Railroad Workplace Safety; Roadway Worker Protection Miscellaneous Revisions (RRR)

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0086]

RIN 2130-AB89

Railroad Workplace Safety; Roadway Worker Protection Miscellaneous Revisions (RRR)

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

FRA is proposing to amend its regulations on railroad workplace safety to resolve interpretative issues that have arisen since the 1996 promulgation of the original Roadway Worker Protection (RWP) regulation. In particular, this NPRM proposes to define certain terms, establish new procedures for snow removal and cleaning on passenger station platforms, resolve miscellaneous interpretive issues, codify certain FRA Technical Bulletins, and requests comment on certain training requirements for roadway workers. FRA is also proposing to update three incorporations by reference of industry standards in existing sections of FRA's Bridge Worker Safety Standards.

DATES:

(1) Written comments must be received by October 19, 2012. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

(2) FRA anticipates being able to resolve this rulemaking without a public hearing. However, if prior to September 19, 2012, FRA receives a specific request for a public hearing accompanied by a showing that the party is unable to adequately present his or her position by written statement, a hearing will be scheduled and FRA will publish a supplemental notice in the

Federal Register

to inform interested parties of the date, time, and location of any such hearing.

ADDRESSES:

You may submit comments identified by the docket number FRA-2008-0086 by any one of the following methods:

•

Fax:

1-202-493-2251;

•

Mail:

U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590;

•

Hand Delivery:

U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or

•

Electronically through the Federal eRulemaking Portal: http://www.regulations.gov.

Follow the online instructions for submitting comments.

Instructions:

All submissions must include the agency name, docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AB89). Note that all comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided. Please see the Privacy Act heading in the

SUPPLEMENTARY INFORMATION

section of this document for Privacy Act information related to any submitted comments or materials.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

at any time or to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Kenneth Rusk, Staff Director, Track Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590 (telephone (202) 493-6236); or Joseph St. Peter, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-10, Mail Stop 10, Washington, DC 20590 (telephone (202) 493-6047 or 202-493-6052).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

II. Rulemaking Authority and Background of the Existing RWP Rule

III. Railroad Safety Advisory Committee (RSAC) Overview

IV. RWP RSAC Working Group and Proceedings in This Rulemaking to Date

V. Proceedings concerning On-Track Safety Procedures for Adjacent Tracks

VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items

VII. Request for Comment on NTSB Recommendation R-08-06

VIII. Additional Items for Comment

A. RWP and Blue Signal Protections in Shop Areas

B. Frequency of Training and Qualification for Additional Roadway Worker Qualifications

C. Physical Characteristics Qualification for Lone Workers and Watchmen/Lookouts

D. Use of Tunnel Niches as a Place of Safety

E. Highly Visible Protective Equipment for Roadway Workers on Station Platforms

F. Splitting of Roadway Worker in Charge Qualifications

G. Effective Date of Final Rule

IX. Executive Order 13563 Retrospective Review

X. Section-by-Section Analysis

XI. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563 and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment

C. Paperwork Reduction Act

D. Federalism Implications

E. Environmental Impact

F. Unfunded Mandates Reform Act of 1995

G. Energy Impact

H. Trade Impact

I. Privacy Act

I. Executive Summary

In 2005, the Railroad Safety Advisory Committee (RSAC) accepted a task to review the existing RWP regulation at subpart C of part 214. The RSAC established the RWP Working Group (the “Working Group”) to recommend consideration of specific actions to advance the on-track safety of railroad employees and contractors engaged in maintenance-of-way activities throughout the general system of railroad transportation, including clarification of existing regulatory requirements.

The Working Group reached consensus on 32 separate items, which the full RSAC recommended to FRA. FRA drafted this NPRM to address the RSAC consensus recommendations, the issue of electronic display of track authorities, several other items on which the Working Group was unable to reach consensus, and miscellaneous other revisions. FRA is also proposing to update certain incorporations by reference of personal protective equipment standards in FRA's Bridge Worker Safety Standards at subpart B of part 214 by cross referencing the Occupational Safety and Health Administration's (OSHA) regulations on the same point.

Noteworthy consensus recommendations that FRA is addressing in this NPRM include: a job briefing requirement regarding the accessibility of the roadway worker in charge; the adoption of procedures for how roadway workers walk across railroad track; a new allowance for railroad's conducting snow removal and weed spraying operations; a clarification of the existing “foul time” provision; a new “verbal protection” provision; three new permissible methods of

establishing working limits on non-controlled track; the expanded use of individual train detection at controlled points; an amended provision governing audible warnings by trains for roadway workers; and, a request for further comment on certain training requirements for roadway workers.

As mentioned above, FRA is also addressing other items on which the Working Group was unable to reach consensus and certain miscellaneous other revisions. Noteworthy among these items are: A new provision regarding the removal of objects from railroad track when train approach warning is used as the method of on-track safety; the electronic display of working limits authorities; amendments to the existing provision governing the qualification of roadway workers in charge; a new section addressing passenger station platform snow removal; a new provision governing the use of “occupancy behind” or “conditional” working limit authorities; the phase-out of the use of definite train location and informational train line-ups, potential amendments to the existing roadway worker protection and blue signal protection requirements for work performed within shop areas, and, the use of other railroad track as a place of safety when train approach warning is used as the method of on-track safety; and, a request for further comment on the use of certain tunnel niches as a place of safety for roadway workers.

FRA has estimated the costs of this proposed rule, evaluated over a 20-year period and using discount rates of 3 and 7 percent. For the 20-year period analyzed, the estimated quantified cost that would be imposed on industry totals $5,840,921 with a present value of $3,103,980 (PV, 7 percent) and $4,350,537 (PV, 3 percent). FRA also estimates that for the 20-year period analyzed, the estimated quantified benefits total $119,507,405 with a present value of $63,310,902 (PV, 7 percent) and $88,902,763 (PV, 3 percent). This analysis demonstrates that the benefits for this proposed rule would exceed the costs.

Table—Costs and Benefits of the Proposed Rule

Year 1

2-20

Total 20 year

7% PV

3% PV

Costs:

214.315 Job Briefings

$143,055

$143,055

$2,861,100

$1,515,527

$2,128.297

214.339 Audible Warning from Trains

24,796

0

24,796

23,174

24,074

214.345 Training on Safe Crossing of Track

72,250

72,250

1,445,000

765,418

1,074,898

214.347 Training on Access to Manual

10,838

10,838

216,750

114,813

161,235

214.352 Training Platform Work Coordinate

22,759

22,759

455,175

241,107

338,593

214.353 Training RWIC

41,905

41,905

838,100

443,942

623,441

Total

315,602

290,806

5,940,921

3,103,980

4,350,537

Benefits:

214.307 Plans No Longer Reviewed

19,553

426

27,653

22,392

24,912

214.317 Track Snow Removal

292,613

292,613

5,852,250

3,099,941

4,353,335

214.324 Use of Verbal Protection

5,386,021

5,386,021

107,720,415

57,059,581

80,150,388

214.327 Inaccessible Track

204,016

204,016

4,080,319

2,161,348

3,035,242

214.337 ITD

4,335

4,335

86,700

45,925

64,494

214.338 Platform Snow Removal

87,003

87,003

1,740,069

921,716

1,294,392

Total

5,993,541

5,974,414

119,507,405

63,310,902

88,902,764

NET BENEFITS

5,677,938

5,683,608

113,666,484

60,206,922

84,552,226

*

Dollars are discounted over a 20-year period.

II. Rulemaking Authority and Background of the Existing RWP Rule

The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C. 20103, provides that, “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970”. The Secretary's responsibility under this provision and the balance of the railroad safety laws have been delegated to the Federal Railroad Administrator. 49 CFR 1.49(m). In the field of railroad workplace safety, FRA has traditionally pursued a very conservative course of regulation, relying upon the industry to implement suitable railroad safety rules and mandating in the broadest of ways that employees be “instructed” in the requirements of those rules and that railroads create and administer programs of operational tests and inspections to verify rules compliance. This approach is based on several factors, including recognition of the strong interest of railroads in avoiding costly accidents and personal injuries, the limited resources available to FRA to directly enforce railroad safety rules, and the apparent success of management and employees in accomplishing most work in a safe manner.

Over the years, however, it became necessary to codify certain requirements, either to remedy perceived shortcomings in the railroads' rules to emphasize the importance of compliance, or to provide FRA a more direct means of promoting compliance. These actions, which in many cases were preceded or followed by statutory mandates, included adoption of rules governing:

• Bridge Worker Safety Standards (49 CFR part 214 subpart B);

• Roadway Worker Protection (49 CFR part 214 subpart C); and

• On-Track Roadway Maintenance Machines and Hi-Rail Vehicles (49 CFR part 214 subpart D).

In 1990, FRA received a petition to amend its track safety standards from the Brotherhood of Maintenance of Way Employes Division (BMWED), which included issues pertaining to the hazards faced by roadway workers. Subsequently, in response to the Rail Safety Enforcement and Review Act, Public Law 102-365, 106 Stat. 972, enacted September 3, 1992. FRA issued an Advanced Notice of Proposed Rulemaking (ANPRM) on November 16, 1992, announcing the opening of a proceeding to amend the Federal Track Safety Standards to, in part, address hazards faced by roadway workers. 57 FR 54038.

FRA held workshops to solicit the views of the railroad industry and representatives of railroad employees on the need for substantive change in the track regulations. The subject of injury and death to roadway workers was of such great concern that FRA received petitions for emergency orders and requests for rulemaking from both the BMWED and the Brotherhood of Railroad Signalmen (BRS). Finding that no imminent hazards existed that would justify issuance of emergency orders at the time, FRA did not issue any emergency orders in response to those petitions, but instead initiated a separate proceeding to consider regulations to eliminate hazards faced by roadway workers.

On August 17, 1994, FRA published its notice of intent to establish a Federal Advisory Committee (FAC) for regulatory negotiation. 59 FR 42200. The FAC was tasked with submitting a report, including proposed regulatory language, containing the FAC's consensus recommendations. On December 27, 1994, the Office of Management and Budget approved the Charter to establish a Roadway Worker Safety Advisory Committee (Advisory Committee) comprised of twenty-five members. The Advisory Committee held seven multiple-day negotiating sessions. An independent task force, comprised of representatives of several railroads and labor organizations, had met during the preceding year and independently analyzed on-track safety practices. This task force presented information at the first Advisory Committee meeting. The Advisory Committee reached consensus on eleven specific recommendations and nine general recommendations. These recommendations served as the basis for FRA's first RWP NPRM, which was published on March 14, 1996. 61 FR 10528. FRA published a final rule establishing the original RWP regulation on December 16, 1996, which became effective on January 15, 1997 (61 FR 65959). The final rule largely incorporated the Advisory Committee's recommendations.

III. RSAC Overview

In March 1996, FRA established the RSAC, which provides a forum for collaborative rulemaking and program development. The RSAC includes representatives from all of the railroad industry's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of RSAC members follows:

• American Association of Private Railroad Car Owners (AARPCO);

• American Association of State Highway and Transportation Officials (AASHTO);

• American Chemistry Council;

• American Petroleum Institute;

• American Public Transportation Association (APTA);

• American Short Line and Regional Railroad Association (ASLRRA);

• American Train Dispatchers Association (ATDA);

• Association of American Railroads (AAR);

• Association of Railway Museums (ARM);

• Association of State Rail Safety Managers (ASRSM);

• Brotherhood of Locomotive Engineers and Trainmen (BLET);

• Brotherhood of Maintenance of Way Employes Division (BMWED);

• Brotherhood of Railroad Signalmen (BRS);

• The Chlorine Institute, Inc.;

• Federal Transit Administration (FTA);*

• The Fertilizer Institute;

• High Speed Ground Transportation Association (HSGTA);

• Institute of Makers of Explosives;

• International Association of Machinists and Aerospace Workers;

• International Brotherhood of Electrical Workers (IBEW);

• Labor Council for Latin American Advancement;*

• League of Railway Industry Women;*

• National Association of Railroad Passengers (NARP);

• National Association of Railway Business Women;*

• National Conference of Firemen & Oilers;

• National Railroad Construction and Maintenance Association (NRC);

• National Railroad Passenger Corporation (Amtrak);

• National Transportation Safety Board (NTSB);*

• Railway Supply Institute (RSI);

• Safe Travel America (STA);

• Secretaria de Comunicaciones y Transporte;*

• Sheet Metal Workers International Association (SMWIA);

• Tourist Railway Association, Inc.;

• Transport Canada;*

• Transport Workers Union of America (TWU);

• Transportation Communications International Union/BRC (TCIU/BRC);

• Transportation Security Administration (TSA);* and

• United Transportation Union (UTU).

*Indicates associate, non-voting membership.

When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, the RSAC may accept or reject the task. If the task is accepted, the RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The individual task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff plays an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations are noted and explained in the rulemaking document issued by FRA. If the working group or the RSAC is unable to reach consensus on a recommendation for action, FRA may move ahead to resolve the issue through traditional rulemaking proceedings.

IV. RWP RSAC Working Group and Proceedings in This Rulemaking to Date

As discussed above, on January 26, 2005, the RSAC formed the RWP Working Group to consider specific actions to advance the on-track safety of employees of covered railroads and their contractors who are engaged in maintenance-of-way activities throughout the general system of railroad transportation, including clarification of existing requirements. The assigned task was to review the existing RWP regulation, technical bulletins, and a safety advisory dealing with on-track safety for roadway workers, and, as appropriate, consider enhancements to the existing rule which would further reduce the risk of serious injury or death to roadway workers. The Working Group was directed to report

specific actions identified as appropriate, including planned milestones for completion of projects and progress towards completion, to the full RSAC at each scheduled RSAC meeting.

The Working Group was comprised of members from the following organizations:

• Amtrak;

• APTA;

• ASLRRA;

• ATDA;

• AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway Company (CN), Canadian Pacific Railway, Limited (CP), Consolidated Rail Corporation (Conrail), CSX Transportation, Inc. (CSXT), The Kansas City Southern Railway Company (KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific Railroad Company (UP);

• Belt Railroad of Chicago;

• BLET;

• BMWED;

• BRS;

• FRA;

• Indiana Harbor Belt Railroad (IHB);

• Long Island Rail Road (LIRR);

• Metro-North Commuter Railroad Company (Metro-North);

• Montana Rail Link;

• NRC;

• Northeast Illinois Regional Commuter Railroad Corporation (Metra);

• RailAmerica, Inc.;

• Southeastern Pennsylvania Transportation Authority (SEPTA);

• UTU; and

• Western New York and Pennsylvania Railroad (WNY&P).

