# Railroad Workplace Safety; Roadway Worker Protection Miscellaneous Revisions (RRR) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-13057 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 10, 2016 - **Citation:** 81 FR 37840 ## Text 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: Final rule; retrospective regulatory review (RRR). SUMMARY: FRA is amending its Roadway Worker Protection (RWP) regulation to resolve interpretative issues that have arisen since the 1996 promulgation of that rule. In particular, this final rule adopts certain terms, resolves miscellaneous interpretive issues, codifies certain FRA Technical Bulletins, adopts new requirements governing redundant signal protections and the movement of roadway maintenance machinery over signalized non-controlled track, and amends certain qualification requirements for roadway workers. This final rule also deletes three outdated incorporations by reference of industry standards in FRA's Bridge Worker Safety Standards, and cross references the Occupational Safety and Health Administration's (OSHA) regulations on the same point. DATES: This final rule is effective April 1, 2017. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 1, 2017. Petitions for reconsideration must be received on or before August 9, 2016. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before September 13, 2016. ADDRESSES: Petitions for reconsideration and comments on petitions for reconsideration: Any petitions for reconsideration to the Federal Railroad Administrator or comments on petitions for reconsideration related to this docket may be submitted by any of the following methods: • Online: Federal eRulemaking Portal, http://www.regulations.gov . Follow the online instructions for submitting documents. • Fax: 202-493-2251. • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590. • Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all submissions received will be posted without change to http://www.regulations.gov including any personal information. 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 Room W12-140 on the Ground level of the West Building, 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: Joseph Riley, Track Specialist, Track Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590 (telephone (202) 493-6357); 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. Executive Order 13563 Retrospective Review III. Rulemaking Authority and Background of the Existing RWP Rule IV. Railroad Safety Advisory Committee (RSAC) Overview V. RWP RSAC Working Group VI. Proceedings Concerning On-Track Safety Procedures for Adjacent Tracks VII. Proceedings in This Rulemaking to Date VIII. Public Comments Received A. Comments on NPRM Proposals Not Addressed in the Final Rule B. Effective Date C. Other Comments IX. Section-by-Section Analysis X. 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; Regulatory Flexibility Assessment C. Paperwork Reduction Act D. Federalism Implications E. Environmental Impact F. Executive Order 12898 (Environmental Justice) G. Executive Order 13175 (Tribal Consultation) H. Unfunded Mandates Reform Act of 1995 I. Energy Impact J. Trade Impact K. Privacy Act L. Analysis Under 1 CFR Part 51 I. Executive Summary On August 20, 2012, FRA published a notice of proposed rulemaking (NPRM) proposing amendments to its regulation on railroad workplace safety to resolve interpretative issues that have arisen since the 1996 promulgation of the original RWP regulation. 77 FR 50324. As detailed in the NPRM, FRA based its proposed amendments, in large part, on recommendations of FRA's Railroad Safety Advisory Committee (RSAC). Noteworthy RSAC recommendations that FRA is adopting in this final rule include: A job briefing requirement regarding the accessibility of the roadway worker in charge; the adoption of procedures for how roadway workers cross railroad track; a new exception for railroads conducting snow removal and weed spraying operations; a clarification of the existing “foul time” 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 train audible warnings for roadway workers; and, amendment of certain roadway worker training requirements. FRA is also addressing other items on which RSAC did not reach consensus and certain miscellaneous other revisions proposed in the NPRM. Noteworthy among these items are: Redundant signal protections; the electronic display of working limits authorities; amendments to the existing provision governing the qualification of roadway workers in charge; a new provision establishing minimum safety standards 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; amendments to clarify the existing roadway worker protection and blue signal protection requirements for work performed within shop areas; the use of existing tunnel niches and clearing bays as a place of safety; and, the use of other railroad tracks as a place of safety. This final rule also deletes certain outdated incorporations by reference of personal protective equipment standards in FRA's Bridge Worker Safety Standards at subpart B of part 214, and instead cross references the relevant OSHA's regulations. For the 20-year period analyzed, the estimated quantified costs to the railroad industry total $20,965,962, discounted to $11,491,330 (present value (PV), 7 percent) and $15,832,099 (PV, 3 percent). For the same 20-year period, the estimated quantified benefits total $53,109,702, discounted to $28,132,247 (PV, 7 percent) and $39,506,913 (PV, 3 percent). Net benefits total $32,143,740, discounted to $16,640,917 (PV, 7 percent) and $23,674,814 (PV, 3 percent). Table 1 presents the estimated quantified costs and benefits broken down by section of the final rule. ER10JN16.000 II. Executive Order 13563 Retrospective Review Consistent with the requirements of Executive Order 13563, this final rule modifies the existing RWP requirements, in part, based on what FRA learned from its 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.” 1 As a result of its retrospective review, FRA is deleting or sun setting several sections of the existing RWP regulation it believes to be outdated or superfluous (§§ 214.302, 214.305, 214.331 and 214.333), and is also increasing flexibility for compliance in several other sections (§§ 214.317, 214.327 and 214.337). 1 Executive 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 . III. 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 FRA Administrator. 49 CFR 1.89(a). As noted in the NPRM, in the field of railroad workplace safety, FRA has traditionally pursued a conservative course of regulation, relying upon the industry to implement suitable railroad safety rules and mandating in the broadest 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 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 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, emphasize the importance of compliance, or give FRA a more direct means of promoting compliance. A detailed description of the background and history of FRA's RWP regulation is found in the NPRM. IV. RSAC Overview As explained in the preamble to the NPRM, FRA's RSAC 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. 2 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 consensus recommendations to FRA for action on the task. 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. 2 RSAC member groups are: American Association of Private Railroad Car Owners (AAPRCO); 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; Association of State Rail Safety Managers (ASRSM); Brotherhood of Locomotive Engineers and Trainmen (BLET); Brotherhood of Maintenance of Way Employees Division (BMWED); Brotherhood of Railroad Signalmen (BRS); Chlorine Institute; Federal Transit Administration (FTA);* Fertilizer Institute; High Speed Ground Transportation Association (HSGTA); Institute of Makers of Explosives; International Association of Machinists and Aerospace Workers; International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART), including the Sheet Metal Workers' International Association (SMWIA) and United Transportation Union (UTU); International Brotherhood of Electrical Workers (IBEW); Labor Council for Latin American Advancement (LCLAA);* 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 (NRCMA); National Railroad Passenger Corporation (Amtrak); National Transportation Safety Board (NTSB);* Railway Supply Institute (RSI); Safe Travel America (STA); Secretaria de Comunicaciones y Transporte (Mexico);* Tourist Railway Association, Inc.; Transport Canada;* Transport Workers Union of America (TWU); Transportation Communications International Union/BRC (TCIU/BRC); and Transportation Security Administration (TSA).* *Indicates associate membership. When 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 RSAC members, the proposal is formally recommended to the FRA Administrator. FRA then determines what action to take on the recommendation. Because FRA staff members play an active role at the working group level discussing the issues and options and drafting the consensus recommendation, FRA often adopts the RSAC recommendation. FRA is not bound to follow the RSAC's recommendation, and the agency exercises its independent judgment on whether a recommendation achieves the agency's regulatory goal(s), is soundly supported, and is consistent with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. FRA explains any such variations in the rulemaking. If RSAC is unable to reach consensus on a recommendation for action, the task is withdrawn and FRA determines the best course of action. V. RWP RSAC Working Group As detailed in the NPRM, on January 26, 2005, the RSAC formed the RWP Working Group (Working Group) 3 to consider specific actions to advance the on-track safety of railroad employees and their contractors engaged in maintenance-of-way activities throughout the general system of railroad transportation. FRA tasked the Working Group with reviewing the existing RWP regulation, technical bulletins, and a safety advisory dealing with on-track safety for roadway workers, and, as appropriate, to consider enhancements to the existing rule to further reduce the risk of serious injury or death to roadway workers. 3 The Working Group included members representing 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 and worked diligently to reach consensus on 32 separate items. The Working Group's consensus recommendations included adding or amending various provisions in the following sections in part 214, subpart C: • § 214.7—add two new definitions; revise an existing definition; and incorporate three other existing definitions from part 236. • § 214.309—revision to address on-track safety manual for lone workers and changes to the manual. • § 214.315—requirement that on-track safety job briefings include information concerning adjacent tracks and 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 prohibiting roadway worker in charge or train dispatcher from permitting movements into 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 methods of making 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—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 below). • § 214.337—allow 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—revision of this section concerning train audible warnings 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, 214.349, 214.351, 214.353, and 214.355—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 to use 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 the NPRM, FRA addressed the electronic display issue, and certain other issues the Working Group did not reach consensus on, and FRA is addressing certain of those items in this final rule. Other items the Working Group did not reach consensus on include: • § 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. As described further in either the preamble to the NPRM or below, FRA is not addressing all of these non-consensus items in this final rule. This rule does not address revisions to the terms “roadway worker” or “remotely controlled hump yard facility,” the removal of objects from the track under train approach warning, the addition of a new “verbal protection” section, or passenger station platform snow removal and cleaning, but the remaining non-consensus items this rule does address are discussed in detail in the relevant Section-by-Section analyses below. VI. Proceedings Concerning On-Track Safety Procedures for Adjacent Tracks As mentioned above, the Working Group reached consensus on items that dealt specifically with adjacent-track on-track safety issues. In light of roadway worker fatality trends involving adjacent track protections, and to expedite lowering the safety risk associated with roadway workers fouling adjacent tracks, FRA undertook a rulemaking proceeding to separately address the adjacent-track safety issues the Working Group contemplated. FRA then 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 published a revised NPRM on November 25, 2009 (74 FR 61633), and a final rule on November 30, 2011 (76 FR 74586). FRA received two petitions for reconsideration of the final rule, and five public comments on those petitions for reconsideration. See Docket No. FRA-2008-0059, available at www.regulations.gov . On December 27, 2013, FRA issued an amended final rule which made certain modifications to the adjacent track final rule in light of issues the petitions for reconsideration raised. 