Roadway Worker Protection

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR 214

[FRA Docket No. RSOR 13, Notice No. 9]

RIN 2130-AA86

Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule.

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Summary: FRA is issuing rules for the protection of railroad employees

working on or near railroad tracks. This regulation requires that each

railroad devise and adopt a program of on-track safety to provide

employees working along the railroad with protection from the hazards

of being struck by a train or other on-track equipment. Elements of

this on-track safety program include an on-track safety manual; a clear

delineation of employers' responsibilities for providing on track

safety, as well as employees' rights and responsibilities related

thereto; well defined procedures for communication and protection; and

annual on-track safety training. The program adopted by each railroad

would be subject to review and approval by FRA.

Dates: Effective Dates: This rule is effective January 15, 1997.

Compliance Dates: Each railroad must notify the FRA not less than

30 days before their respective date for compliance. Each railroad must

be in compliance with this rule no later than the date specified in the

following schedule: For each Class I railroad (including National

Railroad Passenger Corporation) and each railroad providing commuter

service in a metropolitan or suburban area, March 15, 1997; For each

Class II railroad, April 15, 1997; For each Class III railroad,

switching and terminal railroad, and any railroad not otherwise

classified, May 15, 1997; For each railroad commencing operations after

the pertinent date specified in this paragraph, the date on which

operations commence.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge

Engineer, Office of Safety, FRA, 400 Seventh Street SW., Washington, DC

20590 (telephone: 202-632-3340); Phil Olekszyk, Deputy Associate

Administrator for Safety Compliance and Program Implementation, FRA,

400 Seventh Street SW., Washington, DC 20590 (telephone: 202-632-3307);

or Cynthia Walters, Trial Attorney, Office of Chief Counsel, FRA, 400

Seventh

[[Page 65960]]

Street SW., Washington, DC 20590 (telephone: 202-632-3188).

Supplementary Information:

Introduction

Background

Concern regarding hazards faced by roadway workers has existed for

many years. The FRA received a petition to amend its track safety

standards from the Brotherhood of Maintenance of Way Employees (BMWE)

in 1990, which included issues pertaining to the hazards faced by

roadway workers. This proceeding, however, formally originated with the

Rail Safety Enforcement and Review Act, Public Law No. 102-365, 106

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

track safety standards and revise them based on information derived

from that review. FRA issued an Advanced Notice of Proposed Rulemaking

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

proceeding to amend the Federal Track Safety Standards.

Workshops were held in conjunction with this effort, to solicit the

views of the railroad industry and representatives of railroad

employees on the need for substantive change in the track regulations.

A workshop held on March 31, 1993 in Washington, D.C., specifically

addressed the protection of employees from the hazards of moving trains

and equipment. The subject of injury and death to roadway workers was

of such great concern that FRA received petitions for emergency orders

and requests for rulemaking from both the Brotherhood of Maintenance-

of-Way Employees and the Brotherhood of Railroad Signalmen. FRA did not

grant the petitions for emergency orders, but instead initiated a

separate proceeding to consider regulations to eliminate hazards faced

by these employees. FRA removed this issue from the track standards

docket, FRA Docket No. RST-90-1 and established a new docket, FRA

Docket No. RSOR 13, specifically to address hazards to roadway workers

to expedite the effective resolution of this issue.

FRA also determined that standards addressing this issue would be

more closely related to workplace safety than to standards addressing

the condition of railroad track. Since Railroad Workplace Safety is

addressed in 49 CFR Part 214, standards issued for the protection of

roadway workers would be better categorized in this section, than Part

213, Track Safety Standards. Accordingly, the minimum standards

proposed in this notice would amend Part 214 of Title 49, Code of

Federal Regulations by adding a new subpart, Subpart C, addressing

hazards to roadway workers.

FRA convened a Safety Summit Meeting on June 3, 1994 with affected

railroad industry, contractor, and labor representatives. This meeting

considered certain aspects of FRA accident data involving roadway

workers. The meeting also facilitated a discussion of various short-

term and long-term actions that could be taken by FRA and the industry

to prevent injuries and deaths among roadway workers. One long-range

alternative suggested by FRA was to use the negotiated rulemaking

process to allow input from both railroad management and labor to

develop standards addressing this risk. The agency determined that this

was an appropriate subject for a negotiated rulemaking, and initiated

this process.

FRA published its notice of intent to establish a Federal Advisory

Committee for regulatory negotiation on August 17, 1994 (59 FR 42200).

This notice stated the purpose for the Advisory Committee, solicited

requests for representation on the Advisory Committee, and listed the

key issues for negotiation. Additionally, the notice summarized the

concept of negotiated rulemaking including an explanation of consensus

decision making. The Advisory Committee would be responsible for

submitting a report, including an NPRM, containing the Committee's

consensus decisions. If consensus was not reached on certain issues,

the report would identify those issues and explain the basic

disagreement. Pursuant to negotiated rulemaking, FRA committed the

agency to issue a proposed rule as recommended by the committee unless

it was inconsistent with statutory authority, agency or legal

requirements, or if in the agency's view the proposal did not

adequately address the subject matter. FRA agreed to explain any

deviations from the committee's recommendations in the NPRM.

