Roadway Worker Protection

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 1]

RIN 2130-AA86

Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA); DOT.

ACTION: Notice of Proposal to Form a Negotiated Rulemaking Advisory

Committee and Request for Representation.

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SUMMARY: FRA proposes to establish a Negotiated Rulemaking Advisory

Committee under the Negotiated Rulemaking Act of 1990 and the Federal

Advisory Committee Act to develop a recommended rule concerning the

protection of railroad roadway workers. The Committee would adopt its

recommendations through a negotiation process. The Committee would be

composed of persons who represent the interests affected by the rule,

such as labor organizations, railroads, railroad associations,

contractor associations, and the government. FRA invites interested

parties to submit nominations and applications for membership on the

Committee.

DATES: FRA must receive written comments and requests for

representation or membership by September 16, 1994.

ADDRESSES: All written comments should be submitted in triplicate to

the Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street,

S.W., Room 8201, Washington, D. C. 20590.

FOR FURTHER INFORMATION CONTACT: Christine Beyer, Trial Attorney,

Office of Chief Counsel, FRA, 400 Seventh Street, S.W., Room 8201,

Washington, D. C. 20590 (Telephone: 202-366-0621).

SUPPLEMENTARY INFORMATION:

I. Background

(A) History

The Rail Safety Enforcement and Review Act, Pub.L. No. 102-365, 106

Stat. 972, enacted September 3, 1992, required FRA to review its track

safety standards and revise them based on data presented during that

review. Among the topics to be addressed was ``an evaluation of

employee safety.'' FRA issued an Advance Notice of Proposed Rulemaking

(ANPRM) on November 16, 1992 (57 FR 54038) to announce the opening of a

proceeding to amend the Federal Track Safety Standards (49 CFR Part

213). That ANPRM addressed the general topics to be considered,

including standards for railroad track itself, and protecting

maintenance-of-way and other non-operating railroad employees from the

hazards of moving railroad equipment.

As part of that proceeding, FRA conducted a series of workshops to

obtain the industry's views on the need for and substance of any

changes to FRA's regulations. One such workshop session, announced in

Notice No. 4 of that ANPRM issued on February 18, 1993 (58 FR 8928),

and held in Washington, D.C. on March 31, 1993 addressed specifically

the issue of protection of roadway workers from being struck by moving

trains and equipment. Since that workshop, FRA has received petitions

for emergency orders and rulemaking on the topic from the Brotherhood

of Maintenance-of-Way Employees and the Brotherhood of Railroad

Signalmen.

FRA originally planned to include protection from moving trains and

moving equipment into a new Subpart G of 49 CFR Part 213, but it will

now be considered as part of 49 CFR Part 214, Railroad Workplace

Safety. Given FRA's desire to address this issue on an expedited basis,

and because it relates more closely to workplace safety than to track

standards, this proceeding is now separated from FRA Docket No. RST-90-

1 and has been placed in FRA Docket No. RSOR 13. Items related to this

subject which were submitted as part of Docket No. RST-90-1 will be

considered as part of this proceeding, as will the transcript of the

public workshop on March 31, 1993.

(B) Purpose

FRA is taking this action for the purpose of reducing the risk of

death or injury railroad roadway workers face when struck by moving

trains and railroad equipment. Since 1989, 21 roadway workers have been

fatally injured by moving trains and equipment. Eight workers were

struck by trains while performing work, three were struck by trains on

track adjacent to the work location, five stepped into a train's path,

and five were struck by maintenance-of-way equipment. These fatalities

are among the following crafts: signal maintainers, machine operators,

welders, track foremen, track inspectors, and track laborers.

These figures reflect a serious problem that may require changes in

railroad operating rules, training and practices. In order to address

the problem in the short term, FRA Administrator Molitoris convened a

meeting on June 3, 1994 at which FRA distributed summaries of the

fatalities, and enlisted the support of the industry to address the

issue immediately on each railroad through local labor/management

committees. FRA also discussed the option of proceeding with a

negotiated rulemaking, and has since preliminarily concluded that this

issue is an appropriate subject for negotiated rulemaking.