79 FR 1743. The final rule, as amended, became effective on July 1, 2014. The provisions in that rulemaking have limited interaction with the miscellaneous revisions in this final rule amending subpart C. However, as a result of the adjacent track rulemaking, the subpart C section numbering in this final rule for the RSAC's consensus recommendations is slightly different from that recommended. Any relevant numbering changes are noted in the Section-by-Section analysis below. VII. Proceedings in This Rulemaking to Date On August 20, 2012, FRA published an NPRM in the Federal Register proposing nearly all the RSAC consensus recommendations the adjacent track rulemaking did not address and requesting public comment on a variety of other proposals. 77 FR 50324. Noteworthy consensus recommendations proposed in the 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 on-track 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, clarification of training requirements for roadway workers. The NPRM also addressed items on which the Working Group did not reach consensus and certain miscellaneous other revisions. These items include: electronic display of track authorities, NTSB Safety Recommendation R-08-06 (redundant signal protections), using certain tunnel niches as a place of safety for roadway workers; a new provision for the removal of objects from railroad track when train approach warning is used as the method of on-track safety; amendments to the existing provision governing the qualification of roadway workers in charge (RWIC); a new section addressing passenger station platform snow removal; a new provision governing using “occupancy behind” or “conditional” working limit authorities; the phase-out of using definite train location and informational train line-ups, potential amendments to the existing RWP and blue signal protection requirements for work performed within shop areas, and, using other railroad track as a place of safety when train approach warning is used as the method of on-track safety. Finally, the NPRM also proposed to delete certain incorporations by reference of personal protective equipment standards in FRA's Bridge Worker Safety Standards at subpart B of part 214, and instead cross reference OSHA's regulations on the same point. VIII. Public Comments Received FRA received 14 comments in response to the NPRM. Commenters include: AAR, APTA, ASLRRA, BMWED and BRS (jointly; BMWED/BRS comment), Kimberly Clark Professional, Metro-North and LIRR jointly (MTA comment), New Jersey Transit (NJT), NTSB, Reflective Apparel Factory, SEPTA, and 3M Occupational Health and Environmental Safety Division (3M). FRA also received two comments from individuals, and an additional late comment from BMWED. Section VIII.A below contains a summary and analysis of the comments FRA received that FRA is not adopting in this final rule. Section VIII.B below addresses the effective date of the final rule. Section VIII.C below contains a discussion of the general comments FRA received in response to the NPRM. Section IX contains the Section-by-Section discussion of the final rule, and addresses comments received in response to the NPRM on each respective section of the regulation. A. Comments on NPRM Proposals Not Included in Final Rule 1. Passenger Station Platform Snow Removal and Cleaning In the NPRM, FRA proposed a new § 214.338 addressing snow removal and cleaning on passenger station platforms. As proposed, under certain circumstances a single RWIC could oversee several “station platform work coordinators” each responsible for directing the on-track safety of a roadway worker or workgroup performing snow removal or cleaning at passenger stations. FRA intended the proposal to address issues associated with snow removal and routine maintenance operations, and to ensure roadway worker safety while facilitating railroads' ability to carry out these tasks on passenger stations platforms. FRA received seven comments on this proposal. NTSB's comment opposed FRA's proposal, stating it would detract from safety. The BMWED/BRS comment also opposed the proposal, asserting it would weaken existing safety protections and that the existing regulation already facilitates timely removal of snow from passenger station platforms. AAR's comment indicated proposed § 214.338 is confusing and suggested changes to the proposal (including removal of the 79 mph speed limitation and increased exceptions for snow removal on crosswalks). APTA also opposed FRA's proposal, and specifically noted it disagreed with FRA's stated position that part 214 applies to routine passenger station maintenance activities. APTA and BMWED/BRS's comment also opposed this provision's related training section (proposed § 214.352). MTA opposed FRA's proposal, citing an alleged lack of benefits and implying FRA's NPRM preamble discussion attempted to expand the existing requirements of part 214. SEPTA commented that snow removal and maintenance activities do fall under the scope of existing part 214's on-track safety requirements and supported the proposal. NJT commented that it successfully utilizes snow removal procedures like those proposed on the Northeast corridor, but stated the proposed 79 mph speed limit would impose financial burdens on the railroad with no resulting safety benefit. After evaluating the issue and comments received, FRA is not adopting proposed § 214.338 in this final rule. After recent winters in which many States received heavy snowfalls, FRA's evaluation of this issue indicates the existing regulation is not problematic. Thus, FRA concludes the proposed amendments are not necessary. Further, several commenters opposed all or parts of FRA's proposal, with two commenters asserting that adopting the proposal would decrease safety. Because FRA is not adopting proposed § 214.338 in this final rule, FRA is not adopting that provision's related training at proposed § 214.352. Similarly, FRA is not adopting the proposed revisions to existing § 214.329(a) or to § 214.7's definition of the term “watchmen/lookouts” that both related to the sight distance exception of proposed § 214.338. While FRA is not including the station platform snow removal and cleaning proposal in this final rule, FRA believes it is important to clarify that snow removal activities involving railroad employees or contractors fouling track are subject to the requirements of existing part 214. The definition of a roadway worker includes employees or contractors to a railroad who perform maintenance of roadway or roadway facilities on or near track, or with the potential of fouling a track, which includes snow removal activities. Whether a roadway worker sweeps snow from a switch, a signal appliance, or at a passenger station, if the roadway worker is fouling track (or could potentially foul the track), the risk of injury or death to the roadway worker is the same. FRA recognizes the risks of fouling track may be somewhat mitigated when snow removal is conducted on elevated station platforms (railroad passengers safely occupy the same area where these activities occur). However, not all station platforms are high platforms, and often roadway workers face risks when they foul track with their bodies or equipment while removing snow or performing other routine maintenance activities ( e.g., a roadway worker clearing snow from an outside station platform may foul the track with his or her shovel). Before receiving the comments, FRA believed industry understood part 214 applies to snow removal activities. For example, in 2011, Amtrak petitioned FRA for relief from part 214's definition of “fouling a track” when hand tools are used to remove snow from a station platform's tactile warning area. See Docket No. FRA 2011-0077, available at www.regulations.gov . As noted in BMWED/BRS's comment, FRA granted that waiver. In the NPRM, FRA also requested comment on whether station platform work coordinators should be required to wear highly visible garments conforming to the standards of the American National Standards Institute/International Safety Equipment Association. In response, APTA, BMWED/BRS, 3M, Kimberly-Clark Professional, the Reflective Apparel Factory, and NTSB commented. The BMWED/BRS commented that individual railroads should determine the selection and their employees' use of highly visible protective equipment. NTSB commented that most railroads currently require roadway workers to wear highly visible vests, and, because of the low visibility conditions that typically exist during snow removal operations on station platforms, FRA should require highly visible safety apparel for all work performed in those conditions. APTA's comment supported using high visibility apparel to help differentiate passengers on the platform from workers, but stated it did not support considering these workers “roadway workers.” Kimberly-Clark Professional, the Reflective Apparel Factory, and 3M all expressed general support for a highly visible garment requirement for station platform work coordinators. As discussed above, FRA is not adopting proposed § 214.338 in this final rule. Accordingly, FRA is not adopting a highly visible garment requirement. As noted in NTSB's comment, FRA understands most railroads already require roadway workers to wear highly visible garments. 2. Verbal Protection Consistent with a recommendation of the Working Group, in the NPRM, FRA proposed new § 214.324, designed to enable roadway workers to establish working limits using “verbal protection.” In the NPRM, FRA explained that by proposing to adopt the Working Group's “verbal protection” recommendations, it intended to address discrepancies discussed by the Working Group regarding how on-track safety terminology and use varies in different parts of the country. As proposed, verbal protection nearly mirrored the requirements of foul time. For example, as proposed, if a RWIC established working limits utilizing either verbal protection or foul time, he or she would not have to copy a written authority and maintain possession of it while working limits were in effect. Instead, the RWIC would only have to correctly repeat back the applicable working limits information to the train dispatcher or control operator. The primary difference between verbal protection as proposed and the existing rule allowing establishment of working limits via foul time is that under verbal protection, a RWIC could authorize on-track equipment and trains to move into and within working limits. Under existing § 214.323, foul time can be utilized both within and outside of manual interlockings or controlled points, but trains and on-track equipment are prohibited from moving into working limits until the roadway worker who obtained the foul time reports clear of the track. In the NPRM, FRA requested comment on whether a RWIC using verbal protection to establish working limits should be required to make and maintain a copy of the working limits information. FRA noted that such a requirement would ensure a RWIC could reference a written document if any question regarding the working limits arose. FRA believes this would be particularly important when a RWIC utilizing verbal protection is asked to clear track to permit trains or other on-track equipment to move through his or her working limits and then resume work. In response to this request for comment, FRA received comments from AAR, MTA, and the BMWED/BRS. AAR's comment stated the rule should not require a RWIC to make and maintain a written copy of working limits when using verbal protection, as there is no “significant opportunity for confusion if the procedures for verbal protection are followed.” AAR further stated the use of a written authority would defeat the purpose of verbal protection. MTA's comment made the same point and added that requiring a RWIC to copy the information could potentially distract that RWIC. BMWED/BRS's comment indicated this proposal would exclude lone workers from being able to establish verbal protection working limits (due to § 214.7's proposed definition of the term “roadway worker in charge”) and advocated requiring the RWIC to make a written copy of working limits authority via verbal protection. BMWED/BRS indicated that because an RWIC could authorize train and on-track equipment movements into working limits authorized by verbal protection, a written document would enhance safety and eliminate mental errors regarding the working limits. In light of the comments received, FRA again reviewed the records of the Working Group's discussions on verbal protection. Those records indicate the Working Group may have primarily intended verbal protection as a method for roadway maintenance machines to occupy and move through interlockings and controlled points and to perform short duration work as necessary. FRA notes that existing part 214 already accommodates these activities through the establishment of working limits via foul time (§ 214.323) and exclusive track occupancy (§ 214.321). Existing § 214.323 permits the establishment of foul time working limits within a manual interlocking or controlled point, and permits the working limits to be established verbally by the RWIC and dispatcher. Although part 214 does not specify any time limit on the duration of foul time, typically, foul time is used for short durations. If longer