The Working Group held 12 multi-day meetings. The Working Group worked diligently and was able to reach consensus on 32 separate items. The Working Group attained consensus to recommend that part 214

1

be amended to: add two new definitions; revise an existing definition; and, incorporate three other existing definitions from 49 CFR part 236. The Working Group also came to consensus to add or amend various provisions in the following sections in subpart C of part 214:

1

All references to the CFR in this document reference Title 49.

• § 214.309—revision to address on-track safety manual for lone workers and changes to the manual.

• § 214.315—requirement that information concerning adjacent tracks be included in on-track safety job briefings; accessibility of the roadway worker in charge.

• § 214.317—new paragraph to formalize procedures for roadway workers to walk across tracks; new paragraph for on-track weed spray and snow blowing operations on non-controlled track.

• § 214.321—new paragraph to address the use of work crew numbers.

• § 214.323—clarification of foul time provision whereby roadway worker in charge or train dispatcher may not permit movements into such working limits.

• § 214.324—new section called “verbal protection” for abbreviated working limits within manual interlocking and controlled points.

• § 214.327—three new paragraphs to formalize the following instruments to make non-controlled track inaccessible: occupied locomotive as a point of inaccessibility; block register territory; and, the use of track bulletins to make track inaccessible within yard limits.

• § 214.335—complete revision of paragraph (c) concerning on-track safety for tracks adjacent to occupied tracks. Key elements are the elimination of “large-scale” and the addition of a new requirement for on-track safety for tracks adjacent to occupied tracks for specific work activities (addressed in separate rulemaking proceeding as discussed further below).

• § 214.337—allowance for the use of individual train detection at controlled points consisting only of signals and a new paragraph limiting equipment/materials that can only be moved by hand by a lone worker.

• § 214.339—complete revision of this section concerning audible warning by trains to address operational considerations.

• § 214.343—new paragraph to ensure contractors receive requisite training/and or qualification before engaged by a railroad.

• § 214.345—lead-in phrase requiring all training to be consistent with initial or recurrent training, as specified in § 214.343(b).

• §§ 214.347, .349, .351, .353, and .355—consistent requirements for various roadway worker qualifications and a maximum 24-month time period between qualifications.

On June 26, 2007, the full RSAC voted to accept the above recommendations presented by the Working Group. In addition to the above, the Working Group worked on a proposal for use of electronic display of authorities as a provision under exclusive track occupancy. The Working Group developed lead-in regulatory text and agreed to some conceptual items. When circulated back to the Working Group prior to the full RSAC vote, however, technical issues were raised that could not be resolved in the time available. Accordingly, in this NPRM, FRA is addressing the electronic display issue, and certain of the other issues that the Working Group was unable to reach consensus on. The other items that the Working Group was unable to reach consensus on were:

• § 214.7—new term and definition for a “remotely controlled hump yard facility.”

• § 214.7—revision to the definition for the term “roadway worker.”

• § 214.317—use of tunnel clearing bays.

• § 214.321—track occupancy after passage of a train.

• § 214.329—removal of objects from the track under train approach warning.

• § 214.336—passenger station platform snow removal and cleaning.

• § 214.337—consideration of allowance for the use of individual train detection at certain types of manual interlockings or controlled points.

• § 214.353—qualification of employees other than roadway workers who directly provide for the on-track safety of a roadway work group.

V. Proceedings Concerning On-Track Safety Procedures for Adjacent Tracks

As mentioned above, the Working Group was able to reach consensus on items that dealt specifically with the adjacent-track on-track safety issues. In light of roadway worker fatality trends involving adjacent track protections, and to expedite the lowering of the safety risk associated with roadway workers fouling adjacent tracks, FRA decided to undertake a rulemaking proceeding separately, and in advance of this NPRM, to specifically address adjacent-track safety issues contemplated by the Working Group. As such, FRA published an NPRM addressing adjacent-track on-track safety on July 17, 2008 (73 FR 41214), but formally withdrew the NPRM on August 13, 2008 (73 FR 47124). FRA then issued a revised NPRM, which was published on November 25, 2009 (74 FR 61633), and a final rule was published on November 30, 2011 (76 FR 74586). The provisions contained in that final rule are currently scheduled to become effective on July 1, 2013. Accordingly, as the adjacent track rulemaking was undertaken separately, the subpart C section numbering for the consensus items as agreed upon by the Working Group has changed slightly from that recommended. This NPRM will note any relevant numbering changes in the section-by-section analysis below. FRA acknowledges that it has received petitions for reconsideration of the adjacent track final rule.

See

Docket No. FRA-2008-0059; available online at

www.regulations.gov. There is limited interaction between the provisions of this NPRM and those contained in the final rule in the adjacent track rulemaking. FRA will note any potential changes (specifically with regard to section numbering) in a final rule which result from any FRA response to petitions for reconsideration in the adjacent track rulemaking.

VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items

The section-by-section analysis below includes explanations of the proposed revisions to the RWP regulation, including certain consensus items recommended by the Working Group, certain of the non-consensus items listed above, and certain other miscellaneous items being proposed by FRA. FRA notes that the Working Group meetings discussed above took place between 2005 and 2007. In the interim, during FRA's efforts to publish the adjacent track rulemaking discussed above, there have been changes in the railroad industry. Notably, Congress' passage of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Division A, 122 Stat. 4848) (RSIA), has required significant new FRA regulatory efforts.

These new efforts include FRA's recently published NPRM addressing minimum training standards and plans. Section 401 of RSIA (codified at 49 U.S.C. 20162) mandates that FRA promulgate a regulation that sets minimum training standards for “each class and craft of safety-related railroad employee.” FRA has undertaken this mandated rulemaking via the RSAC process (Task No. 10-01, Training Standards Working Group). The training standards NPRM was published on February 7, 2012 (77 FR 6412), and includes proposed minimum training standards for roadway workers as defined by existing § 214.7

As a result, although in 2007 the full RSAC recommended that FRA adopt the RWP Working Group's proposed consensus training requirements for roadway workers, FRA's training standards NPRM proposes to address training issues pertaining to roadway workers.

2

As such, FRA is not proposing certain of the RWP Working Group's consensus training recommendations in this rulemaking (

e.g.,

the proposed proficiency demonstration for additional roadway worker qualifications required every 24 months), but rather seeks comment below on whether to adopt the training and qualification frequencies prescribed by the minimum training standards NPRM, or those previously recommended by the RWP Working Group. FRA notes that it is not proposing to amend the existing mandatory annual roadway worker training requirements contained in subpart C of part 214.

2

These consensus recommendations were meant, in part, to eliminate confusion in the railroad industry regarding the requirements of the roadway worker protection training provisions and also to provide uniformity, particularly with regard to additional roadway worker qualifications (

e.g.,

lone worker and roadway worker in charge qualifications, which currently only require “periodic” requalification with no specified interval).

The Working Group also came to consensus to add a new paragraph (e) to existing § 214.343, which pertains to the training of roadway workers. That recommended paragraph would have required that each railroad require that contractor employees receive the requisite roadway worker training and qualification prior to performing any roadway worker duties. FRA is not including that consensus recommendation in this NPRM. Under the existing RWP regulation, contractor employees are already required to receive roadway worker training prior to performing roadway worker duties.

See

49 CFR 214.5, 214.7, 214.343 and 214.345; FRA Technical Bulletin G-05-19. Therefore, this recommended paragraph would not actually amend or enhance any existing training requirements, but could require additional costs to be incurred by railroads. Further, the training standards NPRM contains proposed requirements regarding coordination between contractors and railroads pertaining to the training of contractor employees at §§ 243.1(b), 243.101(e)-(f), and 243.209. 77 FR 6453. These proposed requirements are actually more extensive than the ones recommended by the RWP Working Group. For these reasons, FRA is not proposing this consensus recommendation.

The RSAC also recommended that FRA adopt the Working Group consensus language for the definition of the term “interlocking, automatic”, with that definition mirroring the existing definition of the same term found at 49 CFR 236.750. However, that term is not actually used anywhere in the existing text of part 214, nor is it used in any of the text proposed in this NPRM. The minutes to the Working Group meetings indicate that potentially this definition was recommended in an effort to help the regulated community differentiate between an automatic interlocking and a manual interlocking (within the limits of which individual train detection is not permitted via existing § 214.337). Because the term is not used in the regulation as it exists currently or as proposed in this NPRM, FRA is not proposing to adopt the Working Group's recommended definition. The recommended consensus definition of “interlocking, manual”, and the accompanying discussion in the section-by-section analysis, should enable differentiation of those terms. Further, FRA and the regulated community can always look to the existing definition of “interlocking, automatic” contained in part 236 for additional guidance, if necessary.

There were several items addressed during the Working Group meetings for which no consensus was reached. For most of those items, FRA is proposing rule text in this NPRM and is requesting comment on those proposals. However, for certain of these non-consensus items, FRA is not proposing rule text. For example, the Working Group discussed various potential amendments to the definition of “roadway worker” found at 49 CFR 214.7. After consideration, FRA is not proposing an amendment to that definition. FRA believes the meaning of the existing definition is clear. One of the potential recommendations discussed by the Working Group was to specifically add the words “who fouls a track in connection with” to the first sentence of the existing definition. FRA, in contemplating such an addition, revisited the preamble to the 1996 final rule promulgating the RWP regulation. In that preamble FRA explained that a proposal for a similar addition of language to the definition of the term “roadway worker” was unnecessary and would “severely limit the application of the rule due to the difficulty in determining when a worker becomes engaged in a task.” (61 FR 65962). FRA maintains that same position today. The definition for the term “roadway worker” describes employees who are covered by this regulation, and not when that coverage begins or ends. As is explained in FRA Technical Bulletin G-05-13, the existing provisions of § 214.313 already require that when a roadway worker fouls a track, including when performing preparatory activities to make such track inaccessible to establish working limits, that on-track safety is required. FRA disagrees that an amendment to the definition of the term “roadway worker”, as discussed during the Working Group meetings, would make the established RWP on-track safety requirements any more clear.

The Working Group also discussed the potential addition of a definition to existing § 214.7 for the term “remotely controlled hump yard facility.” That term is used in existing § 214.337(c)(3), which prohibits the use of individual

train detection inside the limits of a remotely controlled hump yard facility. There was agreement among the Working Group that a remotely controlled hump yard facility began at the crest of a hump. The segment of a hump yard from the crest, through the retarders, and to the end of classification tracks would clearly be within the limits of a remotely controlled hump yard facility. However, there was no consensus in the Working Group as to the limit of such a facility at the far pull-out end, in part due the myriad of physical layouts in existing hump yards. Unlike the voluminous number of manual interlockings and controlled points that exist (the other two locations in which the use of individual train detection is prohibited by § 214.337), there are a limited number of remotely controlled hump yard facilities in the United States, and enforcement problems for FRA have not been noteworthy to date. Also, the varying physical layouts for these facilities would make it difficult to attempt to propose language defining the limits of the pull-out ends of such facilities which could reasonably apply to all existing layouts. Finally, if a lone worker is unsure whether the track he or she needs to foul is within the limits of a remotely controlled hump yard facility, or if there is any question regarding the safety of fouling any track, the existing individual train detection regulation already contains an absolute right for a lone worker to utilize an on-track safety procedure other than individual train detection.

For these reasons, FRA is not proposing a definition for the term “remotely controlled hump yard facility” in this NPRM. If a dispute regarding the limits of a remotely controlled hump yard facility arises, FRA will, on a case-by-case basis, provide assistance in identifying that facility's limits based on the particular physical layout of the facility.

The Working Group also addressed the use of tunnel niches or clearing bays as a place of safety for roadway workers when such niches are outside the clearance envelope but, by design, may be less than four feet from the field side of the rail. The Working Group discussed this issue at length, but no consensus was reached. FRA is not proposing regulatory text regarding this issue in this NPRM. Instead, FRA is requesting further comment below on how to best address the use of such tunnel niches in a final rule.

For the remaining non-consensus items listed in Section IV above, FRA is proposing regulatory text in this NPRM. FRA is also proposing other miscellaneous revisions to the existing RWP rule that were not addressed by the Working Group; some of which codify existing guidance and interpretations and some of which are intended to merely clean-up or clarify existing requirements. FRA's rationale for these proposed revisions is contained in the relevant section-by-section analysis below. Upon issuance of a final rule in this proceeding, FRA intends to supplant, as appropriate, technical bulletins concerning the existing RWP regulation.

VII. Request for Comment on NTSB Recommendation R-08-06

On January 9, 2007, two Massachusetts Bay Transportation Authority (MBTA) maintenance-of way employees were killed in an accident that occurred near Woburn, Massachusetts. The incident occurred when a passenger train struck a roadway maintenance machine that was on the track. The NTSB found the probable cause of that accident was “the failure of the train dispatcher to maintain blocking that provided signal protection for the track segment occupied by the maintenance-of-way work crew, and the failure of the work crew to apply a shunting device that would have provided redundant signal protection for their track segment.” (

See

NTSB Accident Report NTSB/RAR-0801, Collision of Massachusetts Bay Transportation Authority Train 322 and Track Maintenance Equipment near Woburn, Massachusetts, January 9, 2007; available online at

http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf

).

The MBTA had a rule in effect at the time of the accident which required that roadway workers shunt track circuits in order to provide additional signal protections to prevent trains or other rolling equipment from entering working limits. The NTSB found that the roadway work group involved in the incident did not comply with that rule. The NTSB made several recommendations in response to that accident, including Recommendation R-08-06. That recommendation states FRA should “[r]equire redundant signal protection, such as shunting, for maintenance of way work crews who depend on the train dispatcher to provide signal protection.”

This incident occurred near the end of the Working Group's work in 2007, and the Working Group did not consider the use of shunting devices in conjunction with the applicable controlled track “working limits” requirements of the RWP regulation (exclusive track occupancy (§ 214.321), foul time (§ 214.323), or verbal protection (§ 214.324)). While the mandatory use of shunts as an additional measure of safety when establishing working limits had not previously been considered, FRA wishes to analyze available options for redundant forms of working limits protection. FRA understands that shunting procedures can be disruptive to signal systems, and, in some circumstances, might not be permissible under FRA's signal system regulations at 49 CFR part 236. However, if safe and cost-effective procedures can be implemented, FRA may add a provision in the final rule or proceed with an additional rulemaking in the future to require the use of redundant forms of protection. FRA specifically invites comment on this issue from the railroad industry and other interested parties, to include potential costs of implementing various redundant measures. The RWP regulation does not currently prescribe the use of every device or procedure that may be used by a railroad to supplement the establishment of working limits. However, FRA notes that roadway workers are already required by existing § 214.313(a) to follow all on-track safety rules and procedures of a railroad, including those such as the MBTA redundant protection requirement discussed above, even if such rules are not enumerated in Federal regulation.