(C) Terminology

FRA proposes that the term ``roadway worker'' rather than

``maintenance of way employee'' be used in this proceeding to define

the subject persons. This term would encompass all employees of a

railroad or a contractor to a railroad who construct, maintain, inspect

or repair railroad tracks, structures, signal and train control

systems, communication systems, utility systems, or any other fixed

property of a railroad while in close or potentially close proximity to

tracks on which trains or equipment can be operated. The term would

apply regardless of the craft or class title of the employee,

affiliation with any labor organization, or rank within the railroad

organization. Examples of subject persons would be trackmen, signal

maintainers, bridge workers, communication technicians, electricians,

surveyors, roadmasters and chief engineers, while performing their

duties along the line of road.

FRA believes that extensive input from all interested parties is

necessary to develop a rule that will address both the risk of injury

from moving railroad equipment and the operational concerns that this

issue presents. Therefore, this notice announces FRA's proposal to

address these issues through a negotiated rulemaking.

Set forth below are the basic concepts of negotiated rulemaking,

suggested procedures to be followed, and criteria for participant

selection. In order to begin this process shortly, FRA asks that

parties representing interests affected by a roadway worker safety rule

request appointment or representation on the Committee within thirty

days of publication of this notice.

II. Regulatory Negotiation

Due to the increasing complexity and formalization of the written

rulemaking process, it can be difficult for an agency to craft

effective regulatory solutions to certain problems. In the typical

rulemaking process, the participants often develop adversarial

relationships that prevent effective communication and creative

solutions. The exchange of ideas that may lead to solutions acceptable

to all interested groups often does not occur in the traditional notice

and comment system. As the Administrative Conference of the United

States (ACUS) noted in its Recommendation 82-4:

Experience indicates that if the parties in interest were to

work together to negotiate the text of a proposed rule, they might

be able in some circumstances to identify the major issues, gauge

their importance to the respective parties, identify the information

and data necessary to resolve the issues, and develop a rule that is

acceptable to the respective interests, all within the contours of

the substantive statute.

ACUS adopted this recommendation in ``Procedures for Negotiating

Proposed Regulations,'' 47 FR 30708, June 18, 1982. The thrust of the

recommendation is that representatives of all interests should be

assembled to discuss the issue or hazard and all potential solutions,

reach consensus, and prepare a proposed rule for consideration by the

agency. After public comment on any proposal issued by the agency, the

group would reconvene to review the comments and make recommendations

for a final rule. This inclusive process is intended to make the rule

more acceptable to all affected interests and prevent the need for

petitions for reconsideration and litigation that often follow

promulgation of a final rule.

The movement toward negotiated rulemaking gained impetus with

enactment of the Negotiated Rulemaking Act of 1990 (Reg-Neg), 5 U.S.C.

Sec. 561, et seq. More recently, President Clinton issued Executive

Order 12866 (EO) (58 FR 51735, October 4, 1993), which states the need

to reform the current regulatory process into one that is effective,

consistent, and understandable. The objectives of the EO are:

To reaffirm the primacy of Federal agencies in the regulatory

decision-making process; to restore the integrity and legitimacy of

regulatory review and oversight; and to make the process more

accessible and open to the public.

Id. Section 6(a) of the EO charges government agencies with providing

the public meaningful participation in the regulatory process:

In particular, before issuing a notice of proposed rulemaking,

each agency should, where appropriate, seek the involvement of those

who are intended to benefit from and those expected to be burdened

by any regulation . . . Each agency is also directed to explore and,

where appropriate, use consensual mechanisms for developing

regulations, including negotiated rulemaking.

Id. at 51740.

