# Rail Transit Roadway Worker Protection > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-25042 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 31, 2024 - **Citation:** 89 FR 87166 ## Text DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 671 [Docket No. FTA-2023-0024] RIN 2132-AB41 Rail Transit Roadway Worker Protection AGENCY: Federal Transit Administration (FTA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The Federal Transit Administration (FTA) is publishing a final rule for minimum safety standards for rail transit roadway worker protection (RWP) to ensure the safe operation of public transportation systems and to prevent safety events, fatalities, and injuries to transit workers who may access the roadway in the performance of work. This final rule applies to rail transit agencies (RTAs) covered by the State Safety Oversight (SSO) program, SSO agencies (SSOAs), and rail transit workers who access the roadway to perform work. This final rule sets minimum standards for RWP program elements, including an RWP manual and track access guide; requirements for on-track safety and supervision, job safety briefings, good faith safety challenges, and reporting unsafe acts and conditions and near-misses; development and implementation of risk-based redundant protections for workers; and establishment of RWP training and qualification and RWP compliance monitoring activities. RTAs are expected to comply with these Federal standards as a baseline and use their existing Safety Management System (SMS) processes to determine any additional mitigations appropriate to address the level of RWP risk identified. This final rule requires SSOAs to oversee and enforce implementation of the RWP program requirements. DATES: The effective date of this final rule is December 2, 2024. ADDRESSES: FTA's Office of Transit Safety and Oversight (TSO) will host a webinar to discuss the requirements of the RWP final rule. Please visit https://www.transit.dot.gov/TSOWebinars to register for webinars and for information about future webinars. FTA is committed to providing equal access for all webinar participants. If you need alternative formats, options, or services, contact FTA-Knowledge@dot.gov at least three business days prior to the event. If you have any questions, please email FTA-Knowledge@dot.gov. FOR FURTHER INFORMATION CONTACT: For program matters, contact Ms. Margaretta “Mia” Veltri, Office of Transit Safety and Oversight, FTA, telephone at (202) 366-5094 or margaretta.veltri@dot.gov. For legal matters, contact Ms. Emily Jessup, Attorney Advisor, FTA, telephone at (202) 366-8907 or emily.jessup@dot.gov. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose and Summary of Regulatory Action B. Statutory Authority C. Summary of Key Provisions D. Summary of Economic Analysis II. Notice of Proposed Rulemaking and Response to Comments A. General B. Section 671.1—Purpose and Applicability C. Section 671.3—Policy D. Section 671.5—Definitions E. Section 671.11—RWP Program F. Section 671.13—RWP Manual G. Section 671.21—Rail Transit Worker H. Section 671.23—Transit Worker I. Section 671.25—State Safety Oversight Agency J. Section 671.31—Roadway Worker in Charge Requirements K. Section 671.33—Job Safety Briefing Policies L. Section 671.35—Lone Worker M. Section 671.37—Good Faith Safety Challenge N. Section 671.39—Risk-Based Redundant Protections O. Section 671.41—RWP Training and Qualification Program P. Section 671.43—RWP Compliance Monitoring Program Q. Section 671.51—Recordkeeping R. Benefits and Costs III. Section-by-Section Analysis IV. Regulatory Analyses and Notices I. Executive Summary A. Purpose and Summary of Regulatory Action The Federal Transit Administration (FTA) has adopted the principles and methods of Safety Management Systems (SMS) as the basis for enhancing the safety of public transportation in the United States. As part of its internal SMS, FTA established a Safety Risk Management (SRM) program to proactively address safety concerns impacting the transit industry and to systematically apply FTA's statutory oversight authority to improve the safety of the nation's transit infrastructure through the Public Transportation Safety Program. The process follows a five-step approach: (1) identify safety concerns; (2) assess safety risk; (3) develop mitigation; (4) implement mitigation; and (5) monitor safety performance. In general, as a result of the first two steps, FTA may develop and advance appropriate mitigations to address a safety hazard, such as safety regulations, general or special directives, safety advisories, or technical assistance and training activities. In 2019, FTA began piloting the SRM process to focus on high-priority safety risks and identified the roadway worker protection (RWP) safety concern as a topic for analysis. As part of FTA's assessment of the safety risk, FTA reviewed the rail transit industry's existing approaches to RWP. This review showed that on a national level, these approaches do not adequately protect transit workers from rail transit vehicles and other roadway hazards. As a result, FTA determined that a Federal baseline RWP program is an appropriate mitigation and is issuing this regulation to reduce fatalities and serious injury events involving rail transit workers that must access the roadway in the performance of their work. This final rule requires rail transit agencies (RTAs) covered by the State Safety Oversight (SSO) program under 49 CFR part 674 (part 674) to implement a baseline RWP program to provide a standardized and consistent approach to protecting roadway workers industry-wide, overseen and enforced by State Safety Oversight Agencies (SSOAs). This final rule prohibits the use of individual rail transit vehicle detection as a sole form of protection for workers on the roadway. It sets requirements for RTAs to conduct a safety risk assessment, use their existing documented SRM processes required under the Public Transportation Agency Safety Plans (PTASP) regulation at 49 CFR part 673 (part 673), to identify and establish redundant protections for each category of work that roadway workers perform on the roadway or track. Redundant protections may include procedures, such as foul time and advance warning systems, and also physical protections to stop trains in advance of workers, such as derailers and shunts. The SSOA must review and approve the RTA's RWP program, including the safety risk assessment and redundant protections. The safety risk assessment must be consistent with the RTA's Agency Safety Plan (ASP) and the SSOA's program standard. RTAs may supplement the safety risk assessment with engineering assessments, inputs from the Safety Assurance process established under § 673.27, the results of safety event investigations, and other SRM strategies and approaches. To ensure effective implementation and oversight of the RWP program and redundant protections, this final rule also requires RWP training and compliance-monitoring activities, supplemented by near-miss reporting and SSOA oversight and auditing. B. Statutory Authority Congress directed FTA to establish a Public Transportation Safety Program in the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141) (MAP-21), which was reauthorized by the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94), and the Bipartisan Infrastructure Law, enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58). FTA is authorized to regulate public transportation systems that receive Federal financial assistance under Chapter 53 of Title 49, United States Code (U.S.C.). FTA's safety program is authorized by 49 U.S.C. 5329. 49 U.S.C. 5329(f)(7) authorizes FTA to issue rules to carry out the Public Transportation Safety Program, and 49 U.S.C. 5329(b)(2) directs FTA to develop and implement a National Public Transportation Safety Plan (National Safety Plan) that includes minimum safety standards to ensure the safe operation of public transportation systems. In 2017, FTA published its first iteration of the National Safety Plan, which was intended to be FTA's primary tool for communicating with the transit industry about safety performance (82 FR 5628). Subsequently, on April 10, 2024, FTA published an updated version of the National Safety Plan (89 FR 25316). While FTA has previously published a National Safety Plan document that includes only voluntary standards, 49 U.S.C. 5329(f) provides FTA with the discretion and authority to issue mandatory minimum standards to ensure the safe operation of public transportation systems that consider, to the extent practicable, relevant recommendations of the National Transportation Safety Board (NTSB), best practices standards developed by the public transportation industry, any minimum safety standards or performance criteria being implemented across the public transportation industry, as well as any additional information that the Secretary determines necessary and appropriate. FTA's RWP rule establishes minimum standards that consider and are responsive to NTSB recommendations that focus on the need for Federal regulation and minimum RWP requirements, best practices and voluntary standards issued by the American Public Transportation Association (APTA), as well as the results of research and safety event reviews conducted by FTA. C. Summary of Key Provisions This final rule establishes minimum safety standards to protect transit workers who may access the roadway in the performance of work. The final rule requires each RTA to adopt and implement an RWP program to improve transit worker safety that is consistent with Federal and State safety requirements and is approved by its SSOA. The RWP program must be documented in a dedicated RWP manual, which includes the following: (1) terminology, abbreviations, and acronyms used to describe the RWP program activities and requirements; (2) RWP program elements; (3) a definition of RTA and transit worker responsibilities for the RWP program; (4) training, qualification, and supervision required for transit workers to access the roadway, by labor category or type of work performed; and (5) processes and procedures to provide adequate on-track safety for all transit workers who may access the roadway in the performance of their work, including safety and oversight personnel. The RWP manual must include or incorporate by reference a track access guide to support on-track safety. The track access guide must be based on a physical survey of the track geometry and condition of the transit system. The final rule requires the RTA to completely review and update its RWP manual at least every two years. Updates to the manual must reflect current conditions, lessons learned in implementing the RWP program as described in the manual, and information provided by the SSOA and FTA. The first review must be conducted within two years of the SSOA's initial approval of the RWP manual. The final rule prohibits the use of individual rail transit vehicle detection. Each RTA is required to conduct a safety risk assessment to identify redundant protections for all workers to be included in the RWP program and manual. Protections must be based on the category of work being performed. Tasks demanding more attention from roadway workers, including the use of tools and equipment, may require RTAs to implement greater levels of protection based on the results of the safety risk assessment. In addition, the final rule requires comprehensive job safety briefings, a good faith safety challenge provision, and required reporting of near-misses. Formal training and qualification programs are required for all workers who access the roadway. RTAs also must adopt a program for RWP program compliance auditing and monitoring. SSOAs are responsible for approving, overseeing, and enforcing implementation of the requirements in the final rule for each RTA in their jurisdiction, including the RWP manual and supporting training and qualification programs. Summary of Changes FTA made revisions throughout the rule in response to comments. FTA also made non-substantive technical edits throughout the rule to correct citations and typographical errors and for clarity. In response to questions about the timeframe for implementation of the new RWP program requirements, FTA has included a provision in the final rule that provides RTAs with one year from the effective date of the rule to develop a compliant RWP program and obtain SSOA approval. FTA made changes to several definitions used throughout the rule. Those specific changes are detailed in II.D. below. FTA struck the word “all” from the SSOA requirement to review training and qualification records for transit workers who must enter a track zone to perform work at § 671.25(c)(2)(i)(E). FTA added language at § 671.31(a)(5) that clarifies that the RTA may designate a single roadway worker in charge for the entire working limit and that, if a single roadway worker in charge is designated over multiple work groups within a working limit, each work group should be accompanied by an employee qualified to the level of a roadway worker in charge who shall be responsible for direct communication with the roadway worker in charge. FTA updated § 671.31(b)(2) to clarify that in the event of an emergency, the roadway worker in charge must warn each roadway worker to immediately leave the roadway and not return until on-track safety is reestablished and a job safety briefing is completed. At § 671.33(b)(3), FTA removed references to Federal Railroad Administration and Occupation Safety and Health Administration guidance, and added, as clarification, the requirement for job safety briefing elements to explicitly address the status of power and hazards explicitly related to electrified system for RTAs with electrified systems. FTA also added general emergency response information at § 671.33(b)(4) and the inclusion of an emergency contact number for the roadway worker in charge at § 671.33(b)(8). FTA revised § 671.33(c)(2) to clarify requirements for roadway workers to individually acknowledge, in writing, both the receipt and understanding of the job safety briefing and the requirement to use required personal protective equipment. In addition, FTA updated the language in § 671.33(c)(3) to clarify that the roadway worker in charge confirms in writing that they have received written acknowledgement of the job safety briefing from roadway workers rather than attesting that each roadway worker understands the job safety briefing. FTA also revised the language in § 671.33(d) to require a follow-up briefing in the event of a change in on-track safety conditions. The good faith safety challenge process at § 671.37(c) has been revised for clarity. The rule now explicitly clarifies that the roadway work group must remain clear of the roadway or track zone until a challenge and refusal is resolved. FTA also updated § 671.39(a)(2) to clarify FTA's intent that it is the RTA's responsibility to establish redundant protections to ensure on-track safety for multiple roadway groups within a common work area. FTA has revised § 671.39(d)(2) to clarify that redundant protections may include but are not limited to the listed protections. FTA changed the frequency of the RWP Compliance Monitoring Program reporting from monthly to quarterly (§ 671.43(b)(1)). D. Summary of Economic Analysis The final rule, which sets minimum safety standards for RWP programs, will benefit roadway workers by reducing their risk of fatalities and injuries. FTA analyzed national transit worker safety data from 2008 to 2020 and identified safety events that would have been prevented if agencies had implemented the protections required by this final rule. On average, the rule would prevent an estimated 1.2 fatalities and 2.4 injuries per year, resulting in annual safety benefits of $16.2 million in undiscounted 2023 dollars. To meet the minimum safety standards, RTAs and SSOAs would incur an estimated $2.6 million in start-up costs plus $13.7 million in ongoing annual costs. The largest ongoing annual costs are for redundant worker protections ($6.4 million) and RWP training ($5.1 million). Table ES-1 summarizes the potential effects of the rule over a ten-year analysis period from 2025 to 2034. In 2023 dollars, the rule would have annualized net benefits of $2.0 million at a 2 percent discount rate (discounted to 2025), $2.0 million at a 3 percent rate, and $1.8 million at a 7 percent rate. Table ES-1—Summary of Economic Effects [2023 Dollars, discounted to 2025] Item Annualized value (2% discount rate) Annualized value (3% discount rate) Annualized value (7% discount rate) Benefits $15,835,205 $15,681,465 $15,095,242 Costs 13,840,028 13,721,849 13,273,086 Net benefits 1,995,177 1,959,615 1,822,156 II. Notice of Proposed Rulemaking and Response to Comments FTA issued a notice of proposed rulemaking (NPRM) for Rail Transit Roadway Worker Protection (RWP) on March 25, 2024 (89 FR 20605). 