Roadway Worker Protection

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 2 RIN 2130-AA86]

Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA); DOT.

ACTION: Notice of establishment of advisory committee for regulatory

negotiation session and notice of first meeting.

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SUMMARY: The Federal Railroad Administration is announcing the

establishment of an advisory committee to develop a report including a

recommended proposed rule concerning the protection of railroad

employees who work on or adjacent to track and face the risk of injury

from moving trains and equipment. The committee will adopt its

recommendation through a negotiation process. The committee is composed

of persons who represent interests affected by any rule adopted on this

issue. This notice also announces the time and place of the first

advisory committee meeting.

DATES: The first meeting of the advisory committee will begin at 9:30

a.m. on January 23-25, 1995.

ADDRESSES: The first meeting of the advisory committee will be held in

Room 3200-3204 of the Nassif Building, U.S. Department of

Transportation, 400 7th Street, SW., Washington, DC. Subsequent

meetings will be held at locations to be announced.

FOR FURTHER INFORMATION CONTACT: Christine Beyer or Cynthia Walters,

Trial Attorneys, Office of Chief Counsel, FRA, 400 Seventh Street, SW.,

Room 8201, Washington, DC 20590 (Telephone: 202-366-0621).

SUPPLEMENTARY INFORMATION:

I. Background

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

106 Stat. 972, enacted September 3, 1992, required FRA to review and

revise its track safety standards, and to complete ``an evaluation of

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

(ANPRM) on November 16, 1992 (57 FR 54038) to begin the proceeding to

amend the Federal Track Safety Standards (49 C.F.R. Part 213).

Following publication of the ANPRM, FRA conducted a series of workshops

to gather the industry's views on the need for changes to FRA's track

regulations. One such workshop [[Page 1762]] held on March 31, 1993 was

devoted specifically to employee safety and addressed the hazards

associated with working adjacent to moving trains and equipment. It was

determined that for the purposes of any proceeding, the term ``roadway

worker'' would be used rather than ``maintenance of way employee'' to

describe the group of employees at risk. This term encompasses 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 applies regardless of the craft or class title of the employee,

affiliation with any labor organization, or rank within the railroad

organization.

Because FRA decided that this issue should be addressed quickly and

because the hazards involved relate more closely to employee safety

than to track standards, FRA moved roadway worker safety from the track

safety standard review (FRA Docket No. RST-90-1) and placed it in FRA

Docket No. RSOR 13.

Since 1989, 24 roadway workers have been fatally injured by moving

trains or equipment. Ten workers were struck by trains while performing

work, four 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 the past year, the Brotherhood of Maintenance of Way

Employes and the Brotherhood of Railroad Signalmen have filed petitions

for emergency order and rulemaking that suggest procedures to reduce

roadway worker fatalities and injuries.

On June 3, 1994 FRA Administrator Jolene M. Molitoris convened a

meeting with all affected industry representatives to discuss what

actions the industry and the agency should take to prevent injuries and

fatalities among roadway workers. FRA and the industry concluded that

extensive input from all interested parties would be necessary to

develop a rule that will address both the risk of injury from moving

railroad equipment and the operational concerns that the issue

presents. Therefore, it was determined that the agency should initiate

a negotiated rulemaking to develop new standards to protect roadway

workers.

On August 17, 1994 FRA published a notice of intent to establish an

advisory committee (Committee) for regulatory negotiation to develop a

report including a recommended proposed and final rule concerning

protection for roadway workers (59 FR 42200). The notice requested

comment on membership, the interests affected by the rulemaking, the

issues the Committee should address, and the procedures it should

follow. The notice also announced the intent to seek the services of a

professional neutral to facilitate the negotiations and requested

nominations for this position from the industry.

FRA received over 30 comments on the notice of intent. None of the

comments opposed using regulatory negotiation for this rulemaking; most

endorsed the process and included requests to serve on the Committee.

Based on this response and for the reasons stated in the notice of

intent, FRA has determined that establishing an advisory committee on

this subject is necessary and in the public interest. In accordance

with Section 9(c) of the Federal Advisory Committee Act, 5 U.S.C. App.

I Sec. 9(c), FRA prepared a Charter for the establishment of the

Roadway Worker Safety Advisory Committee. On December 27, 1994 the

Office of Management and Budget approved the Charter, authorizing the

Committee to begin negotiating the provisions of a proposed rule.

II. Mediators

In the notice of intent, FRA stated that it was seeking an

impartial mediator to conduct the negotiations. FRA is pleased to

announce that the Federal Mediation and Conciliation Service (FMCS) has

agreed to provide mediation personnel for this purpose.