duration work needs to be performed, and a RWIC desires to let trains through working limits without giving up his or her authority, the RWIC can use the exclusive track occupancy procedures at existing § 214.321. Further, FRA notes that part 214 does not always require the establishment of working limits to move roadway maintenance machines through an interlocking or controlled point. Existing § 214.301(c) allows roadway maintenance machine movements in travel mode (not performing work such that working limits are required) to do so under the authority of a dispatcher or control operator. Because existing part 214 already provides the flexibility FRA intended the proposal for verbal protection to achieve, and consistent with AAR's comment, FRA believes requiring a RWIC to write down his or her working limits information would make verbal protection somewhat indistinguishable from existing exclusive track occupancy procedures under § 214.321. FRA also believes that in some instances using verbal protection could raise safety issues if not utilized as intended ( e.g., a roadway work group's establishment of working limits within an interlocking to perform work requiring the group to repeatedly clear and then re-occupy track to let trains travel through working limits). After careful consideration of this issue, FRA strongly believes that if a work group wants to let trains or other on-track equipment travel through working limits without releasing its authority, the RWIC should have a written (or electronic) document to refer to containing all relevant information for that authority ( e.g., the exact limits of the authority, track number(s)). The existing exclusive track occupancy procedures at § 214.321 provide for such a document for the work group to reference. FRA understands the operating rules of railroads may utilize different terminology than exists in part 214 ( e.g., some railroads' rules may refer to § 214.321's exclusive track occupancy requirements as “foul time”). FRA also understands some railroads' rules may differ from part 214 in not permitting using certain forms of working limits within the limits of an interlocking or controlled point. However, existing part 214 has no such restrictions. A new verbal protection section would not create any flexibility in establishing working limits within a manual interlocking or controlled point that part 214 does not already provide, and could potentially introduce safety concerns that do not currently exist if not used as the Working Group seems to have originally intended. Thus, FRA declines to adopt the proposed “verbal protection” section in this final rule. 3. Physical Characteristics Qualification for Watchmen/Lookouts and Lone Workers Existing § 214.353 governs the qualification and training of RWICs and includes training on the “relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.” However, similar training and qualification is not required for lone workers or watchmen/lookouts. See §§ 214.347 and 214.349. In the NPRM, FRA requested comment on whether lone workers and watchman/lookouts should be trained and qualified on the physical characteristics of a territory similar to the qualification requirement for RWICs. Lone workers are similar to RWICs because they establish on-track safety, but only for themselves rather than for an entire roadway work group like an RWIC. FRA sought comment on this issue to determine if such a requirement could potentially improve the safety of lone workers and better enable watchmen/lookouts to provide effective train approach warning at particular locations. BMWED/BRS, AAR, SEPTA, NJT, and MTA each commented on this proposal. The BMWED/BRS comment supported including physical characteristics qualification and training for lone workers, noting they must be able to establish working limits when necessary, and be familiar with their assigned territory. Both BMWED/BRS and SEPTA opposed physical characteristics training for watchmen/lookouts because such employees work under the supervision of a RWIC who must be qualified on the physical characteristics and have cost concerns. Noting the lack of accidents attributed to roadway workers lacking familiarity with the physical characteristics of a territory, AAR's comment opposed this proposal, stating there is no evidence to support the requirement and citing cost concerns. NJT's comment stated lone workers already have to be qualified on physical characteristics to foul track. FRA agrees with NJT to the extent a railroad chooses to require physical characteristics training to consider a lone worker “qualified,” as that term is defined at existing § 214.7. With regard to watchmen/lookouts, NJT's comment stated that physical characteristics qualification would not always help an employee determine proper sight distances and such a requirement would not significantly enhance safety. Rather, NJT suggested FRA should clarify job briefing requirements when roadway work groups utilize watchmen/lookouts. MTA's comment stated it does not believe watchmen/lookouts should be required to have physical characteristics qualification. After evaluating the comments, FRA is not adopting either the lone worker or watchmen/lookouts physical characteristics qualification requirement. First, no commenters supported the proposal on watchmen/lookouts, pointing to cost prohibitions, the fact that each roadway work group is already required to have a RWIC qualified on the physical characteristics, and issues with logistics and efficiency. Although some commenters did support such a requirement applying to lone workers, FRA is not aware of accident data to offset the costs such a requirement might entail and does not believe that specifically mandating the physical characteristics qualification of lone workers would yield any real safety benefit. As a practical matter, as NJT's comment recognized, lone workers are often already qualified on the physical characteristics of a territory, as they need to be conversant in which type of protection (working limits versus individual train detection) is appropriate at any given work location. FRA also notes that under the existing RWP regulation lone workers always have the absolute right to establish working limits when fouling track, which eliminates safety concerns regarding the use of individual train detection if the lone worker is not comfortable using that form of on-track safety at any location. See 49 CFR 214.337(b). 4. Removal of Objects by Hand Under Train Approach Warning Consistent with the Working Group's consensus recommendation, in the NPRM FRA proposed to add new paragraph (g) to § 214.337. Paragraph (g) is adopted in this final rule and prohibits lone workers from utilizing individual train detection to provide on-track safety when using a roadway maintenance machine, equipment, or material that cannot be readily removed from the track by hand. As noted in the NPRM, the Working Group also discussed the use of train approach warning (§ 214.329) by roadway work groups using roadway maintenance machines, equipment, or material not easily removed from the track. Although the Working Group did not reach consensus on this point, because the existing RWP regulation is silent on this issue, FRA proposed in the NPRM new § 214.329(h). FRA intended paragraph (h) to prohibit using train approach warning as the form of on-track safety when a roadway work group is using equipment they cannot easily remove from the track and to clarify the establishment of working limits is necessary in such situations. FRA is not adopting proposed § 214.329(h) in this final rule for the reasons explained below. NTSB and BMWED/BRS comments opposed adding proposed paragraph (h) to § 214.329. NTSB stated the purpose of existing § 214.329 governing train approach warning provided by watchmen/lookouts is to ensure roadway workers can occupy a place of safety not less than 15 seconds before a train arrives. Further, NTSB notes the section is intended to protect roadway workers by allowing them to immediately move to occupy a place of safety when train approach warning is provided, not to allow the coordination of equipment removal. Like NTSB's comments, BMWED/BRS commented that train approach warning is limited to warning persons to clear the track and is not intended to protect equipment fouling a track. BMWED/BRS noted that issues with removing equipment from track have not arisen in situations involving the train approach warning regulation. BMWED/BRS explained that if a roadway worker is holding a hand tool or a small handheld power tool, he or she will normally carry that tool with them to the place of safety. BMWED/BRS argued proposed paragraph (h) is unsafe, would increase the risk of roadway workers being struck by trains or on-track equipment, and that “FRA should not require roadway workers to do anything except immediately move to a predetermined place of safety upon receiving a train approach warning.” After FRA published the NPRM, on January 6, 2014, the rail industry's Fatality Analysis of Maintenance-of-Way Employees and Signalmen (FAMES) Committee 4 published a report analyzing fatal accidents which occurred under train approach warning. 5 The report noted that three of the 10 fatal accidents analyzed, which occurred when roadway workers used train approach warning to establish on-track safety, resulted from watchmen/lookouts not being fully focused on the task of detecting approaching trains. The FAMES report emphasized compliance with certain practices required by existing § 214.329. That existing regulatory provision requires watchmen/lookouts to devote their full attention to detecting the approach of trains and communicating the appropriate warnings to roadway workers. That section further prohibits assigning any other duties to the watchman/lookout while that individual is functioning as a watchmen/lookout. After careful consideration of the comments received and the findings of the FAMES report, FRA believes that emphasis on the existing requirements of § 214.329 and continued vigilant enforcement efforts are the best methods to ensure roadway worker safety when train approach warning is used to establish on-track safety. Accordingly, FRA is not adopting proposed paragraph (h) in this final rule. FRA believes the commenters raised valid points regarding the safety of roadway workers and that the regulation is intended to protect roadway workers, not equipment. FRA also agrees a roadway worker's first responsibility upon receiving train approach warning is to move to occupy a place of safety. While FRA intended this proposal to improve safety, it appears safety is best improved by reinforcing strict compliance with existing § 214.329. That section, if followed, provides for effective on-track safety for roadway workers. 4 The FAMES Committee consists of safety representatives from a cross section of railroad labor, railroad management, and federal regulators. FAMES analyzed all fatalities and selected related incidents to make recommendations to reduce the risk of future occurrences and eliminate fatalities to roadway workers. 5 http://www.fra.dot.gov/eLib/Details/L04902 . B. Effective Date In the NPRM, FRA requested comment regarding the appropriate effective date of this final rule. SEPTA, MTA, BMWED/BRS, and AAR submitted comments in response to this request. SEPTA agreed with the NPRM's preamble discussion noting that the effective date of this final rule should consider railroad training schedules. MTA commented that FRA should consider the time needed for the preparation of training materials to select an effective date. MTA's comment also indicated that if this final rule required certain employees to be trained on both part 218's blue signal protections and subpart C's roadway worker protections, additional time for developing training would be necessary. FRA is not adopting a requirement that employees be trained on the protections in both part 218 (blue signal) and part 214 (on-track safety) in this final rule. BMWED/BRS requested the effective date to be timed to coincide with the effective date of the adjacent track final rule. However, that rule already took effect on July 1, 2014. AAR's comment urged FRA to choose an effective date providing sufficient time to allow for the preparation of training materials for training classes. In light of the comments received and consideration of the safety benefits to be gained from implementation of this rule, the effective date of this final rule is April 1, 2017. As this final rule is being published in the first half of 2016, railroads have adequate time to adjust training materials used for training classes to be conducted in the first quarter of 2017, or during the time period when annual training is typically conducted for roadway workers. Industry practice is for railroads to finalize their annual rules instruction programs in the fourth quarter of the calendar year, and then to actually instruct their employees in the first quarter of the next calendar year. Based on the implementation date chosen, railroads will not have to alter the timing of their instruction programs for the rule to take effect after the first quarter of 2017. C. Discussion of General Comments Received SEPTA recommended that FRA limit this rulemaking to issues the RSAC addressed. As noted in the NPRM and discussed above, the Working