1 The public comment period for the NPRM closed on May 24, 2024. 1 Rail Transit Roadway Worker Protection, 88 FR 20605 (March 25, 2024). https://www.federalregister.gov/documents/2024/03/25/2024-06251/rail-transit-roadway-worker-protection. FTA received comments from over 7100 unique respondents, including RTAs, SSOAs, labor unions, industry businesses and organizations, private individuals, and the National Transportation Safety Board (NTSB). FTA also received ex parte comments about the rulemaking, which are summarized in the rulemaking docket. FTA reviewed all relevant comments and took them into consideration when developing this final rule. FTA addresses these comments in the corresponding sections below. Some comments were outside the scope of this rulemaking, and FTA does not respond to comments in this final rule that were outside the scope. In response to comments, FTA made several changes to the final rule which are summarized above and discussed in more detail in the corresponding sections below. A. General 1. Support for Regulation Comments: FTA received 7,103 comments of support from individuals as part of a “response campaign” that provided a form letter for individuals to upload to the Federal Register along with their names and addresses. This letter expressed strong support for FTA's proposed rule aimed at protecting rail transit workers, including support for preventing unsafe working conditions on the rail transit roadway, acknowledgment that FTA's proposed rule aligns with long-standing recommendations from the NTSB, broad concern over worker safety and understaffing issues, and the urgency for finalizing and implementing the new rule quickly to save lives and prevent injuries. Some individuals personalized the form letter with additional comments. Most of these commenters agreed that rail transit workers are exposed to dangerous working conditions; should have the right to refuse to work in unsafe conditions; and should be able to report unsafe acts, conditions, and near-misses without fear of retaliation. Other personal comments emphasized the importance of a safe working environment. Some commenters included details about themselves or mentioned that family members or friends worked on the rail transit roadway. Many of these personal comments also expressed the need to address unsafe working conditions, long hours, understaffing, and the prioritization of profits over safety. FTA also received comments of support from the NTSB, three SSOAs, four RTAs, two industry associations, fourteen labor organizations, one vendor, and multiple individuals. These commenters generally applauded FTA for taking action to address roadway worker safety in the transit industry and were supportive of FTA establishing standardized and robust safety standards to protect these essential workers. Commenters noted that the rule would signal a significant shift for the industry and emphasize the importance of ensuring that tasks are performed safely. Commenters urged FTA to act quickly to finalize this rule and noted support for the rule despite possible increased costs. The NTSB expressed appreciation for FTA's consideration of many of the NTSB's safety recommendations on this topic and support for the proposals that address specific NTSB safety recommendations. One SSOA commenter stated that the SSOA agrees with the purpose and intent of this proposal but suggested that RTAs should be allowed to comply with this rule in a manner that is not obstructive to operations. One SSOA commenter noted the important role SSOAs play in enforcing Federal requirements through auditing, inspections, deficiency resolution, and technical assistance. The commenter added that the SSOA supports many of the proposed changes, but suggested adjustments. Another SSOA commented that they are pleased that FTA recognizes the potential need for SSOAs to prescribe more stringent standards. The SSOA expressed support for specific requirements related to the proposed regulation's requirements that RTAs have an RWP manual, review and update it biennially, and share it with their SSOA. The commenter added that moving from piecemeal updates to a biennial update process, initial and refresher training requirements, and annual audits would lead to greater RTA compliance with RWP programs and improved worker safety. An RTA commenter expressed support for the proposed requirement that RTAs develop a track access guide for on-track safety. One industry association commenter stated that a mandated RWP program is something that freight industry contractors have become accustomed to and fully recognize as an essential part of roadway worker safety. Another industry association commenter stated that the association supports FTA's proposed regulation where it leverages existing program elements, when possible, to promote efficient enhancements of the regulatory framework; increases involvement from frontline transit workers in safety-related decision-making; promotes or requires the meaningful use of safety data for safety-related decision-making; and clarifies roles, responsibilities, and reporting thresholds needed to comply with the regulation. In addition, the industry association commenter encouraged FTA to continue to hone and clarify its regulatory language, strengthen meaningful collaboration and communication with agencies and organizations to develop its standards and minimum requirements, and provide clear and consistent guidance to transit and oversight agencies affected by the public transportation safety regulation. Another industry organization, the American Public Transportation Association (APTA), emphasized its support of FTA's efforts and strongly urged FTA to utilize the APTA standard for RWP, which it noted was recently updated and was prepared with input from a very diverse group of RTAs and business members. One labor organization commenter agreed with the alignment of on-track safety regulations with the Federal Railroad Administration's (FRA) standards, which would ensure a heightened level of safety for workers as they carry out their daily responsibilities. Another labor organization commenter supported FTA's recommendations for aligning rail industry track worker safety with best-demonstrated practices that have proven beneficial to freight service engineers, conductors, and assistant conductors. The commenter also expressed support for FTA's proposal to implement job safety briefings, good faith safety challenges for workers whose safety is in jeopardy, additional formal safety training and qualifications for railroad workers whose duties involve being on and about the tracks, and full, formal reporting of near-misses or close calls that occur on or near railroad tracks. The commenter pointed out that all of the safety redundancies in the RWP are necessary and welcome. Another labor organization commented that it is hopeful that FTA will utilize this rulemaking process as a starting point to establish more specific and prescriptive RWP standards in the future. One international labor organization shared its trackwork collective bargaining agreement (CBA) clauses and Rail Safety Management Committee rules to assist FTA in further discussions and in the process of implementing new safety standards to protect railway workers and to improve the overall safety of public transport systems. One vendor suggested that FTA use clarified guidance, circulars, or appendices, as appropriate, to define these standards in line with industry best practice. An individual commenter noted that using the SSOAs as an oversight metric provides additional scrutiny to ensure compliance with safety standards. One individual commenter stated their strong support for FTA's new rule protecting rail workers and commented that the rule is necessary because of understaffing and increased assaults on transit workers. Another individual commenter stated their support for FTA's proposal to increase safety standards for rail transit roadway workers and added that anyone working on a roadway or near a railroad crossing deserves a safe work environment. One individual noted that they particularly support the proposed requirements for redundant protections and comprehensive safety risk assessments, which are vital for mitigating the unique dangers rail workers face. In addition, the commenter stated that the requirement to prohibit reliance on individual rail transit vehicle detection as the sole form of protection resonates with the need for multifaceted safety approaches. One individual commenter agreed that job safety briefings; good faith safety challenges; and reporting unsafe acts, conditions, and near-misses would help with information transparency, allowing for increased transit worker safety. One individual commenter noted that the proposal's requirements to enhance job safety briefings and good faith safety challenges and establish clear protocols for reporting unsafe acts and conditions align with pro-union principles of empowering workers and ensuring that their voices are heard and acted upon in the workplace. One individual who commented noted that the proposal emphasizes the importance of adequate training and qualifications of rail transportation workers and the need to establish RWP-compliance-monitoring activities. One anonymous individual commenter stated that FTA's emphasis on the importance of comprehensive safety protocols, notably the prohibition of sole reliance on individual rail transit vehicle detection, would ensure multiple layers of protection for railway workers. FTA Response: FTA appreciates the extensive support for this rule from all stakeholders advocating for RWP in the rail transit industry. FTA agrees with the many comments that support the need for this rule due to the exposure of transit workers to dangerous working conditions when performing duties on or near the roadway. FTA has developed this rule to address many of the concerns that supporters have voiced in their comments. FTA designed the rule to be flexible and to address risks and challenges that RTAs face, as well as competing priorities for safety in the rail transit environment. This rule is also designed and intended to provide protections together with existing safeguards and regulations, including the PTASP regulation (49 CFR part 673). FTA also appreciates the references and suggestions that commenters provided for rule development, including the considerations to align this rule with FRA standards and best practices, incorporate safety redundancies, reference the recently updated APTA standard for RWP, and review clauses from an international labor organization trackwork CBA and rules from the Rail Safety Management Committee to assist with development of the new RWP safety standards. As noted by many supporting commenters, the rule considers RWP-related NTSB recommendations as well as existing practices implemented through the FRA and RTAs that effectively support roadway worker safety. Some of these practices include requiring job safety briefings, instituting practices for good faith safety challenges to allow workers to refuse in good faith assignments in unsafe conditions, establishing a safety reporting program, ensuring adequate training and qualifications for workers, and ensuring multiple layers of protection for workers. FTA welcomes the support for the role of the SSOA in enforcing the RWP programs and practices at RTAs including the review of the RWP manuals and RWP program implementation. While a few SSOAs suggested more stringent timeframes for RWP manual updates, training requirements, and audit activities, FTA's rule does provide opportunities for SSOAs to go above and beyond its requirements, as appropriate, in order to effectively oversee and enforce RWP practices at the RTAs within their jurisdiction. FTA is encouraged to hear from a commenter that the freight industry has become accustomed to and fully recognizes RWP as an essential part of roadway worker safety. FTA also appreciates the support for the track access guide for on-track safety and the rule's application to railroad crossings. FTA confirms that this rulemaking is a starting point for RWP and will consider strengthening requirements through the rulemaking process, if necessary, in the future. As requested by a number of commenters, FTA will plan to provide further guidance on RWP practices outside of this final rule, as well as present opportunities for collaboration with the rail transit industry and SSOAs in sharing best practices on RWP. Finally, FTA is pleased to hear from many commenters that this rule signals a positive shift for the safety of rail transit RWP. 2. Implementation Timeframe Comments: One industry association, two RTAs, and one individual commented on the implementation timeframe for