FRA established an Advisory Committee in accordance with the

Federal Advisory Committee Act, 5 U.S.C. 581, based on the response to

its notice. On December 27, 1994, the Office of Management and Budget

approved the Charter to establish a Roadway Worker Safety Advisory

Committee, enabling the committee to begin negotiations. FRA announced

the establishment of this Advisory Committee, with the first

negotiating session to be held on January 23-25, 1995 (60 FR 1761). FRA

chose the Federal Mediation and Conciliation Service to mediate these

sessions, and administrative support was acquired to carry out

organizational and record keeping functions.

The twenty-five member Advisory Committee was comprised of

representatives from the following organizations:

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 (ATDD)

Brotherhood of Maintenance of Way Employees (BMWE)

Brotherhood of Railroad Signalmen (BRS)

Burlington Northern Railroad (BN)

Consolidated Rail Corporation (Conrail)

CSX Transportation, Inc. (CSX)

Florida East Coast Railway Company (FEC)

Federal Railroad Administration (FRA)

Northeast Illinois Regional Railroad Corporation (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)

The Advisory Committee held 7 multiple-day negotiating sessions

that were open to the public, as prescribed by the Federal Advisory

Committee Act, 5 U.S.C. 581. In an effort to assist this proceeding,

information was presented at the first Advisory Committee meeting by

committee members who had participated earlier in an independent task

force. This task force, comprised of representatives of several

railroads and labor organizations, had met during the preceding year to

independently analyze the issue of on-track safety. The findings and

recommendations of the task force were considered along with

information presented by other Advisory Committee members.

The Advisory Committee reached consensus on 11 specific

recommendations and 9 general recommendations to serve as the basis for

a regulation. These recommendations were incorporated into a report

that was submitted to the Secretary of Transportation and the Federal

Railroad Administrator on May 17, 1995. This report did not include an

NPRM, as originally conceived, but established the basis for the

proposed rule.

The Advisory Committee held one additional two-day session, and

reached consensus on a proposed rule that conformed to the

recommendations submitted in its report. The Committee recommended that

FRA publish that document as a proposed Federal regulation and continue

the rulemaking

[[Page 65961]]

procedures necessary to adopt its principles in a final rule. FRA

published a notice of proposed rulemaking on March 14, 1996 (61 FR

10528). In that notice, FRA specifically solicited comment from

contractors and tourist railroads, since these two groups were not

represented on the Advisory Committee. (61 FR 10531, 10532) FRA

received 15 comments, including a comment from the National Railroad

Construction and Maintenance Association (NRC), representing railroad

contractors. FRA also received a request for a public hearing in

response to the NPRM. A public hearing was held July 11, 1996 where

various parties made oral presentations. A final Advisory Committee

meeting was held on July 12, 1996 where committee members considered

comments submitted to the docket. An NRC representative was present and

participated in the discussion.

Comments and Responses

Effective Dates

Several commenters expressed concern that the effective dates

listed in the NPRM were not feasible for adoption and implementation of

the necessary on-track safety programs, in order to be in compliance

with the expected Federal standards. The NPRM provided for staggered

effective dates of June 1st, September 1st, and December 1st of 1996.

These dates were published as part of the Advisory Committee's

recommended language and were appropriate at the time the committee

reached its consensus recommendation. The time required to complete

this rulemaking necessitates an extended implementation schedule. The

final dates included in this publication reflect the date on which FRA

expects full compliance. Each railroad must notify FRA of their on-

track safety program at least 30 days prior to their respective

compliance date. Contractors to railroads are expected to be in

compliance with this rule, at the same time that their host railroads

are to comply. A reference to section Sec. 214.305 Compliance Dates

establishes the final dates for compliance.

Scope of the Rule

Comments were submitted suggesting that FRA expand the scope of the

rulemaking in several ways. One commenter expressed the need to include

protection against the hazards of vehicular traffic at highway-rail

grade crossings. Another commenter suggested that FRA include

contractors who are granted access to a railroad's right of way for

work not associated with the railroad, including duties such as fiber-

optic installation and utility installation. The same commenter also

suggested that locomotive engineers and conductors be considered

roadway workers in order to afford them an opportunity to challenge on-

track safety procedures.

FRA identified major issues for negotiation and solicited comments

regarding additional issues that would be appropriate for consideration

regarding the potential scope of this rule, as early as August of 1994,

when it issued its Notice of Proposal to Form a Negotiated Rulemaking

Advisory Committee and Request for Representation (59 FR 42200). FRA

received comments to this notice devoted solely to membership on the

committee. No comments were submitted addressing the potential scope of

this rule. Once negotiations began, the Advisory Committee deliberated

at length regarding the appropriate scope of this rule, as well (61 FR

at 10531). The Advisory Committee purposely chose not to address all

conceivable hazards, but studied the available data regarding safety

issues and selected those circumstances presenting the greatest risk to

roadway workers. The issues presented by these commenters may be valid,

but extend beyond the scope of the issues highlighted by the data

reviewed.