VIII. Additional Items for Comment

FRA is requesting comment on several requirements or amendments for which regulatory text is not being proposed in this NPRM, but which FRA is considering adopting in a final rule in this proceeding. FRA specifically requests comment on these additional items, and also discusses some of them further in the section-by-section analysis below.

A. RWP and Blue Signal Protections in Shop Areas

Under the existing roadway worker and blue signal protection requirements, any roadway workers performing work that involves fouling track within locomotive servicing track areas or car shop repair track areas (or performing work on structures within those areas that involves fouling a track) are required to utilize on-track safety procedures via the requirements of part 214. Any “workers”, as defined by § 218.5, performing work on, under, or between rolling equipment within such facilities are required to do so via the blue signal protection requirements of subpart B of part 218. Since the promulgation of the RWP regulation, there has been confusion in the railroad

industry over what protections are appropriate within such shop facilities for certain types of work activities (

e.g.,

performing work on the overhead doors of a locomotive maintenance building when such work involves fouling a track). FRA issued Technical Bulletin G-08-03 to help clarify the issue, and explained that whether or not employees are working in a shop area, it is always the type of work being performed that dictates which type of protection is required, roadway worker protection or blue signal protection. Technical Bulletin G-08-03 also explained that FRA would not take exception to any work being performed that appeared to be more akin to roadway worker duties, but that was of an “incidental” nature to the larger job of mechanical personnel performing work on rolling equipment,

e.g.,

sweeping a shop floor or changing a light bulb in an inspection pit.

Railroads have argued that FRA should exempt certain maintenance of way work within shop areas from the on-track safety requirements of part 214, as the employees within the limits of the shop areas may perform such work safely while utilizing the blue signal protections that they have been trained on the requirements of and are familiar with. Railroads have also argued that training shop personnel on two different protection regimes is costly, and is also confusing for employees that actually have to apply those two different types of protection, and, thus, detrimental to safety.

FRA is not proposing any specific rule text regarding this issue in this NPRM, but is contemplating amending the existing blue signal protection and/or roadway worker protection regulations in a final rule to make additional allowances for certain maintenance work performed within the limits of locomotive and car shops. FRA would only make such amendments if they provided for at least an equivalent level of employee safety to that which exists via the existing Federal regulations governing this issue. FRA is requesting comment on this issue, and specifically requests comment on how the issue of contractor employees would best be addressed, as contractor employees are subject to the requirements of part 214, but are not considered “workers” via existing part 218's blue signal protection requirements. As throughout the history of the blue signal regulation it has only governed work being performed on, under, or between rolling equipment, FRA also specifically requests comment on how an amendment to the existing regulations could best accommodate the protection of additional work activities within shop areas. Among other amendments, FRA anticipates existing § 218.29(a)(7) would be required to be amended to require that workers clear any shop track on which a locomotive is to be repositioned on. If in a final rule FRA decides to forego making any amendments to the current roadway worker and blue signal protection regulations within shop areas, FRA may utilize the comments received on this issue in a future rulemaking proceeding.

B. Frequency of Qualification and Training for Additional Roadway Worker Qualifications

The existing sections in part 214 that govern the training and qualification requirements for additional roadway worker qualifications (§§ 214.347 (lone worker), 214.349 (watchman/lookout), 214.351 (flagman), 214.353 (roadway worker in charge), and 214.255 (roadway maintenance machine operator)) do not expressly specify an interval for refresher training and qualification. Those existing sections currently only state that “[i]nitial and periodic qualification of [additional roadway worker qualification] shall be evidenced by” either demonstrated proficiency or a recorded examination, depending on section. The Working Group made the consensus recommendation that FRA propose regulatory text expressly requiring initial training and qualification before a roadway worker is assigned to perform duties involving that qualification, and also recommended requiring refresher training annually and qualification every 24-months. The requirement that initial training and qualification must be provided before assigning a roadway worker duties involving an additional qualification is required by the current regulation. The consensus recommendation would only more clearly state such if adopted in a final rule.

With regard to the refresher training and qualification consensus recommendations, however, in the time period that has passed since the Working Group proposed consensus text for this section, RSIA 2008 mandated that FRA undertake a rulemaking to set minimum training standards for “each class and craft of safety-related employee,” to include training standards for roadway workers. That rulemaking was undertaken by the RSAC and FRA recently published an NPRM proposing such minimum training standards. 77 FR 6412. The training standards NPRM contains an extensive proposal for refresher training and qualification requirements for roadway workers, and would require such refresher training and qualification every three years, to include for the additional roadway worker qualifications in part 214.

As the consensus recommendation made by the RWP Working Group and those proposed by the minimum training standards rulemaking do not parallel one another with regard to frequency of refresher qualification and training, FRA is requesting comment on the best manner to proceed in setting refresher qualification and training intervals for the additional roadway worker qualifications in a final rule. FRA specifically requests comment on the costs and/or potential benefits of the two different approaches.

FRA notes that the existing RWP regulation requires that each roadway worker be trained each calendar year on the items listed in § 214.345, and on the on-track safety rules and procedures they are required to follow via § 214.343. FRA is not proposing to amend those existing annual basic roadway worker training requirements. Rather, FRA is only seeking comment on the appropriate interval of refresher qualification and training requirements for additional roadway worker qualifications found in existing §§ 214.347, 214.349, 214.351, 214.353, and 214.255. FRA would also apply the interval adopted in a final rule to proposed § 214.352.

C. Physical Characteristics Qualification for Lone Workers and Watchmen/Lookouts

Existing § 214.353 governs qualification and training for roadway workers in charge that provide for on-track safety, and paragraph (a)(4) of that section requires that such training include the “relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.” However, such a qualification is absent from existing § 214.347, which governs training for lone workers, and also from existing § 214.349, which governs training for watchmen/lookouts. FRA is currently considering amending §§ 214.347 and 214.349 to include a requirement for such training.

Existing § 214.349(a)(3) requires that watchmen/lookouts receive training and qualification on the “[d]etermination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.” FRA believes that requiring qualification on the physical characteristics could potentially aid a watchman/lookout in making the safe distance determination to identify an appropriate location to give train

approach warning. Such a qualification could be important in areas where curves, the possible presence of trains on adjacent tracks, and other unique physical layouts or situations exist. In addition, lone workers often essentially act as roadway workers in charge when performing work on their own. FRA believes that a requirement to be qualified on the physical characteristics at a location where a lone worker fouls track to perform work could similarly improve safety. Qualification on the physical characteristics at a particular location could aid in a lone worker's ability to be able to safely detect approaching trains and similarly make the appropriate distance determination as required by existing § 214.337(a). A discussion of the level of qualification required by a lone worker, to include qualification on physical characteristics, was undertaken in FRA Technical Bulletin G-05-03 (January 10, 2005).

3

This proposed requirement, if adopted in a final rule, would codify the substance of that technical bulletin discussion.

3

Effective January 10, 2005, RWP technical bulletins WPS-99-01 through 99-09 were reissued and designated as technical bulletins G-05-02 through G-05-10. New RWP bulletins G-05-11 through G-05-30, most of which are discussed below, were also issued on that date. These technical bulletins are all available on FRA's internet site at:

http://www.fra.dot.gov/rrs/pages/fp_1532.shtml.

FRA plans, as appropriate, to supplant the majority of these technical bulletins based on changes made to the RWP regulation in any final rule in this proceeding.

To clarify, FRA does not believe that a watchman/lookout or a lone worker would need to be versed in the physical characteristics of an entire territory in the same manner as a roadway worker in charge, and is aware of the challenges such a broad requirement could present to system-wide roadway work gangs on larger railroads. However, FRA seeks comment on its potential inclusion of a provision in a final rule that would require an abbreviated physical characteristics qualification at a particular location where train approach warning is to be given by a watchman/lookout, or at a particular location where a lone worker is to perform work. FRA is considering the inclusion of such a requirement in the final rule issued in this rulemaking. FRA also specifically requests comment on the potential costs that could be associated with this requirement, and the factual basis of any such costs.

D. Use of Tunnel Niches as a Place of Safety

Some railroad tunnels have niches or clearing bays built into their sidewalls that permit roadway workers to occupy a place of safety while performing work in tunnels (typically inspection work). However, some of these niches that are outside the clearance envelope may, by design, be slightly less than four feet from the field side of the rail. Technically, the use of such niches as a place of safety would be a violation of the existing RWP regulation, as a roadway worker occupying such a niche could be “fouling a track” per the existing definition for that term in § 214.7. The Working Group discussed this issue at length, but no consensus solution was reached. The Working Group did, however, decide against modifying the definition of “fouling a track” to accommodate such niches or bays. Working Group discussions indicated that such niches that were outside the clearance envelope but less than four feet from the field side of the rail existed on a small number of railroads, and were located primarily in the Eastern United States. Amtrak indicated that its tunnel niches have been used for 100 years, and are essential to protecting roadway workers in high traffic areas. The BMWED indicated during Working Group discussions that its membership largely did not utilize clearing bays, but rather primarily obtained working limits while fouling track within tunnels.

FRA is not proposing specific text regarding this issue in the NPRM, but is contemplating whether to adopt regulatory text in a final rule that would permit the use of these structures as a place of safety by roadway workers, provided certain safety requirements are complied with. FRA requests further comment on this issue.

FRA anticipates that if the use of such tunnel niches and clearing bays were permitted, that railroads would be required to designate in their on-track safety programs which niches or clearing bays could be used as places of safety. In making such designations, railroads would have to take into account the time it may take an individual to move into such niches or bays when departing a track upon the approach of a train (to ensure that a roadway worker could occupy a designated niche as a place of safety at least 15 seconds before a train would pass the location of the bay, in accordance with the existing requirements of §§ 214.329(a) or 214.337(c)(4)). Requirements that such niches be free from any type of debris or supplies and also be of an adequate size to safely accommodate a roadway worker would also likely be necessary.

E. Highly Visible Protective Equipment for Roadway Workers on Station Platforms

FRA is considering adding a requirement in a final rule in this proceeding to the proposed station platform snow removal and cleaning section (proposed § 214.338) that would require roadway workers performing duties under the procedures proposed in that section to wear highly visible protective equipment (vest or other outer garment) which would meet a standard of the American National Standards Institute/International Safety Equipment Association. The request for comment regarding this item is also discussed further in the section-by-section analysis below.

F. Splitting of Roadway Worker in Charge Qualifications

FRA is considering adopting a requirement in a final rule in this proceeding that would only permit the splitting of roadway worker in charge qualifications to occur in situations where a conductor or other railroad employee serves as a pilot to a roadway worker in charge who is not qualified on the physical characteristics of a particular territory. FRA is considering such, as every roadway work group is already required to have a roadway worker in charge, and if the proposed amendment to paragraph (a) of existing § 214.353 is adopted in a final rule in this proceeding, any employee acting as a roadway worker in charge would be required to be trained on the substantive requirements listed in § 214.353. This issue is detailed further in the section-by-section analysis for § 214.353 below, and FRA specifically requests comment on this issue.

G. Effective Date of Final Rule

FRA currently anticipates that the effective date of a final rule in this proceeding would be 180 days from the date of publication of the final rule in the

Federal Register

. However, FRA is cognizant that depending on when a final rule is published, the training schedules of railroads may have to be taken into account when establishing the implementation schedule. FRA welcomes comment on an appropriate effective or applicability date for a final rule in this matter.

IX. Executive Order 13563 Retrospective Review

In accordance with the requirements of Executive Order 13563, this NPRM proposes to modify the existing RWP requirements, in part, based on what has been learned from FRA's retrospective review of the existing regulation.

Executive Order 13563 requires agencies to review existing regulations “* * * that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”

4

As a result of its retrospective review, FRA is proposing to reduce burdens on the industry by no longer requiring that railroads submit their on-track safety programs to FRA for review and approval before such programs become effective and when any subsequent changes are made to such programs (§ 214.307). FRA is also proposing to delete several sections of the existing RWP regulation it believes to be outmoded or superfluous (§§ 214.302, 214.305, 214.331 and 214.333), and has also proposed to allow for greater industry flexibility in several other sections (§§ 214.317, 214.324, 214.327, 214.337 and 213.338). FRA does not believe that these proposals will reduce safety.

4

Exec. Order No. 13563, 76 FR 3821 (Jan. 21, 2011); available online at

http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.

X. Section-by-Section Analysis

FRA seeks comments on all proposals made in this NPRM. Proposed Amendments to 49 CFR part 214 (Part 214).

Section 214.7 Definitions

FRA proposes to amend the existing definitions section for Part 214 by both adding new definitions and amending existing definitions. FRA proposes to add new definitions for the following terms: controlled point; interlocking, manual; maximum authorized speed; on-track safety manual; roadway worker in charge; station platform work coordinator; and verbal protection. FRA also proposes to amend Part 214's existing definitions for the terms effective securing device and watchman/lookout.

The proposed definition of the term “controlled point” was a consensus recommendation agreed to by the Working Group. This new definition is being proposed because existing § 214.337 prohibits the use of individual train detection by a lone worker inside the limits of a “controlled point.”

See

§ 214.337(c)(3). However, that term is not defined in the existing RWP regulation and over the years interpretive issues have arisen. In response, FRA issued Technical Bulletin G-05-29. The Working Group discussed this topic, and decided to recommend the incorporation of the existing definition for the same term found in FRA's signal and train control regulations (§ 236.782), along with the definition of “interlocking, manual” (the definition for the term automatic interlocking was also adopted as consensus language by the Working Group, but as explained above, is not being proposed by FRA in this NPRM). If definitions for the terms “controlled point” and “interlocking, manual” are adopted in a final rule, those definitions will supplant FRA Technical Bulletins G-05-29 and G-05-11, as discussed further below.

FRA is proposing to amend the definition for existing term “effective securing device” as recommended by the Working Group. The term “effective securing device” is intended to describe an appurtenance preventing the operation of mechanisms that make non-controlled track inaccessible. Since promulgation of the original RWP regulation, a number of interpretive questions have arisen about this definition. In response, FRA issued Technical Bulletin G-05-20 to provide clarity. This new proposed definition incorporates the contents of that technical bulletin in order to clarify what constitutes an “effective securing device.”