the rule. The industry association expressed concern with the requirement for RTAs to submit their RWP program and manual to the SSOA for initial approval within 90 days, and strongly urged FTA to extend the deadline to at least 180 days. One RTA remarked that developing, implementing, updating, and maintaining an RWP program, as well as addressing “numerous downstream effects,” will require a substantial investment of time and effort. The RTA noted that it is imperative that enough time is provided to safely roll out and manage a new rules program and suggested that FTA set an implementation period of no less than three years. Another RTA commented that transitioning to a new RWP program could be challenging for RTAs that will have to overhaul their existing safety protocols and stated that the regulation should provide a flexible timeline for implementation to allow agencies enough time to adapt to the new requirements without compromising current safety measures. One individual questioned why the regulation is just now going into effect and then asked how long it will take for everything to be put in place. FTA Response: FTA agrees with the commenter that 90 days would be an insufficient timeframe to accommodate the development of the RTA's RWP program. Further, FTA agrees that setting up an RWP program will take time and effort and may require RTAs to revise existing programs. FTA has included in the final rule a provision, at § 671.1(d), that provides RTAs with one year from the effective date of the rule to develop an RWP program and manual and obtain SSOA approval. FTA believes that this one-year implementation timeframe balances the urgency of addressing RWP-related safety risk with the time and effort required by RTAs and SSOAs to comply with the rule requirements. FTA believes that the suggestion of three years is too long, given that FTA offers agencies significant flexibilities in how to structure their RWP programs under this rule, and recent FTA audits have revealed that unsafe conditions and practices persist in the industry and pose a substantial risk to workers. FTA notes that safety-related regulations for RTAs have been in place since the initial 49 CFR part 659 Rail Fixed Guideway Systems State Safety Oversight rule was finalized and went into effect January 26, 1996. Since then, rail transit safety has seen improvements, and in some cases setbacks, and regular revisions of regulations have continued enhancing safety for the rail transit industry. 3. Standards Comments: One labor organization, one industry association, and one RTA provided comments related to RWP standards. The labor organization expressed concern over FTA's management-driven approach of issuing open-ended directives to address identified hazards instead of promulgating specific safety standards. They recommended that FTA adopt a standards-driven approach and develop specific standards for each element of the RWP program following the publication of this rule. One RTA and industry association (APTA) recommended that FTA adopt the APTA standards because they provide a solid foundation for the governing documents of a rail system and are meant to be scalable without being overly prescriptive. FTA Response: Due to the varying RTA operating characteristics and environments, this final rule establishes minimum standards as a baseline for rail transit RWP, which will provide important protections for workers. While FTA did not adopt APTA's standards, in developing this rule FTA did consider APTA's standards along with FTA's internal Safety Risk Assessment findings, NTSB recommendations, FRA regulations, California General Order No. 175-A regulations, common industry practices, and recommendations from the Transit Advisory Committee for Safety (TRACS). FTA declines to adopt wholesale any of the above-mentioned RWP standards and views the requirements finalized in this final rule as most appropriate for the transit industry. FTA notes that the final rule allows RTAs and SSOAs to establish additional or more stringent rules that are consistent with this part. FTA believes that it would be difficult to develop standards for all RWP elements that would be appropriate for the varying sizes of agencies subject to this rule. However, FTA will continue to monitor RWP safety concerns after the implementation of this rule to ensure effectiveness and may take additional action in the future. 4. Other Comments Comments: One SSOA, one labor organization, one individual, two RTAs, and the NTSB provided additional general comments on FTA's proposed part 671. The SSOA suggested that FTA should use the term “Public Transportation Agency Safety Plan (PTASP)” rather than “Agency Safety Plan (ASP)” since “PTASP” is defined throughout Federal regulations and is used as an industry standard for consistency with Federal statute and regulation. The labor organization suggested that FTA provide a process for RTAs to request a variance where the RTAs can propose an alternative approach that does not compromise roadway worker safety to address any concerns regarding flexibility (size and scope) for RTAs. The commenter emphasized that FTA must take responsibility for enforcing standards and discouraged RTA self-monitoring, citing that this practice has contributed to the troubling roadway worker safety record that necessitated the proposed rule. Similarly, regarding implementation and oversight of the RWP requirements, an individual recommended FTA increase monitoring and evaluation of local implementation to ensure these measures are effective and support safety improvements for rail transit workers. The NTSB encouraged FTA to address Safety Recommendation R-14-41 in future rulemaking, which recommends that FTA revise its SSO program regulation to require all federally funded rail transit properties to comply with certain Occupational Safety and Health Administration (OSHA) requirements. An RTA commenter noted that the proposed rule will impact how an RTA handles city permits, traffic control, maintenance, and operations. The commenter added that allowing flexibility in following the law will help RTAs better protect transit workers in a format consistent with the rule's intent and meet industry best practices. Another RTA asked FTA to consider the burden that this and other additional regulations place on small transit providers and consider that regulations that might be manageable for larger systems could be overwhelming for small urban and rural transit systems, especially given their limited labor pool and high-cost operating environment. The commenter warned that implementing new regulations before recent PTASP requirements are fully adopted may not be sustainable with existing resources and funding levels. FTA Response: FTA uses the acronym “PTASP” to refer to the regulation, 49 CFR part 673, and to describe associated regulatory requirements established in part 673. FTA uses the acronym “ASP” to refer to the agency safety plan required by the PTASP regulation. FTA reiterates that, due to the varying RTA operating characteristics and environments, this final rule establishes minimum safety standards as a baseline for rail transit RWP and allows RTAs flexibility in developing RWP programs. Because there is significant flexibility in how RTAs can interpret and implement protections, FTA does not believe a formal process for requesting a variance is necessary. Congress has delegated direct safety oversight of RTAs to the SSOAs through 49 U.S.C. 5329(e). Therefore, FTA believes that the SSOA is best equipped to provide first-level oversight of compliance with this rule that goes beyond RTA self-monitoring. FTA will continue to monitor SSOA oversight through existing processes and will receive RTA RWP programs from the SSOAs following their approval. FTA confirms that it will consider the NTSB recommendation for potential future efforts. FTA is mindful of burdens on localities and small RTAs and reiterates that this final rule allows RTAs flexibility in developing RWP programs that best fit an RTA's needs based on operating characteristics and environments. For small urban and rural systems, FTA expects that RWP programs developed by these systems may be less complex, and therefore may not significantly impact staffing needs. FTA will provide additional technical assistance to smaller transit providers regarding the expectations of the rule. Additionally, as noted above, FTA is including in the final rule a provision that provides RTAs a one-year implementation timeframe to finalize their RWP programs and obtain SSOA approval, by which time all agencies subject to PTASP will have fully adopted the updated requirements under part 673. B. Section 671.1—Purpose and Applicability FTA received submissions from 16 commenters related to § 671.1's proposed requirements. 1. Flexibility and Scalability Comments: FTA received comments from SSOAs, RTAs, an industry association, and individuals regarding the flexibility and scalability of the proposed rule. One commenter emphasized that FTA should consider the particular needs and realities of RTAs because operating environments and technical conditions among RTAs vary significantly. The commenter recommended that FTA work with local safety regulators and railroad operators before the regulation is implemented to ensure the regulation considers local specifics. One SSOA and multiple RTAs noted that the proposed requirements appear to focus on larger RTA systems and the safety events occurring on those systems and recommended that FTA consider how the size of an RTA system will impact the RTA's implementation of RWP requirements. Two SSOAs, several RTAs, and one industry association expressed their view that the proposals did not sufficiently consider different levels of risk and operating environments and may be burdensome or unattainable for street-running streetcar systems, inclined planes, or systems in similar environments and small and medium-sized RTAs in small urban or rural communities. The RTAs and an SSOA emphasized the need for scalability, including one RTA request that the rule be flexible or that FTA grant waivers or alternatives at a scaled-down level for RTAs that do not experience the same roadway worker risk as heavy rail agencies. One industry association requested a bifurcated final rule that imposes requirements that are commensurate with the system size and level of risk, while another industry association advocated for a nationally recognized program consistent with the regulation with consideration for the nuances of different operations. A commenter suggested that differentiating rule requirements between types of rail systems will help RTAs track what is more applicable to their systems. FTA Response: FTA acknowledges commenters' concerns regarding the applicability of the rule for diverse RTAs providing service in different operating environments, under different operating plans, with different equipment and conditions, and with varying levels of associated risk. FTA intends the rule to be flexible enough to allow RTAs to craft an RWP program that complies with the RWP program requirements and fits the size and complexity of each agency. While FTA agrees that larger and heavy rail systems may experience more frequent RWP-related events or have a need for a more robust RWP program, FTA believes that hazards exist on and near the roadway for all RTAs, regardless of size. FTA has considered the difference in size and operating environments across the country and anticipates that RWP programs will not look the same due to the variability of needs. For example, the requirement for redundant protections prescribes that agencies use a safety risk assessment to implement protections that are proportional to the RTA's determined risk, which will not be the same across agencies. Smaller systems may opt to develop RWP programs and correlated documentation that are briefer and more basic based on the RTA's self-assessed level of risk, while larger and more complex systems will necessarily have more complex and detailed RWP programs. While FTA acknowledges that a bifurcated rule could potentially create more specific requirements based on the size of the RTA, FTA believes it would be difficult, even in a bifurcated rule, to address the nuances of various RTAs' operating practices and environments more fully. FTA believes the rule is sufficiently flexible to address all system sizes and therefore that it does not need to be bifurcated. Likewise, FTA declines to establish a nationally recognized program consistent with the regulation, as a national program would face the same challenge of attempting to cover the nuances of various operators. 2. Revenue Service Comments: FTA received comments from one RTA and one industry association seeking clarification on whether the rule would apply to vehicles on storage tracks and/or during the design and construction of a system, or whether the rule applies only to vehicles in revenue service. The industry organization recommended that the requirements apply only when trains are in revenue service because of the difference in risks. FTA Response: To protect workers against various hazards, FTA confirms that this rule applies to any rail fixed guideway public transportation system, including those in engineering or construction. In FTA's safety risk analysis of hazards associated with RWP, it was determined that hazards are not limited to times when vehicles are in revenue service. FTA is aware of RWP-related safety events that have involved other on-track rail equipment, outside of revenue service times and off revenue service tracks. As such, FTA has defined “on-track safety” to mean freedom from the danger of being struck by a moving rail transit vehicle or other equipment,” which includes non-revenue service vehicles. While there may be a difference in the level of risk between revenue and non-revenue service, FTA believes that all transit workers working on revenue and non-revenue service will benefit from the protections identified by this rule. 3. Roadway Workers and Transit Workers Comments: FTA received several comments requesting clarification of the difference between “roadway workers” and “transit workers” and their respective responsibilities under the regulation. One RTA commenter recommended that the RWP program be specific to roadway workers and not include transit workers. One vendor suggested modifying the end of § 671.1(c) to remove the language “in the performance of work,” which they commented would broaden the applicability of the rule. An RTA and an industry association suggested adding language to § 671.1(c) to specify that this part applies to transit workers who “perform work within a track zone” to clarify the applicability of the rule. FTA Response: FTA appreciates the request to clarify the difference between the terms “transit workers” and “roadway workers” as used throughout the rule. FTA intends for the rule to provide protection for all transit workers who access the roadway to perform work. FTA has defined a “transit worker” to mean “any employee, contractor, or volunteer working on behalf of the RTA or SSOA.” In comparison, a “roadway worker means a transit worker whose duties involve inspection, construction, maintenance, repairs, or providing on-track safety such as flag persons and watchpersons on or near the roadway or right-of-way or with the potential of fouling track.” In other words, not all transit workers will be roadway workers. Because FTA intends for RWP policies, process, and procedures to prevent safety events for all transit workers, not just roadway workers, FTA disagrees with the suggestion to make the rule specific to “roadway workers.” FTA declines to revise § 671.1(c) as suggested by commenters because FTA believes the language in § 671.1(c) is sufficiently clear and has identified the individuals subject to the rule requirements throughout the regulation. 