Neither FRA nor the Advisory Committee discussed or intended to

address the hazards that vehicular traffic at grade crossings pose for

roadway workers. The accident data studied does not provide information

regarding this type of hazard. FRA's accident expertise has lead it to

believe that roadway workers are, rarely, if ever, struck by vehicular

traffic at grade crossings. In addition, consultation with persons

currently working in the roadway work environment has not focused FRA's

attention on the hazards of vehicular traffic as a significant issue.

Although some risk may exist, FRA believes that the risk is not

significant and that adequate voluntary measures are being taken to

protect roadway workers at highway rail grade crossings.

The issue of protecting contractors who are working on the right of

way, but not conducting work associated with the railroad was at least

contemplated by FRA. However, in most instances these contractors are

instructed by each host railroad not to foul the track. In many

instances, railroads provide watchmen to ensure that these workers

adhere to this instruction. Additionally, if the work to be performed,

potentially causes these workers to foul the track, railroads will

often provide protection to make sure that these contractors are safe,

while in foul of the track. Perhaps most important is the fact that

these contractors are rarely out on the right of way, limiting the risk

to which they subject themselves. This situation is clearly

distinguishable from that of a roadway worker whose daily work

environment requires him or her to perform duties on the right of way,

under traffic, virtually the duration of the working day. FRA believes

that the current situation, where contractors who are not conducting

work associated with railroad operations, coordinate with railroads for

safety procedures while working on the right of way is preferable to

Federal mandate at this time.

Finally, engineers and conductors are currently covered by this

regulation and afforded the right to challenge on-track safety

procedures when performing as roadway workers. In instances where

engineers and conductors are not functioning as roadway workers, but

functioning as train and engine crew members, the rationale for

affording them the right to challenge on-track safety procedures that

do not affect them is unclear. In addition, all railroad workers when

confronted by hazardous conditions related to the performance of their

duties are protected by Federal statute wholly independent of this

regulation.

Jurisdiction

Two comments were submitted essentially requesting clarification

regarding FRA jurisdiction. Specifically, clarification was sought

regarding whether these rules apply on track that is not subject to FRA

jurisdiction and not on the general system of railroad transportation.

As noted in Sec. 214.3, Application, FRA is concerned with track that

is part of the general system of railroad transportation. For further

information regarding FRA's exercise of jurisdiction, one should

consult 49 CFR Part 209, Appendix A. This Federal regulation, as all

other rules issued under FRA authority will only apply in instances

were FRA exercises jurisdiction, on track that is part of the general

system.

On Track Safety Programs

One commenter inquired whether contractors would be in compliance

with the rules by adopting the on-track safety programs of the host

railroad. The committee understood the circumstances under which most

contractors conduct their work and in an effort to promote uniformity

and

[[Page 65962]]

safety, as well as minimize the burden on contractors to railroads, the

committee concluded that contractors should not devise their own

complete programs in most instances, but would be expected to comply

with programs established by the railroads on which they are working

(61 FR 10531). Contractors would be responsible for ensuring that their

employees received the appropriate training and that their employees

complied with the appropriate railroad's program, but would not

necessarily need their own FRA approved program.

Definition of Roadway Worker

Several commenters suggested the definition of roadway worker be

reworded to refer to a worker ``whose duties include and who is engaged

in'' to clarify that the rule applies to workers performing their

roadway worker tasks. This suggestion essentially adds the qualifier

``who is engaged in'' to the definition that appeared in the NPRM. FRA

believes that this qualifier would severely limit application of the

rule due to the difficulty in determining when a worker becomes engaged

in a task. In addition, the Advisory Committee determined that the term

roadway worker was intended to describe employees who are covered and

not to describe when this coverage begins and ends. Other provisions of

the regulation enumerate the instances in which a worker must have some

form of on-track safety and which methods are permissible. Neither the

committee nor FRA was persuaded that this addition to the definition

would be useful.

Restricted Speed and Lone Workers

Two commenters expressed their view that restricted speed should be

considered a form of on- track safety protection. These commenters also

expressed their intention to apply for waivers to the lone worker

provisions and utilize restricted speed as an alternative method of

protection. The committee determined after much deliberation that a

blanket provision allowing restricted speed as an on-track safety

measure for the protection of roadway workers would be ineffective (61

FR 10537). The NPRM also noted that unusual circumstances at certain

locations where this measure might be considered sufficient would have

to be addressed by the waiver process. Nothing in the comments provides

a basis for changing that initial assessment. Beyond acknowledging the

waiver process as the appropriate avenue for such concerns, FRA cannot

speculate regarding the outcome of waiver petitions the agency may

receive at some future date. If such petitions arrive, FRA will, as

with any other waiver petition, evaluate the operational facts

presented by the petitioner and determine whether granting a waiver is

appropriate.

