge.
Therefore, FRA will not take enforcement action against an individual under Sec. 218.57 absent a showing of such actual knowledge of the facts. Actual, subjective knowledge need not be demonstrated. It will suffice to show objectively that the alleged violator must have known the facts based on reasonable inferences drawn from the circumstances. For example, it is reasonable to infer that a person knows about something plainly in sight on the locomotive he is operating. Also, unlike the case where willfulness must be shown (see FRA's statement of policy at 49 CFR part 209, appendix A), knowledge of or reckless disregard for the law need not be shown to make out a violation of Sec. 218.57. The knowledge relevant here is knowledge of the facts constituting the violation, not knowledge of the law.
Should FRA receive evidence indicating that a stricter enforcement policy is necessary to address the tampering problem, it will revise its enforcement policy to permit enforcement actions based only on a showing of the subsequent operator's negligent failure to detect the tampering, as the relevant provision of the RSIA permits it to do now. Any such change in enforcement policy will become effective only after publication of a revised version of this appendix. [54 FR 5492, Feb. 3, 1989. Redesignated and amended at 58 FR 43293, Aug. 16, 1993]
Sec. Appendix D to Part 218--Requirements and Considerations for
Implementing Technology Aided Point Protection
Introduction
This appendix provides further explanation and requirements for exercising the option to provide point protection with the aid of technology as permitted in Sec. 218.99(b)(3)(i). The regulation permits the visual determination necessary to provide point protection, i.e., a determination that the track is clear, for a shoving or pushing movement to ``be made with the aid of monitored cameras or other technological means, provided that it and the procedures for use provide an equivalent level of protection to that of a direct visual determination by a crewmember or other qualified employee properly positioned to make the observation as prescribed in this section and appendix D to this part.'' This appendix addresses the general requirements and considerations for all technology aided point protection as well as specific additional requirements for those operations involving remote control operations at public highway-rail grade crossings, private highway-rail grade crossings outside the physical confines of a railroad yard, pedestrian crossings outside the physical confines of a railroad yard, and yard Access Crossings.
I. General Requirements and Considerations
A. Although railroading is now one of the nation's older forms of mechanized transportation, equipment, components and operations all have evolved through new and improved technologies. Installing cameras in yards so that a location could be remotely monitored from somewhere else has become a railroading reality as cameras have become smaller, less expensive, and have increased resolution. It is possible to set up these cameras and monitors so that they provide at least an equivalent level of safety to that of an employee protecting the point. Part 218, subpart F permits such an operation to substitute for an employee's direct visual determination where the technology provides an equivalent level of protection to that of a direct visual determination. See Sec. 218.99(b)(3)(i). Of course, to provide an equivalent level of protection, an employee needs to be properly qualified (see Sec. 218.95(a)(2)) and the technology must work as intended. Most malfunctions of the technology should be detectable, and result in abandoning the use of the technology for determining point protection until the malfunction can be corrected.
B. The substitution of such technology for a direct visual determination is dependent on many factors. Each situation will have its own particular factual circumstances that shall require consideration in determining whether an equivalent level of safety can be achieved. For instance, with regard to the basic camera setup, a railroad shall consider whether an operator must see in color (largely a necessity if viewing signals), the width of the angle of view, the size and location of the monitor, whether the technology is for day-time use only, and whether its use should be limited to fair weather conditions. However, under all circumstances, the monitor shall display sufficient information to enable the viewer to make a determination that the track ahead of the shoving or pushing move is clear pursuant to the definition of ``track is clear'' in Sec. 218.93.
C. Each railroad that chooses to implement such camera/monitor setups shall implement attendant procedures and qualify each employee who will be utilizing the technology. Railroads shall ensure that any monitored camera has sufficient resolution and real time coverage to provide protection equal to a direct visual determination. See Sec. 218.99(b)(3)(i). Concerning attendant procedures, one such procedure may be for an employee viewing a monitor to communicate updates to the locomotive engineer or controlling crewmember at appropriate intervals. FRA equates the employee monitoring the camera to the employee controlling the movement who must not engage in any task unrelated to the oversight of the movement; thus, each railroad utilizing such cameras shall implement attendant procedures limiting any of the monitoring employee's ancillary duties that might distract from the employee's ability to visually determine that the track is clear and provide continuous communication to the employee controlling the movement.
D. There is also the consideration of whether the person viewing the monitor is the locomotive engineer, remote control operator, other crewmember or other qualified person, such as a yardmaster. If the monitor is not being viewed by the operator who is controlling the movement, then, there shall be a clear understanding and channel of communication between the operator and the employee who is viewing the monitor--as the latter would be protecting the movement. Providing an equivalent level of protection to that of a direct visual determination requires a thorough job briefing in which there is an understanding of who is observing the movement, what is the observer's range of vision, at what locomotive speed can the observation be made and how information will be conveyed to the operator/engineer, if that person is not the one viewing the monitor.