4. General Comments: FTA received general comments on the applicability of the rule. An industry association inquired about the applicability of this rule to transit systems with shared corridors with FRA tracks. An SSOA asked about the applicability of the regulation to individuals or groups performing work on the right-of-way that are not associated with the RTA, such as personnel from Federal, State, and local agencies, and utilities. One RTA asked that FTA clarify how it determined that existing measures across the nation are not adequately protecting transit workers and whether FTA's identification of RWP as a safety risk included data specific to streetcar or light rail systems. FTA Response: Nothing in this final rule changes any existing FRA requirement that may apply to a rail transit system, and this part does not apply to rail systems that are already subject to the safety oversight of FRA. This final rule applies to all RTAs covered by the SSO program and RTAs that share corridors with FRA tracks should consider this configuration when developing their RWP programs. The rule applies to RTAs, SSOAs, and transit workers who access any rail fixed guideway public transportation system in the performance of their work. The rule does not apply to individuals who are trespassing, transit workers accessing the track for reasons other than the performance of work, or routine pedestrian activity where applicable. Transit workers who access the roadway in the performance of their work must follow the RTA's RWP program access and rules practices with minimum standards established by this regulation. FTA agrees that there are others who may need to access the track who are not transit workers. Therefore, and in response to comments, FTA has added language to the final rule, at § 671.21(a)(8) that requires RTAs to include procedures in their RWP programs to provide an escort, as needed, for individuals that are not RWP-certified and do not fall into the categories of roadway worker, transit worker, or emergency personnel, who may need to access the track zone such as utilities workers. FTA's internal SRM process identified RWP as a safety concern for analysis and determined that a Federal baseline RWP program is an appropriate mitigation. FTA considered information and data specific to streetcar and light rail systems during the SRM process and while drafting the NPRM and final rule. C. Section 671.3—Policy Comments: One SSOA and one RTA provided FTA with comments relevant to § 671.3. One commenter suggested referencing the ASP in this section because that is the document where the RTA establishes its SMS process. An RTA recommended adding a section into this requirement stating that if the SSOA desires more stringent RWP-related requirements beyond the regulation, then the SSOA must collaborate with the RTA in the development of these additional requirements. FTA Response: FTA has included references to part 673 where appropriate throughout this rule, including in this section at § 671.3(b), where FTA requires RWP standards to be integrated into the RTA's SMS and Safety Assurance processes. FTA declines to add to this section a requirement for an SSOA to collaborate with the RTAs on any additional RWP-related requirements contained in the SSO's program standard that go beyond the requirements established in this final rule. While FTA encourages SSOAs and RTAs to work together whenever feasible, SSOAs play a critical role overseeing safety at RTAs, and as such, should have latitude to prioritize safety concerns and hazards at the RTAs they oversee. The SSO regulation at 49 CFR part 674 requires SSOAs to establish a disposition process that defines how the SSOA will address any comments the RTA makes with respect to the SSO program standard and FTA expects the requirements of this final rule and part 674 requirements to operate in concert. D. Section 671.5—Definitions FTA received several comments, both general and specific, related to § 671.5 definitions. 1. General Comments: One industry association commenter requested flexibility to allow RTAs to continue to use their existing, long-standing agency RWP terminology since transit workers have been trained on and are familiar with the terminology unique to their operating environments. The association expressed concern that changing RTA terminology may introduce hazards, including the potential for miscommunication and misapplication. One RTA commenter recommended that FTA revise the definitions proposed in the NPRM to be consistent with those in APTA's RWP Program Requirements Standard (APTA RT-OP-S-106-11, Rev.2), noting that misalignment with APTA terminology may have a broader impact beyond the RWP manual such as on other RTA governing documents. The commenter noted that updating existing RTA terminology, such as in procedures and on forms, would require significant work and additional resources. One vendor commented that RTAs should work with APTA and other industry groups to develop common operations terminology by geography and/or type of operations. FTA Response: FTA acknowledges that changes to terms and definitions may have an impact on RTAs and their existing RWP programs. FTA encourages RTAs to use the definitions in this final rule in their RWP programs for consistency in RWP programs across RTAs. However, the final rule does not require RTAs to adopt these terms, and RTAs may use their own definitions as appropriate. Through the final rule, FTA has developed a set of common terminology and considered multiple sources for definitions to be used in the development of this rule, including APTA's standard. However, FTA declines to simply adopt the definitions in APTA's RWP standard. When possible, FTA has opted to be consistent with FRA regulations. This decision will create commonly understood practices and terminology across the rail systems subject to Federal oversight, helps align FTA and FRA safety priorities, and ensure consistency for agencies that may be subject to both FRA and FTA regulations, among other benefits. 2. Accountable Executive Comments: FTA received a comment from an SSOA that suggested removing “ultimate responsibility” from the proposed definition of Accountable Executive, and replacing it with “the power and authority,” because the meaning of “ultimate responsibility” is unclear and potentially unattainable. The SSOA commenter noted that the Board of Directors can also control or direct the human and capital resources needed to develop, maintain, and implement the ASP. FTA Response: FTA declines to revise the definition as it would be inconsistent with the definition of Accountable Executive that FTA has established in part 673 and part 674. As these terms all refer to the same person within a transit agency, FTA believes consistency across the regulations is imperative and is finalizing the definition as proposed. 3. Ample Time Comments: FTA received comments from two RTAs, one SSOA, and one vendor regarding the proposed definition of “ample time.” One RTA commenter noted that the definition implies two options for work crews to exercise: vacating the track zone or entering a place of safety, which is defined as “outside of the track zone.” This commenter recommended that FTA review the “place of safety” definition in conjunction with the “ample time” proposed definition to ensure the two do not conflict. Another RTA commenter submitted a recommendation for revising the “ample time” definition by replacing “to be clear of the track zone or in a place of safety 15 seconds before” with “to occupy a place of safety for no less than 15 seconds before” and “at the maximum authorized speed” with “at the civil speed limit.” The RTA noted that using “maximum authorized speed” could potentially introduce human error to reduce the time needed to find safety. The SSOA commenter suggested adding “at least” before “15 seconds” and “or equipment” after “a rail transit vehicle.” The comment from the vendor noted support for the definition with the clarification that “ample time” should be calculated from the moment the roadway worker is in a place of safety and clear of the track zone. Additionally, the vendor asked for clarification about whether “maximum authorized speed,” as used in this proposed definition, is calculated based on line speed or a reduced speed enforced through control measures. FTA Response: As suggested by the commenters, FTA reviewed the definitions of “place of safety” and “ample time” and determined they are not conflicting and notes these terms are consistent with the FRA RWP regulation. FTA considered the suggestions to revise the definition but declines to make changes as it views them as unnecessary. First, FTA notes that if a rail vehicle is moving above the authorized speed, the operator is violating the operating rules. Second, FTA declines to add “at least” before “15 seconds” to the definition, as the definition as proposed sufficiently establishes that 15 seconds is the baseline required time for workers to be clear of the track zone or in a place of safety. While 15 seconds is commonly adopted in the industry as an appropriate minimum time for workers to clear the track zone or enter a place of safety, FTA recognizes that some RTAs may wish to prescribe additional or more stringent time requirements consistent with this part. FTA believes it is unnecessary to add “or equipment” to the definition because the final rule defines “rail transit vehicle” as “any rolling stock.” Therefore, FTA is finalizing the definition as proposed. FTA declines to opine on how to calculate “ample time” in this final rule but may provide guidance to RTAs in the future. FTA notes this calculation will vary based on an RTA's unique operating characteristics. FTA refers readers to the “maximum authorized speed” definition in this rule, which is calculated and established by an RTA based on the rail transit vehicle control system, service schedule, and operating rules. 4. Equivalent Protection Comments: One SSOA commenter asked FTA to clarify in the definition whether the SSOA must approve or concur with the “equivalent protection” after the RTA demonstrates to the SSOA that the alternative design, material, or method will provide equal or greater safety for roadway workers. The commenter recommended clarification on what happens if the SSOA does not agree with the protection. FTA Response: FTA is finalizing the definition as proposed. FTA believes it is unnecessary to clarify the definition because § 671.39(d)(3) establishes that an equivalent protection for lone workers must be “approved by the SSOA.” In accordance with an SSOA's oversight responsibilities, FTA expects the SSOA to exercise judgment and authority in the review and approval of the RTA's RWP program elements. In the event the SSOA does not agree with the RTA's proposed equivalent protection in lieu of foul time for lone workers, the SSOA must notify the RTA expeditiously so that the RTA may propose revisions or an alternate equivalent protection that both parties agree is adequate. 5. Flag Person Comments: One RTA and one industry association recommended that FTA revise the proposed definition of “flag person” by changing “designated by the RTA” to “designated by the Roadway Worker in Charge.” Both commenters noted this would further clarify that the roadway worker in charge is the authority for safety while overseeing an active work zone and is typically the one to designate a qualified transit worker as a flag person. The industry association commenter added that a designated flag person should be able to perform work done by other crew members and not be restricted to solely flagging. Otherwise, RTAs will need additional personnel on every work crew, which is overly burdensome and inefficient. FTA Response: In response to these comments, FTA has revised the definition of “flag person” to provide additional flexibility for the designation of a flag person across the diverse operating characteristics of rail fixed guideway public transportation systems and notes that the revised definition supports the designation of a flag person by the roadway worker in charge. FTA disagrees that a flag person should be able to perform other work while flagging. FTA believes it is necessary for the flag person to be engaged solely in performing the flagging function to ensure the on-track safety of the roadway work group. Even minor tasks risk diverting a flagger's attention, which increases the risk that they may err in their flagging duties. Flaggers also must be prepared to respond immediately to novel hazards or quickly changing situations and should not be engaged in any tasks that may divert their focus or delay their reaction time. In previous safety incidences, it is clear that undefined roles have resulted in communication breakdowns, with very serious consequences. In accordance with § 671.31(a)(4) a roadway worker in charge serves in the function of maintaining on-track safety for members of the roadway group. FTA notes that, in the function of maintaining on-track safety, a roadway worker in change may perform flagging duties in some situations. When a roadway worker in charge performs flagging duties, they cannot perform other duties. If a roadway worker in charge performing flagging duties needs to respond to a work crew issue, prior to responding, the roadway worker in charge must suspend flagging activity by stopping work, designating another flag person, or taking other action. While a roadway worker in charge position carries considerably more training experience and qualification than a flag person, FTA understands that in some situations a roadway worker in charge may carry out flagging duties as described above. In these scenarios, FTA expects that the roadway worker in charge would perform their other duties such as providing the job safety briefing prior to fouling the track and would perform the associated recordkeeping tasks prior to, and after, flagging duties are complete. 