Group meetings that form the basis for much of this final rule took place between 2005 and 2007. Since these meetings, FRA focused its efforts and resources on the adjacent track rulemaking discussed above and other safety issues and Congressional mandates (most notably implementation of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Division A, 122 Stat. 4848) (RSIA), which required significant new FRA regulatory efforts). In the interim time, however, FRA continued to address safety issues related to roadway worker protection in general, including NTSB Safety Recommendation R-08-06. Therefore, issuing a regulation not taking into consideration the latest relevant developments and safety issues would be an inefficient and ineffective use of FRA's resources. APTA requested that FRA publish specific proposed rule text to comment on so the public can appropriately focus their comments and increase the effectiveness of public comments. The Administrative Procedure Act ( see 5 U.S.C. 553(b)(3)), does not require an agency to propose specific regulatory text in proposed rules, but instead allows an agency to provide “a description of the subjects and issues involved.” Nevertheless, in the NPRM, FRA proposed specific regulatory text for almost all its proposals. In this final rule, FRA is adopting three of the items proposed without specific regulatory text (tunnel niches (§ 214.317(d)), blue signal allowances (§ 214.318), and redundant signal protections (§ 214.319(b)). FRA believes the public comments received addressing the benefits and/or drawbacks and potential burdens of these proposals sufficiently inform FRA's reasonable regulatory decisions, particularly in light of the past RSAC discussions. Further, on certain proposals, such as whether FRA should permit using blue signal protections for certain maintenance performed within locomotive and car shop areas, FRA reasonably sought comments broadly addressing how best to implement the proposals if adopted in a final rule ( see new § 214.318 below). Last, AAR commented that the NPRM's accompanying cost-benefit analysis relied on business benefits. AAR stated that where NPRM proposals would impose burdens on the railroad industry, to adopt those provisions in a final rule, the proposals must be modified if there are no offsetting safety benefits. FRA addresses this comment further in the Regulatory Impact Analysis (RIA) accompanying this rule. IX. Section-by-Section Analysis Section 214.7 Definitions In the NPRM, FRA proposed amending the existing part 214 definitions to add both new definitions and revise existing definitions. In this final rule, FRA is adding new definitions for the following terms: controlled point; interlocking, manual; maximum authorized speed; on-track safety manual; and roadway worker in charge (RWIC). FRA is also amending part 214's existing definitions for “effective securing device” and “watchman/lookout.” Consistent with the consensus recommendation of the Working Group, in the NPRM, FRA proposed to add the same definition of “controlled point” to part 214 as in FRA's signal regulations at 49 CFR 236.782. In this final rule, FRA is adopting the definition as proposed. As explained in the NPRM, a definition of “controlled point” in part 214 is necessary because existing § 214.337 prohibits using individual train detection by a lone worker inside the limits of a “controlled point.” See § 214.337(c)(3). However, the term “controlled point” is not defined in the existing RWP regulation. As also explained in the NPRM, in 2005, in response to interpretation issues, FRA issued Technical Bulletin G-05-29. Technical Bulletin G-05-29 adopted § 236.782's definition of “controlled point” and that definition is used in the RWP regulation today. AAR and BMWED/BRS commented on this proposal. AAR expressed concern that under the proposed definition any location with a remote controlled power switch would be considered a controlled point. AAR stated that absolute signals are not always at these locations ( e.g., dual-control switches that may be manipulated either by hand or remotely, typically by a train dispatcher or control operator) in non-signaled track warrant control territory. In addition, AAR stated the practical effect of this definition would be that railroads could not use individual train detection where there is a remote controlled power switch since it only permits using individual train detection outside the limits established by a controlled point. AAR also expressed concern that switch heaters, snow blowers, signal call lights, blue signal protection, electric switch locks, and bridges can be “controlled” by dispatchers via the control system, but these locations are not considered “controlled points” as commonly understood in the industry. AAR urged FRA to delete the words “and/or other functions of a traffic control system” from the definition of “controlled point” in this final rule. BMWED/BRS expressed concern about allowing roadway workers to use individual train detection at power-operated switches. BMWED/BRS asserted that power-operated switches can be manipulated by a train crew from a distance resulting in injury to a roadway worker performing work on such a switch while relying on individual train detection as his or her means of on-track safety. BMWED/BRS urged FRA to prohibit lone workers from using individual train detection as a method of on-track safety while working on power-operated switches. FRA agrees with AAR's comments to the extent that FRA did not intend to include most of the mechanisms AAR listed in the definition of “controlled point” (switch heaters, blue signal protection, snow blowers, etc. ). FRA disagrees, however, with regard to remote-controlled power switches and to bridges that are moveable via a control machine (by train dispatcher or control operator). FRA does intend to include those mechanisms in the definition. Under the existing regulation, a lone worker working on a moveable bridge that is a controlled point is always required to establish working limits because a lone worker using individual train detection as his or her form of on-track safety is not required to notify a train dispatcher or control operator of the work they are performing. If a lone worker used individual train detection on a moveable bridge “controlled point,” the dispatcher or control operator may be unaware of the roadway worker's presence and could remotely move the bridge with the roadway worker on it, creating risk of injury or death to the roadway worker. Accordingly, FRA does not agree with AAR's comment regarding movable bridges has merit. In the NPRM, FRA explained that power-operated switches are not generally considered interlockings or controlled points when the switches have wayside indication devices that convey the position of a switch and are operated by train crews. However, FRA further noted that if a power operated switch can be remotely operated by a control operator or dispatcher, it may be considered a “controlled point.” See 77 FR 50333. The Working Group specifically contemplated whether to expand the allowable use of individual train detection in the otherwise prohibited “controlled point” locations, but did not reach consensus on this issue, largely for safety reasons. FRA agrees with the Working Group's concerns and does not believe it prudent to expand use of individual train detection to “controlled points” consisting of remote-controlled power switches. As explained in the original 1996 RWP final rule, using individual train detection is appropriate only in very limited circumstances. 61 FR 65959, 65971. In response to the BMWED/BRS comment, in the NPRM, FRA addressed power-operated switches (77 FR 50333), explaining that 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; and • 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 does not believe it prudent to expand the definition of “controlled point” to include all power-operated switches. Rather, the longstanding guidance described above from FRA Technical Bulletin G-05-11 regarding which power-operated switches constitute “controlled points,” will continue to control. Lone workers performing work at these installations, or at any other location where individual train detection use is permitted, maintain the absolute right to use a form of on-track safety other than individual train detection. See § 214.337(b). Thus, a blanket expansion of the definition to address all power-operated switches is not justified. Upon the effective date of this final rule, the definitions of “controlled point” and “interlocking, manual” (discussed below) adopted in this rule supplant FRA Technical Bulletin G-05-29. Consistent with the Working Group recommendation, in the NPRM FRA proposed amending the existing definition of “effective securing device” to incorporate the contents of Technical Bulletin G-05-20. In this final rule, FRA is adopting the revised definition as proposed. FRA intended to clearly identify effective securing devices and to prevent railroad employees from being injured attempting to operate a secured device. Therefore, FRA proposed to specify in the definition of “effective securing device” that any such device must be equipped with a “unique tag” clearly indicating to other railroad employees that the switch is secured by roadway workers. AAR, BMWED/BRS, and an individual submitted comments on FRA's proposed amendment to this definition. BMWED/BRS advocated for a tag affixed to an effective securing device to be either a generic or a unique tag if the tag clearly indicates inaccessible track working limits and the railroad's rules prohibit operating in those limits except as the RWIC permits. AAR similarly commented that FRA should clarify the meaning of “unique” tag. AAR stated unique tags should be craft-specific, and not unique to an individual employee. AAR also stated that requiring an individual employee to sign the tag would be unnecessary and burdensome. Finally, an individual commenter asked if an RWP-specific tag would suffice or whether FRA's proposed amendment would require an additional “unique” tag. FRA is adopting the revised definition as proposed. In response to the comments received, FRA clarifies that the tag does not have to be “unique” to a specific person or work gang. Rather, a craft-specific tag is considered unique. In this final rule, as proposed in the NPRM and consistent with BMWED/BRS's comment supporting the proposal, FRA is adopting the Working Group's recommended definition for the new term “interlocking, manual.” This definition mirrors the existing definition for the same term in FRA's signal and train control regulation (§ 236.751). Because we are not making substantive revisions in this final rule to the proposals in the NPRM for the definitions of “controlled point” or “interlocking, manual,” for ease of reference, below, FRA is duplicating the table included in the NPRM, summarizing 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 § 214.337(c)(3) Yes. Manual interlocking No. Automatic interlocking Yes. Power-operated switch installations See discussion above. In this final rule FRA is adopting the new definition for the term “maximum authorized speed” proposed in the NPRM. 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 “maximum authorized speed” exists in the current RWP regulation. Accordingly, the Working Group recommended that FRA define the term “maximum authorized speed” as the 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 to determine the appropriate train approach warning distance could pose inherent dangers. That danger can occur when someone removes a temporary restriction from a particular segment of track without notifying the roadway work group or lone worker using that temporary speed restriction so they can determine the appropriate train approach warning distance. In response to the NPRM proposal, both NJT and BMWED/BRS comments agreed temporary speed restrictions should not be used to determine appropriate train approach warning distances and supported the proposed definition. Therefore, FRA is adopting the new definition as proposed. FRA notes this new definition also applies to the RWP requirements in the adjacent track rulemaking. See § 214.336. Consistent with the consensus recommendation of the Working Group, in the NPRM, FRA proposed to define “on-track safety manual.” FRA intended the proposed definition to provide clarity. FRA is adopting the definition substantially as proposed, with minor clarifying language suggested by BMWED/BRS. As noted in the NPRM, existing § 214.309 requires each RWIC and lone worker to have with them a manual containing the rules and operating procedures governing track occupancy and protection. To clarify the materials that must be included in such a manual, FRA proposed to define the term “on-track safety manual,” in part, as “the entire set of instructions designed to prevent roadway workers from being struck by trains or other on-track equipment.” BMWED/BRS suggested that the definition require “the entire set of on-track safety rules and instructions” to be in the manual and to expressly state the on-track safety rules and instructions must be maintained together in one manual. FRA agrees with both of BMWED/BRS's suggestions. First, BMWED/BRS's suggested reference to “the entire set of on-track safety rules and instructions” more accurately captures the manual's required contents. Second, consistent with the existing RWP regulation, FRA intended to require that the “on-track safety manual” be a single manual. As discussed in the NPRM preamble, and in the 1996 final rule preamble BWMWED/BRS quoted in their comment, that single manual may be divided into binders (separate sections where appropriate), rather than requiring railroads to issue new manuals each time it amends a rule or issues a new rule. For example, the manual could be broken into separate sections addressing on-track safety rules, good faith challenge procedures, roadway maintenance machine procedures, and other relevant issues. As discussed in the NPRM, FRA Technical Bulletins G-05-12 and G-05-25 both address concerns regarding the requirement to maintain on-track safety manuals. Because this final rule's adoption of a definition for “on-track safety manual” alleviates the need for Technical Bulletins G-05-12 and G-05-25, those Technical Bulletins are supplanted upon the effective date of this final rule. Next, in the NPRM FRA proposed a definition for the term “roadway worker in charge” (RWIC). 