III. Membership

In addition to a representative from FRA, the Committee will

consist of the following members:

American Public Transit Association (APTA)

The American Short Line Railroad Association (ASLRA)

Association of American Railroads (AAR)

Brotherhood of Locomotive Engineers (BLE)

Brotherhood of Locomotive Engineers, American Train Dispatchers

Department (ATDA)

Brotherhood of Maintenance of Way Employes (BMWE)

Brotherhood of Railroad Signalmen (BRS)

Burlington Northern Railroad (BN)

Consolidated Rail Corporation (Conrail)

CSX Transportation, Inc. (CSX)

Florida East Coast Railway Company (FEC)

Metra

National Railroad Passenger Corporation (AMTRAK)

Norfolk Southern Corporation (NS)

Regional Railroads of America (RRA)

Transport Workers Union of America (TWU)

Union Pacific Railroad Company (UP)

United Transportation Union (UTU)

In order to ensure balance on the Committee, the BMWE and BRS will

be represented by more than one individual: five for the BMWE and three

for the BRS. FRA was not able to grant requests for multiple seats made

by two other organizations. APTA and RRA each submitted two names for

membership, and FRA chose one name from each organization. In making

those decisions, the agency selected the individuals with operating

experience rather than the lawyers that were nominated by APTA and RRA.

FRA believes that the Committee will benefit greatly from members who

have actual knowledge of railroad operating practices and hands-on

field experience with those practices.

FRA regrets being unable to accommodate all requests for membership

on the Committee. Several factors, which were listed in the notice of

intent, guided FRA's decision to limit the Committee's size to 25. The

Committee must be kept to a size that permits effective negotiation,

but that ensures all interests a voice in the recommendation adopted.

Although FRA would have preferred a smaller Committee, the agency erred

on the side of inclusion to be certain that all interests affected by a

rule would be represented in this process. Summarized below is FRA's

rationale for denying the remaining applications for membership.

The Chicago and North Western Railway Company (CNW) requested

representation on the Committee, but unfortunately could not be

selected. Other Class 1 railroads on the Committee work with operating

procedures, environmental conditions, topographical characteristics,

and employee relations that are quite similar to those of CNW. Each of

these factors may impact the content of a recommended proposed rule and

so it is important that they be fully represented. However, FRA

believes that AAR, BN, CSX, Conrail, NS, and UP adequately represent

CNW's interests.

The Massachusetts Bay Transportation Authority (MBTA)

[[Page 1763]] petitioned for membership on the Committee, but was not

selected. MBTA is a commuter line in the northeast with operational

characteristics that are very similar to those of Amtrak, a Committee

member. Also, APTA's Committee member will represent all commuter lines

in this proceeding. Therefore, FRA believes that MBTA's interests will

be adequately represented by the other commuter rail organizations on

the Committee.

The Long Island Rail Road (LIRR) requested Committee membership and

nominated its Executive Director of System Safety to serve as its

representative. Although FRA was not able to select LIRR for Committee

membership, its nominee will serve on the Committee representing the

interests of APTA and all public transit organizations. Therefore,

LIRR's interests will be effectively considered during the negotiation

process.

The Wisconsin Central Ltd. (WC) requested representation on the

Committee and nominated its Vice President of Engineering to represent

its interests. This individual was also nominated to represent RRA. FRA

was unable to select WC individually, but its nominee has been chosen

to represent RRA and all regional railroads. Therefore, WC's interests

will be adequately addressed in the negotiation process.

Finally, the National Railroad Construction and Maintenance

Association, Inc. (NRCMA) filed a request for membership jointly with

RRA, and nominated its Executive Vice President to represent the

interests of NRCMA and RRA. As indicated above, RRA filed a second

application for representation asking that WC's Vice President of

Engineering also represent their interests. As already stated, this

individual has been chosen to represent RRA (and WC implicitly) because

he brings extensive hands-on experience to the proceeding. FRA

deliberated over NRCMA's application, and determined that its interests

will be effectively represented by the railroads and labor

organizations on the Committee who currently have primary

responsibilities for protecting roadway workers. NRCMA's duties derive

from and are subject to those of the railroads with whom they contract

for maintenance and construction work. Given the limitations the agency

faces in creating a Committee of reasonable size, and the broad

spectrum of railroads and employee crafts represented on the Committee,

FRA believes that NRCMA's interests will be effectively addressed in

this process. Also, public participation will be a key component of

this process; all Committee meetings will be open to the public, and

the Committee is expected to devise procedures that will periodically

permit comment from the public. FRA will hold a public hearing after

issuing a proposed rule, and will invite and consider comments from

organizations such as the NRCMA before promulgating any final standard.