6. Foul Time Protection Comments: Three commenters suggested revisions to the proposed definition of “foul time protection.” One SSOA commenter suggested adding “RTA designated” in front of the first instance of “roadway worker.” One RTA commenter suggested adding the following: “on controlled track when that work will not disturb the track or third rail structure in a manner that would prevent movements at normal speeds” after “working limits,” “qualified” in front of the first instance of “roadway worker,” and “controlled” in front of “track.” They also suggested replacing “will be authorized to operate” with “will operate.” One vendor recommended adding “for a defined time period” after “working limits,” “and issued authority” after “notified,” “to occupy a specific segment of track under which” after “control center,” and “or on-track equipment” after “no rail transit vehicles.” FTA Response: FTA declines to make any of the recommended changes as they are too specific given the varied complexities in the operating characteristics of the rail fixed guideway public transportation systems this rule addresses and are not necessary for clarity of purpose in this final rule. Therefore, FTA is finalizing the definition as proposed. 7. Fouling a Track Comments: FTA received comments from three RTAs regarding the proposed definition of “fouling a track.” One RTA commenter asked if FTA will also define the term “proximity” as used in the definition. One RTA commenter recommended adopting the definition of “fouling a track” from 49 CFR part 214. The commenter noted that based on the proposed definitions of “fouling a track” and “track zone,” the distance from the running rail considered to be “fouling the track” would increase from four feet to six feet. The commenter added that this may require protection for some inspection and maintenance activities that currently do not need it. In addition, the commenter suggested that if these two proposed definitions become the standard, passengers would be fouling the track while standing behind the tactile warning strip. One RTA commenter recommended that FTA incorporate a standard distance for “fouling a track,” such as four feet from the nearest running rail or require RTAs to establish a set distance based on their fleets. FTA Response: In response to comments, FTA has revised the definition of “fouling a track” in the final rule by adding “typically within four feet of the outside rail on both sides of any track” and has removed the last sentence of the proposed definition for clarity. The distance and language are adopted from the recommendations of the commenters and are consistent with FRA requirements in 49 CFR 214, which considers an individual or item of equipment to be fouling the track if “within four feet” of the rail. However, FTA opted to use the term “typically,” as FTA intends for RTAs to have flexibility to define greater distances, as needed. FTA has removed any distance language from the definition of “track zone,” and instead has included distance-related language in the definition of “fouling a track” to further parallel the definitional approach used by the FRA and recommended by the commenters. 8. Individual Rail Transit Vehicle Detection Comments: One RTA and one SSOA commented on the proposed definition of “individual rail transit vehicle detection.” The RTA commenter noted that including lone worker provisions in the definition contradicts the proposed requirement regarding redundant protection. The SSOA commenter suggested rewording the proposed definition for clarity by adding “information on” before “approaching rail transit vehicles,” removing “and leaving the track,” and changing “in ample time” to “within ample time.” FTA Response: FTA intends for this definition to describe the practice of relying on an individual to detect approaching vehicles or equipment and does not believe it conflicts with the requirements for redundant protections. FTA declines to revise the definition as suggested because it does not believe that the suggested revisions would make the definition clearer. Since individual rail transit vehicle detection is a commonly understood term in the industry, FTA has opted to adopt the FRA definition of this term and is finalizing the definition as proposed. 9. Job Safety Briefing Comments: FTA received comments from several commenters, including the NTSB, one RTA, one SSOA, and two vendors, regarding the proposed definition of “job safety briefing.” The NTSB expressed concern that the definition allows virtual job safety briefings without providing limitations for when RTAs can employ them and urged FTA to indicate when RTAs are permitted to conduct virtual job safety briefings. A vendor recommended adding for emphasis, “including the on-track safety being provided” after “the protections to eliminate or protect against those hazards.” One SSOA commenter suggested rewording the definition to, “Job safety briefing means a meeting conducted by the RTA designated Roadway Worker in Charge that addresses the requirements of this part.” The commenter noted that, if the regulation refers to the “requirements of this part” at the end of the definition, it is unnecessary to include some of the requirements within the definition. The commenter added that the definition also creates confusion by outlining only some of the requirements when all the requirements are important. Further, the commenter suggested that FTA clarify in the regulation where and when a job safety briefing should be conducted rather than in the definition. One vendor commenter suggested that FTA clarify in the definition that a job safety briefing is conducted prior to commencing work or fouling the track because the information conveyed in a briefing is critical to safely fouling a track. FTA also received a comment from an RTA regarding the use of “job safety briefing” compared with “roadway job safety briefing.” FTA Response: While FTA understands the concern regarding virtual job safety briefings, the final rule permits virtual job safety briefings to account for situations where a roadway worker in charge is not physically located with a crew or lone worker. This may include situations where a lone worker calls in to receive a job safety briefing or where a work crew may be spread out over a larger working limit. FTA believes this flexibility is necessary for the unique operating environments of the RTAs covered by this rule and will help ensure that job safety briefings are provided. FTA leaves it to the RTAs to determine when a virtual briefing is permissible, and each RTA may establish its own limitations as necessary. FTA declines to adopt suggested revisions to the definition because FTA believes that the language as it is written is inclusive of all topics relating to the protections that may be necessary for on-track safety, and emphasis is not needed. FTA declines to remove the words “requirements of this part” as it makes it clear that the definition of “job safety briefing” is inclusive of all requirements specified elsewhere in the rule. The requirements of a job safety briefing and its use are included throughout the rule and not every aspect of these requirements can be captured within the definition. Details on the particular circumstances or events that may require a roadway worker in charge to provide the job safety briefing are included in the relevant sections of the rule, including § 671.31(b)(1), which describes when the roadway worker in charge must provide a job safety briefing. FTA also declines to revise the term “job safety briefing” to “roadway job safety briefing” because FTA intends to cover all individuals responsible for on-track safety or who are required to access the track zone to perform work and does not believe the suggested addition helps provide clarity. 10. Lone Worker Comments: One RTA asked whether rail supervisors perform activities that fall into the lone worker category, and if so, should rail supervisors also be qualified as lone workers. This RTA commenter also requested clarification regarding the definition of “Lone Worker” and its implications related to brief track access (under 1 minute in duration). FTA Response: If a rail supervisor is performing duties that fit the “lone worker” definition of “an individual roadway worker who is not afforded on-track safety by another roadway worker, who is not a member of a roadway work group, and who is not engaged in a common task with another roadway worker,” then the rail supervisor is a “lone worker” and must have the appropriate qualifications. The provisions in § 671.35 apply to lone workers as a subclassification of roadway workers, whose duties involve inspection, construction, maintenance, repairs, or providing on-track safety, such as flag persons and watchpersons, on or near the roadway or right-of-way or with the potential of fouling track. Transit workers who are not roadway workers and who must momentarily access the roadway in the performance of work are covered under the RWP program under § 671.23(b). Individual transit workers may only foul the track in the performance of work once they have received the appropriate permissions and redundant protections, such as foul time, that have been established as specified in the RWP manual. However, individual transit workers fouling the track momentarily in the performance of work are not roadway workers or lone workers and, therefore, are not subject to § 671.35 provisions. 11. Maximum Authorized Speed Comments: FTA received two comments on the proposed definition of “maximum authorized speed.” One RTA proposed that FTA change the definition to “the highest speed permitted for the movement of trains permanently established by timetable/special instructions.” One vendor requested FTA clarify whether an operating rule requiring speed reduction when personnel are trackside would be considered the “maximum authorized speed” per this definition. FTA Response: FTA agrees that the maximum authorized speed includes the highest speed permitted on the rail transit system and therefore a definitional change is not necessary. This speed could be determined by the RTA's design or engineering; it could be enforced by the train control system; or it could be specified in procedures, operating requirements, and timetables. FTA is finalizing the definition as proposed to ensure the highest or maximum speed permitted on the system is used, wherever and however it may be specified, when calculating ample time. In response to the vendor, FTA confirms that the maximum authorized speed applies to the highest speed permitted for the movement of rail transit vehicles on the system, or part of the system, but does not extend to a general operating rule requiring speed reduction when personnel are trackside, unless that speed reduction was required for the entire system, or part of the system, not just when workers are encountered. 12. Minor Tasks Comments: FTA received comments about the proposed definition of “minor tasks” from one SSOA, one industry association, and one vendor. The SSOA commenter noted that FTA should clarify in the definition whether it intends to allow the use of individual rail transit vehicle detection for minor tasks. The comment from the industry association recommended that FTA change the definition to make clear that if a roadway worker performing a task with a tool can visually assess their surroundings every five seconds, the task remains a minor task under this regulation. The vendor also asked FTA to clarify the definition of “tool” because certain necessary inspection devices, such as a tape measure or track gauge, could be considered tools. The vendor recommended that minor tasks could include, but need not be limited to, visually inspecting, examining, or patrolling on a track. These tasks do not use tools and allow workers to hear and visually assess their surroundings regularly. The vendor recommended that “can hear” be added to the “minor task” definition because hearing is critical to receiving immediate notice of train movement. Further, the vendor recommended that a minor task should be defined based on a safety risk assessment of the task, which is necessary to determine whether a worker performing the task can assess their surroundings every five seconds. FTA Response: FTA does not believe that it is necessary to provide greater clarity regarding the use of individual rail transit vehicle detection while conducting minor tasks within the definition because, as stated in § 671.21, this rule prohibits the use of individual rail transit vehicle detection as the only form of protection in the track zone. FTA confirms that as defined, a “minor task” is one that does not include the use of tools, which would include items such as a track gauge as suggested by the commenter. However, § 671.35 allows for lone workers to perform minor tasks or routine inspections. Routine inspections do allow for the use of common inspection devices, such as tape measures or rail gauges, that do not impact a worker's ability to assess their surroundings at least every five seconds. Additionally, FTA agrees with the vendor's recommendation to revise the definition to specify that minor tasks should not prevent a transit worker from being able to assess their surroundings through what they hear. Therefore, in response to this comment, FTA has revised the definition of “minor tasks” to include “hear and” before “visually assess” to incorporate this aspect of awareness. FTA disagrees with the vendor's recommendation to define a minor task based on a safety risk assessment of the task. The range of tasks that may fall within this description are numerous. Performing a safety risk assessment on each potential situation would be, at times, onerous. Agencies are encouraged to conduct safety risk assessments whenever they deem them necessary, but FTA declines to require RTAs to adopt this approach across the board for determining what constitutes a minor task in order to reduce the burden of implementing these new requirements. 