The proposed amendment would require that locks used to lock switches or derails for the purpose of providing on-track safety for roadway workers must be keyed to allow for removal by only the roadway workers for whom protection is being provided. In the absence of a lock, the definition would allow a spike to be driven into a switch tie to secure a switch, so long as the spike cannot be removed without the use of railroad track tools. Clamps and metal wedges (solidly driven on a derail securing it to the rail) without a lock would also be acceptable if they cannot be removed without the use of railroad track tools. For example, a clamp that could be removed with an ordinary adjustable wrench would need to be locked. This is to ensure that other employees, such as transportation employees who may attempt to access a track with rolling equipment, could not readily remove such on-track safety protections applied by roadway workers to establish on-track safety.

To clearly identify effective securing devices, and thus, to prevent railroad employees from being injured by attempts to operate a secured device, the throwing handle, hasp, or keeper of the switch or derail shall have a unique tag which is clearly displayed. The unique tag must clearly indicate to other railroad employees, such as trainmen, who may attempt to operate a switch that such switch is secured. If there is no throwing handle, this proposed definition would require that the securing device itself shall be tagged. Regardless of the type of securing device used, each tag must be clearly marked to indicate that it is securing an entrance into inaccessible track.

Members of the Working Group had the opportunity to make comments on a draft of the consensus language after the close of the Working Group meetings. One of those comments, made by the AAR, requested that the consensus language be amended to allow a generic tag, rather than a unique tag, be applied to the throwing handle or hasp of a switch or derail being secured. FRA acknowledges this comment, but has chosen to propose the consensus language as agreed to by the Working Group. However, FRA requests comment by AAR and other interested parties further explaining their request, and will consider amending the wording in the final rule, if appropriate.

FRA has made a minor amendment to the language of the Working Group's consensus recommendation for the definition of this term. FRA removed the phrase “when used in relation to on-track safety” from the first sentence of the proposed definition. FRA removed the phrase because it is unnecessary, as anytime that term appears in part 214 the proposed definition would apply. This change is not substantive in nature, and is intended to reflect conformance with the structure for defining regulatory terms.

FRA is also proposing to adopt the Working Group's recommended definition for the new term “interlocking, manual” (as discussed in Section VI above, FRA is not proposing the consensus definition for the term “interlocking, automatic”, as that term is not actually used in either the proposed or existing regulatory text). As recommended by the Working Group, this definition mirrors the existing definition for the same term in FRA's signal and train control regulation (§ 236.751). Existing § 214.337 prohibits the use of individual train detection at manual interlockings. However, the term “manual interlocking” is not defined. As such, inquiries have arisen regarding what does, or does not, constitute a manual interlocking. In response, FRA issued Technical Bulletins G-05-11 and G-05-29. The following table incorporates the

substance of those technical bulletins and summarizes the applicability of individual train detection on various types of track arrangements:

Track arrangement

Individual train

detection

permitted

Controlled point/manual interlocking with switches, crossings (diamonds), or moveable bridges

No.

Controlled point with signals only—see proposed text of § 214.337(c)(3)

Yes.

Manual interlocking

No.

Automatic interlocking

Yes.

Power operated switch installations

See discussion below.

Power operated switch installations are included in the table above because FRA has received many questions regarding whether certain power operated switch installations, which are operated by train crews to manipulate switch position and have wayside indication devices that convey the position of a switch, are considered to be manual interlockings. Typically, they are not. The use of individual train detection by a lone worker at power operated switch installation locations is permitted if:

• The signals at these installations do not convey train movement authority.

• The switch installation is not controlled by a train dispatcher or control operator, and is not part of a manual interlocking or controlled point.

FRA notes again that lone workers performing work at these installations, or any other locations where the use of individual train detection is permitted, have the absolute right to use a form of on-track safety other than individual train detection.

See

§ 214.337(b). Also, regardless of the type of on-track safety being utilized, FRA notes that all roadway workers should be cognizant of potential pinching hazards associated with performing work on such power-operated switches. FRA further notes that switches which can either be manipulated by hand or by a train dispatcher or control operator, typically referred to as “dual control switches”, are located within manual interlockings or controlled points and the use of individual train detection within these installations is prohibited.

Existing § 214.329(a) requires that train approach warning be given in sufficient time for a roadway worker to “occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum speed authorized on that track can pass the location of the roadway worker.” Existing § 214.337(c) contains a similar requirement for lone workers. However, no definition for such maximum speed authorized exists in the current RWP regulation. Accordingly, the Working Group addressed this issue and reached consensus on a definition of the term “maximum authorized speed.”

5

FRA proposes to largely adopt the Working Group's consensus definition, which, for purposes of part 214, is the permanent speed designated for a track in a railroad's timetable, special instructions, or bulletin. The Working Group agreed that using a temporary speed restriction as the basis for determining the appropriate train approach warning distance could pose inherent dangers. That danger occurs in situations where a party might remove a temporary restriction from a particular segment of track without notifying the roadway work group or lone worker using that temporary speed restriction to determine the appropriate train approach warning distance. FRA notes that this new definition would also apply in the context of certain new RWP requirements promulgated in the adjacent track final rule discussed above. Similar to the proposed definition for the term “effective securing device” discussed above, FRA has made a minor amendment to the language of the Working Group's consensus recommendation for the definition of this term. FRA removed the phrase “for on-track safety purposes” from the proposed definition. FRA removed that phrase because it is unnecessary, as anytime this term appears in part 214, the proposed definition would apply. This change is not substantive in nature, and is only intended to conform with regulatory drafting practices.

5

The difference in word order between the proposed definition and the wording as it appears in existing § 214.329(a) is addressed in the section-by-section analysis for § 214.329 below.

FRA is also proposing a definition for the term “on-track safety manual.” Existing § 214.309 requires each roadway worker in charge and lone worker to have with them a manual containing the rules and operating procedures governing track occupancy and protection. The Working Group agreed to recommend consensus amendments to that existing section, where such manual is referred to as an “on-track safety manual.” As such, the Working Group also came to consensus on a recommended definition for this new term. This proposed definition is intended to provide clarity regarding the materials that must be included in the on-track safety manual, as the manual is a critical element of any on-track safety program. FRA previously issued Technical Bulletins G-05-12 and G-05-25, both of which addressed concerns regarding the requirement regarding such manuals. The following is a general discussion of on-track safety manual requirements.

First, via existing §§ 214.311(b)-(c) and 214.313(d), roadway workers have the right to challenge in good faith whether the on-track safety procedures to be applied at a job location comply with the operating rules of the railroad. Thus, the good faith challenge procedures must be included in a railroad's on-track safety manual, as roadway workers at a work site may require access to the procedures for making such a challenge. FRA has left to a railroad's discretion how to best fulfill this requirement. The documents fulfilling the requirement could take many forms, including a simple set of instructions explaining the good faith challenge procedures, a flow chart that roadway workers could follow when invoking a challenge, or even a form for a roadway worker to fill out when making such a challenge that explains the challenge procedures.

FRA Technical Bulletin G-05-12 explains that the on-track safety manual could take the form of: (1) One document containing on-track safety procedures, good faith challenge procedures, and on-track safety operating rules of a railroad (absent operating rules not pertaining on-track safety); or (2) a binder system holding together separate documents such as the on-track safety procedures, on-track safety operating rules, and all operating rules/procedures, with the on-track safety procedures and good faith challenge procedures composing tabs or sections of that binder. The RWP regulation does not specify that a

roadway worker in charge must have the railroad's timetable and/or special instructions readily available along with the on-track safety manual. However, if the timetable and/or special instructions contain operating rules or instructions that affect the on-track safety procedures of roadway workers, those documents must also be available with the on-track safety manual.

If a railroad chooses not to use certain methods of establishing working limits or on-track safety, it is not necessary to include procedures for establishing those types of on-track safety in its on-track safety manual. For example, if a railroad chooses not to use “foul time” via § 214.323 as a method of establishing working limits, “foul time” procedures do not need to be included in that railroad's on-track safety manual. Likewise, a short line railroad that does not have any controlled track would only utilize § 214.327 (inaccessible track) as a form of working limits, and would not need to include procedures governing the establishment of other forms of working limits.

If a railroad uses electronic display of authorities to establish working limits, as is proposed in new § 214.322 below, the use of such display would also need to be addressed in the on-track safety manual. Also, FRA notes that part 214 does not prohibit the use of an electronic device that can display the contents of an on-track safety manual as an alternative to a written copy (hard copy) of an on-track safety manual. So long as the contents of the on-track safety manual are readily viewable via an electronic device, FRA would not take exception to the use of such device. However, if a device malfunctions such that the contents of the on-track safety manual could not be retrieved and viewed, a printed copy of the on-track safety manual must be readily available for a roadway work group to continue its work. If no alternative on-track safety manual is available, the roadway work group must cease its work and occupy a place of safety.

FRA also notes that the general procedures applicable to all machines and roadway workers must be included in the on-track safety manual (

e.g.,

machine-to-machine spacing and space between roadway workers and machines as established by existing § 214.341). However, § 214.341 requires that unique instructions for the safe operation of roadway maintenance machines must be provided and maintained with each machine if such machine is large enough to carry the instruction document. If feasible, FRA recommends that these machine-specific instructions be incorporated into the on-track safety manual as well.

Finally, FRA has amended the proposed definition for the term “on-track safety manual” slightly from that as recommended by the Working Group. FRA inserted the words “designed to” into the first sentence of the proposed definition. This change is to reflect that the instructions in the manual, if followed, are designed to prevent roadway workers from being struck by trains, rather than the instructions themselves preventing such collisions. This amendment is intended to be clarifying in nature, not substantive.

FRA is also proposing a definition for the existing term “roadway worker in charge.” The term is used in existing § 214.321, and is also described interchangeably throughout the existing regulation as the “roadway worker responsible for the on-track safety of others”, the “roadway worker designated by the employer to provide for on-track safety for all members of the group”, the “roadway workers in charge of the working limits”, as well as by other similarly descriptive terms. The Working Group recommended consensus language for this rulemaking which also uses the term “roadway worker in charge” in several places. However, that term is not defined in the existing regulation, and the Working Group did not reach agreement on a recommended definition of the term.

As such, FRA is proposing a definition for the term “roadway worker in charge.” The proposed definition mirrors the existing definition for the term found in FRA's Railroad Operating Practices Regulation (see § 218.93). FRA is also proposing amending numerous sections of part 214 to substitute the term “roadway worker in charge” for the wide variety of different terms listed above which are currently used to describe the roadway worker who is in charge of a roadway work group and establishes on-track safety for that group.

Regarding the “roadway worker in charge” definition, FRA wishes to address a related issue. Inquiries are often made regarding whether a roadway worker in charge is simultaneously allowed to provide train approach warning under existing § 214.329 as a watchman/lookout. A roadway worker in charge may only perform watchman/lookout duties so long as the requirements of § 214.329 are met. Section 214.329(b) requires that watchmen/lookouts “shall devote full attention to detecting the approach of trains and communicating warning thereof, and shall not be assigned any other duties while functioning as watchmen/lookouts.” Thus, a roadway worker in charge could not perform any other duties, such as providing direction to a roadway work group, while simultaneously serving as a watchmen/lookout. The limitation on performing other tasks while simultaneously serving as a watchman/lookout severely limits the instances in which a roadway worker in charge may permissibly fill both roles. Also, if a roadway worker in charge also intends to serve as a watchman/lookout for a roadway work group, a discussion of such would have to take place during the job briefing as required by existing § 214.315(a), and would be subject to the good faith challenge provisions of part 214. FRA stresses that it is extremely safety-critical that a watchman/lookout devote full attention to detecting trains and not perform any other tasks while providing on-track safety for a roadway work group.

FRA is also proposing a definition for the new term “station platform work coordinator” in this NPRM, because FRA is also proposing new procedures for “station platform work coordinators” to oversee snow removal and light cleaning on passenger station platforms. See discussion of proposed § 214.338 below. This topic was discussed at length during the Working Group meetings, but no consensus was reached. A “station platform work coordinator” refers to a roadway worker who coordinates the on-track safety for a roadway work group performing snow removal or cleaning activities on a passenger station platform, and who is qualified in accordance with new proposed training § 214.352.

FRA is also proposing a definition for the new term “verbal protection” in this NPRM. Similar to “foul time”, “verbal protection” is a proposed method of establishing working limits within an interlocking or controlled point via new proposed § 214.324. This new proposed § 214.324 is a Working Group consensus item, and is meant to accommodate the method of establishing working limits utilized by railroads in the western portion of the United States. This new § 214.324 is discussed at length further below in the section-by-section analysis. The Working Group did not contemplate a definition for this new term, but FRA has proposed one that is similar to the existing definition of “foul time”, except that it refers to establishing working limits within an interlocking or a controlled point, rather than on controlled track outside the limits of those configurations.

Finally, FRA is proposing to amend the existing definition for the term “watchman/lookout”. The only

proposed change to the definition is to account for the proposed new § 214.338 regarding the use of station platform work coordinators, as discussed further below. Section 214.338(a)(2) of the proposed station platform work coordinator provision requires train approach warning be given that would require roadway workers to withdraw hand-held, non-powered tools from the edge of a passenger station platform upon the approach of a train. However, that section states such warning may be based on available sight distance at the platform and may give less than the 15 seconds notice prescribed by existing § 214.329(a). The proposed amendment to the definition of “watchman/lookout” acknowledges this difference.

FRA is also requesting comment on whether the existing definition of the term “watchman/lookout” should be further amended in a final rule in this proceeding. The existing definition states, in part, that a watchman/lookout “means an employee who has been annually trained and qualified to provide train approach warning to roadway workers of approaching trains or equipment.* * * ” However, as discussed below, the frequency of refresher training and qualification requirements for additional roadway worker qualifications (

e.g.,

for a lone worker, watchman/lookout, flagman, or roadway worker in charge qualification) is not currently specified. Existing § 214.349(b) only currently states that “[i]nitial and periodic qualification of a watchman/lookout shall be evidence by demonstrated proficiency,” mirroring the other existing additional roadway worker qualification sections. As discussed both above and below, FRA is requesting comment on the refresher training and qualification requirements for the additional roadway worker qualifications. Thus, FRA requests comment on whether the word “annually” should be removed from existing definition of “watchman/lookout” in order that the definition more accurately reflect both the current and any future RWP refresher qualification and training requirements, and also for purposes of consistency with the other existing additional roadway worker qualification definitions.