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,” and other similarly descriptive terms. The Working Group's consensus recommendations for this rulemaking also used the term “roadway worker in charge” in several places. However, that term is not defined in the existing regulation, and the Working Group did agree on a recommended definition of the term. The NPRM's proposed definition of RWIC mirrored the existing definition for the term in FRA's Railroad Operating Practices Regulation ( see § 218.93). FRA also proposed to amend numerous sections of part 214 to substitute the term “roadway worker in charge” for the wide variety of terms currently used to describe the roadway worker who is in charge of a roadway work group and establishes on-track safety for that group. In its comments on FRA's proposed definition of RWIC, BMWED/BRS recommended that FRA revise the proposed definition to include lone workers. BMWED/BRS supported including lone workers in the definition of “roadway worker in charge” to permit a lone worker to establish on-track safety for his or her self (without unnecessary regulatory text referring to both RWICs and lone workers). Specifically, BMWED/BRS suggested adding the words “and lone workers qualified in accordance with § 214.347 for the purpose of establishing on-track safety for themselves” to the end of the proposed definition. FRA concurs with the BMWED/BRS comment, and, in this final rule, is adopting a slightly different definition of RWIC than the suggested language. FRA is defining “roadway worker in charge” as a roadway worker who is qualified under § 214.353 to establish on-track safety for roadway work groups, and lone workers qualified under § 214.347 to establish on-track safety for themselves. Under the current regulation, lone workers can establish on-track safety for their own protection, either via individual train detection or by establishing working limits. In the NPRM, FRA did not intend to prohibit lone workers from establishing working limits for their own protection. FRA emphasizes, however, that consistent with the existing regulation, a lone worker who is qualified under § 214.347 may establish the appropriate form of on-track safety for his or herself. However, if a lone worker is establishing on-track safety for any other roadway workers, he or she must be qualified under § 214.353 as a RWIC. Finally, FRA noted in the preamble of the NPRM that a RWIC may only perform watchman/lookout duties if the requirements of § 214.329 are met. Section 214.329(b) requires that watchmen/lookouts 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 RWIC 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 when a RWIC may permissibly fill both roles. In the NPRM, FRA proposed to amend the definition of “watchman/lookout” to account for the proposed use of station platform work coordinators and requested comment on potentially amending the existing definition to more accurately reflect the training and qualification requirements for a watchman/lookouts. In this final rule, FRA is not adopting the proposed station platform work coordinators provisions. Thus, the proposed revision to the watchman/lookout definition is unnecessary. With regard to watchman/lookout training and qualification requirements, the existing regulation defines a watchman/lookout, in part as, an employee who has been annually trained and qualified to provide train approach warning to roadway workers of approaching trains or on-track equipment. See § 214.7. However, as discussed below in the Section-by-Section analysis for § 214.347, the current regulation does not specify the frequency of “periodic” qualification requirements for specific roadway worker qualifications ( e.g., lone worker, watchman/lookout, flagman, or RWIC qualification). Existing § 214.349(b) requires initial and periodic qualification of a watchman/lookout to be evidenced by demonstrated proficiency, mirroring the other existing additional roadway worker qualification sections. FRA requested comment on whether it should remove the word “annually” from the existing definition of “watchman/lookout” so the definition more accurately reflects both the current and any future RWP refresher qualification and training requirements and is consistent with the other existing roadway worker qualification definitions. BMWED/BRS submitted a joint comment in response to the proposal, and BMWED, submitted its own additional late comment. Noting that the Working Group reached consensus on annual training and qualification requirements for roadway workers, in their comments, BMWED/BRS opposed removing the word “annual” from the definition of watchman/lookout. After consideration of BMWED/BRS's comment, in this final rule FRA is removing the word “annually” from the definition of “watchman/lookout.” As stated above, removing the reference to “annual” is for consistency with the definitions of the other roadway worker qualifications, and because the “periodic” qualification requirement is not considered an “annual” requirement under the RWP regulation. FRA's longstanding position since the RWP rule became effective in 1997 is that roadway worker training is an annual requirement (see Section-by-Section analysis discussion for §§ 214.343, 214.345, 214.347, 214.349, 214.351 and 214.353). As discussed in the Section-by-Section analysis for the roadway worker training sections below, the RSAC consensus recommendation was for a 24-month “periodic” re-qualification requirement, and the training standards rulemaking at 49 CFR part 243 requires a minimum three-year qualification interval. FRA is not amending the annual training requirement for watchmen/lookouts or for roadway workers generally. However, as discussed in the Section-by-Section analysis for the training sections below, FRA is adopting a definite interval for periodic re-qualification in this final rule. The BMWED's later comment expressed concern that some railroads are not providing watchmen/lookouts with any audible or visual warning devices to provide appropriate train approach warning. The comment points out the existing definition of the term “watchman/lookout” in § 214.7 requires, in part, that roadway workers acting as watchmen/lookouts be properly equipped to provide visual and auditory warning, such as whistle, air horn, white disk, red flag, lantern, fusee. The comment urges FRA to clarify in this final rule that use of such audible and/or visible warning devices are mandatory to provide train approach warning under § 214.329. FRA concurs with the BMWED. Both the definition of watchman/lookout, and the operative train approach warning regulation at § 214.329(c) and (g), provide that watchmen/lookouts must be properly equipped to provide train approach warning. As explained in the preamble to the 1996 final rule implementing subpart C: [t]his section further imposes a duty upon the employer to provide the watchman/lookout employee with the requisite equipment necessary to carry out his on-track safety duties. It is intended that a railroad's on-track safety program would specify the means to be used by watchmen/lookouts to communicate a warning, and that they be equipped according to that provision. 61 FR 65970, Dec. 16, 1996. Thus, FRA emphasizes that under the existing RWP regulation, a railroad must properly equip a watchman/lookout with the equipment specified by the railroad's on-track safety program to properly communicate a warning. Except in limited circumstances ( e.g., a watchman/lookout assigned to provide train approach warning for a single welder and who is located immediately next to the welder to provide a warning), if a railroad does not provide equipment with the specified auditory or visual warning capabilities to the roadway workers a watchman/lookout is protecting, the railroad is in violation of § 214.329. If an on-track safety program fails to specify the “requisite equipment necessary” for a watchman/lookout to provide on-track safety for a roadway work group, the program also is not compliant with part 214. Subpart B—Bridge Worker Safety Standards In the NPRM, FRA proposed to delete the existing incorporations by reference of certain outdated industry standards for personal protective equipment (PPE) in subpart B of part 214 (Bridge Worker Protection). Specifically, §§ 214.113, 214.115, and 214.117 incorporate by reference certain American National Standards Institute (ANSI) standards governing head, foot, eye, and face protection, respectively. FRA originally promulgated those sections in 1992 and they reference standards from 1986. 57 FR 28116, Jun. 24, 1992. Although the regulatory requirements have not been substantively updated in some time, ANSI has updated the standards themselves. Employers and employees may not be able to obtain PPE manufactured using the older standards currently incorporated by reference. As such, FRA proposed to (1) amend these existing sections to reflect the updated ANSI standards, (2) allow the continued use of any existing equipment which meets the standards currently incorporated by reference in part 214, and (3) allow the use of equipment meeting updated versions of those standards. FRA received no comments on these NPRM proposals and is adopting the revisions to §§ 214.113, 214.115, and 214.117 as proposed. For a detailed discussion of these amendments, see the preamble to the proposed rule at 77 FR at 50335-36. 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. Existing paragraph (c) explains that subpart C prescribes safety standards for the movement of roadway maintenance machines when such movements affect the safety of roadway workers. Paragraph (c) further explains that subpart C does not affect the movements of roadway maintenance machines that are conducted under the authority of a train dispatcher, a control operator, or the operating rules of a railroad. To clarify the paragraph's meaning, FRA proposed regulatory text explicitly stating that while roadway maintenance machines are traveling under the authority of a train dispatcher, a control operator, or the operating rules of the railroad, the operator is not required to establish on-track safety under part 214. FRA did not intend this proposed amendment to be substantive but rather to clarify the existing meaning of paragraph (c) consistent with FRA Technical Bulletin G-05-14. Technical Bulletin G-05-14 explains that the regulation does not affect movements of roadway maintenance machines over non-controlled track being made under the operating rules of the railroad, but, those same machines, while actually conducting work, must establish on-track safety. After careful consideration of the issue and comments received, FRA concluded the meaning of paragraph (c) is already well understood and the proposed amendment is unnecessary. Thus, in this final rule, FRA is not adopting this proposed amendment to paragraph (c). However, FRA is adding a reference in paragraph (c) to new § 214.320 adopted in this final rule. Section 214.320 pertains to the NPRM's proposed revisions to § 214.301 on the movement of roadway maintenance machines over non-controlled track equipped with automatic block signal (ABS) systems where trains are permitted to travel at greater than restricted speed. The discussion of that issue, and of the comments received, appears below in the Section-by-Section analysis for new § 214.320. As a result of the amendments this final rule makes to §§ 214.301, 214.320, and 214.329, and as noted in the NPRM, upon the effective date of this final rule Technical Bulletin G-05-14 is supplanted. Section 214.302 Information Collection Requirements FRA received no comments in response to this proposal. Therefore, as proposed in the NPRM, FRA is deleting this existing section from part 214. For a detailed summary of the information collection requirements, please see the Paperwork Reduction Act discussion in Section X of the preamble below. Section 214.305 Compliance Dates As proposed in the NPRM, FRA is deleting existing § 214.305, because the compliance dates in the section are obsolete. FRA received no comments in response to this proposal. Section 214.307 On-Track Safety Programs Existing § 214.307 requires a railroad 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 