13. Near-Miss Comments: One SSOA, two RTAs, and one vendor submitted comments regarding the proposed definition of “near-miss.” A vendor suggested FTA adopt a definition more specific to this rule, such as that provided by APTA in its “Roadway Worker Near-Miss Reporting Requirements” standard. The SSOA commenter stated the definition is ambiguous and needs clarity and suggested that FTA consider using a definition more in line with the OSHA definition. The SSOA stated that additional clarity in the definition would help an RTA more effectively report near-misses and limit under- or over-reporting events due to doubt about the definition and how to apply it and also would help SSOAs administer and enforce the regulation, minimize disputes between SSOAs and RTAs, and facilitate consistent application across the States. One RTA noted that the proposed definition of “near-miss” is somewhat generic and provides too little detail. The commenter recommended that FTA adopt the National Safety Council (NSC) definition, “an unplanned event that doesn't result in injury or death but could have.” One RTA commented that the definition is highly subjective, and RTAs will apply it inconsistently because a transit worker's interpretation of a near-miss may not necessarily align with the agency's interpretation. The commenter asked FTA to consider providing guidance to help RTAs navigate potential discrepancies. FTA Response: FTA appreciates the comments recommending that FTA add more detail and specificity to the definition or adopt one of the alternative suggested definitions; however, FTA declines to make any changes in order to maintain consistency with the definition of “near-miss” used in 49 CFR part 673. FTA believes this consistency is necessary as near-miss information will be relevant to an agency's SMS, as required under part 673 of this chapter. FTA recognizes that the definition of near-miss is not lengthy; this definition is intended to allow RTAs to use their own discretion and judgment to determine when an avoided safety event was narrowly missed and thus constitutes a near-miss. FTA also acknowledges that what constitutes a near-miss for one agency may be different for another, due to system configurations and other factors. FTA confirms the agency's intent to provide technical assistance and guidance on the final rule, including how to identify near-miss situations. FTA recognizes the inherent challenges in defining a term such as “near-miss,” which is intended to include events with outcomes that did not occur. Necessarily, such terms will rely on some level of subjectivity or interpretation, and FTA encourages RTAs to work closely with frontline staff to educate personnel on near-misses and the procedures associated with the RTA's transit worker safety reporting program required in 49 CFR part 673. 14. On-Track Safety Comments: FTA received comments from one SSOA, one RTA, and one vendor regarding the proposed definition of “on-track safety.” The SSOA commenter suggested that FTA revise the proposed definition by removing the words “a state of” before the word “freedom” to provide clarity. The RTA commenter recommended FTA adopt APTA's definition of “on-track safety” from the “Roadway Worker Program Requirements” standard. The vendor commented that limiting the definition solely to vehicle-based hazards may exclude other significant hazards, such as electrical or switch movement. The commenter requested that FTA clarify whether “operating and safety rules that govern track occupancy” are intended to cover these other types of hazards. FTA Response: FTA intends for “on-track safety” to encompass all hazards a worker may encounter while working on the track roadway, including electrical and switch movement, as applicable to the RTA's operating environment. In response to the comments, FTA has updated the definition of on-track safety to include “other on-track hazards” for clarity. FTA declines to revise the definition further or adopt the APTA definition because FTA believes the definition in the final rule is sufficiently clear, and notes that it is consistent with FRA's definition of “on-track safety.” 15. Place of Safety Comments: Three RTAs, one industry association, and one vendor submitted comments on the proposed definition of “place of safety.” An RTA recommended FTA adopt APTA's definition of “place of safety” from the “Roadway Worker Program Requirements” standard. Another RTA commenter suggested FTA define “place of safety” as a “location within the roadway but outside the dynamic envelope of rail vehicles, to include at least four feet from the nearest running rail.” The commenter added that the distance FTA defines in “fouling a track” should be used in the “place of safety” definition. One RTA commenter and an industry association commenter recommended that FTA revise the definition by removing “outside the track zone.” The commenters suggested that this change would better suit RTAs with median street-running alignments that will find it impossible to identify a “place of safety” that is “outside the track zone” such as segments of rail alignment that are flanked by traffic lanes on both sides of the tracks. The vendor commenter agreed with the proposed definition of “place of safety;” however, they pointed out that the proposed definition of “track zone” currently suggests that “places of safety” within six feet of the track may be within the track zone. FTA Response: FTA is finalizing the proposed definition without change. Due to the many varied configurations of rail transit systems, FTA believes that the definition balances the need to ensure safe egress for workers with the need to ensure that terminology can apply to a variety of different systems. FTA does wish to clarify that “place of safety” includes cut-outs because these are areas of refuge safe from train passage. As for the definition of “place of safety” referencing the condition of being safely “outside of the track zone,” several commenters suggested modifications to the term “track zone” for clarity. FTA considers a “place of safety” as being outside of the track zone and therefore ensuring workers are safe from train vehicles and other rail hazards directly related to rail operations. With regard to other hazards, like nearby passing traffic, FTA expects RTAs to effectively protect workers from these external but real hazards near to and potentially impacting the track right-of-way and associated work when identifying places of safety. FTA has revised the definition of “track zone” (see Section II.D.26) by removing “typically an area within six feet of the outside rail on both sides of any track,” and adding proximity language to the definition of “fouling a track” to better align with FRA's definitional approach and to provide flexibility to RTAs (see Section II.D.7). 16. Rail Transit Vehicle Comments: One SSOA commenter noted apparent inconsistency throughout the proposed rule's definitions regarding FTA's use of the terms “rail transit vehicle” or “equipment” and noted that sometimes both terms are used in a definition and sometimes not. The commenter noted that FTA did not define “rail transit equipment” and asked if the equipment used by an RTA contractor is included in the meaning of the term “equipment.” FTA Response: Definitions that reference rail transit vehicles in the context of ensuring workers have the necessary time and sight distance to be sufficiently clear of moving vehicles do not include the term “equipment.” These definitions are the following: “ample time,” “foul time protection,” “maximum authorized speed,” and “minor tasks.” On-track equipment other than rolling stock, such as machinery or tools, may still pose safety risks and are referenced in other definitions throughout this section as relevant. As stated in the definition, “rail transit vehicle” includes “any rolling stock used on a rail fixed guideway public transportation system.” This includes all vehicles used by contractors as well as by the RTA employees. 17. Rail Transit Vehicle Approach Warning Comments: One RTA commented on the proposed definition of “rail transit vehicle approach warning” and suggested FTA use the term “train” rather than “rail transit vehicle.” FTA Response: FTA declines to adopt this change out of consideration for and to encompass the various terms and equipment used in the rail transit industry including light rail vehicles, streetcars, inclined plane cars, cable cars, and others. 18. Redundant Protection Comments: One RTA and one vendor submitted comments regarding the definition of “redundant protection.” The RTA commenter asked FTA to clarify what constitutes “procedural” protection. The commenter expressed that the proposed definition allows too much room for subjectivity, leading to inconsistent application and conflicts between RTAs and SSOAs. Further, the commenter noted that although the proposed requirement at § 671.39(d) includes a list of types of redundant protections, most of which appear to be procedural, the term inherently encompasses much more than the list suggests. The vendor commenter recommended that FTA reword the definition of “redundant protection” if this type of protection must encompass all roadway workers. The commenter suggested FTA replace in the definition “individual rail transit vehicle detection” with “the minimum levels of protection specified in this subpart.” FTA Response: FTA will provide more information on “procedural” protections in the future. The list of “redundant protections” in the rule at § 671.39 is not meant to be exhaustive or limiting, but rather serve as a list of common examples. The rule allows flexibility for RTAs to design programs with effective redundant protections that work for their operations and environments, thus a degree of subjectivity is intended within this definition. FTA declines to amend the definition as the current definition makes clear that redundant protections are intended to ensure the safety of roadway workers. FTA also believes it is necessary to reference the limitations on individual rail transit vehicle detection within this definition to ensure RTAs, who commonly use this practice, understand the requirements for building out additional protections in relation to that practice. 19. Roadway Comments: FTA received comments from one SSOA regarding the proposed definition of “roadway.” The SSOA commenter asked if the term includes maintenance facilities as they are “support infrastructure” for the movement of rail transit vehicles. FTA Response: FTA does not intend for the term “roadway” in this rule to apply to maintenance structures, but it does apply to all track outside of those structures. 20. Roadway Maintenance Machine Comments: One SSOA and one RTA commented on the proposed definition of “roadway maintenance machine.” The SSOA commenter suggested FTA change the term from “roadway maintenance machine” to “roadway machine” if, per the definition, this equipment is used for other activities beyond maintenance. The RTA commenter recommended that FTA revise the definition of roadway maintenance machine by adding “powered by any means of energy rather than hand power” after “device” and changing “rail transit track” to “railroad track.” FTA Response: FTA disagrees that the definition of “roadway maintenance machine” needs revision. “Roadway maintenance machine” encompasses vehicles that support maintenance broadly, to include repair, construction, or inspection, as listed in the definition. A roadway maintenance machine encompasses a broad spectrum of machinery, from a hi-rail inspection vehicle to track vacuum equipment, which may be owned by the RTA or by contractors authorized to work on the roadway. Further, FTA does not find it necessary to exclude machinery by power mode for this definition. The roadway maintenance machine is used in this rule in relation to the RWP training and qualification program and job safety briefings, and in both contexts the term could potentially apply to hand-powered machinery. FTA will also keep the term “rail transit track” in the definition for clarity between rail transit track and other track. 21. Roadway Worker Comments: Three RTAs submitted comments regarding the proposed definition of “roadway worker.” One RTA commenter asked FTA to define “construction” and how work in construction areas interacts with these proposed rules in pre-revenue and revenue service areas, because a construction area can be a very different environment than revenue service. The commenter recommended FTA exclude construction areas from the rule, as OSHA and other Federal guidelines already govern construction safety and argued that including construction contractors as roadway workers would unnecessarily burden RTAs. In support of this argument, the RTA commenter recommended that FTA add “in revenue service segments” to the end of the roadway worker definition to exclude workers in a non-service area. The commenter also suggested that FTA adopt APTA's definition from its “Roadway Worker Program Requirements” standard. Another RTA commented that the definition of roadway worker should be limited to anyone doing work (inspection, maintenance, or construction) in the track zone or providing protection for roadway workers in the track zone. One RTA argued that FTA should not use “transit workers” in the definition as there are alternate means of protection in place for those who do not meet the definition of a roadway worker. The commenter suggested the following revised definition for roadway worker: “An employee of a railroad or a contractor to a railroad whose duties include inspection, construction, maintenance, or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or maintenance machinery on or near track or with the potential of fouling a track, and watchperson/lookout.” FTA Response: FTA declines to remove transit workers whose duties include construction from the definition of “roadway worker.” FTA's proposed definition aligns with the FRA definition of roadway worker and the comprehensive protection it provides. This means a “roadway worker” includes an individual working in roadway construction in pre-revenue environments, and each RTA will need to ensure RWP during pre-revenue and revenue phases. FTA believes this is necessary as pre-revenue work may involve unique risks, including but not limited to, working alongside non-revenue service equipment or working adjacent to RTA infrastructure. For pre-revenue phases, RTAs should implement the RWP program and worker protections in a manner that is appropriate to address the specific risks of that working environment. FTA considered adopting APTA's definition of roadway worker from its “Roadway Worker Program Requirements” standard; however, FTA declined to do so because it is narrower. FTA's definition is intentionally broader than APTA's roadway worker definition, and all workers encompassed under APTA's definition will also fall under FTA's definition, including contractors. Likewise, FTA declines to further limit the definition of roadway worker to either eliminate the phrase “transit worker” or adjust the enumerated duties of a roadway worker. The definition of roadway worker in this rule was designed to protect any worker who may be exposed to hazards on or near the tracks while in the performance of work. FTA designed this definition to encompass a wide range of potential job duties, and to ensure consistency across agencies. FTA has further clarified the relationship in this rule between the term transit worker and the term roadway worker in response to the comments on § 671.1. FTA is finalizing the definition of roadway worker as proposed. 