Subpart B—Bridge Worker Safety Standards

Section 214.113 Head Protection

FRA proposes to amend three existing sections in subpart B (Bridge Worker Protection) to delete the existing incorporations by reference to certain outdated industry standards for personal protective equipment (PPE). Specifically, §§ 214.113, 214.115, and 214.117, contain incorporations by reference to certain standards governing head, foot, eye, and face protection, respectively. Those sections were originally promulgated in 1992 when an FRA final rule establishing subpart B was published and reference standards dating back to 1986. 57 FR 28116 (June 24, 1992). Although the regulatory requirements have not been substantively updated in some time, the standards themselves have been updated. Employers and employees may currently have difficulty obtaining PPE manufactured in accordance with the standards currently incorporated by reference. As such, FRA is proposing to amend these existing sections to reflect that the standards incorporated by reference have been updated. In doing so, FRA wishes to allow for the continued use of any existing equipment which meets the standards currently incorporated by reference, as well as for the use of equipment meeting updated versions of those standards.

FRA's incorporations by reference of PPE standards in subpart B were initially patterned after certain OSHA general industry PPE standards located in Title 29 of the Code of Federal regulations. OSHA faced a situation similar to that FRA currently faces with regard to updating its PPE incorporations by reference. As such, OSHA updated those standards in a 2009 final rule. 74 FR 46350 (Sept. 9, 2009). OSHA's updates to the PPE regulations that correspond to FRA's subpart B PPE regulations (29 CFR 1910.133(b), 1910.135(b), and 1910.136(b)) allow for the continued use of PPE meeting older standards which had previously been incorporated by reference, as well as the use of PPE meeting updated versions of those same standards. OSHA's corresponding regulation also permits “employers to use subsequent national consensus standards that they can demonstrate provide the requisite level of employee protection.” 74 FR 46353. OSHA has indicated that that agency will update the standards referenced in its PPE regulations via direct final rulemaking as new editions of those standards become available.

Id.

As such, FRA has decided to propose deleting its existing subpart B incorporations by reference. FRA proposes to replace those incorporations by reference by requiring that PPE comply with OSHA's corresponding general industry regulations. FRA has also decided to propose such because the setting of PPE standards falls more appropriately within OSHA's area of expertise, and that agency is better suited to update these standards as appropriate. As explained in the preamble to the 1992 FRA final rule promulgating the subpart B PPE regulations, “[m]any federal agencies and manufacturers rely on OSHA's research abilities and expertise in formulating procedural guidelines and performance criteria that reduce exposure to the risk of injury. FRA is relying on OSHA's greater expertise in occupational health and safety.” 57 FR 28116.

FRA's proposal is illustrated as follows. Section 214.113 governs head protection for railroad bridge workers. FRA proposes to update this section by deleting the existing incorporation by reference to American National Standards Institute (ANSI), Z89.1-1986, Protective Headwear for Industrial Workers. In its place, FRA proposes to reference the requirements of 29 CFR 1910.135(b), OSHA's general industry head protection PPE regulation. Section 1910.135(b) not only permits the use of head protection meeting ANSI standard Z89.1-1986 (FRA's current standard incorporated by reference), but also incorporates two updated versions of that standard as well. Under this proposal, equipment meeting the standard currently incorporated by reference in existing § 214.113 would be permitted to be used indefinitely, and equipment meeting more updated versions of that standard would also be permitted to be used. Adoption of this proposal would help facilitate compliance with Federal regulation, and would also eliminate any economic concerns associated with updating PPE standards, as equipment currently in use which conforms to the requirements of existing 49 CFR 214.113(b) would be permitted to continue in use indefinitely. FRA acknowledges that the most recent ANSI standard listed in OSHA's updated Section 1910.135(b) is the 2003 standard. FRA has learned that, in the interim, between the time of publication of OSHA's 2009 final rulemaking to present, that another updated ANSI head protection standard has been released. However, as mentioned above, 29 CFR 1910.135(b)(2) provides that head protection that an employer demonstrates is “at least as effective as head protection devices that are constructed in accordance with ” the consensus standards “will be deemed to be in compliance with the requirements of [1910.135(b)].” Therefore, in interim time periods between when updated versions of the standards incorporated by reference are introduced and OSHA decides to adopt those standards in a

direct final rulemaking, PPE acquired by railroads or employers that conforms to an updated version of the standards incorporated by reference may still comply with the requirements of OSHA's regulation. However, FRA requests comment on this particular point, both with regard to this section and to the parallel proposed amendments to §§ 214.115 and 214.117 below.

Section 214.115 Foot Protection

Section 214.115, governs foot protection for bridge workers. Similar to the proposed amendments to § 214.113 discussed above, FRA proposes to update this section by deleting the existing incorporation by reference to ANSI American National Standard Z41-1991, Standard for Personal Protective Equipment Footwear. In its place, FRA proposes to reference OSHA's general industry foot protection regulation at 29 CFR 1910.136(b). Section 1910.136(b) permits the use of foot protection meeting ANSI standard Z41-1991, and also permits the use of PPE meeting updated versions of that standard. Section 1910.136(b) also reflects that ANSI Z41 was withdrawn and replaced by two ASTM standards in 2005. Adoption of this approach would help eliminate any potential costs associated with the continual updating of PPE standards, while also facilitating compliance with Federal regulation.

Section 214.117 Eye and Face Protection

Finally, § 214.117, governs eye and face protection for bridge workers. Similar to the proposed amendments to §§ 214.113 and 214.115 discussed above, FRA proposes to update this section by deleting the existing incorporation by reference to ANSI Standard Z87.1-1989, Practice for Occupational and Educational Eye and Face Protection. In its place, FRA proposes to cross reference OSHA's general industry foot protection regulation at 29 CFR 1910.133(b). Section 1910.133(b) permits the continued use of eye and face protection meeting ANSI standard Z87.1-1989, and also permits the use of PPE meeting two updated versions of that standard. Adoption of this approach would help eliminate any potential costs associated with the continual updating of PPE standards, while also facilitating compliance with Federal regulation.

Subpart C—Roadway Worker Protection

Section 214.301 Purpose and Scope

Section 214.301 sets forth the purpose and scope of subpart C of part 214. FRA is proposing to amend only paragraph (c) of this section. FRA is proposing regulatory text to clarify existing paragraph (c)'s meaning and also to address a certain situation that has arisen since the 1996 promulgation of the RWP regulation. Specifically, the second sentence of existing paragraph (c) permits the movement of roadway maintenance machines to be conducted under the authority of a train dispatcher, a control operator, or the operating rules of a railroad. As such, FRA Technical Bulletin G-05-14 explained that under existing paragraph (c) “[r]oadway maintenance machines operating/traveling over non-controlled track do so under the operating rules of the railroad.” When these machines are actually conducting work, however, on-track safety must first be established (

e.g.,

if working on non-controlled track, working limits must be established via the inaccessible track working limits procedures of § 214.327). FRA is proposing regulatory text that explicitly states that while roadway maintenance machines are traveling under the authority of a train dispatcher, a control operator, or the operating rules of the railroad, on-track safety in accordance with part 214 is not required to be established for such movements. This amendment is not substantive in nature and is only intended to clarify the existing meaning of this paragraph. An example of a roadway maintenance machine movement permitted to be conducted under this section would be the movement of a roadway maintenance machine between two separate work locations. Another example would be when traveling to or from a work location, or traveling between a worksite and a repair or storage facility.

6

6

FRA is also proposing an RSAC consensus recommendation at § 214.317 below, whereby roadway workers conducting snow blowing and weed spraying operations on non-controlled track would be permitted to conduct such operations under this existing section rather than being required to establish working limits in all circumstances.

FRA wishes to discuss another situation that often occurs with regard to this topic. Railroad officials (such as transportation superintendents) often travel their territories in hi-rail vehicles for a variety of purposes. Because a railroad official such as a transportation superintendent would not typically be a “roadway worker” under that term's definition at § 214.7, such movements are not subject to the requirements of subpart C. However, most roadway maintenance machine operators are roadway workers as their duties include the inspection, construction, maintenance, or repair of railroad track, bridges, roadway, signal and communication systems, electric tractions systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track. Any roadway maintenance machine movements made by roadway workers are required to comply with the requirements of subpart C, and part 214 generally (

i.e.,

if a roadway maintenance machine is merely “traveling” it may be moved in accordance with paragraph (c) of this section without the establishment of working limits, but if a roadway maintenance machine is actually conducting work, working limits must be established, unless part 214 contains an exception for a particular type of operation).

FRA is also proposing an amendment to paragraph (c) to address a potential safety issue that has arisen when roadway maintenance machine movements are made on non-controlled track under this section. Movements on non-controlled track may be made without authorization from a train dispatcher or control operator, per the definition of the term “non-controlled track” at § 214.7. Thus, such movements have traditionally been made under railroad operating rules requiring that they be made at speeds not exceeding restricted speed. Restricted speed rules require that trains or other on-track equipment be able to stop within one-half the operator's range of vision. The requirement to stop within one-half the range of vision prevents collisions between any equipment that may be operating on the same non-controlled track. As such, under existing § 214.301(c), operations at restricted speed allow for roadway maintenance machines to safely travel over non-controlled track without having to establish working limits. FRA is aware, however, that some stretches of non-controlled track have been equipped with automatic block signal (ABS) systems. ABS systems are designed to prevent collisions while allowing for trains to operate at speeds greater than restricted speed. This scenario is problematic for purposes of the movement of roadway maintenance machines on non-controlled track under existing paragraph (c) because roadway maintenance machines do not all shunt ABS signal systems. Absent the establishment of inaccessible track working limits or other protections, nothing prevents a train operating on non-controlled ABS-signaled track at a speed greater than restricted speed from colliding with roadway maintenance machines traveling on the same track

that do not shunt the signal system (no authority is needed to occupy such track and trains are not required to stop within one-half their operator's range of vision).

Based on the above-described situation, FRA is proposing that roadway maintenance machine movements on non-controlled track may only be made under paragraph (c) (

e.g.,

without establishing working limits) if train and locomotive speeds on such track are required to be made at restricted speed. Because such situations have arisen in the past, FRA is proposing regulatory text to prevent future occurrences.

7

As explained above, FRA believes that most non-controlled track is already limited to restricted speed operations (with one exception being block register territories, which are addressed further in proposed § 214.327(a)(7) below). Thus, this proposed requirement should not represent a cost burden to the industry. However, in order to provide additional flexibility on this point, FRA is proposing that railroads may also utilize other operating rules that provide a level of protection equivalent to that provided by the provisions of restricted speed rules on non-controlled track. As proposed, such other operating rules must first be approved by FRA in writing if they are intended to be used to satisfy this requirement.

7

One Class I railroad had a significant stretch of ABS non-controlled track (within yard limits) where such a situation did exist, and an incident occurred where a hi-rail machine was struck by a train. FRA is aware that this railroad has since required movements over this track to be made at restricted speed. Another Class I railroad has such a situation involving non-controlled signaled track, but while moving roadway maintenance machines over such track, FRA understands that the railroad creates working limits via a dispatcher controlling the signals at either end of the non-controlled limits to make such limits inaccessible.

FRA notes that this proposed provision only refers to train and locomotive speeds on non-controlled track. This provision would not affect the speeds that roadway maintenance machines are authorized to travel over non-controlled track. Existing § 214.341 already requires each railroad's on-track safety program address the spacing between machines and the maximum working and travel speeds for machines depending on weather, visibility, and stopping capabilities. Roadway maintenance machines typically have stopping capabilities far in excess of that of trains. The intent of this provision is to address situations where trains and locomotives are not required to stop within one-half the range of vision on non-controlled track, and could collide with roadway maintenance machines that do not shunt signal systems.

Section 214.302 Information Collection Requirements

FRA is proposing to remove this existing section from part 214. This section is both outdated and superfluous, as the Paperwork Reduction Act section below lists all of the information collection requirements pertaining to each section of part 214 as proposed in this NPRM. The Paperwork Reduction Act discussion that will be published in a final rule in this proceeding will also list all final information collection requirements. For a detailed summary of the information collection requirements, please see the Paperwork Reduction Act discussion in Section XI of the preamble below.

Section 214.305 Compliance Dates

FRA is proposing to delete existing § 214.305, as that section is now obsolete. Section 214.305 only references the phase-in dates by which a railroad's on-track safety program was required to comply with the original 1996 RWP rulemaking. Those dates are no longer applicable, and existing railroads' programs have been required to comply with the RWP regulation since those dates in 1997. Further, if a new railroad that is subject to part 214 is formed, that railroad's program is required to comply with the requirements of the existing RWP regulation upon commencing operations, as already established by existing §§ 214.301, 214.303, 214.317, and 214.335. Currently, the relevant date by which a railroad's on-track safety program will be required to comply with any changes or additions to the RWP regulation that are adopted by FRA in this rulemaking will be the effective date of any final rule issued.

Section 214.307 Review of Individual On-Track Safety Programs by FRA

Existing § 214.307 requires railroads to notify FRA in writing at least one month in advance of its on-track safety program becoming effective and sets forth FRA's formal review and approval process for such plans. FRA is proposing to amend this section to modify the existing on-track safety program approval process. This proposed revision was not contemplated by the Working Group, but parallels similar updated requirements in recent FRA rulemakings and is intended to ease burdens imposed under the existing section.

First, the proposed text would rescind the current requirement in this section that railroads notify FRA not less than one month before the effective date of their on-track safety programs. The proposed text also modifies the existing requirement that FRA review and approve every railroad's program. The proposed text would instead only require that FRA be permitted to review a railroad's on-track safety program upon request. This proposed change reflects that, generally, the railroad industry now has much experience with this regulation, as the regulation has been in effect for approximately 15 years. As such, the wholesale review of every aspect of a railroad's program that took place when the original rule was promulgated is not warranted. The approach as proposed in this section recognizes that typically FRA would review a railroad's program during audits or investigations. Upon review of a program, the proposed text would provide FRA's Associate Administrator for Railroad Safety/Chief Safety Officer with the authority to disapprove a program if it does not meet the requirements of part 214.

If the FRA Associate Administrator for Railroad Safety/Chief Safety Officer disapproves a program, proposed paragraph (b)(1) provides that a railroad would be required to respond within 35 days by either amending its program and submitting those proposed amendments for approval, or by providing a written response in support of its program. FRA's Associate Administrator for Railroad Safety/Chief Safety Officer would subsequently render a decision in writing either approving or disapproving the program. Paragraph (b)(2) provides that FRA would consider a failure to submit an amended program or provide a written response as required by the section to be a failure to implement a program under this part.

The proposed amendments to this section also ease the burden on both railroads and FRA as railroads would no longer be required to notify FRA of changes to their on-track safety programs, and FRA would be able to better utilize its limited resources to address legitimate safety concerns brought to its attention, rather than conducting mandatory reviews of on-track safety programs, the bulk of whose contents have already been established and approved by FRA for many years. Finally, the proposed text would also eliminate reference to the compliance dates in § 214.305, because as explained above, those dates are obsolete.