programs. In the NPRM, FRA proposed to amend this section by: (1) Rescinding the requirement that railroads provide FRA advance notice of the effective date of their on-track safety programs; and (2) modifying the existing on-track safety program formal approval process. Instead, FRA proposed to review railroads' on-track safety programs upon request. FRA proposed these amendments intending to alleviate burdens as part of its retrospective review of subpart C. Related to this proposed revision, FRA proposed a new paragraph (b) mirroring other provisions FRA recently adopted in the Federal railroad safety regulations ( see 49 CFR 220.313). In new paragraph (b), FRA proposed that the FRA Associate Administrator for Railroad Safety and Chief Safety Officer could disapprove a program for cause stated, and proposed requiring a railroad to respond to any such disapproval within 35 days by either (1) amending its program and submitting the amendments for approval, or (2) providing a written response in support of its program. As proposed, FRA's Associate Administrator for Railroad Safety and Chief Safety Officer would subsequently render a decision in writing either approving or disapproving the program. Under this proposal, FRA would consider a failure to submit an amended program or provide a written response as the section requires a failure to implement a program under this part. Finally, in the NPRM, FRA proposed removing the outdated reference to the compliance dates of § 214.305. BMWED/BRS submitted comments recommending that FRA retain and clarify the advance notification requirement of the section, and additionally suggested language clarifying the requirement for railroads to maintain an on-track safety program approved by FRA. BMWED/BRS also recommended requiring railroads amending or adopting an on-track safety program notify FRA one month prior to the effective date of any amendments to a program or implementation of a new program. FRA agrees with BMWED/BRS's comment regarding the retention of the advance notification requirement. FRA is retaining that existing provision but moving it to paragraph (b) of this section. FRA agrees it should continue to have advance notice so it can review new on-track safety programs (or railroads' amendments to existing FRA-approved programs). FRA is, however, amending this section to eliminate the required formal review process for each new program and each amendment to existing FRA-approved programs. Specifically, FRA is amending paragraph (a) of this section to require railroads to maintain and make their programs available to FRA upon request. This amendment will enable FRA to better utilize its limited resources to focus on addressing legitimate safety concerns with railroads' on-track safety programs, rather than conducting mandatory formal reviews of programs that, in some instances, been established and approved by FRA for many years. As proposed in the NPRM, FRA is also amending this section to eliminate reference to the compliance dates in § 214.305, because as explained above, those dates are obsolete and this final rule deletes § 214.305. Given the deletion of § 214.305, however, FRA is amending paragraph (a) of § 214.307 to specifically require railroads to have an on-track safety program in effect by the date on which each railroad's operations commence. Finally, FRA is adopting proposed paragraph (b), but is re-designating it as paragraph (c) in this final rule. 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. In the NPRM, FRA proposed amendments to this section consistent with the consensus language recommended by the Working Group. In this final rule, FRA is amending this section to incorporate the definition for the new term “on-track safety manual” ( see discussion of § 214.7 above for background on this newly-defined term). As proposed in the NPRM, FRA is also amending the title of this section to reflect the new term “on-track safety manual.” As proposed in the NPRM, new paragraph (a) of this section incorporated the term “on-track safety manual,” and then repeated the current existing text of § 214.309. In response to this proposal, for consistency with the new term “roadway workers in charge,” BMWED/BRS suggested that FRA add the words “in charge” to the second sentence of this paragraph (so that the sentence would require RWICs responsible for the on-track safety of others and lone workers to have and maintain a copy of the on-track safety manual). FRA concurs, and, in final rule, is amending paragraph (a) consistent with BMWED/BRS's suggestion. In the NPRM, FRA intended new paragraph (b) to address the difficulty a lone worker, such as a signal maintainer or a walking track inspector, might experience carrying a large on-track safety manual. FRA proposed that a railroad must provide an alternate process for a lone worker to obtain on-track safety information. As proposed, the alternate process could include use of a phone or radio for a lone worker to contact an employee who has the on-track safety manual readily accessible. In response to this proposal, BMWED/BRS suggested FRA remove the reference to situations where it is impracticable for a lone worker to “carry” the on-track safety manual, and instead refer to situations where it is “impracticable for the on-track safety manual to be readily available” to a lone worker. FRA agrees BMWED/BRS's proposed language more accurately captures the requirement with regard to access to the on-track safety manual, and is adopting that change in this final rule. Related to the “alternative access” provision of paragraph (b), FRA is also adopting the Working Group's recommendation to require each railroad's lone worker training program to include training on the on-track safety manual alternative access requirement (see discussion of § 214.347 below). As proposed, new paragraph (c) of this section provides for the temporary publication of changes to a railroad's on-track safety manual in bulletins or notices carried along with the on-track safety manual. This proposed change recognizes that railroads often need to make temporary or permanent changes to on-track safety rules and procedures and to publish and distribute those new or revised requirements on an as-needed basis. While any permanent amendments to a railroad's on-track safety program must be incorporated into the on-track safety manual, existing § 214.309 does not allow for the temporary nature of some documents or the practical difficulties with incorporating permanent changes immediately after issuance. In response to this proposal, consistent with their recommendation in paragraph (b) of this section and noting that bulletins and notices are not always literally “carried” by a RWIC or lone worker, the BMWED/BRS suggested that FRA not require temporary bulletins and notices to be “carried” with the on-track safety manual, but rather any temporary publications be “retained” with the on-track safety manual. FRA concurs with this suggestion and is adopting this change in the final rule. In response to proposed paragraph (c), BMWED/BRS also suggested that to prevent “an open-ended process where stacks of `temporary' notices will ultimately supplant” a railroad's on-track safety manual, FRA should require employers to update their on-track safety manual at least annually to incorporate any relevant changes. FRA declines to adopt an annual update requirement because the RSAC did not recommend the requirement, FRA did not propose the requirement in the NPRM, and FRA data does not demonstrate a pattern of problems or accidents resulting from a lack of updates to railroads' on-track safety manuals. Even so, FRA encourages railroads to regularly update their on-track safety manuals to ensure roadway workers have clear access to the most current on-track safety rules. Section 214.315 Supervision and Communication Existing § 214.315 mandates that railroads provide job briefings to roadway workers assigned duties requiring the worker to foul a track. Section 214.315 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 FRA add new requirements to this existing section, mainly addressing job briefing terminology and the substance of the required job briefings. FRA addressed most of these consensus recommendations in the adjacent track rulemaking. 74 FR 74614. One recommendation FRA did not address in the adjacent track rulemaking is the Working Group's recommendation to require job briefing's to include information regarding the accessibility of the RWIC to individual roadway workers and alternative procedures if the RWIC is not accessible to members of the roadway work group. In the NPRM, FRA proposed the Working Group's recommended consensus language requiring employers to designate a substitute employee with the relevant qualifications to serve as RWIC when a roadway work group's original RWIC departs a work site for an extended period of time. FRA is adopting that language in this final rule. SEPTA commented on this proposed amendment noting the inconsistency of the proposal with FRA Technical Bulletin G-05-07. Specifically, SEPTA noted that Technical Bulletin G-05-07 states “ `when a RWIC departs a work site for an extended period, a substitute employee with relevant qualifications may be designated.' ” (Emphasis added.) SEPTA specifically took exception to FRA's use of the word “must” in the NPRM's preamble rather than the word “may” used in the technical bulletin. An RWIC is the person who establishes and directs the on-track safety for a roadway work group, and it is critical that each roadway worker in a roadway work group have access to the RWIC. Access is necessary when a member of the group invokes a good faith challenge, or when he or she has questions concerning the established on-track safety protection. As discussed in FRA Technical Bulletin G-05-07, generally a RWIC must be located in the immediate vicinity of the work activity, but it may be necessary for a RWIC 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). When an RWIC is away from a work site for a short period, it is imperative the roadway work group have a readily available means to communicate with that person. When a RWIC departs a work site for an extended period and is not readily available to communicate with members of the roadway work group, the roadway work group members effectively do not have a RWIC, as he or she is not at the work group's location and cannot communicate with the group. After carefully considering SEPTA's comment, FRA finds that “must” is correct. The RWIC is responsible for ensuring the on-track safety of members of a roadway work group and must be readily available to communicate with members of the group. Thus, FRA is adopting this recommended consensus item as the NPRM proposed. In the NPRM, FRA also proposed minor changes to existing paragraphs (b), (c), and (d) to reflect that roadway work groups often include multiple roadway workers and to ensure consistent use of the term “roadway worker in charge” and “on-track safety job briefing” throughout subpart C. FRA received no comments on these minor proposed amendments and is adopting them in this final rule. For more background on these amendments see the discussion in the preamble to the NPRM. 77 FR 50338. Section 214.317 On-Track Safety Procedures, Generally Existing § 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. In the NPRM, FRA proposed adopting two substantive amendments to this section recommended by the Working Group. The first recommendation would impose requirements for roadway workers who walk across railroad track in new paragraph (b), and the second recommendation would provide new exceptions for roadway workers conducting snow removal or weed spraying operations on non-controlled track in new paragraph (c). FRA also requested comment on whether it should amend subpart C to address using tunnel niches or clearing bays less than four feet from the field side of the near rail. After consideration of comments received, FRA is adopting a slightly modified new paragraph (b), paragraph (c) substantially as proposed, and a new paragraph (d) to address the use of certain tunnel niches and clearing bays. FRA is also redesignating the existing text of § 214.317 as paragraph (a) of the section to account for new paragraphs (b), (c), and (d). In the NPRM, FRA proposed new paragraph (b) in this section to require roadway workers to (1) stop and look before crossing track and (2) move directly and promptly across tracks. Proposed paragraph (b) would also require railroads to adopt rules governing how roadway workers determine if it is safe to cross track and clarify the section is not a substitute for required on-track safety when roadway workers are required to foul the track to perform roadway worker duties. As explained in the NPRM, this proposal addresses the practical reality that roadway workers often need 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 the 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. Proposed paragraph (b) is intended to prevent roadway workers from being struck by trains or other on-track equipment when incidentally crossing track, while at the same time recognizing the need for procedures enabling roadway workers to cross tracks safely without formal on-track safety in place. As proposed, paragraph (b) would have required roadway workers to