Although relatively new, negotiated rulemakings have been used

successfully by many regulatory agencies, including the Federal

Aviation Administration, the United States Coast Guard, the

Environmental Protection Agency, and the Occupational Safety and Health

Administration. FRA now intends to begin this process in a formalized

manner for the first time, and does so with enthusiasm and high

expectations. FRA welcomes the opportunity to work with those who will

be affected directly by a roadway worker safety rule, and is confident

that the agency and the industry will benefit from the process by

creating an effective and reasonable regulation.

Pursuant to section 563(a) of Reg-Neg, an agency considering

rulemaking by negotiation should consider whether:

(1) There is a need for the rule;

(2) There is a limited number of identifiable interests;

(3) These interests can be adequately represented by persons

willing to negotiate in good faith to reach a consensus;

(4) There is a reasonable likelihood that the committee will

reach consensus within a fixed period of time;

(5) The negotiated rulemaking procedure will not unreasonably

delay the notice of proposed rulemaking;

(6) the agency has adequate resources and is willing to commit

such resources to the process; and

(7) The agency is committed to use the result of the negotiation

in formulating a proposed rule if at all possible.

For the reasons stated in this Notice, FRA believes that these

criteria have been met with respect to railroad roadway safety issues.

The regulatory negotiation FRA proposes would be carried out by an

advisory committee (Committee) created under the Federal Advisory

Committee Act (FACA), as amended, 5 U.S.C. App., and in a manner that

reflects appropriate rulemaking objectives, including pertinent

Executive Orders. FRA will be represented on the Committee and will

take an active part in the negotiations as a Committee member. However,

pursuant to section 566(c) of Reg-Neg, the person(s) designated to

represent FRA would not facilitate or otherwise chair the proceedings.

The agency is committed to this process and is quite optimistic that it

will result in the issuance of an NPRM and final rule that will be

acceptable to the members of the Committee. Because of the need to

issue a rule on this subject, FRA is prepared to go forward with an

NPRM that is not the product of the negotiations in the unlikely event

the negotiation fails or if the Committee's recommendation is not

acceptable.

III. Procedures and Guidelines

The following proposed procedures and guidelines would apply to

this process, subject to appropriate changes made as a result of

comments received on this Notice or as are determined to be necessary

during the negotiating process.

(A) Facilitator: FRA is seeking the services of a facilitator for

the negotiating group. The facilitator will not be involved with

substantive development of this regulation. This individual will chair

the negotiations, may offer alternative suggestions toward the desired

consensus, will help participants define and reach consensus, and will

determine the feasibility of negotiating particular issues. The

facilitator may ask members to submit additional information or to

reconsider their position. FRA will contact mediation organizations for

potential candidates, and will consider nominations made in comments

received in response to this Notice.

(B) Feasibility: FRA has examined the issues and interests involved

and has made a preliminary inquiry among representatives of those

interests to determine whether it is possible to reach agreement on:

(a) individuals to represent those interests; (b) the preliminary scope

of the issues to be addressed; and (c) a schedule for developing a

notice of proposed rulemaking. On the basis of the history of this

issue and our preliminary inquiry, we believe that regulatory

negotiation could be successful in developing a workable proposal for a

notice of proposed rulemaking and a final rule, and that the potential

participants listed below would adequately represent the affected

interests.

(C) Participants and Interests: The number of committee

participants generally should not exceed 25.

Please note that each individual or organization affected by a

final rule need not have its own representative on the Committee.

Rather, each interest must be adequately represented, and the Committee

should be fairly balanced. Individuals who are not part of the

Committee may attend sessions and confer with or provide their views to

Committee members.

The following interests have been tentatively identified as those

that are likely to be significantly affected by the rule:

(1) Railroad labor organizations;

(2) Railroads, including classes 1 through 3, the short lines,

public transit operations, and their associations;

(3) Contractors to railroads who perform roadway work; and

(4) The Federal government.