22. Roadway Worker in Charge Comments: FTA received comments regarding the proposed definition of “roadway worker in charge” from one SSOA, two RTAs, and one industry association. The SSOA commenter suggested that FTA add “protection and designated in this role by the RTA” to the end of the definition. One RTA commenter recommended FTA add “and may perform work that is part of the work crew's responsibilities” to the end of the definition, arguing this revision would clarify that a roadway worker in charge may perform duties such as overseeing their work crew. Another RTA commenter suggested the following definition: “A qualified employee who is responsible for establishing on-track safety for roadway work crews.” An industry association commenter recommended adding “and may perform work that is part of the work crew's responsibilities, including flagging for trains” to the end of the definition as it would clarify that the roadway worker in charge can flag trains, making a dedicated flagger unnecessary, especially for RTAs that require a flagger and a dedicated watchperson. FTA Response: FTA declines to incorporate suggestions to amend the definition because § 671.31 sufficiently addresses the RTA's role in designating the roadway worker in charge. Similarly, § 671.31(a)(4) requires a roadway worker in charge to serve in the role of maintaining on-track safety for all members of the roadway work group and perform no other unrelated job function while designated for duty; therefore, the recommendation to add “and may perform work that is part of the work crew's responsibilities” would be inconsistent with FTA's intent. The roadway worker in charge may only perform responsibilities related to maintaining on-track safety. This may include safety roles, such as flagging, though FTA declines to add “flagging for trains” to the definition of roadway worker in charge, as this responsibility would be ancillary and determined on a case-by-case basis. FTA also declines to add “safety for roadway work crews” to the end of this definition. FTA does not think it necessary to caveat that on-track safety be established for work crews only, as on-track safety in some instances has wider implications for people such as transit operators or pedestrians. 23. Roadway Worker Protection Comments: One RTA commenter argued that the proposed definition of “roadway worker protection” should refer to the protection from hazards associated with moving rail vehicles and not be so broad by mentioning “safety events.” The commenter added that RWP should only pertain to roadway workers, not transit workers. Further, the commenter noted that the definition specifies that RWP protects workers on the roadway, which they argued is vague and could be interpreted to mean that RWP is always required whenever a transit worker is on the roadway. FTA Response: As recommended by the NTSB, FTA intends for RWP to address more safety events than just hazards associated with moving rail vehicles. FTA intends for the roadway worker protections established by this rule to protect all transit workers while they perform approved duties on the track roadway; therefore, FTA declines to amend the definition to only cover roadway workers. It is FTA's intent that safety protections established in this rule will provide comprehensive safety coverage for workers on the roadway, irrespective of job titles. 24. State Safety Oversight Agency Comments: One SSOA commented that the proposed definition of “State Safety Oversight Agency (SSOA)” does not include the statutory reference to 49 U.S.C. 5329(k) that was included in the definition of “State Safety Oversight Agency (SSOA)” that was proposed in the NPRM for 49 CFR part 673 (PTASP regulation). FTA Response: FTA has revised the definition of “State Safety Oversight Agency” in the final rule to include the statutory reference to 49 U.S.C. 5329(k). 25. Track Access Guide Comments: Two RTAs commented on the proposed definition of “track access guide.” One commenter recommended that FTA change the term from “track access” to “physical characteristics,” as many RTAs use “track access” in reference to their track allocation process. One commenter noted the definition is excessively broad, particularly the requirement to describe the physical characteristics of track areas with loud noise or potential environmental conditions. FTA Response: Because FTA allows RTAs the flexibility to use their existing terms as long as the definitions do not conflict with the definitions in this final rule, FTA declines to change the term “track access guide” as suggested. FTA believes a broad definition is necessary to account for a wide range of systems and ensure inclusivity. FTA also believes this broad definition is balanced by the minimum requirements of the track access guide, which are clearly enumerated in § 671.13(d)(1-7). RTAs may design their track access guides to address the components in this definition, and the requirements of § 671.13, to a degree of detail that is appropriate based on their respective systems. 26. Track Zone Comments: FTA received comments from multiple commenters, including the NTSB, five RTAs, and two vendors, regarding the proposed definition of “track zone.” The NTSB expressed concern that, within the definition, the track zone is identified by transit workers rather than the RTAs and encouraged FTA to update its definition of track zone to state that RTAs identify the track zone, not transit workers. NTSB noted in their comment that an NTSB investigation determined that the probable cause of a significant safety event was the failure of a transit worker to stay clear of the approaching train, either because the worker was not aware of its presence or because they lacked a physical reference by which to identify a safe area outside the train's dynamic envelope. The NTSB commented that RTAs should identify the track zone because transit workers may lack a physical reference to identify where a person or equipment could be struck by the widest equipment that could occupy the track. One RTA commenter recommended that FTA review the definition to better account for tight working conditions in subways and on elevated environments and suggested FTA remove the following from the track zone definition: “typically is an area within six feet of the outside rail on both sides of any track.” One RTA commenter questioned the practicality of the proposed definition and recommended FTA change the definition to follow the established APTA standard of track zone in “Roadway Worker Program Requirements.” The commenter also recommended FTA change the term from “track zone” to “foul zone” for consistency, as it is more in keeping with “fouling a track.” One RTA commenter noted the definition for track zone is defined separately from fouling a track, but that they appear very similar. The commenter asked if there is a significant difference between these two definitions. Another RTA commenter indicated that the six feet referenced in the proposed track zone definition would not work for the RTA's system, especially in tunnels and on tight rights-of-way. In addition, since the track zone definition is synonymous with “fouling the track,” the commenter recommended FTA use the term “foul zone” or “fouling zone” instead of “track zone.” One RTA commenter proposed that FTA remove the term “track zone,” because including the term could result in confusion about where protections are required. One vendor noted that many current places of safety, including niches, walkways, and bench walls, might be within the track zone as proposed to be defined by FTA and recommended that FTA remove the following from the track zone definition: “typically is an area within six feet of the outside rail on both sides of any track.” Another vendor commenter recommended FTA consider establishing a clear minimum threshold by making the track zone a minimum of six feet from the edge of the outside rail. FTA Response: FTA agrees with the NTSB's comment that the RTA should identify the track zone rather than the transit workers and has amended the definition in this final rule to replace “transit worker” with “the RTA.” Ensuring the RTA identifies the track zone will provide needed consistency and allow the RTA to better assess and manage risks in the track zone. FTA also agrees with commenters that the phrase “typically is an area within six feet of the outside rail on both sides of any track” should be removed. FTA notes that it has added proximity language to the definition of “fouling a track” (see section II.D.7) and reiterates that this rule is intended to consider the needs of various operating systems and track configurations. FTA disagrees with adopting the APTA standard and disagrees that the term should be changed to “foul zone.” FTA declines these changes as they would conflict with the changes just discussed. FTA notes that the track zone is the “location” of where the action of fouling a track occurs. FTA disagrees that including the term “track zone” on the list of definitions in the final rule might result in confusion about where protections are required because the final rule requires protections within track zones. FTA has defined this in § 671.39(c), which requires RTAs to identify redundant protections for roadway workers performing work on the roadway and “within track zones.” FTA also declines to establish a clear threshold of “six feet from the edge of the outside rail” due to the need for flexibility, as mentioned above, to account for systems such as those operating on streets with mixed traffic. 27. Transit Worker Comments: One SSOA, one RTA, and one vendor submitted comments on the proposed definition of “transit worker.” The SSOA commenter asked if the definition includes an RTA's police force. The RTA commented that the definition of “transit worker” does not align with the definition in 49 CFR part 673.5. In addition, the RTA commenter recommended that FTA remove SSOA personnel from throughout the provisions of part 671 and have rail transit stakeholders refer to the appropriate sections of part 674 or an SSO program standard, as appropriate. Further, the RTA commented that in part 671, subpart D (§§ 671.31 through 671.41), the term “roadway worker” takes precedence over “transit worker” or other terms that were previously defined. The commenter added that it is unclear to what extent transit workers must comply with these RWP program elements, even though the preceding sections seem to intentionally describe this larger population beyond those personnel working within the track zone. The vendor recommended FTA include language for third parties (such as emergency personnel) in the transit worker definition or a separate one to support § 671.21(b)(3), which proposes to require each RTA to establish requirements for on-track safety, “including protections for emergency personnel who must access the roadway or the track zone.” FTA Response: FTA confirms that an RTA's police force personnel are transit workers if they are “employees” or “contractors” working on behalf of the RTA as described in the definition. FTA confirms that it explicitly includes SSOA personnel and contractors in the definition of “transit worker” in part 671 to ensure that transit worker-related provisions apply to SSOA personnel conducting inspections or performing other activities that require track access. FTA refers readers to section II.D.21 of this preamble for more discussion about the terms “transit worker” and “roadway worker” as they pertain to the requirements established in this rule. FTA declines to include “emergency” in the personnel in the definition of transit worker because emergency personnel would not meet the definition of “transit worker” if they are not an employees, contractors, or volunteers working on behalf of the RTA or SSOA. 28. Transit Worker Safety Reporting Program Comments: One SSOA commenter asked FTA for a definition of “senior management” in the context of the “transit worker safety reporting program” proposed definition. FTA Response: FTA declines to establish a formal definition for this term as RTAs may have varied levels of authority and leadership depending on size, and it is the responsibility of the individual agency to understand and determine which members of leadership should be involved. 29. Watchperson Comments: Two vendors commented on the proposed definition of “watchperson.” One vendor requested that FTA clarify whether “sole duty” in the definition means the roadway worker in charge and watchperson are separate roles carried out by separate workers. The other vendor noted that sufficient “reaction time” or, as the definition describes it, “plus time to clear,” has often been debated among RWP training professionals and Federal inspectors. The commenter recommended that FTA reword the definition of watchperson for consistency with other definitions. This commenter also recommended that FTA add language such as, “Watchpersons shall consider roadway worker reaction time to ensure full ample time is provided.” The commenter noted this restructuring would refer agencies, trainers, and employees to the “ample time” definition, which includes the language they proposed striking from the definition of “watchperson” and would emphasize the importance of the reaction time component that the watchperson is responsible for assessing. FTA Response: This final rule provides that the roadway worker in charge must “serve only the function of maintaining on-track safety for all members of the roadway work group and perform no other unrelated job function while designated for duty.” The final rule allows a roadway worker in charge to serve in the role of watchperson because this role falls within the function of maintaining on-track safety. FTA does not believe that the definition requires further clarification on response time because “plus time to clear” is sufficient to ensure ample time is given to the transit workers in such a scenario. 30. Working Limits Comments: One RTA commented on the proposed definition of “working limits.” The commenter suggested that FTA add how working limits may be defined. FTA Response: FTA declines to make this revision as the definition is intended to encompass RTAs of varying sizes and complexities and adding more specific detail would reduce the flexibility and scope of applicability. 