first stop and look in all directions a train or other on-track equipment could approach from before starting across a track to ensure they could safely clear the track before the arrival of any train or other on-track equipment. FRA intended the proposal to provide an opportunity for roadway workers to physically stop what they are doing and consider the on-track circumstances before crossing live track. SEPTA, BMWED/BRS, NJT, and AAR submitted comments in response to this proposal. SEPTA's comment opposed a requirement that roadway workers stop before crossing each track, explaining that a person who would attempt to cross a track without proper sight distance or in a high traffic area is not likely to stop and look in all directions anyway, so the utility of such a provision would be minimal. NJT's comment supported the requirement that roadway workers look in both directions before crossing a track. BMWED/BRS supported requiring roadway workers to look in all directions before starting across track, but opposed requiring roadway workers to “stop” before crossing. The labor organizations stated a requirement to stop: (1) Is unnecessary; (2) would cause delays; (3) could lead to increases in slips, trips, and falls; (4) is over-prescriptive; and (5) could subject roadway workers to abuse by managers or FRA inspectors conducting safety audits. AAR also opposed the requirement to “stop” before crossing, stating there could be no expectation such a requirement would regularly be followed, and railroads would then be liable for such noncompliance. After evaluating the comments, in this final rule FRA is not adopting the proposed requirement that roadway workers stop and look in all directions before crossing track. Commenters expressed unanimous opposition to the proposed requirement and FRA recognizes it would be very difficult to enforce. FRA believes stopping and looking before crossing railroad track is also a matter of common sense and a necessary reality roadway workers are already faced with. Thus, while in this final rule FRA is not adopting the proposed language requiring roadway workers to stop and look before crossing tracks, FRA is adopting the remaining portions of proposed paragraph (b). New paragraph (b) requires roadway workers to move directly and promptly across tracks and railroads to adopt rules governing how roadway workers determine if it is safe to cross track. Consistent with the proposal in the NPRM, as adopted in this final rule, paragraph (b) also clarifies the requirements of the paragraph are not a substitute for required on-track safety when roadway workers are required to foul the track to perform roadway worker duties. For further background on when on-track safety is required for roadway workers, see the discussion in the preamble to the NPRM. 77 FR 50339-50340. FRA is also adopting the Working Group's recommendation to require a railroad's safety rules governing walking across railroad tracks to be included in all roadway worker training. As proposed in the NPRM, FRA has adopted this recommended training requirement in the roadway worker training provision at § 214.345 (discussed below). New paragraph (c) of this section addresses the Working Group's recommendation for on-track snow removal and weed spraying on non-controlled track. As proposed, paragraph (c) permits on-track snow removal and weed spraying operations on non-controlled track without requiring the track to be made inaccessible under § 214.327. FRA intends the provision to alleviate the difficulty of establishing working limits on non-controlled track for operating equipment moving over long distances, and where roadway workers are conducting limited to no on-ground work activities. After careful consideration of comments responding to proposed paragraph (c), in this final rule, FRA is adopting the paragraph substantially as proposed. Paragraph (c) allows weed spraying and snow removal operations under § 214.301, with the limitations and/or conditions listed in paragraphs (c)(1) through (4) of the paragraph. AAR's comments advocated expanding this provision to allow inspection activities under the same circumstances, but noted the Working Group did not discuss this possibility. Because the Working Group did not discuss this possibility, and FRA did not propose it, FRA declines to include inspection activities in the activities covered by paragraph (c). Also, FRA believes allowing expansion of this exception to include inspection activities would present safety risks as “inspection activities” may entail many different roadway worker activities, and are not of the specialized and more limited nature of the specific snow removal and weed spray operations the Working Group addressed. Further, § 214.301 already covers certain inspection activities while roadway maintenance machines are in “travel” mode, and hi-rail inspection activities are also already subject to certain on-track safety exclusions under § 214.336. Thus, FRA is retaining the existing on-track safety requirements for work activities other than the specific snow removal and weed spray operations the Working Group addressed. Paragraph (c)(1) requires railroads to adopt and comply with procedures for on-track snow removal and weed spraying operations if the allowances under paragraph (c) are utilized. Paragraphs (c)(1)(i) through (iv) set minimum standards for what those procedures must include. Paragraph (c)(1)(i) requires all on-track movements in the area where on-track snow removal or weed spraying operations are occurring be informed of those operations. AAR's comment opposed this requirement, stating it is unnecessary and problematic in areas without radio reception. In response, FRA notes that in areas without radio reception it may be likely there are no other persons conducting on-track movements in the “affected area” required to be notified. Further, there are communication methods other than radio if a railroad wishes to utilize the exception in § 214.317(c) in an area without radio reception. FRA also emphasizes paragraph (c) is an exception to the requirement to establish on-track safety, and FRA anticipates that in the majority of instances this exception can be utilized for, radio reception will not be an issue. If radio reception is an issue and there is no other way to inform others making on-track movements in the area of snow removal or weed spraying operations, railroads will have to follow existing methods of establishing on-track safety to perform the work. As proposed in the NPRM, paragraph (c)(1)(ii) of this final rule requires railroads' procedures to ensure all weed spraying and snow removal operations conducted under paragraph (c) operate at restricted speed 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 must be prepared to stop within one-half the range of vision. Paragraph (c)(1)(iii) requires the procedure adopted by a railroad to ensure 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. 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 RWIC of the snow removal or weed spraying operation. The prohibition on kicking cars is intended to help ensure there is no free rolling equipment near on-track snow removal or weed spraying operations. Thus, before machines can operate under this provision in remotely controlled hump yard facilities, humping operations must be suspended. As explained in the NPRM, in proposing to prohibit weed spraying and snow removal operations when hump yard operations are “in effect,” FRA considered AAR's post-RSAC recommendation to instead prohibit weed spraying and snow removal operations when hump operations are “in progress.” BMWED's post-RSAC comment stated it favored “in effect,” because 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 agreed with the BMWED's position, and proposed the initial Working Group's consensus wording of “in effect,” but requested further comment on this issue from all interested parties. In response to the NPRM proposal, the BMWED/BRS comment reconfirmed the labor organizations' support for the term “in effect” for the status of hump yards. BMWED/BRS stated if “hump yard operations are not `in effect', that would mean that humping operations have been suspended until released back to the hump by the RWIC.” The labor organizations objected to using the term “in progress” because hump operations are not suspended just because humping may not actually be “in progress” at a particular moment. After considering these additional comments, FRA continues to agree with BMWED/BRS's recommendation to prohibit snow removal and weed spraying operations when hump yard operations are “in effect.” This language makes clear FRA's intent for no humping operations to take place until a roadway work group utilizing this section reports clear of hump yard tracks that present the possibility of being struck by humped cars. Thus, FRA is adopting the language it proposed in the NPRM. FRA does not intend that the only way the exceptions in this section may be utilized is to shut down an entire classification yard. Rather, FRA's intent is the hump operations must not be in effect for the tracks (or group of tracks) that would be affected by snow removal or weed spray operations. For example, under this section it is permissible for a block to be placed on a group of tracks within a classification yard where snow blowing activities are taking place, such that equipment could not be humped into those tracks until the roadway work group utilizing this section reports clear of those tracks. Paragraph (c)(2) provides that roadway workers engaged in snow removal or weed spraying operations retain an absolute right to utilize the provisions of § 214.327 (inaccessible track). FRA is adopting this provision as proposed. Paragraph (c)(3) provides that roadway workers engaged in snow removal or weed spraying operations subject to § 214.317 can line switches for the machine's movement without establishing a form of on-track safety under §§ 214.319 through 214.337, but may not engage in any roadway work activity. In its comments, AAR recommends amending this provision to include the lining of derails. FRA agrees with AAR's recommendation as applied to derails lined via switch stands. The lining of derails by switch stand does not typically require fouling the track. FRA does not agree with AAR's recommendation for derails not operated via switch stands. These derails require roadway workers to bend down onto the rail (or directly adjacent to and in the foul of the rail) to operate the derail. Thus, FRA is adding the words “or derails operated by switch stand” to this provision. For derails not operated by switch stand, a method of on-track safety complaint with subpart C is required. As proposed and adopted in this final rule, paragraph (c)(4) contains the consensus recommendation of the Working Group for the roadway equipment utilized under this provision. Paragraph (c)(4) requires that each machine engaged in snow removal or weed spraying operations under § 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 must also be equipped with work lights, unless equivalent lighting is otherwise provided. AAR commented that paragraph (c)(4) does not address what happens when there is an equipment failure, such as if a machine's headlight burns out. AAR suggested that railroads be permitted to operate the equipment under § 214.317 for seven days after learning of a failed component. FRA declines to adopt AAR's suggested amendment. As noted above, § 214.317(c) is designed as an exception to the current requirement to establish on-track safety while certain roadway work activities are performed. FRA believes under the provisions of this paragraph the specified activities can be conducted safely. When equipment fails, such as a headlight in AAR's example, the safety of the operation is potentially compromised. Accordingly, when equipment required by this section fails, railroads must default to part 214's existing on-track safety requirements until the equipment is repaired and operating. Finally, in the NPRM, FRA requested comment on using certain existing tunnel niches (also referred to as clearing bays) as places of safety for roadway workers. As explained in detail in the NPRM (77 FR 50331), some existing railroad tunnels have niches built into the sidewalls that roadway workers occupy as places of safety while performing work in tunnels (typically inspection work). Some of the niches may, by design, be slightly less than four feet from the field side of the near rail. Because existing subpart C does not address using tunnel niches as places of safety, the use of niches less than four feet from the field side of the near rail as a place of safety technically violates the existing regulation because a roadway worker occupying the niche would be “fouling a track” as defined by § 214.7. The Working Group discussed this issue but did not reach consensus. The Working Group did, however, decide against modifying the definition of “fouling a track” to accommodate using tunnel niches. Working Group discussions indicated tunnel niches outside the clearance envelope, but less than four feet from the field side of the rail, existed on a small number of railroads, primarily in the Eastern United States, and those railroads have a long history of safely utilizing the niches. FRA did not propose specific regulatory text regarding