IV. Participation by Non-Members

FRA believes that public participation is critical to the success

of this proceeding. Participation is not limited to Committee members.

Negotiation sessions will be open to the public, so interested parties

may observe the negotiations and communicate their views in the

appropriate time and manner to Committee members. Also, interested

groups or individuals may have the opportunity to participate with

working groups of the Committee. FRA believes that this sort of

participation will produce meaningful information and lead to a more

effective roadway worker safety program. Of course, FRA will invite

comment on the proposed rule resulting from the Committee's

deliberations and hold a public hearing to hear additional comments.

V. Major Issues

In its notice of intent, FRA tentatively identified major issues to

consider in the negotiation and asked for comment on whether the issues

presented were appropriate and if alternate or additional issues should

be considered. Unfortunately, most comments submitted were devoted to

issues of membership rather than rule substance. Listed below are

subjects FRA believes the negotiation process should address:

1. Devices available that would reduce the risk of injury to

roadway workers;

2. Practices and training programs currently in use or that may be

instituted to reduce the risk of injury to roadway workers;

3. The extent to which environmental, topographical, and

operational conditions do or should cause variations in any roadway

worker safety program;

4. The type and extent of FRA enforcement and recordkeeping

requirements necessary to protect roadway workers; and

5. The costs associated with developing an effective roadway worker

safety program. (The costs include but are not limited to the burden on

railroads and local, state, and federal government entities.)

FRA believes that the negotiation process should be open to

discussion about these and any other relevant matters the Committee

finds necessary to explore.

VI. Procedure and Schedule

Those who commented on the notice of intent generally did not

address Committee procedures. FRA anticipates that all or a substantial

majority of the negotiation sessions will take place in Washington,

D.C. at DOT headquarters. Given FRA's limited resources, travel outside

of Washington, D.C. for the purpose of holding negotiation sessions is

unlikely. However, FRA will consider any recommendations made by the

Committee in this regard.

FRA will not make any determinations at this time concerning the

frequency or timing of public hearings, or the development of

negotiation subcommittees. FRA's ability to hold public hearings will

be subject to the availability of funds for this purpose. However, FRA

will consider any recommendations the Committee makes on these matters.

Consistent with requirements of the Federal Advisory Committee Act,

a clear and comprehensive record of the Committee's deliberations

should be kept and circulated to Committee members. FRA will provide an

administrative specialist to the Committee to complete these duties and

assist with drafting any additional documents, including the

Committee's report. The Committee may also choose to designate

additional individuals to draft documents.

The objective of the negotiation, in FRA's view, is for the

Committee to produce a report recommending a course of action for FRA

to follow that will prevent roadway worker injuries and fatalities. FRA

anticipates that the report will include a draft NPRM on which the

Committee has reached consensus. This approach is consistent with

recommendations of the Administrative Conference of the United States

on regulatory negotiation. As stated in the notice of intent, FRA will

proceed on its own if the Committee cannot reach consensus on a

recommended course of action. In that event, FRA will make every

attempt to include provisions that the Committee did reach agreement on

in the agency's NPRM. Also, as stated in the notice of intent, FRA must

review the Committee's recommendations for enforceability and

effectiveness. If the agency determines that the report contains

recommendations which are unenforceable, contrary to existing law, or

completely ineffective, FRA may abandon or amend the Committee's

recommendations. However, we believe [[Page 1764]] likelihood of such a

situation is remote, and will seek to avoid this result.

In view of the high priority FRA has given this proceeding and the

facilitation contract limitations, the agency is asking the advisory

committee to complete negotiations for the NPRM by May 1, 1995. FRA

realizes that this deadline is ambitious, but we believe that it will

encourage serious and efficient negotiation by all parties.

The negotiation process will otherwise proceed according to a

schedule of specific dates that the Committee devises at the first

meeting to be held on January 23-25, 1995. As time permits, FRA will

publish notices of future meetings in the Federal Register. The first

meeting is scheduled to begin at 9:30 a.m. in Room 3200-3204 of the

Nassif Building, DOT headquarters. This session will commence with an

orientation and regulatory negotiation training program conducted by

facilitators from the Federal Mediation and Conciliation Service. After

the training program, the Committee will devise its procedures and

calendar, and will then begin substantive deliberations on roadway

worker safety. FRA has given advance notice of this meeting to all

Committee members and believes that all members will be present for

this first and important meeting.

Issued this 29th day of December, 1994.

S. Mark Lindsey,

Acting Administrator, Federal Railroad Administration.

[FR Doc. 95-201 Filed 1-4-95; 8:45 am]

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