Two additional comments were made regarding the lone worker

provisions. These commenters stated that the prohibition on using

individual train detection within manual interlockings, controlled

points, or remotely controlled hump yards is unduly restrictive. They

said that roadway workers should be allowed to use individual train

detection for inspection purposes at any location where sight distance,

background noise, and adjacent track constraints are not present. These

commenters expressed concern that this extreme limitation on the use of

individual train detection may have a negative impact on safety. The

commenters believe that when lone workers are required to seek methods

other than individual train detection for on-track safety and are

unable to obtain them, they will not inspect. Essentially, these

commenters fear that a tendency to inspect these locations less

frequently will emerge, if lone workers are forced to seek other

methods of on-track safety. They also stated that the relevant accident

data are not compelling since, they do not show even one death

involving a lone worker inspecting at a controlled point, manual

interlocking and/or remotely controlled hump yard. Most important, the

rule itself gives lone workers using individual train detection the

right to secure more restrictive on-track safety protection, whenever

they deem it necessary. The commenter also stressed that a railroad

that considers it appropriate can restrict the use of individual train

detection at certain locations in its On-Track Safety Programs. Lastly,

a suggestion was made during the final Advisory Committee meeting to at

least allow the use of individual train detection for inspections at

single siding, single track controlled points (usually a simple

junction where there is only one switch, and three signals). Consensus

was not reached to change the original recommendation.

The Advisory Committee recommended that the NPRM restrict the use

of individual train detection in interlockings and controlled points.

This recommendation was adopted and incorporated into the proposed

rule. The Advisory Committee reached a consensus on this issue after

much debate. By reaching consensus, the Advisory Committee acknowledged

the safety benefits of this provision.

FRA is not persuaded that allowing the use of individual train

detection at these locations would enhance safety, and in fact,

believes that it would compromise safety. The use of individual train

detection does not reduce or lower the risk of being struck by a train,

since workers are not assured that a train will not operate over track

on which they are working. This method of on-track safety should

therefore be limited to locations where the risks associated with the

roadway work environment are fairly minimal. FRA has provided

statistical data indicating that controlled points, manual

interlockings and remotely controlled hump yards are not areas of low

roadway risk.

The Advisory Committee was not willing to disturb its previous

consensus to limit the use of individual train detection. FRA is of the

independent belief that restricting individual train detection is based

on sound safety principles and is not persuaded to change this

provision. First, the appropriate safety data, indicates that several

employees (admittedly not lone workers) who were working in

interlockings and controlled points, and had relied on their ability to

see and hear an approaching train in time to retreat from the track

(essentially individual train detection) were killed. In many cases,

these employees had the right to establish more restrictive protective

measures, but failed to exercise that right. Although the comments

accurately state that there is no record of fatalities to lone workers

using individual train detection while working in controlled points in

the accident data reviewed by the committee, this assertion is

misleading. Eleven (11) fatalities occurred within interlockings or

controlled points where workers were being afforded no more protection

than that of a lone worker using individual train detection. The fact

that these people were not lone workers is irrelevant. The important

fact is that they were relying for safety solely on their own ability

to see and hear an approaching train.

Finally, FRA is not persuaded that inspections should be allowed

using individual train detection at single siding, single track

controlled points. The distinction between inspections and other work

in the rail industry is imprecise. The term entails both the

examination of systems and apparatus and the performance of minor

repairs and adjustments to ensure conformance with prescribed

standards. For example, a track worker performing a track inspection

may examine track structure, take measurements, install bolts and

[[Page 65963]]

replace broken angle bars. A signal worker performing a switch

inspection may measure tolerances, make adjustments to the switch

machine and replace worn lock rods. In addition, this type of

controlled point accounts for a significant portion of the affected

locations in the U.S. FRA has decided that the reasoning for

restricting the use of this on-track safety method was sound and does

not merit modification.

Preemption

Comments were submitted addressing the potential preemptive effect

of this rule. One commenter wanted FRA to expressly state that the

provision requiring an audible warning from trains preempts state and

local whistle ban laws. FRA believes there is no need to include rule

language indicating that state and local whistle bans are preempted.

FRA could potentially include language in all provisions of this rule,

and all others, stating that any state and local rules covering the

same subject matter as the identified Federal regulatory provision are

preempted. Instead, FRA has issued a general statement regarding the

preemptive effect of all the provisions of the rule in Sec. 214.4. In

addition, the section-by-section analysis corresponding to

Sec. 214.339, Audible Warning from trains, expressly states FRA's

intention to preempt state and local whistle ban ordinances. Although

preemption decisions in any particular factual context are a matter for

courts to resolve, courts generally afford great deference to the

subject matter the appropriate regulatory agency intended to cover. In

this instance, the rulemaking record establishes FRA's intent to cover

the same subject matter as state and local whistle bans in the section-

by-section analysis and the Federalism Assessment which acknowledges

potential Federalism implications that was prepared for the docket at

the NPRM stage of this rulemaking. (61 FR at 10542). FRA notes that no

comments were submitted to the docket substantively in opposition to

this provision requiring audible warnings. States and local governments

did not respond to the NPRM with concerns regarding this provision

potentially in conflict with their whistle ban orders.

Additional comments regarding preemption focused on this

regulation's impact on state clearance requirements. The NPRM uses the

term fouling a track to essentially specify the proximity to railroad

track at which an individual or equipment could be struck by a moving

train or on-track equipment. Conversely, state clearance requirements

establish specifications to govern the minimum distance between track

and fixed structures. Although the two concepts, proximity of humans

and equipment to track and proximity of fixed structures to track, are

distinguishable, the potential for misinterpretation of the Advisory

Committee's intent persuaded the agency to address this issue. To

clarify the situation, FRA wants to explicitly state that FRA and the

Advisory Committee did not intend to affect state clearance

requirements.