FRA proposes that persons selected by the various interests be

named to the Committee. The following interests have been tentatively

identified as those that would supply Committee members:

(1) The Brotherhood of Maintenance-of-Way Employes;

(2) The Brotherhood of Railroad Signalmen;

(3) The American Train Dispatchers Association;

(4) The Association of American Railroads;

(5) The American Short Line Railroad Association;

(6) American Public Transit Association; and

(7) FRA.

As indicated in paragraph F of this notice, FRA invites

applications for representation from any interests that will be

affected by a rule, but are not named in this list. FRA is committed to

an open and comprehensive negotiation, and therefore strongly

encourages any such party to file an application for membership. These

applications may come from railroads, labor organizations,

associations, or other interests, must be filed within thirty days, and

must meet the requirements set forth in this notice. Also, the

interests listed above and those who apply for representation on the

Committee should provide the name(s) of the individual(s) they propose

to represent their interests. The Committee should not exceed twenty-

five members.

(D) Good Faith: Participants must be committed to negotiate in good

faith. It is therefore important that senior individuals within each

interest group be designated to represent that interest. No individual

will be required to ``bind'' the interests he or she represents, but

the individual should be at a high enough level to represent the

interest with confidence. For this process to be successful, the

interests represented should be willing to accept the final Committee

product.

(E) Notice of Intent to Establish Advisory Committee and Request

for Comment: In accordance with the requirements of FACA, an agency of

the Federal government cannot establish or utilize a group of people in

the interest of obtaining consensus advice or recommendations unless

that group is chartered as a Federal advisory committee. It is the

purpose of this Notice to indicate our intent to create a Federal

advisory committee, to identify the issues involved in the rulemaking,

to identify the interests affected by the rulemaking, to identify

potential participants who will adequately represent those interests,

and to ask for comment on the use of regulatory negotiation and on the

identification of the issues, interests, procedures, and participants.

(F) Requests for Representation: One purpose of this Notice is to

determine whether interests exist that may be substantially affected by

a rule, but have not been represented in the list of prospective

Committee members. Please identify such interests if they exist. Each

application for membership or nomination to the Committee should

include: (i) the name of the applicant or nominee and the interests

such person would represent; (ii) evidence that the applicant or

nominee is authorized to represent parties related to the interests the

person proposes to represent; (iii) a written commitment that the

applicant or nominee would participate in good faith; and (iv) the

reasons any representative identified in the Notice does not represent

the interests the nominee is alleged to represent. If an additional

person or interest requests membership or representation on the

Committee, FRA shall determine (i) whether that interest will be

substantially affected by the rule, (ii) if such interest would be

adequately represented by an individual already on the Committee, and

(iii) whether the requester should be added to the group or whether

interests can be consolidated to provide adequate representation.

(G) Final Notice: After evaluating comments received as a result of

this notice, FRA will issue a final notice announcing the establishment

of the Federal advisory committee, unless it determines that such

action is inappropriate in light of comments received, and the

composition of the Committee. After the Committee is chartered the

negotiations would begin.

(H) Administrative Support and Meetings: Staff support would be

provided by FRA and meetings would take place in Washington, D.C.,

unless agreed otherwise by the Committee.

(I) Tentative Schedule: If the Committee is established and

selected, FRA will publish a schedule for the first meeting in the

Federal Register. The first meeting will focus on procedural matters,

including dates, times, and locations of future meetings. Notice of

subsequent meetings would also be published in the Federal Register

before being held.

FRA expects that the Committee would reach consensus and prepare a

report recommending a proposed rule within six months of the first

meeting. However, if unforeseen delays occur, the Administrator may

agree to an extension of that time if a consensus of the Committee

believes that additional time will result in agreement. The process may

end earlier if the facilitator so recommends.

(J) Committee Procedures: Under the general guidance of the

facilitator, and subject to legal requirements, the Committee would

establish the detailed procedures for meetings which it considers

appropriate.

(K) Record of Meetings: In accordance with FACA's requirements, FRA

would keep a record of all Committee meetings. This record would be

placed in the public docket for this rulemaking. Meetings of the

Committee would generally be open to the public.