Section 214.309 On-Track Safety Manual

Existing § 214.309, titled “On-track safety program documents,” mandates, in part, that rules and operating procedures governing track occupancy and protection be maintained together in one manual and be readily available to all roadway workers. With minor exceptions (discussed below), FRA is proposing amendments to this section consisting of consensus language recommended by the Working Group. As explained above in the section-by-section analysis for the definitions section, the proposed revisions to this section incorporate the definition for the new term “on-track safety manual.” That definition and the discussion above establish the minimum contents such manual should include. FRA is also proposing to amend the title of this section, to more accurately reflect the proposals to update this section.

Proposed paragraph (a) of this section incorporates the new proposed term “on-track safety manual.” Other than that change, the Working Group's consensus recommendation language for the first sentence of this paragraph then only repeated the text of the section as it currently exists. However, that existing language describes the “[r]ules and operating procedures governing track occupancy and protection,” which is the language that described what is now being proposed to be expressly defined as the “on-track safety manual.” As there is now a proposed definition for that term which describes what must be included in the on-track safety manual, the description of those items as it exists in the current regulation text is no longer necessary. Thus, FRA has proposed to amend the first sentence of the Working Group's recommended paragraph (a) to state “[t]he applicable on-track safety manual (as defined by § 214.7) shall be readily available to roadway workers.”

Proposed paragraph (b) addresses the difficulty that a lone worker, such as a signal maintainer or a walking track inspector, might experience in carrying a large on-track safety manual. Paragraph (b) proposes that a railroad must provide for an alternate process for such a lone worker to obtain on-track safety information. The alternate process may include the use of a phone or radio for the lone worker to contact an employee who has the contents of the on-track safety manual readily accessible. FRA has added the words “on-track safety” before the word “manual,” which appears twice in this proposed paragraph. This amendment to the consensus recommendation is to consistently and accurately refer to the newly proposed term “on-track safety manual” throughout this section.

Although FRA is adopting the Working Group's consensus language recommended to be included in the last sentence of proposed paragraph (b) (which read “[s]uch provisions for alternative access shall be addressed and included in the training provisions of § 214.347”), FRA is moving that language to § 214.347, which is discussed further below. FRA decided to make this change in the interests of simplicity and ease of use of the regulations. By putting the consensus language recommended by the Working Group setting forth this substantive training requirement in the lone worker training section itself (§ 214.347), FRA eliminates an unnecessary cross reference to another section of the RWP regulation, and thus keeps the applicable training requirements in the actual training sections.

Proposed paragraph (c) recognizes that in practice changes often occur to on-track safety rules and procedures. Often, it is necessary for a railroad to publish and distribute new or revised on-track safety measures or protection rules on an as-needed basis before those documents can be permanently incorporated into a revised manual, or to sometimes publish temporary changes to a program via bulletin or notice. While these amendments to an on-track safety program must be incorporated into an on-track safety manual, existing § 214.309 does not include any allowance for the temporary nature of some documents or the practical difficulties with incorporating such changes immediately after issuance. This proposed text would account for updates or changes to the on-track safety manual.

Section 214.315 Supervision and Communication

Existing § 214.315 mandates that job briefings be provided to roadway workers assigned duties that require the fouling of track and sets forth certain communication requirements between members of a roadway work group, and, in the case of a lone worker, between that lone worker and his or her supervisor or other designated employee. The Working Group recommended that FRA add new requirements to existing § 214.315. Those items largely govern the substance of job briefings performed prior to roadway workers fouling track, and also change reference to these job briefings to “on track safety job briefing[s].” Most of those consensus recommendations were addressed in FRA's adjacent track rulemaking. 74 FR 74614. However, one item that was not included in the adjacent track rulemaking involves information during the on-track safety job briefing regarding the accessibility of the roadway worker in charge and alternative procedures in the event the roadway worker in charge is not accessible to the members of the roadway work group. FRA is now proposing the recommended consensus language addressing this issue.

As a roadway worker in charge is the person who establishes and directs the on-track safety for a roadway work group, it is critical that each roadway worker in a roadway work group have access to the roadway worker in charge. Access is necessary where a member of the group invokes a good faith challenge, or where he or she has other questions concerning the established on-track safety protection. Thus, a roadway worker in charge must be located in the immediate vicinity of the work activity. As discussed in FRA Technical Bulletin G-05-07, sometimes it may be necessary for a roadway worker in charge to depart a work location for a short period to travel to another area encompassing the same work activity (

e.g.,

to conduct on-track safety checks throughout a large mechanized production activity). During such periods where the roadway worker in charge may be away from a work site for a short period, it is imperative the roadway work group have a readily available means to communicate with this employee. When a roadway worker in charge departs a work site for an extended period, a substitute employee with the relevant qualifications must be designated. If any exclusive track occupancy authorities are involved, the change in the roadway worker in charge designation must be formally addressed in the railroad operating rule. To eliminate confusion, FRA notes that this recommended consensus item regarding the accessibility of the roadway worker in charge was initially listed by the Working Group as new paragraph (a)(3) of § 214.315. However, after numbering and other minor changes as promulgated in the adjacent track rulemaking, FRA is proposing to include this provision as new § 214.315(a)(5). In the regulation text as proposed below, new paragraphs (a)(3) and (a)(4) of this section, as promulgated in the adjacent track rulemaking, also appear again. This is to reflect that FRA has to remove the “and” from the end of paragraph (a)(3) and move it to the end of paragraph (a)(4). This change is necessary as the

newly proposed (a)(5) would be the new last paragraph under (a).

FRA is also proposing a minor change to existing § 214.315(b). FRA is proposing to replace the word “worker” in the first sentence of that paragraph with the word “worker(s)”, merely to reflect that roadway work groups often include multiple roadway workers. In addition, FRA is proposing to slightly amend existing paragraphs (c) and (d) of this section, by adding the new term “roadway worker in charge” to the first sentence of each of those paragraphs. The new term replaces the existing language in those paragraphs that generically refers to the person or roadway worker designated to provide on-track safety for a roadway work group. It is generally understood by the industry that this person is the “roadway worker in charge.” This change, along with the new definition for that term, only acknowledge this understanding and provide uniformity of reference to “roadway worker[s] in charge” in the regulation text. Finally, FRA is proposing to amend the first sentence of paragraph (e) of this section to replace the words “job briefing” with “on-track safety job briefing”, merely for uniformity to reflect the Working Group's consensus recommendation regarding job briefings as referred to in paragraph (a) of this section.

Section 214.317 On-Track Safety Procedures, Generally

Currently, § 214.317 generally requires employers to provide on-track safety for roadway workers by adopting on-track safety programs compliant with §§ 214.319 through 214.337. FRA is proposing two substantive amendments to this existing section. These two proposed amendments are consensus recommendations of the Working Group and would impose requirements for roadway workers who walk across railroad track and provide for new allowances when snow removal or weed spraying operations are conducted on non-controlled tracks.

FRA is proposing to redesignate the existing text of § 214.317 as paragraph (a) of this section in order to account for the additional proposed amendments. In that existing text, FRA is proposing to amend the reference to § 214.337 to instead refer to proposed § 214.338. This change is to acknowledge that if proposed § 214.338 is adopted in a final rule, § 214.337 would no longer chronologically be the last section in this part governing on-track safety procedures, but rather the last section would be § 214.338.

Consistent with the consensus recommendation of the Working Group, FRA is proposing a new paragraph (b) regarding procedures for roadway workers to walk across railroad track. This section addresses the practical reality that roadway workers often have to walk across tracks while not directly engaged in activities covered by the existing RWP regulation. For example, a roadway worker might incidentally walk from a work site on a track in which working limits are in effect to a vehicle adjacent to the right of way. While walking to a vehicle, a roadway worker may have to cross over other “live” tracks where working limits or another form of on-track safety is not in effect. This proposed section, a consensus recommendation of the Working Group, is intended to prevent roadway workers from being struck by trains while incidentally crossing track, while at the same time recognizing the need for procedures enabling roadway workers to cross tracks safely without the need for formal on-track safety to be in place.

Proposed paragraph (b) would require that if roadway workers walk across track they must first stop and look in all directions from which a train or other on-track equipment could approach before starting across, in order to ensure they may safely clear the track before the arrival of any train or other on-track equipment. The proposal to require roadway workers to stop and look before crossing a track would provide an opportunity for roadway workers to physically stop what they are doing and consider the on-track circumstances before proceeding across live track. Although the Working Group recommended that roadway workers “look in both directions” before crossing any track, FRA has amended that consensus language to require roadway workers look in “all directions from which a train or other on-track equipment could approach.” FRA understands the Working Group's recommendation, but to require roadway workers to look in “both directions” without providing further context is ambiguous. FRA believes it is more precise to require roadway workers to first look in all directions from which a train could approach before crossing track. This proposed amendment also acknowledges that varying physical layouts could allow for trains to approach from more than two directions (a diamond, certain turnouts, etc.).

Next, asserting that depending on the sight distances groups of tracks may be safely crossed without stopping between each track, in post-Working Group comments on the consensus recommendations, AAR requested that FRA amend the language to permit roadway workers to walk across more than one track at a time without stopping and looking before crossing each track. FRA agrees that in certain instances, where sight distance allows, multiple tracks may be crossed safely without stopping and looking between each track. FRA is concerned, however, that incorporating such a change into the regulatory text with no limiting language could potentially be unsafe in certain circumstances (

e.g.

, walking across tracks in a hump yard where there may be limited sight distance and the constant potential for rolling equipment to simultaneously be moving on many tracks exists). Accordingly, FRA is not proposing to deviate from the recommended consensus language in this regard, but requests additional comment on whether a roadway worker should be required to look in all directions before crossing each track.

Paragraph (b)(1) proposes to require that railroads adopt rules governing how roadway workers determine that it is safe to cross track, and that employees comply with those rules. FRA is modifying the language recommended by the Working Group by inserting the words “governing how to” into the lone sentence in this paragraph, as the rules themselves do not determine that it is safe to cross the track, but they govern the conduct of the person making that determination. This change is not substantive, and is intended for clarity only. Paragraph (b)(2) proposes to require that roadway workers move directly and promptly across tracks. Again, FRA modified the Working Group's recommended language by adding the word “shall” into the consensus language of that paragraph. FRA added “shall” in order to clearly indicate that this would be a mandatory requirement. Proposed paragraph (b)(3) would establish that § 214.317(b) would not substitute for the on-track safety that is required when roadway workers are required to foul a track while actually engaged in roadway worker duties.

FRA notes, as discussed in relation to the definition of the term “roadway worker” above, that when a roadway worker fouls track to install a device such as a portable derail or temporary sign to delineate working limits, on-track safety is required to be established. This proposed paragraph would not amend that existing requirement. FRA is also removing the words “as defined in the rule” from the language recommended by the Working Group, as neither the existing RWP regulation nor this NPRM define on-track equipment. In the context of this section, FRA would interpret roadway maintenance

machines, hi-rail vehicles, or any other on-track equipment with the capability to strike a roadway worker as on-track equipment.

FRA does not intend for this new paragraph (b) to apply to what is commonly referred to as “casual fouling.” For example, if a track inspector is conducting a track inspection on No. 1 track from a hi-rail vehicle and on-track safety is provided for on No. 1 track (

e.g.

, by exclusive track occupancy), typically no occupancy authority exists on the adjacent No. 2 track. If the track inspector departs the hi-rail vehicle on the same side as the adjacent track, and the centerline distance is insufficient to enable the employee to remain clear of the adjacent track as the inspector walks along the hi-rail vehicle to reach the front or rear of the vehicle, such fouling of the adjacent track would not be considered a “track crossing” under paragraph (b).

As a related matter, proposed paragraph (b) is not intended to affect how roadway workers move over highway-rail grade crossings. The movement of workers or equipment over designated public or private highway-rail grade crossings should occur in accordance with traffic laws and railroad safety rules (

e.g.

, adherence to active and passive warning devices). Trains always have the right-of-way at highway-rail grade crossings. FRA notes that if any type of work activity as regulated under existing part 214 occurs at a highway-rail grade crossing, such an activity would require that an appropriate form of on-track safety be established.

The Working Group also recommended language for a new paragraph (b)(4) of this section, which would require that a railroad's safety rules governing walking across railroad tracks be included in all roadway worker training. FRA is proposing this recommended training requirement, but in order to eliminate unnecessary cross references and for the regulation's ease of use, FRA is proposing to include it in proposed § 214.345. Section 214.345 contains the mandatory items on which roadway workers must be annually trained and, as discussed in the section-by-section analysis for proposed § 214.309 above, FRA believes that all training requirements should be contained in the actual training sections.

The Working Group also provided recommended consensus language pertaining to on-track snow removal and weed spraying on non-controlled track. FRA proposes to include this recommended language in § 214.317(c). The proposed language would permit on-track snow removal and weed spraying operations on non-controlled track without requiring that such track first be made inaccessible. This proposed provision was crafted due to the difficulty of establishing working limits on non-controlled track for the operation of equipment that moves over long distances, and where there are limited to no on-ground work activities being conducted by roadway workers. FRA notes that this proposed language is specific to weed spraying and snow removal operations being conducted with on-track roadway maintenance machines, including on-track snow removal equipment, such as jet snow blowers. This provision is not intended to apply to situations where equipment, such as a front-end-loader, fouls track when being used to plow or scoop snow off of track or railroad right-of-way. This provision would also not apply to controlled track, where some form of working limits would still be required to be established. In addition, this provision would only apply where on-track snow removal and weed spraying operations are actually being conducted. Roadway maintenance machines not engaged in that work, but rather just traveling over non-controlled track, would still do so under the operating rules of the railroad as established in existing § 214.301(c) of the RWP regulation.

This proposed provision contains many requirements. First, before machines could operate under this provision in remotely controlled hump yard facilities, the recommended consensus introductory text of paragraph (c) would require that remotely controlled hump yard operations be suspended. FRA has proposed this requirement regarding the suspension of hump operations, but has moved it to proposed paragraph (c)(1)(iv) of this section. FRA made this amendment to the recommended consensus language only for purposes of organizing the regulatory text. The introductory text of paragraph (c) contains the permissive language which would allow weed spraying and snow removal operations to proceed under the provisions of § 214.301, with the limitations and/or conditions for utilizing that permissive provision listed in paragraphs (c)(1)-(c)(4). As the requirement to suspend hump operations is also a limitation on when the permissive provision may be utilized, FRA believed that requirement would be more appropriately listed with all of the other requirements in paragraphs (c)(1)-(c)(4).