Use of Universal Marker for Exclusive Track Occupancy

One commenter suggested that FRA establish a universal marker to

denote exclusive track occupancy zones. Although this suggestion may

promote industry-wide uniformity which has some measure of appeal,

individual railroads are in the best position to assess the appropriate

symbol to incorporate into their existing operating rules and new on-

track safety program. While analyzing this suggestion, FRA realized

that the additional burden on the railroads of designing and securing

uniform symbols or markers would render no substantial benefit above

those symbols currently used by each railroad. FRA made a conscious

decision to allow railroads to utilize the flags or signals that are

prescribed in their current operating rules.

Inaccessible Track

One commenter suggested changing the language of the provision

regarding inaccessible track to read, ``Inaccessible track shall be

defined by one or more of the following physical features.'' * * * This

commenter was attempting to clarify that establishment of inaccessible

track does not require use of the same physical feature at each entry

point. The Advisory Committee reached consensus on this suggestion and

recommended incorporation of this concept into the final rule. The

suggested language is not adopted precisely as presented. Instead, FRA

drafted language clarifying that inaccessible track can be established

by using any of the features listed in the provision at any possible

point of entry. Essentially, a flagman could be used at one entry

point, while a secured switch could be used at another entry point.

FRA has independently added another method to restrict entry to

inaccessible track, in Sec. 214.327(a)(4). That method recognizes that

where a roadway worker has established working limits on controlled

track, the existence of those working limits can be used to restrict

entry of trains or equipment onto non-controlled track that connects to

the controlled track that is within the working limits. At its

simplest, this provision would permit a roadway worker who has

established exclusive track occupancy on a main track to occupy side

tracks and yard tracks that connect exclusively with the main track,

provided that no operable locomotives or other equipment are located on

those non-controlled tracks. Without this provision, the roadway worker

would most likely have been required to spike and tag all switches

leading to the non-controlled tracks, even though assurance had been

obtained that no trains would arrive at those two switches.

Another legitimate use for this provision would exist in a remotely

controlled hump facility, where switches at the hump end of the

classification tracks can be remotely lined and secured away from the

working limits, but the manual switches at the other end would have to

be spiked and tagged. If a form of controlled track were established at

the far end, requiring the authority of a control operator to enter a

classification track, the requirements of this section could be met.

Flag protection

FRA has independently revised the provisions for exclusive track

occupancy to accommodate circumstances in which a roadway worker may

use this method to establish working limits when unable to communicate

with the train dispatcher or control operator. The provisions for use

in these circumstances incorporate either flag protection, or the

control of signals by the roadway worker.

FRA understands that the Advisory Committee intended to permit the

use of flag protection for immediate protection of unsafe track

conditions and the roadway workers who are correcting those conditions.

Flag protection has been used by railroads for many years to protect

trains from other trains or unusual conditions, and is often the first

means available to quickly establish protection. The operating rules

under which this method is used are well established, and FRA has no

evidence that they are not effective for this purpose, regardless of

whether the train dispatcher or control operator is notified

beforehand.

In some locations, such as some automatic interlockings and

moveable bridges, railroad employees are able to control the signals

governing train movements and cause them to display an aspect that

indicates ``Stop.'' For instance, a roadway worker who performs an

inspection at an automatic

[[Page 65964]]

interlocking might be able to open a control that prevents any signals

at that location from clearing for a train, and would thereby receive

protection within the limits of the interlocking. This protection would

not depend upon the authority of a train dispatcher or control

operator, but would be obtained directly by the roadway worker through

the signal system. In the same manner, a bridge tender on a moveable

bridge might be able to obtain protection within the interlocking

limits on the bridge by withdrawing the bridge locks, causing the

signals to assume their most restrictive indication. In either case,

the rules and instructions of the railroad might or might not require

permission from the train dispatcher or control operator, but such

permission would not be a regulatory requirement for the establishment

of working limits through exclusive track occupancy under these

circumstances.

It must be carefully noted that the term, ``aspect that indicates

`Stop' '' does not include aspects that permit a train to proceed at

restricted speed, or to pass the signal under any other circumstances

without flag protection. Railroad programs must provide adequate

protection for roadway workers who have operated signals directly,

without the knowledge of the train dispatcher or control operator.

Particular concern arises in a case where a train dispatcher or control

operator may authorize a train to pass a signal at restricted speed

while a roadway worker is protected by that signal. FRA would consider

that a rule which requires a member of the train crew to precede the

train through the limits of the interlocking would adequately address

that concern.

Training

A comment was submitted suggesting that each roadway worker receive

cross-training for all roadway work positions. The commenter envisioned

potential misuse of the training and qualification provisions to

circumvent collectively bargained seniority rights. It would be

inappropriate for FRA to mandate training for potential promotions. FRA

can and does require that employees have the requisite training and

qualification for the duties of their current positions. During

discussions involving this concern, the Advisory Committee agreed that

railroads should employ as universal an approach to training as

possible. However, it might be inefficient and costly to train roadway

workers for duties which they never perform, in anticipation of a

potential promotion at some future date. FRA also believes that the

suggested cross-training would restrict a railroad's employment of new

workers, especially entry-level employees. New employees would have to

be trained and qualified for all functions, including the most complex

and demanding, before performing any work near the track. FRA did not

intend to require such a restriction.