the use of tunnel niches, but requested comment on whether, and how, to address the issue in a final rule. FRA listed certain items it anticipated a regulatory provision allowing using tunnel niches would need to include ( e.g., railroad designation of niches, time for a roadway worker to move into a niche upon the approach of a train, that niches must be free from debris). In response to its request for comments on tunnel niches, FRA received comments from SEPTA, MTA, BMWED/BRS, APTA, and AAR. SEPTA's comment stated that using tunnel niches as a safe place should be allowed if individuals using the niches are not at risk of being struck by moving on-track equipment. MTA's comment supported using niches as a safe place for roadway workers, and indicated railroads should review each niche location before designating it as a safe place. BMWED/BRS's comment opposed using tunnel niches less than four feet from the near running rail as a place of safety. Citing the presence of debris, vagrants, rats, spiders, mice, raccoons and other hazards, and noting that conditions such as claustrophobia could cause roadway workers to panic and jump out of a tunnel niche into the path of an oncoming train, BMWED/BRS indicated its members typically establish working limits before entering tunnels with close side clearances. BMWED/BRS also expressed concern about roadway work groups exceeding the capacity of a tunnel niche, potentially resulting in one or more roadway workers being left out in the foul with no ability to reach an alternative place of safety. In its comments, AAR disagreed with BMWED/BRS noting that, particularly in the Northeast United States, railroads have safely used tunnel niches for a century. AAR specifically noted Amtrak's use of tunnel niches as places of safety for inspectors and argued that given the decades of experience demonstrating that tunnel niches can be safely used, FRA should permit Amtrak to continue to use tunnel niches. APTA's comment indicated that tunnel niches, clearing bays on bridges, and passenger platforms all provide appropriate clearance of the envelope of train and equipment passage and all are safe places with “no historical incident data” supporting the need for FRA to establish additional regulatory provisions to improve their safety. Finally, APTA recommended FRA allow using tunnel niches, clearing bays on bridges, and platforms as designated places of safety and require analysis of any related potential safety issues under FRA's future risk reduction and system safety regulations. After further evaluating this issue and considering the comments received, in this final rule FRA is adopting new paragraph (d) in § 214.317 authorizing, subject to certain conditions, the use of existing tunnel niches or clearing bays less than four feet from the nearest rail as places of safety for roadway workers. Although FRA recognizes some railroads have successfully used tunnel niches and clearing bays as designated places of safety for roadway workers for some time, existing subpart C technically prohibits such use. New paragraph (d) of § 214.317 sets minimum standards for the use of such existing niches to ensure their continued safe use. Consistent with existing § 214.337(b) applicable to lone workers and § 214.317(c)(2) adopted in this final rule for certain snow removal and weed spraying operations, paragraph (d) also makes clear RWICs and lone workers maintain the absolute right to designate a place of safety in a location other than a tunnel niche or to establish working limits if appropriate. Paragraph (d) authorizes only using tunnel niches and clearing bays that have a place of safety less than four feet from the field side of the near rail in existence on the effective date of this final rule, if the conditions of paragraphs (d)(1) and (2) are met. Paragraph (d)(1) requires RWICs or lone workers to inspect each tunnel niche or clearing bay prior to determining the niche is suitable to use as a place of safety. Consistent with the requirements of §§ 214.329 and 214.337, paragraph (d)(2) requires a RWIC or lone worker to determine if there is adequate sight distance to permit roadway worker(s) to occupy the place of safety in the niche or clearing bay at least 15 seconds prior to the arrival of a train or other on-track equipment at the work location. Finally, like existing § 214.337's provision providing lone workers with the absolute right to establish alternate methods of on-track safety, paragraph (d)(3) gives the RWIC or lone worker the absolute right to designate a place of safety in a location other than a tunnel niche or clearing bay, or to establish working limits if appropriate. Compliance with this new paragraph will ensure the continued safe use of existing tunnel niches, as the RWIC or lone worker is required to visually inspect each niche and determine the proper sight distance to utilize each niche before designating the niche a safe place. Moreover, by providing RWICs and lone workers the absolute right to designate a place of safety other than a tunnel niche which might be less than four feet from a running rail, or to utilize another method of establishing on-track safety, FRA believes BMWED/BRS's safety concerns are alleviated. Section 214.318 Locomotive and Car Shop Repair Track Areas In the NPRM, FRA requested comment on potentially amending subpart C and/or the existing blue signal regulations in part 218, subpart B to provide a limited exception from part 214's on-track safety requirements for using blue signal protections for certain incidental work performed by mechanical employees within the limits of locomotive servicing and car shop repair track areas (shop areas). FRA did not propose specific regulatory text on this issue, but indicated it might adopt a provision addressing this topic in a final rule. For the reasons explained below, in this final rule FRA is amending subpart C by adding a new § 214.318 addressing incidental work performed in locomotive servicing and car shop repair track areas. This amendment allows “workers,” as defined by § 218.5, to utilize blue signal protections in place of subpart C's on-track safety procedures. As discussed in the NPRM, subpart C currently requires “roadway workers” performing work with the potential to foul a track within a locomotive servicing or car shop repair track area (including performing work on signals or structures within those areas that may involve fouling track) to utilize the on-track safety procedures of subpart C. Conversely, any “workers,” as defined by § 218.5 (typically mechanical department employees), performing work involving the inspection, testing, repairing, or servicing of rolling equipment within locomotive servicing or car shop repair track areas are required to do so in compliance with the blue signal regulations. Because certain incidental duties “workers” under § 218.5 typically perform in shop areas often technically meet the definition of the type of work a “roadway worker” would do ( e.g., mechanical department employee performing work on the overhead door of a locomotive maintenance building when such work involves fouling a track), questions arose over what protections are appropriate within shop facilities for certain types of “incidental” work performed by mechanical department employees ( i.e., “workers” under § 218.5). FRA's Technical Bulletin G-08-03 addresses this issue, and explains FRA will not take enforcement action for “incidental” work performed in shop areas similar to roadway worker duties ( e.g., sweeping a shop floor or changing a light bulb in an inspection pit). Despite Technical Bulletin G-08-03, many railroads argue shop personnel (“workers” under § 218.5) are already trained on the blue signal regulations and believe FRA should exempt certain work within shop areas from the subpart C on-track safety requirements. Railroads argue shop employees perform the work safely utilizing the blue signal protections they are trained on and most familiar with. Railroads further argue that training shop personnel on two different protection regimes is both costly and confusing for the employees. Thus, railroads argue the requirement to require using the on-track safety protections of subpart C by “worker” in shop areas is detrimental to safety. In the NPRM, FRA requested comment on potential amendments to the existing part 214 or 218 to address this issue. Because contractor employees are subject to part 214 but not part 218's blue signal requirements, FRA also specifically asked how best to address applying these requirements to contractor employees. FRA received six comments in response to this request from APTA, AAR, BMWED/BRS, ASLRRA, MTA, and SETPA. According to APTA, the existing blue signal and RWP regulations are adequate for work performed in shop areas and there is no accident history supporting concerns about this issue. AAR's comment acknowledged the controversy, but noted that for decades blue signal protection has proven to be an effective way to provide for the safety of employees in shop areas. AAR reasoned if blue signal protection adequately protects employees when working on rolling stock, it also will adequately protect employees performing other incidental activities in shop areas. From a safety perspective, AAR stated employees should be permitted to utilize the method of protection they are most familiar with—for mechanical employees within shop areas, that is blue signal protection (part 218), and for roadway workers it is roadway worker protections under part 214, subpart C. AAR also recommended FRA treat contractors the same as railroad employees. AAR also asserted significant additional costs would result if FRA does not permit mechanical employees who might foul track while performing their duties inside a shop area to utilize blue signal protection as opposed to RWP protection, and noted certain potential drug and alcohol testing implications. AAR explained costs would be incurred for: (1) Providing additional training; (2) placing RWICs in shop areas; and (3) purchasing additional switch locks. AAR indicated one large railroad estimated initial costs at $1.2 million, and costs of $700,000 in subsequent years. AAR proposed specific rule text for parts 214 and 218 to permit employees in shop areas to use blue signal protections under part 218, instead of complying with the RWP requirements of part 214. In its comments, ASLRRA disagreed with FRA's explanation in the NPRM of certain activities within shop areas being subject to the on-track safety regulations of part 214. ASLRRA said FRA's position, consistently applied, would require railroads to use blue signal protection to repair a roadway maintenance machine irrespective of the repair location. ASLRRA urged FRA to not change the regulations. BMWED/BRS's comment stated the type of work being performed governs whether the blue signal regulations or the RWP regulations apply and argued against any change eliminating the distinction between the two different forms of protection. Noting the existing blue signal protection requirements provide a proven level of Safety, SEPTA's comment indicated the railroad industry would be better served if mechanical department employees could perform certain facility-maintenance work within the limits of shop areas using blue signal protection rather than the on-track safety requirements of part 214. Further, SEPTA stated any inconsistency in the forms of protection employees utilize increases the potential for confusion and reduces safety. SEPTA also questioned if the original RWP rulemaking even considered applying the on-track safety requirements in shop areas and expressed doubt that the intended scope of the original RWP regulation even covered work in shop areas. MTA's comment indicated the primary consideration in deciding what protections to follow in shop areas should be whether employees are adequately protected while performing their assigned duties. MTA asserted it would be overly prescriptive to require employees to be familiar with different types of protection and recommended individual railroads determine the appropriate type of protection employee's should use based on the specific task being performed. FRA believes the assertion that part 214 as it currently exists does not apply in shop areas is without merit. FRA notes the discussion in the NPRM preamble titled “RWP and Blue Signal Protection in Shop Areas” (77 FR 50329-50330) did not, as AAR and ASLRRA suggested in their comments, attempt to expand the scope of the existing RWP and blue signal regulations. Rather, the discussion described the existing state of interplay between the two regulations. FRA is puzzled by AAR's comment asserting estimated additional costs would be incurred to comply with the requirements of the RWP regulation in place since 1997. FRA agrees it is not in the best interests of safety to apply the requirements of part 214 to certain activities in shop areas not involving work on, under, or between rolling equipment. FRA notes, however, the existing regulations do not allow certain work to be conducted in shop areas without on-track protection under part 214. Thus, compliance with the existing regulation could not impose additional new costs to railroads as AAR's comment states. FRA also di [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-13057. Public record. Not legal advice.