In a post-Working Group consensus language draft that was circulated for comment, the BMWED noted that the language regarding the status of hump operations in the first sentence of proposed paragraph (c) initially read “in effect”, rather than “in progress”. AAR's post-RSAC recommendation indicated that it favored the words “in progress”, but did not explain the reason for favoring such. The BMWED's post-RSAC comment indicated it favored “in effect”, as that term is more inclusive as hump operations might be “in effect” but not actually “in progress” (

e.g.

, cars not literally being humped right at the moment that weed spraying operations begin). FRA agrees with the BMWED's position and is proposing the initial Working Group's consensus wording of “in effect”, but also requests further comment on this issue from all interested parties.

Proposed paragraph (c)(1) would require that each railroad adopt and comply with a procedure for on-track snow removal and weed spraying operations. Proposed paragraph (c)(1)(i) would require the procedure to ensure that all other persons conducting on-track movements in the affected area are informed of the snow removal or weed spraying operations. FRA has slightly amended the RSAC's recommended consensus language for proposed paragraph (c)(1)(i) by adding the words “in the affected area”. This change is only intended to clarify that on-track movements in the affected area must be informed of the snow removal or weed spraying operations, as otherwise there would be no limiting descriptor as to which operations must be notified. For consistency purposes, FRA has also amended all references to “movements” throughout paragraph (c)(1) to instead refer to “on-track movements”, because the consensus text for paragraph (c)(1)(i) (and for paragraph (c) in its entirety) specifically refers only to on-track movements. Proposed paragraph (c)(1)(ii) would require that the adopted procedure ensure that all such weed spraying and snow removal operations operate at a speed not greater than restricted speed as currently defined in § 214.7, except on other than yard tracks and yard switching leads, where movements may operate at no more than 25 miles-per-hour (mph) and be prepared to stop within one-half the range of vision. In its post-Working Group comments on the consensus language recommended by the Working Group, AAR suggested minor changes to the wording of this paragraph, including removal of the reference to the existing § 214.7 definition of “restricted speed.”

Because FRA believes that the reference to the § 214.7 definition of “restricted speed” is necessary, as that term defines restricted speed for the purposes of part 214 (a railroad's “restricted speed” for purposes of weed spraying could be more permissible than that of the existing § 214.7 definition and of that proposed in the consensus language, which for safety reasons FRA would seek to avoid). The other minor AAR-suggested changes do not alter the substance of the consensus language, but also do not seem to clearly enhance its utility or clarity. Therefore, FRA is proposing the consensus language contained in the Working Group's recommendation in this paragraph.

Proposed paragraph (c)(1)(iii) would require that the procedure adopted by a railroad ensures there is a means of communication between on-track equipment conducting snow removal and weed spraying operations and any other on-track movements in the area (which FRA anticipates would be via radio communication). Proposed paragraph (c)(1)(iv) prohibits remotely controlled hump yard facility operations from being in effect while snow removal or weed spraying operations are in progress, and also prohibits the kicking of cars unless agreed to by the roadway worker in charge of the snow removal or weed spraying operation. This last requirement is intended to help ensure that there is no free rolling equipment in the vicinity of on-track snow removal or weed spraying operations. As discussed above, FRA has amended the consensus language to list the proposed requirement that hump operations be suspended to this paragraph (c)(1)(iv). As such, the text as recommended by the RSAC has been slightly modified for organization purposes, and is not substantive in nature.

Proposed paragraph (c)(2) would provide that roadway workers engaged in snow removal or weed spraying operations retain an absolute right to utilize the provisions of § 214.327 (inaccessible track). This proposal parallels existing § 214.337(b), which governs on-track safety procedures for lone workers, and would permit a roadway worker to establish on-track safety by making the track inaccessible in accordance with § 214.327. FRA has slightly amended this proposed paragraph as recommended by the RSAC. FRA added the words “subject to this section” to the proposed language. This amendment is only intended for clarity purposes. This amendment would make clear that if snow removal operations not subject to this section were taking place that on-track safety would obviously be required to be established, regardless of the absolute right to make track inaccessible under this provision.

Proposed paragraph (c)(3) would provide that roadway workers engaged in snow removal or weed spraying operations subject to § 214.317, are permitted to line switches for the machine's movement without establishing a form of on-track safety in accordance with §§ 214.319 through 214.337, but may not engage in any roadway work activity. For example, if a roadway worker needs to clean the snow from a switch with tools, or adjust a switch, a method of on-track safety compliant with §§ 214.319 through 214.337 would be required prior to conducting such activities. Notwithstanding the above, FRA notes that existing § 214.313(b) requires that roadway workers shall not foul any track unless necessary for the performance of their duties. FRA notes this proposed provision would extend to roadway workers other than the actual operator of a roadway maintenance machine, as roadway workers other than the machine operator may be assigned to throw switches in order to facilitate a machine's movement.

Finally, proposed paragraph (c)(4) contains the consensus recommendation of the Working Group for the roadway equipment utilized under this provision. Proposed paragraph (c)(4) would require that each machine engaged in snow removal or weed spraying operations under proposed § 214.317(c) be equipped with: (1) An operative 360-degree intermittent warning light or beacon; (2) an illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions; (3) a brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and, (4) a rearward viewing device, such as a rearview mirror. If a machine is utilized in snow removal or weed spraying operations conducted during the period between one-half hour after sunset and one-half hour before sunrise, or in dark areas such as tunnels, that machine would also be required to be equipped with work lights, unless equivalent lighting is otherwise provided. Equivalent lighting refers to situations where a rail facility might already be equipped with appropriate lighting or where lighting is installed in a tunnel. These proposed requirements which would apply to snow blowing or weed spraying operations conducted pursuant to the operating rules of a railroad, would be in addition to any applicable existing requirements for such machines found in subpart D of part 214, which governs roadway maintenance machine requirements. These proposed requirements would help ensure that persons operating such machines during snow removal and weed spraying operations and relying on railroad operating rules and procedures for safety have appropriate lighting and sight distance to perform their duties, while also ensuring that such machines are clearly visible to others in the vicinity of such operations in all lighting conditions.

Section 214.319 Working Limits, Generally

Section 214.319 sets forth the requirements for establishing working limits in accordance with part 214. FRA is proposing a minor amendment to this section. The existing first sentence in the introductory paragraph of that section states, in part, that “[w]orking limits established on controlled track shall conform to the provisions of” §§ 214.321 Exclusive track occupany, or 214.323, Foul time, or 214.325, Train coordination.” Each of these sections explain the requirements for establishing working limits through the various methods recognized by part 214. As discussed in the section-by-section analysis of proposed § 214.324 below, however, FRA is proposing to add a new section setting forth a new method of establishing working limits on controlled track (verbal protection). Thus, FRA is simply proposing to revise the introductory paragraph of § 214.319 to reference proposed § 214.324.

FRA is also proposing to replace the words “roadway worker” in existing paragraphs (a) and (b) with the words “roadway worker in charge.” As discussed above, this proposed change is to provide uniformity of reference throughout the RWP regulation to the roadway worker who establishes and controls working limits. This proposed change is also to reflect that under existing paragraph (a) of this section only a “roadway worker who is qualified in accordance with § 214.353 of this part shall establish or have control over working limits for the purpose of establishing on-track safety.” As previously discussed, FRA is proposing to refer to a roadway worker qualified in accordance with § 214.353 as a “roadway worker in charge.”

Section 214.321 Exclusive Track Occupancy

Section 214.321 generally sets forth the requirements for establishing working limits on controlled track through the use of exclusive track occupancy procedures. FRA is proposing several amendments to this section, including both Working Group consensus items and non-consensus items. First, FRA is proposing to replace the words “roadway worker” in existing paragraph (a) with “roadway worker in charge.” This proposed change is to consistently refer to the “roadway worker in charge” as appropriate throughout the RWP regulation, in order to clarify the existing variety of generic references to that position. Also, this change is appropriate because only a “roadway worker in charge” (or a lone worker who is also a roadway worker in charge) can establish working limits via § 214.321. FRA is also proposing to make this same change to the latter half of existing paragraph (b), which would be amended to specify that an authority for exclusive track occupancy must be communicated to the “roadway worker in charge,” as opposed to the existing reference to “roadway worker”.

Existing paragraph (b) states that a “data transmission” may be used to transmit an exclusive track occupancy authority to a roadway worker (

i.e.,

a roadway worker in charge). However, existing paragraph (b)(2) states only that the roadway worker in charge must maintain possession of a “written or printed authority” while the authority for working limits is in effect, and does not currently account for authorities conveyed via data transmission that may be displayed on the screen of an electronic device. Thus, FRA is proposing to amend paragraph (b)(2) to state that an authority displayed on an electronic screen may be used in place of the “written or printed” authority required by existing § 214.321(b)(2). Electronic authorities would also be required to comply with the requirements of proposed § 214.322, which is discussed in the section-by-section analysis for that section below. As electronic devices are already currently used to display authorities in the railroad industry, this proposed paragraph is intended to help clarify that such use is permissible.

Existing § 214.321(b)(3) requires that the train dispatcher or control operator in charge of track make a “written or electronic” record of all authorities issued to establish exclusive track occupancy. In post-Working Group comments on the recommended consensus items, AAR commented that in addition to proposing consensus paragraph (b)(4) of § 214.321, FRA should also amend existing paragraph (b)(3) by removing the words “written or electronic record”, and just generically refer to “records,” in order to accommodate the display of an authority via the use of an electronic device. However, as explained above and below, FRA is proposing a new § 214.322, which would govern the use of authorities transmitted via electronic display. Accordingly, FRA believes that differentiating between written or electronic records is appropriate.

The Working Group recommended consensus language that would require that an exclusive track occupancy authority specify a unique roadway work group number, an employee name, or other unique identifier. The Working Group recommended that this language be included as a new paragraph (b)(4) to § 214.321. FRA agrees with this recommendation and has incorporated language consistent with the Working Group's recommendation into proposed paragraph (b)(4) of this section. This requirement would simply codify what is already common practice in the railroad industry; a practice that helps ensure the ability of trains, dispatchers, and other employees to differentiate between roadway workers in charge/roadway work groups who may be performing work at various locations along the right-of-way. The use of a unique identifier or roadway work group number should reduce the chance for potential confusion if a railroad has multiple employees with the same or similar names. This proposed paragraph would also require that a railroad's procedures establish guidelines for communication between trains or other on-track equipment and the roadway worker in charge (or lone worker), in accordance with existing § 214.319(c). This requirement refers to effective procedures for trains or other on-track equipment to contact the roadway worker in charge to receive permission through working limits when appropriate. In post-RSAC comments, AAR requested that FRA remove the reference to lone workers in this recommended consensus section as per existing § 214.337, lone workers are traditionally only used in conjunction with individual train detection. However, lone workers who are qualified to act as roadway workers in charge may establish working limits in order to perform their work. As such, FRA has decided to retain the recommended reference to lone workers in this proposed paragraph.

For clarity purposes FRA amended the language from that contained in the recommended consensus language for this paragraph. The second sentence of the recommend language read that “[t]he railroad's procedures shall include precise communication to ensure trains and other on-track equipment communicate, either directly or through the dispatcher, with the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319.” FRA is proposing that the second sentence of this paragraph instead read, “[a] railroad shall adopt procedures that require precise communication between trains and other on-track equipment and the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319. The procedures may permit communications to be made directly between a train or other on-track equipment and a roadway worker in charge or lone worker, or through a train dispatcher or control operator.” This proposed change to the recommendation is not intended to be substantive in nature, but is being made because a railroad's procedures obviously cannot contain the precise “communication” between a train and a roadway worker in charge, but instead, would include the guidance or instructions on the

requirements of

such communications. Thus, FRA is proposing this language to clarify that a railroad's procedures under this section would have to govern the necessary communications between trains and roadway workers in charge when exclusive track occupancy working limits are in effect. FRA is also adding the words “train” and “or control operator” directly before and after reference to the “dispatcher” that was contained in the RSAC recommendation because throughout the controlled track working limits sections, the words “train dispatcher or control operator” are used interchangeably.

Existing paragraph (d) of this section requires that the movement of trains and other on-track equipment within exclusive track occupancy working limits may only be made under the direction of the “roadway worker having control over the working limits.” Although FRA is proposing no substantive revision to this paragraph, FRA is proposing to amend the paragraph to refer to the “roadway worker in charge.” As noted previously, this change is being proposed in multiple locations in this NPRM in order to replace the varying existing language that generically refers to the “roadway worker in charge” throughout the regulation text. FRA previously issued Technical Bulletin G-05-22 that

addresses existing paragraph (d). That technical bulletin recognized that there may be times, such as during an emergency, when a roadway worker in charge cannot be contacted by a train or other on-track equipment wishing to make a movement. The bulletin explained that “in extraordinary circumstances trains must be authorized to move despite lack of permission from the RWIC. The present regulation does not address this irregular situation and thus, FRA's enforcement action under these circumstances will be determined on a case-by-case basis.” FRA is not proposing language in this NPRM which would address such extraordinary circumstances, and FRA's enforcement action in such instances will still be determined on a case-by-case basis. However, FRA intends proposed paragraph (b)(4) to work in conjunction with the requirements of existing paragraph (d). Proposed paragraph (b)(4) would require procedures governing communications between trains and roadway workers in charge be adopted by railroads. FRA would expect that railroads would adopt procedures that would address what actions should be taken in the event a roadway worker in charge cannot be contacted by a train crew or the operator of other on-track equipment.

Also, the existing text of the beginning of the second sentence of paragraph (d) currently reads that “[s]uch movements shall be restricted speed * * * .” FRA has proposed to amend that text to instead read that “[s]such movements shall be made

at

restricted speed * * * .” (emphasis added). This minor amendment is only for purposes of reading clarity and is not intended to be substantive.

FRA is also proposing to add a new paragraph (e) to this section. This paragraph would establish minimum requirements when an exclusive track occupancy authority is given to a roadway worker in charge (or lone worker) ahead of the time working limits are to be occupied, or when train(s) may be occupying the same limits. These authorities are sometimes referred to as “occupancy behind”, “conditional”, or “do not foul the limits ahead of” authorities.

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Occupancy behind procedures enable a train dispatcher or control operator to issue an authority which would permit a roadway work group to occupy a track, provided such occupancy only occurred after the passage of certain trains or other on-track equipment. When occupancy behind authorities are issued, trains may still be ahead of the point to be occupied by the roadway work group, or in some cases may be past the point to be occupied but still within the working limits. Such occupancy behind authorities have long been in use in the railroad industry. Due to the volume of train operations in certain areas, and the corresponding time demands on train dispatchers, railroads have expressed to FRA that the use of such authorities is crucial to their ability to be able to efficiently conduct train operations.