Emergency Procedures/Train Coordination

Commenters suggested that a provision be added to the rule

permitting roadway workers to perform their duties on the track, in an

emergency, without establishing one of the prescribed forms of on-track

safety. For example, if an ice storm has caused trees to fall across

the track and into the signal and communication wires, roadway workers

would accompany trains to remove the trees and reestablish

communications. Under the proposed rule, the roadway workers would be

unable to establish working limits because of the presence of the train

and the inability to immediately communicate with the dispatcher. The

Advisory Committee discussed this question at the July 12 meeting.

Various members clearly stated their need for such a provision, as well

as their concerns regarding potential problems associated with it. The

Advisory Committee did not reach consensus on the question.

However, FRA has considered the concerns expressed by the Advisory

Committee. FRA believes that a form of on-track safety can be arranged

whereby a roadway worker or a roadway work group would be protected by

the movement authority of a train. The method prescribed by FRA, termed

Train Coordination, incorporates all the safeguards necessary to

protect the roadway workers from train movements, and addresses the

concerns of the commenters as well. FRA independently expanded the

concept discussed in the comments and by the Advisory Committee. FRA

believes that, rather than restricting this provision to emergency

situations, it should be crafted for use in any situation, including

cleaning snow out of switches for a specific train, handling materials

with a work train, or repairing track at a derailment site. The

underlying principle is that a roadway worker should be assured that a

train will not arrive unexpectedly at a work location. The provision

for Train coordination provides that assurance.

Regulatory Impact

FRA received written and oral comments focusing on economic aspects

of the NPRM and the regulatory impact analysis. All commenters were

supportive of the safety initiatives required by the proposed

regulation and acknowledge the requisite safety benefits derived from

this rule. However, commenters were doubtful that an estimated $174

million benefit derived from the estimated worker productivity

increases would occur. In fact, some commenters felt that no

productivity increase would result from the proposed rule. In addition,

some commenters questioned the underlying assumptions and methodologies

used to compile the regulatory impact analysis. One commenter suggested

that FRA independently address the costs and benefits of this

regulation for the commuter rail segment of the industry. In contrast

to the skepticism communicated, one public hearing participant found

the economic analysis to be valid.

FRA appreciates the responses about the potential economic impact

of the rule. FRA continues to believe that its underlying methodology

and assumptions are valid. These methods are consistently used by the

agency and provide the foundation for virtually all regulatory impact

analyses. One commenter disagreed with FRA's expectation that only two

(2) minutes will be added to job briefings and further contended that

costs for the job briefing will be more than two times the amount

calculated by FRA. FRA continues to support its estimate of two minutes

because it is based on sound economic reasoning. Many railroads

currently conduct job briefings and as noted in the NPRM, the

requirements of this regulation will structure time that is presently

already allotted for job briefings. Small railroads with simpler

operations will not require significant time to provide the method of

on-track safety, provide instructions to be followed and receive

acknowledgment and understanding. FRA was not persuaded to change its

estimate regarding the additional time necessary to conduct the

required job briefing, based on the comments submitted.

FRA did not find the concerns regarding potential productivity

increases compelling. In particular, the argument that absolutely no

productivity increases will occur was not extremely persuasive.

However, FRA acknowledges the difficulty in quantifying these potential

increases in productivity and believes that these benefits are more

appropriately considered qualitative (non-quantified) benefits. FRA has

modified the regulatory impact analysis so that the

[[Page 65965]]

analysis does not factor an estimate of the value of productivity

increases into the total benefits numerical calculation. FRA remains

confident that productivity increases will result from this rulemaking,

but strongly believes in conjunction with labor and management that

this rule is justified on the basis of safety benefits alone. Further

detailed discussion of the Regulatory Impact Analysis can be found in

the analysis itself and the Regulatory Impact section of the preamble.

Penalty Schedule and Enforcement

Although notice and comment is not required for statements of

policy, FRA invited submission of views on the revision of Appendix A

to Part 214.--Schedule of Civil Penalties to include penalties for

violations of Supart C (61 FR 10541). No comments were submitted on the

subject of enforcement in general or appropriate penalty amounts. FRA

established a penalty schedule for issuance with this final rule

without specific public input. Since no comments were submitted on the

subject of enforcement generally, FRA believes that regulated public

understand and expect that this rule will be enforced upon contractors

and contractor employees, as well as railroads and railroad employees,

in accordance with its normal exercise of enforcement authority

detailed in Appendix A, 49 CFR Part 209.

In the interest of preserving the rationale for this rule in

general, and the integrity of the negotiated rulemaking process in

particular, FRA refers interested parties to the preamble of the NPRM

for a complete understanding of the events resulting in this rule (61

FR 10528). The relevant safety issues, statistical data, and a synopsis

of the Advisory Committee's report, recommended NPRM and FRA's

deviations from that recommendation are set forth in great detail in

the NPRM. The Advisory Committee indicated that the preamble of the

NPRM accurately represented their intent and provided a succinct

document detailing the important issues related to this rulemaking from

the inception of this proceeding to the publication of the NPRM.