31. Work Zone Comments: One vendor commented on the proposed definition of “work zone” and recommended that FTA incorporate “or adjacent to” into the definition after “within.” The commenter noted there had been numerous occasions where work zones adjacent to the track did or did not have sufficient on-track safety afforded, and the work activity unintentionally fouled the track zone. The commenter asked if this situation would meet the intent of the “work zone” definition. FTA Response: FTA agrees that areas adjacent to the track zone have the potential to affect the track zone. FTA declines to amend the definition as suggested because the definition contemplates these areas already. The final rule uses the term “work zone” to refer to the immediate area of a track zone, which means it is the area where workers are performing work and therefore could be struck by a rail transit vehicle or equipment. FTA expects information on adjacent tracks and multiple roadway worker groups working in adjacent areas to be included in job safety briefings, including safety information about any adjacent track and identification of the roadway maintenance machines or on-track equipment that may foul adjacent tracks. 32. Recommended Additions Comments: FTA received comments from one SSOA and three RTAs recommending that FTA define additional terms in part 671. The SSOA commenter recommended FTA clearly define the terms “resources,” “qualified personnel,” and “complexity” to fully eliminate subjectivity because SSOAs are evaluated by these regulations, and FTA should clearly define expectations. One RTA commenter recommended FTA include a definition for “adjacent track” in § 671.5 because it is defined in § 671.33(b)(7). One RTA recommended FTA add a definition for “contractor” and adopt the definition from APTA's “Roadway Worker Program Requirements” standard. Another RTA commenter suggested that FTA define “unsafe acts” and “unsafe conditions” to support employee education on the requirements for safety reporting in §§ 671.21(a)(6) and 671.23(e). FTA Response: FTA declines to establish formal definitions of the terms “resources,” “qualified personnel,” and “complexity” because these terms are not used in this final rule. However, “qualified” is defined in § 671.5 in relation to a roadway worker or transit worker's training, proficiency, and authorization status. FTA appreciates the RTA commenter that recommended defining “adjacent track” in § 671.5 but does not believe it is necessary to add this to the definition section of the rule as it is only referred to in one section of the rule (§ 671.33(b)(7)) and is sufficiently clear in that context. FTA does not believe it is necessary to define commonly understood terms such as “contractor.” Similarly, FTA declines to formally define the terms “unsafe acts” and “unsafe conditions” as they are also commonly understood and intended to be flexible in this rule. By not defining these terms, FTA allows for adaptability in different scenarios and environments and ensures workers do not feel constrained in their ability to report potential hazards. E. Section 671.11—RWP Program Comments: FTA received comments related to the requirements for an RWP program in § 671.11. One SSOA commenter urged FTA to require relevant RTAs to include electrical safety plans within their RWP program to protect workers from electrocution. An RTA commenter asked for specificity on the types of “subsequent updates” of the RWP manual that must be submitted to the SSOA for review and approval as required by § 671.11(c). A vendor recommended that all RWP program elements and procedures align with an RTA's operating procedures, and that RTA operating procedures must facilitate on-track safety implementation. FTA Response: FTA appreciates the reminder of the electrical risk and safety concerns around many transit systems and has kept the rule language broad to account for varying types of systems and hazards. FTA recommends that RTAs incorporate electrical safety practices within their RWP programs as applicable. With regard to the inquiry on approval of “subsequent updates” to the RWP manual, FTA considers those revisions or updates that result in any RWP policy changes as necessitating SSOA review and approval. Minor, non-substantive updates are not required by the rule to be approved by the SSOA. FTA expects SSOAs and RTAs to identify any necessary thresholds and practices to execute RWP manual revisions and approvals. FTA acknowledges the need for RWP programs to align with RTA operating procedures and encourages agencies to tailor RWP programs to synchronize with existing operating procedures accounting for agency size, operating environments, infrastructure, service delivery, and more. F. Section 671.13—RWP Manual 1. Requirements Comments: FTA received comments from multiple RTAs, two industry associations, and one vendor related to the requirement at § 671.13 to establish a single manual documenting the RWP Program elements, including responsibilities, processes and procedures, and the required training, qualification, and supervision for transit workers. One industry association commenter expressed concern about RTAs having to create an RWP manual instead of using their existing rulebook and standard operating procedures (SOPs) for employees working on or near the track. The commenter urged FTA to provide flexibility for agencies to incorporate the requirements from the RWP manual into their rulebooks, SOPs, or other agency documents as long as they cover all the § 671.13 requirements. One RTA asserted that FTA should not require the RWP manual to be a stand-alone document but instead be integrated into existing rulebooks and recommended FTA remove the requirement of a separate document. The commenter suggested that a separate manual would increase the burden on employees who must maintain the operating rulebook, RWP manual, and a track access guide while performing duties. The commenter added that a separate manual could create version control issues where RWP manuals might be updated in conflict with operating rules and noted that version control is easier with a single operating rulebook. The commenter claimed this integration would streamline documentation, reduce redundancy, and better ensure compliance. One RTA commenter noted its system has both third rail-powered (heavy rail) lines and catenary-powered streetcar (light rail) lines and it intends to create separate RWP manuals, each satisfying the RWP program requirements, for each of its rail transit modes. One industry association commenter suggested that the RWP manual should address distractions related to personal communication devices, which are a major factor contributing to roadway worker safety events. The commenter recommended that §§ 671.13 and 671.23 could specifically identify “compliance with State, local, and agency rules and guidelines regarding worker distractions and prohibited devices/items.” One RTA commenter recommended that FTA clarify the meaning of “by labor category or type of work performed” in terms of defining the training, qualification, and supervision required for accessing the track zone that must be documented in the RWP manual. One RTA requested that FTA clarify how the “processes and procedures, including any use of roadway workers to provide adequate on-track safety, for all transit workers who may access the track zone in the performance of their work” affect transit workers such as an operator entering the roadway to troubleshoot a train, or a customer service representative accessing the right-of-way to retrieve a personal item. Another RTA requested flexibility to maintain RWP processes and procedures outside the RWP manual, similar to the flexibility proposed for the track access guide. The commenter noted that if those processes and procedures are included in the RWP manual, employees' printed manuals may become outdated and no longer be reliable sources soon after issuance. Further, the commenter noted it is impossible to include the details of all track access and safety processes and procedures in the RWP manual while maintaining a reasonably sized document that employees can carry with them and easily navigate. The commenter argued that maintaining procedures separately would allow the manual to be more “evergreen” because its information will hold true even if the RTA makes minor procedure changes. One vendor commenter asked FTA for guidance on processes and procedures to provide on-track safety for “safety and oversight personnel,” especially in emergencies, that could be included in the RWP manual. One RTA commenter noted that the requirement to include in the RWP manual “procedures for SSOA personnel to access the roadway” seem out of place. The commenter recommended that if procedures for an SSOA to enter RTA property need to be referenced in the manual, the SSOA and the RTA should work together to develop a process by which the SSOA will engage the RTA to ensure proper protection when entering the RTA's track zone. One RTA commented that information on protecting safety and oversight personnel from moving rail vehicles should be in a separate section and not included in the RWP manual section specific to “roadway workers.” FTA Response: While FTA understands that RTAs may have existing rulebooks and SOPs in place that address RWP, FTA believes it is critical that RTAs establish and maintain a single, authoritative document so that it is clear to all parties where all the RWP information is housed and can be found. FTA believes that a singular document is also more conducive to annual reviews, and better facilitates SSOA and FTA oversight. FTA declines to remove the requirement for a separate manual but confirms that employees are not required under this rule to carry the RWP manual on their person. The rule only requires the RTA to distribute the RWP manual to all transit workers who access the roadway. FTA agrees with the commenter that suggested a single operating rulebook is preferable for version control and to reduce redundancy, which is why FTA is finalizing the requirement for a separate, dedicated manual. To reduce redundancy, FTA encourages RTAs to reference the RWP manual in existing rulebooks or operating procedures where appropriate or incorporate these existing documents into its RWP manual. In response to the comment that an RTA intends to create separate manuals for its heavy and light rail lines, FTA reiterates the requirement that RTAs establish one RWP manual as the single authoritative source of RWP program information for all rail modes operated by the RTA. However, the RTA could clearly differentiate in the manual the sections that are relevant to workers, based on the mode of operation. While FTA agrees that electronic personal communication devices can cause distractions, FTA believes that electronic devices do have a purpose in the field at times. Therefore, FTA declines to revise the rule to specifically address distractions related to personal communication devices but notes that RTAs may establish additional rules that are consistent with this regulation. FTA confirms that the intent of including the training, qualification, and supervision required for transit workers by labor category or type of work performed is to encourage RTAs to consider the different job roles, tasks, or functions for different classifications of workers or groupings of workers when addressing this requirement. Each labor category or worker classification may have distinct requirements based on the nature of the work they perform, which might require distinct training or supervision. As such, defining the necessary training, qualification, and supervision by labor category or type of work performed ensures that each group is appropriately trained and certified to access the roadway and supervised as necessary. The final rule requires that the RWP manual document processes and procedures for all transit workers who must access the track to perform their duties, which would include an operator entering the roadway to troubleshoot a train, or a customer service representative accessing the right-of-way to retrieve a personal item. For these instances of momentary track fouling, the final rule states that a transit worker may only foul the track once they have received appropriate permissions and redundant protections have been established as specified in the RWP manual. In response to the commenter that requested flexibility to maintain RWP processes and procedures outside the RWP manual, FTA reiterates the requirement that RTAs must establish one RWP manual as a single authoritative source of RWP program information. FTA believes maintaining one document ensures consistency and accountability for the workforce and strengthens the dependability of training and oversight measures. FTA also believes this requirement will encourage more efficient manual review and update processes pursuant to § 671.13(e). FTA has drawn the distinction for the track access guide to be incorporated by reference as track access guides for some agencies may be especially lengthy and/or may require more frequent updates than the updates to RTA policies and procedures. Because § 671.13 requires RTAs to update their RWP manuals as necessary and as soon as practicable upon any change to the system that conflicts with any element of the document, FTA is not concerned that including the processes in the RWP manual will result in outdated manuals. FTA notes that the final rule does not establish a requirement that RTAs must distribute a physical copy of the manual to all transit workers who access the roadway, thus eliminating the concern that the manuals may be too large to carry. The final rule offers RTAs flexibility to select the format for manual distribution, which could include electronically, as long as transit workers have easy access to an up-to-date version. FTA will consider the request for FTA guidance on processes and procedures to provide on-track safety for safety and oversight personnel, especially in emergencies, for future guidance and technical assistance. FTA disagrees with the commenter that procedures for SSOA personnel to access the roadway are out of place in the RWP manual because the final rule establishes requirements to ensure protections apply to all transit workers that access the roadway to perform work, including SSOA personnel conducting inspections or performing other oversight activities. FTA encourages the RTA and SSOA to work together, when appropriate, to establish procedures for SSOA personnel to access the roadway. The SSOA and RTA will also have the opportunity to formally agree on RWP procedures via the SSOA's approval of the RWP manual under § 671.25. FTA disagrees that information on protecting safety and oversight personnel from moving rail vehicles should not be included in the RWP manual. The RWP manual is intended to document processes and procedures for all transit worker [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%3A2024-25042. Public record. Not legal advice.