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FRA notes that 49 CFR 220.61 contains requirements for the issuance of “mandatory directives” via radio transmission for both trains and on-track equipment. Exclusive track occupancy authority to establish working limits granted by a train dispatcher or control operator to a roadway worker in charge are in some instances also considered “mandatory directives” under that section. The existing requirements in § 214.321 are considered to be in addition to the requirements of existing § 220.61.

For example, a track inspector (a roadway worker in charge/lone worker) in centralized traffic control territory may be called on to use a hi-rail vehicle to inspect a track. In order to more efficiently utilize time and available track, a dispatcher may issue the track inspector an exclusive track occupancy working limits authority, often referred to as “track and time”, to occupy such track while a train or trains are still within the working limits to be occupied by the track inspector. This procedure does not first require the dispatcher to wait until all trains have entirely cleared the working limits before issuing the authority to the roadway worker in charge, or require that all trains have passed the point to be occupied. This procedure also allows the roadway worker in charge/lone worker to occupy such limits behind a train movement while a train is still within the working limits (much sooner chronologically than if required to first wait for all trains to clear the entire working limits track segment). This procedure enables the hypothetical track inspector to begin his or her work sooner, and correspondingly, to relinquish such limits sooner to allow for the passage of trains again.

One of the concerns with the use of such authorities focuses on the fact that trains that are already within the same limits of an authority that is being issued to a roadway worker in charge may not have a copy of such authority or otherwise be aware of it. This situation differs from those when track maintenance activities are planned in advance, where all trains would typically have a copy of a track bulletin denoting the existence of working limits at a particular location. Another concern involves miscommunications occurring and roadway workers potentially fouling tracks before the last affected train passes the point to be occupied.

The Working Group discussed the problems of miscommunication with the use of “occupancy behind” authorities, but did not achieve consensus on recommended regulatory text. However, FRA believes it necessary to propose minimum safety requirements regarding the use of such authorities by roadway workers in charge to establish exclusive track occupancy working limits. FRA believes this proposal largely codifies current industry best practices and would help ensure safety, and also seeks comment on the costs and benefits of this proposal.

Proposed paragraph (e)(1) states that an authority would only be considered to be in effect after the roadway worker in charge or lone worker confirmed that the affected train(s) had passed the point to be occupied or fouled by the roadway work group or lone worker. This proposed provision is necessary as the train(s) listed in the authority may still be ahead of (

i.e.,

may have not yet reached and traveled past) the point to be occupied or fouled. The proposed text would permit such confirmation to be made in three manners. Confirmation could be made by visually identifying the affected train(s), via direct radio contact with a crew member of the affected train(s), or by receiving information about the affected train(s) from the dispatcher or control operator.

Proposed paragraph (e)(2) states that when such confirmation is made by the roadway worker in charge visually identifying the affected train(s), the railroad's operating rules must include procedures to prohibit such trains from making a reverse movement into the limits being fouled or occupied (this provision, in addition to the requirements of proposed § 214.321(e)(4) below, would provide protection for roadway worker(s) located ahead of the point to be occupied who intend to “piggyback” on a roadway worker in charge's exclusive track occupancy authority). FRA believes this provision is necessary, as this method of making confirmation would not require the roadway worker in charge to actually talk to the crew of the affected train(s) (or for the train dispatcher to talk with the crew or verify that that train is beyond the point to be occupied), such that the crew might not be cognizant of the working limits or point to be occupied.

Proposed paragraph (e)(3) would require that after confirmation of the passage of affected train(s) is made, the roadway worker in charge shall record on the authority document (or display)

both the time of passage and the engine (locomotive) numbers of the affected train(s). If passage confirmation is made via radio communication with the train crew, the time of that communication along with the engine numbers must be recorded on the authority. When confirmation of the passage of the affected train(s) is made via the train dispatcher or control operator, the time of such confirmation and the engine numbers must be recorded on the authority. If the time and engine numbers are not recorded on the authority itself, FRA would consider a separate written document used to record information regarding passing trains to be a component of the authority, and that document would be required to be maintained along with the authority while it is in effect.

Proposed paragraph (e)(4) would require that roadway workers (who are afforded on-track safety by the roadway worker in charge) who are located between the rear end of the last affected train and the roadway worker in charge, or who are still located ahead of the last affected train, may only foul track after receiving permission to do so from the roadway worker in charge and after the roadway worker in charge had fulfilled the provisions of proposed §§ 214.321(e)(1) & (e)(3). In addition, each group of roadway workers being provided on-track safety by the roadway worker in charge must be accompanied by an employee qualified to the level of a roadway worker in charge, who would also be required to have a copy of such authority and fulfill the requirements of §§ 214.321(e)(1) & (e)(3) before working limits could be occupied or fouled at that particular location. The authority information may be verbally transmitted by the roadway worker in charge to the additional person utilizing the working limits. The cumulative effect of this proposed provision is that roadway workers located between the rear end of any affected train and the roadway worker in charge would not be permitted to foul track until all of the same procedures the roadway worker in charge was initially required to comply with were also accomplished at the actual location of the roadway workers. FRA has included this proposed requirement to address situations where a roadway worker in charge permits another roadway work group or another roadway worker to foul the track between his or her occupancy point and the rear end of affected train(s). Because FRA agrees with the Working Group's concerns and recognizes that in this context, miscommunication can have serious safety consequences, FRA is proposing to require these additional measures.

Under proposed paragraph (e)(5), each lone worker subject to this proposed paragraph would also be required to have a copy of the authority and to comply with all of the communications requirements of this section. Proposed paragraph (e)(6) would establish that train movements within working limits where roadway workers were otherwise located (not ahead of the last affected train and not between the rear end of the last affected train and the roadway worker in charge) would continue to be governed by existing § 214.321(d), or under the direction of the roadway worker in charge.

Finally, with regard to exclusive track occupancy, FRA often receives inquiries regarding multiple roadway work groups working within the limits of one authority. FRA notes that while there may be multiple roadway work groups performing work within one set of working limits, existing § 214.319 requires that only one roadway worker in charge can have control over working limits on any one segment of track, and that all roadway workers shall be notified before working limits are released for the operation of trains. Further, existing § 214.319(c) states that “[w]orking limits shall not be released until all affected roadway workers have either left the track or have been afforded on-track safety through train approach warning in accordance with § 214.329 of this subpart.” FRA is not proposing any change to these existing requirements with regard to multiple roadway work groups working within the limits of one authority. FRA believes the current regulation is clear on this point, and FRA does not believe that considering permitting more than one roadway worker in charge to have control of working limits would be conducive to safety. FRA believes doing so would promote confusion among roadway workers and work groups. If further guidance on situations where multiple roadway work groups may conduct work within the limits of one authority is desired, existing FRA Technical Bulletins G-05-02 and G-05-17 address those issues.

Section 214.322 Exclusive Track Occupancy, Electronic Display

Existing § 214.321(b)(3) permits an exclusive track occupancy authority to be issued via data transmission from the train dispatcher or control operator to the roadway worker in charge. Currently, FRA is aware that some railroads utilize electronic devices to display such authorities received via data transmission. With the current Positive Train Control system requirements and other technological developments in the railroad industry, FRA anticipates that the use of such electronic devices to display working limits authorities will continue to grow. As such, the Working Group considered this topic, and contemplated minimum requirements concerning the use of such electronic displays. The Working Group agreed in principle to basic concepts concerning the use of electronic display for working limits. However, the Working Group did not agree to overall consensus language. As such, FRA is proposing § 214.322 to address the use of such electronic displays. This proposed section incorporates those concepts agreed to in principle by the Working Group, as well as additional minimum operating and technical attributes of such electronic displays.

Proposed paragraph (a) contains the items agreed to in principle by the Working Group, and would establish that an electronically displayed authority must be readily viewable by the roadway worker in charge while such authority is in effect. Proposed paragraph (a)(1) would require that when a device malfunction or fails, or cannot otherwise display an authority in effect (

e.g.,

batteries powering the electronic device displaying the authority lose charge), the roadway worker in charge must instruct all roadway workers to stop and occupy a place of safety until a written or printed copy of the authority can be obtained, or another form of on-track safety can be established. FRA requests comment on whether a better approach, if a device fails, is to first allow the roadway worker in charge the opportunity to immediately obtain a written copy of an authority before requiring the members of the roadway work group to stop work and occupy a place of safety (and if a written authority could not immediately be obtained, then requiring the work group to occupy a place of safety).

If a copy of the authority cannot be obtained and no other form of on-track safety can be established, proposed paragraph (a)(2) would require that the roadway worker in charge conduct an on-track job safety briefing to determine the safe course of action with the roadway work group. Proposed paragraph (a)(2) attempts to provide flexibility in situations where an electronic display fails and the roadway worker in charge cannot communicate with the train dispatcher via radio, which might occur in a deep rock cut or a tunnel, and a roadway work group may have to move within established working limits to a location where they are able to occupy a place of safety and/

or re-establish communication with the dispatcher.

Proposed paragraphs (b)-(g) would address the technical attributes of the electronic display of exclusive track occupancy authorities. FRA requests comment on this proposal, specifically regarding whether electronic display systems currently in use comply, or are capable of complying, with these proposed requirements. The proposed requirements are safety and security-related. While the contents of an exclusive track occupancy authority transmitted to a roadway worker in charge are not typically confidential in nature, the integrity of such information is vitally important to the safety of roadway workers and trains. FRA proposes these requirements to take a proactive approach with regard to the integrity of data transmissions of electronic authorities.

Proposed paragraphs (b) and (c) provide for the identification and authentication of users. A user would typically refer to the roadway worker in charge and train dispatcher or control operator, as they are the persons who are most often involved in an exclusive track occupancy authority transaction. A user could also be a process or a system that accesses or attempts to access an electronic display system to perform tasks or process an authority. Identification is the process through which a user presents an identifier that is uniquely associated with that user, in order to gain access to an electronic authority display system.

Authentication is the process through which an individual user's identity is validated. Most authentication techniques follow the “challenge-response” model by prompting the user (the challenge) to provide some private information (the response). Basic authentication factors for individual users could involve information an individual knows, something an individual possesses, or something an individual is (

e.g.,

personal characteristics or “biometrics”, such as a fingerprint or voice pattern).

Proposed paragraph (c) would require that any authentication scheme utilized ensures the confidentiality of authentication data and protects that data from unauthorized access. Such schemes would be required to utilize algorithms approved by the Federal government's National Institute of Standards and Technology (NIST), or any similarly recognized standards body. This requirement parallels a similar requirement for Positive Train Control systems found at 49 CFR 236.1033(b),

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and is proposed to help prevent deliberate “spoofing” or “man in the middle” attacks on exclusive track occupancy authority information communicated and displayed via electronic device. NIST is the agency responsible for defining cryptographic algorithms for non-Department of Defense entities.

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75 FR 2598, 2676 (Jan. 15, 2010).

Proposed paragraph (d) would address the transmission, reception, processing, and storage of exclusive track occupancy authority data, and is proposed to help ensure the integrity of such data. Data integrity is the property of data not being altered since the time data was created, transmitted, or stored, and generally refers to the validity of the data. This paragraph proposes that new electronic authority display systems placed into service after the effective date of a final rule in this rulemaking would be required to utilize message authentication codes (MAC) to ensure data integrity. Similar to the proposed requirements of paragraph (c), MAC's would be required to utilize algorithms approved by NIST or a similarly recognized standards body. Unlike cyclical redundancy codes (CRC), MAC's provide protection against malicious interference. Proposed paragraph (d) would permit the use of systems implemented prior to the date of a final rule in this rulemaking to utilize CRC's, but would require that the collision rate for the CRC checks utilized be less than or equal to 1 in 2

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. This proposed collision rate would help provide reasonable protection against accidental or non-malicious errors on channels that are subject to transmission errors, and is based on a Department of Defense standard. Existing systems utilizing CRC's that do not meet this minimum standard would be required to be retired and replaced with systems that utilize MAC's not later than one year after the effective date of a final rule. Proposed paragraph (d)(2) would require that MAC or CRC checks only be used to verify the accuracy of a message, and that an authority must fail if the checks do not match.

Proposed paragraph (e) would also require that the actual electronic device used to display an authority issued via data transmission retain any authorities issued for a minimum of 72-hours after expiration of such authority. This minimum proposed requirement is primarily for investigation purposes, as it would give investigating bodies such as FRA or the NTSB an opportunity to study authority data in non-reportable accident/incident situations, and to compare it to a dispatcher or control operator's corresponding electronic authority transmission records. This requirement could also be helpful in compliance audit situations.

Proposed paragraph (f) mirrors the language found in 49 CFR 229.135(e) of FRA's Railroad Locomotive Safety Standards. Section 229.135(e) governs the preservation of data from locomotive event recorders or other locomotive mounted recorders in the event of an accident. This proposed paragraph uses the same language as found in existing § 229.135(e), and would require that railroads preserve data from any electronic device used to display an authority for one year from the date of a reportable accident/incident under 49 CFR part 225, unless FRA or the NTSB notifies the railroad in writing that the data are desired for analysis.

Proposed paragraph (g) would require that new electronic display systems implemented after the effective date of a final rule, would provide Level 3 assurance as defined by the December 2011, version of NIST Special Publication 800-63-1, “Electronic Authentication Guideline.” NIST Special Publication 800-63-1 provides technical guidelines for widely used methods of electronic authentication, and is publicly available online at

http://csrc.nist.gov/publications/nistpubs/800-63-1/SP-800-63-1.pdf.

Systems that were implemented prior to the effective date of a final rule in this rulemaking would be required to provide at least Level 2 assurance as described in NIST Special Publication 800-63-1, and systems that do not provide Level 2 assurance or higher would be required to be retired or updated to provide such assurance no later than one year after the effective date of a final rule. These assurance levels govern the elements of the authentication process. Level 2 assurance requires some identity proofing, and passwords are accepted (but not PINS). Level 3 assurance requires more stringent identity proofing and multi-factor authentication, typically a password or a biometric factor used in combination with a software or hardware token.

FRA acknowledges that if this proposed paragraph (g) were included in a final rule in this rulemaking, that FRA must first gain approval to do so from the Director of the Federal Register in accordance with 5 USC 552(a) and 1 CFR part 51. If interested parties do not have a copy of this document to be incorporated by reference, FRA can make a copy available for review upon request. FRA notes that this document is publicly available online at the web

site address listed in the discussion above.

FRA has limited information regarding whether existing electronic display systems in use already comply with the above requirements. FRA requests comment, to include potential cost information, on this proposal. As stated above, FRA p

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