The final rule that follows reflects the culmination of FRA's first

Negotiated Rulemaking. The rule incorporates the collective wisdom of

various segments of the railroad industry, labor, including support and

input from the NRC, FRA, State governmental entities, and the public.

FRA received no overall opposition by any railroad or labor

organization to the issuance of Roadway Worker protection rules. FRA

has asserted its independent judgement to adopt the proposal

recommended by the Advisory Committee where sufficient and as noted

earlier, in a limited number of instances enhance certain provisions

where necessary. FRA believes that the positive input received from the

contractors organization completes the process and the final rule

issued below represents the consensus of the entire railroad industry.

Section Analysis

FRA amends Part 214 of Title 49, Code of Federal Regulations by

adding a new subpart specifically devoted to the protection of

employees from the hazards associated with working near moving trains

and equipment.

1. Application: Sec. 214.3

This subpart will apply to all railroads and contractors to

railroads in the general system of railroad transportation, including

commuter rail operations. Accordingly, existing section 214.3 will not

change. This means that tourist and excursion railroads that are not

part of the general system of railroad transportation will not be

subject to these rules. The data illustrating the serious nature of the

hazards addressed in this subpart did not include tourist and excursion

railroads. FRA has not otherwise been notified that these hazards

causing death and injury to roadway workers are a serious problem for

tourist and excursion railroads or any other railroads not operating

over the general system of railroad transportation. FRA extended an

invitation for comments to the NPRM to tourist railroads, but received

no comments to the docket. FRA therefore concludes that inclusion of

tourist and excursion railroads that do not operate on the general

system of railroad transportation is inappropriate at this time.

2. Preemptive Effect: Sec. 214.4

Consistent with the mandate of 49 U.S.C. 20106 (formerly section

205 of the Federal Railroad Safety Act of 1970), Section 214.4 is added

to this rule to indicate that states cannot adopt or continue in force

laws related to the subject matter covered in this rule except where

there is a local safety hazard consistent with this part involved, and

where no undue burden on interstate commerce is imposed. FRA realizes

that preemption determinations regarding any particular factual context

are a matter for courts to resolve, but also believes that inclusion of

this section provides a statement of agency intent and promotes

national uniformity of regulation in accordance with the statute.

3. Definitions: Sec. 214.7

Section 214.7 will be amended to add new definitions. Several

definitions are particularly important to the understanding of the

rule, and are explained here. However, many other terms are defined and

explained with the analysis of the rule text to which they apply.

Effective securing device is defined in this part as one means of

preventing a manually operated switch or derail from being operated so

as to present a hazard to roadway workers present on certain non-

controlled tracks. This definition is specifically intended to include

the use of special locks on switch and derail stands that will

accommodate them, and switch point clamps that are properly secured. It

also includes the use of a spike driven into the switch tie against the

switch point firmly enough that it cannot be removed without proper

tools, provided that the rules of the railroad prohibit the removal of

the spike by employees not authorized to do so. Every effective

securing device must be tagged. FRA will examine each railroad's on-

track safety program to determine that the rules governing the

securement of switches will provide the necessary level of protection.

Lone workers are defined in this part as roadway workers who are

not being afforded on-track safety by another roadway worker, are not

members of a roadway work group, and are not engaged in a common task

with another roadway worker. Generally, a common task is one in which

two or more roadway workers must coordinate and cooperate in order to

accomplish the objective. Other considerations are whether the roadway

workers are under one supervisor at the worksite; or whether the work

of each roadway worker contributes to a single objective or result.

For instance, a foreman and five trackmen engaged in replacing a

turnout would be engaged in a common task. A signal maintainer assigned

to adjust the switch and replace wire connections in the same turnout

at the same time as the track workers would be considered a member of

the work group for the purposes of on-track safety. On the other hand,

a bridge inspector working on the deck of a bridge while a signal

maintainer happens to be replacing a signal lens on a nearby signal

would not constitute a roadway work group just by virtue of their

proximity. FRA does not intend that a common task may be subdivided

into individual tasks to avoid the use of on-track safety

[[Page 65966]]

procedures required for roadway work groups.

On-track safety is defined as the state of freedom from the danger

of being struck by a moving railroad train or other railroad equipment,

provided by operating and safety rules that govern track occupancy by

personnel, trains and on-track equipment. This term states the ultimate

goal of this regulation, which is for workers to be safe from the

hazards related to moving trains and equipment while working on or in

close proximity to the track. The rule will require railroads to adopt

comprehensive programs and rules to accomplish this objective. This

rule, and required programs, will together produce a heightened

awareness among railroad employees of these hazards and the methods

necessary to reduce the related risks.

Qualified as used in the rule with regard to roadway workers

implies no provision or requirement for Federal certification of

persons who perform those functions.

Roadway worker is defined as any employee of a railroad, or of 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 roadway maintenance machinery on or near track or

with the potential of fouling a track, and flagmen and watchmen/

lookouts as defined in this rule.