(L) Consensus: The goal of the negotiating process is consensus.

FRA proposes that the Committee would develop its own definition of

consensus, which may include unanimity, a simple majority, or

substantial agreement such that no member will disapprove the final

recommendation of the Committee. However, if the Committee does not

develop its own definition, consensus shall be unanimous concurrence.

(M) Notice of Proposed Rulemaking and Final Rule: The Committee's

first objective is to prepare a report containing a notice of proposed

rulemaking, preamble, and economic evalutation. If consensus is not

obtained on some issues, the report should identify the areas of

agreement and disagreement, and explanations for any disagreement. It

is expected that participants will address cost/benefit, paperwork

reduction, and regulatory flexibility requirements. FRA would prepare

an economic assessment if appropriate.

FRA would issue the proposed rule as prepared by the Committee

unless it is inconsistent with statutory authority of the agency or

other legal requirements or does not, in the agency's view, adequately

address the subject matter. If that occurs, FRA would explain the

reasons for its decision, or would modify the proposal in a way that

allows the public to distinguish modifications from the original

proposal.

The Committee would reconvene to review comments received in

response to publication of the proposed rule and would negotiate to

produce a recommended final rule. FRA would issue the recommended final

rule as prepared by the Committee unless it is inconsistent with

statutory authority of the agency or other legal requirements or does

not, in the agency's view, adequately address the subject matter. If

that occurs, FRA would explain the reasons for its decision, or would

modify the recommended final rule in a way that allows the public to

distinguish modifications from the recommended final rule.

(N) Key Issues for Negotiation: FRA has reviewed correspondence,

petitions, injury data, existing railroad operating practices, and has

engaged in extensive dialogue concerning the protection of roadway

workers. Based on this information and rulemaking requirements, FRA has

tentatively identified major issues that should be considered in this

negotiated rulemaking. Other issues related to roadway protection not

specifically listed in this Notice may be addressed as they arise in

the course of the negotiation. Comments are invited concerning the

appropriateness of these issues for consideration and whether other

issues should be added.

1. Are devices available that may be used to reduce the risk of

danger to roadway workers? If so, how do these devices work and what

are the costs associated with them?

2. Are there appropriate procedures or operating practices that may

be instituted effectively to reduce the risk of danger to roadway

workers? If so, what are the costs that will be associated with

implementing these practices and procedures?

3. Are there appropriate training programs that may be given to

reduce the risk of danger to roadway workers? If so, at what intervals

should they be taught? Also, what are the costs and the time associated

with such a program?

4. Are there peculiar topographical, environmental, and operational

conditions that must be considered in developing a program to reduce

the risk of harm to roadway workers? What are the specific conditions,

and how do they vary from one region to another, and from one railroad

to another? What would the cost for this program be?

5. Should any program developed vary according to the size of a

railroad? If so, explain why such variations are necessary and how the

programs should differ.

6. What recordkeeping and reporting requirements, if any, should be

instituted to advance the safety of roadway workers? What is the amount

of time and cost involved with these requirements?

7. What enforcement procedures should FRA utilize to ensure

compliance with any rule developed?

8. Aside from the obvious benefit of providing safer working

conditions and so reducing the risk of injury and death for roadway

workers, are there additional benefits (both monetary and non-monetary)

that will result from the implementation of a rule concerning roadway

workers?

9. Do any railroads currently have internal operating practices

that address the intended purposes of this negotiated rulemaking? If

so, please provide the background for implementation of these

practices, and a description of their effectiveness. Also, what were

the costs and benefits associated with implementing these practices?

IV. Public Participation

FRA invites comments on all issues, procedures, guidelines,

interests, and suggested participants embodied in this Notice. All

comments and requests for participation should be submitted to the

Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, SW.,

Room 8201, Washington, DC 20590.

Issued this 11th day of August 1994.

Jolene M. Molitoris,

Administrator.

[FR Doc. 94-20078 Filed 8-16-94; 8:45 am]

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