E. There may be occasions when a railroad finds it advantageous to use a non-crewmember, e.g., a yardmaster, to provide point protection, line switches, or check the status of a derail for a remote control crew; however, several potential problems may result when non-crewmembers are used to carry out some crewmember functions. Of foremost concern is the great potential for an error in communication or a misunderstanding between the non-crewmember and the crewmembers regarding the activity or status of equipment. A yardmaster who is occupied with his or her other responsibilities might not give the task the attention it deserves, or could be distracted and give an incorrect answer to a question by a crewmember (e.g., ``is the move lined?''). The result could be that the task does not get completed or there is an error in task execution. Further, the crewmembers might not have any alternative way of determining that there is a problem with the point protection provided by the non-crewmember until it is too late. Consequently, to the extent they will be called upon to perform these duties, each railroad shall include yardmasters and other non-crewmembers in any operating rule promulgated in accordance with Sec. 218.99(b)(2). II. Additional Requirements for Remote Control Locomotive Operations at
Highway-Rail Grade Crossings, Pedestrian Crossings, and Yard Access
Crossings
A. In addition to the general requirements and considerations for all technology aided point protection in lieu of direct visual determinations, additional requirements are necessary to address concerns specific to the use of camera/monitor setups for remote control locomotive operations to protect the point at highway-rail grade crossings, pedestrian crossings, and yard access crossings. Railroad operating rules currently permit a movement to travel over a crossing without the physical presence of a crewmember if a crossing is equipped with gates, if it can be determined that the gates are in the fully lowered position, and if the crossing is clear of vehicles and pedestrians. Remote control movements at highway-rail grade crossings, pedestrian crossings, and yard access crossings that utilize camera/monitor setups pose a greater direct risk to members of the general public than yard movements utilizing camera/monitor setups to check whether a track is clear. In addition, such setups can rapidly develop problems with motor vehicles and pedestrians unaccustomed to railroad operating rules and procedures. For these reasons, additional safeguards are necessary.
B. In consideration of the dangers posed by the use of camera/monitor setups for remote control locomotive operations at highway-rail grade crossings, pedestrian crossings, and yard access crossings, the following procedures shall be complied with in order to establish an equivalent means of safety in accordance with Sec. 218.99(b)(3)(i):
1. Before camera-assisted remote control locomotive operations are permitted at highway-rail grade crossings, pedestrian crossings, and yard access crossings, a Crossing Diagnostic Team shall evaluate the crossing. The diagnostic team shall have representatives from the railroad, FRA, the State department of transportation (or another State agency having jurisdiction over the highway-rail grade crossing, pedestrian crossing, or yard access crossing), and local government authorities. The diagnostic team shall evaluate the suitability of each crossing for remote camera operations. Among the factors it shall consider are the following: the average annual daily traffic counts; the number of highway lanes; highway speed limits; the presence of adjacent signalized highway intersections; the number of railroad tracks; the angle of the roadway intersection; the volume of school bus, transit bus, emergency vehicle, commercial motor vehicle, and hazardous materials traffic over the crossing; the minimum remote control locomotive operator sight distances of roadway approaches to the crossing; and other relevant factors that could affect the safety of the crossing. The diagnostic team shall also consider the appropriate number of cameras and appropriate camera angles needed to provide for the remote operation of remote control locomotives over the crossing. The diagnostic team shall agree to a written diagnostic evaluation summary of the factors considered and shall provide the railroad with agreed upon parameters by which the camera-assisted remote control operation may continue in operation if the factors required for suitability change; thus, any change in the factors considered by the diagnostic team outside of the acceptable parameters shall require the railroad to receive a revised evaluation approval from a diagnostic team before continuing any such operation. In addition, any of the Federal, State, or local governmental authorities may trigger review of a prior evaluation approval at any time there is a question of the suitability of the operation. It is possible that, of the requirements listed below, requirements numbered 2, 4, 5, and 6 would be unnecessary at highway-rail grade crossings or yard access crossings equipped with approved supplemental safety devices (see 49 CFR part 222, app. A) that prevent motorists from driving around lowered gates; under such circumstances, the diagnostic team shall make such determinations. If a Crossing Diagnostic Team, as described in this paragraph, evaluated a crossing for the factors described herein, prior to April 14, 2008, another diagnostic team evaluation is not required to comply with this rule; however, the requirements listed below shall still apply to any such remotely controlled movements over that crossing.
2. Camera-assisted remote control locomotive operations shall only be permitted at crossings equipped with flashing lights, gates, and constant warning time train detection systems where appropriate, based on train speeds.
3. A crewmember or other qualified employee shall not view the monitor in place of the remote control operator, as is permitted for other shoving or pushing movements. See Sec. 218.99(b)(3). For purposes of remote control locomotive operations with camera/monitor setups to protect the point at highway-rail grade crossings, pedestrian crossings, and yard access crossings, the remote control operator controlling the movement shall view the monitor during such operations.
4. The cameras shall be arranged to give the remote control locomotive operator controlling the movement a view of the rail approaches to the crossing from each direction so that the operator can accurately judge the end of the movement's proximity to the crossing.
5. The cameras shall be arranged to give the remote control locomotive operator a clear view to determine the speed and driver behavior (e.g., driving erratically) of any approaching motor vehicles.
6. Either the camera resolution shall be sufficient to determine whether the flashing lights and gates are working as intended or the crossing shall be equipped with a remote health monitoring system that is capable of notifying the remote control locomotive operator immediately if the flashing lights and gates are not working as intended.
7. The railroad shall notify the Associate Administrator for Safety in writing when this type of protection has been installed and activated at a crossing.
III. Conclusion
The technology used to aid point protection will undoubtedly develop and improve over time. FRA encourages the use and development of this technology as is evidenced by the option in this rule to utilize such technology. Meanwhile, as a regulating body, FRA cannot determine whether a new technology to aid point protection provides an equivalent level of protection to that of a direct visual determination unless we are made aware of the new technology. Consequently, aside from the camera/monitor setups described in this appendix, each railroad that intends to implement a technology used to aid point protection shall notify the Associate Administrator for Safety in writing of the technology to be used prior to implementation. [73 FR 8504, Feb. 13, 2008]