Some railroad employees whose primary function is transportation,

that is, the movement and protection of trains, will be directly

involved with on-track safety as well. These employees would not

necessarily be considered roadway workers in the rule. They must, of

course, be capable of performing their functions correctly and safely.

The rule requires that the training and qualification for their

primary function, under the railroad's program related to that

function, will also include the means by which they will fulfill their

responsibilities to roadway workers for on-track safety. For instance,

a train dispatcher would not be considered a roadway worker, but would

have to be capable of applying the railroad's operating rules to the

establishment of working limits for roadway workers. Likewise, a

conductor who protects a roadway maintenance machine, or who protects a

contractor working on railroad property, would not be considered a

roadway worker, but would receive training on functions related to on-

track safety as part of the training and qualification of a conductor.

Employees of contractors to railroads are included in the

definition if they perform duties on or near the track. They should be

protected as well as employees of the railroad. The responsibility for

on-track safety of employees will follow the employment relationship.

Contractors are responsible for the on-track safety of their employees

and any required training for their employees. FRA expects that

railroads will require their contractors to adopt the on-track safety

rules of the railroad upon which the contractor is working. Where

contractors require specialized on-track safety rules for particular

types of work, those rules must, of course, be compatible with the

rules of the railroad upon which the work is being performed.

The rule does not include employers, or their employees, if they

are not engaged by or under contract to a railroad. Personnel who might

work near railroad tracks on projects for others, such as cable

installation for a telephone company or bridge construction for a

highway agency, come under the jurisdiction of other Federal agencies

with regard to occupational safety.

The terms explained here are not exhaustive of the new definitions

that will be added to Section 214.7. This introduction merely provides

a sampling of the most important concepts of this proposed regulation.

A number of defined terms are explained in the section by section

analysis when analyzing the actual rule text to which they apply.

4. Purpose and Scope: Sec. 214.301

Section 214.301 states the purpose for the minimum standards

required under this subpart to protect roadway workers. Railroads can

adopt more stringent standards as long as they are consistent with this

subpart.

5. Information Collection Requirements: Sec. 214.302

Section 214.302 details the information collection requirements of

the rule and their OMB approval number.

6. Railroad On-Track Safety Programs, Generally: Sec. 214.303

Section 214.303 contains the general requirement that railroads

shall adopt and implement their own program for on-track safety, which

meets Federal minimum standards. Rather than implement a command and

control rule, FRA decided to establish the parameters for such a

program and defer to the expertise of each individual railroad to adopt

a suitable on-track safety program for their railroad, in accordance

with these parameters. FRA felt that establishing an internal

monitoring process to determine compliance and effectiveness would be a

necessary component of any On-Track Safety Program. Consequently, each

railroad must incorporate an internal monitoring process as a component

of its individual program. It should be noted that this internal

monitoring will not replace FRA's inspection and monitoring efforts for

compliance with this subpart.

7. Compliance Dates: Sec. 214.305

Section 214.305 establishes the schedule for compliance with this

rule. The dates vary by class of railroad. FRA believes that staggering

effective dates allows the largest number of workers who are exposed to

the highest level of risk to benefit from the On-Track Safety Program

first. FRA hopes to be able to expedite the review process, as the

smallest number of individual programs will be put in place by the

major carriers. After this initial phase of reviews for Class I

railroads, FRA will have established review policies and resolved many

recurrent issues, making the larger number of reviews for smaller

railroads more efficient. The experience gained through the initial

phase of the review process will contribute to the next and larger

phase of reviews. Although the rule formally establishes a later

compliance date for smaller railroads, this would not prevent smaller

railroads from implementing their programs sooner.

8. Review and Approval of Individual On-Track Safety Programs by FRA:

Sec. 214.307

Section 214.307 specifies the process for review and approval of

each railroad's on-track safety program by FRA. The intent of the

review and approval is to be constructive rather than restrictive. FRA

prefers that a review of each program take place at the railroad

because an open discussion of the program would be beneficial to all

concerned. The effective date of a railroad's program will not be

delayed by FRA's scheduling of a review, or granting approval. The

railroad will be responsible for compliance with this rule regardless

of the status of FRA review or approval of its program.

Likewise, a railroad may amend its program following FRA's initial

approval without prior approval of the amendment from FRA. Of course,

should FRA later disapprove the amendment, the program would have to be

changed to FRA's satisfaction. The railroad will still be responsible

for compliance with this rule, and subject

[[Page 65967]]

to compliance monitoring and enforcement by FRA. FRA will make every

effort, when requested, to provide a timely review of a program or

amendment before its effective date, and to assist in any manner

possible to enhance the on-track safety afforded to roadway workers.

Contractors will be required to conform to the on-track safety

programs on the railroads upon which they are working. Contractors

whose employees are working under a railroad's approved on-track safety

program need not submit a separate on-track safety program to FRA for

review and approval.

Some contractors operate highly specialized equipment on various

railroads on a regular basis. That equipment might require special

methods to provide on-track safety for railroad and contractor

employees. Such a special method will require a clear and reasonable

way to mesh with the on-track safety programs of the railroads upon

which the equipment is operated.

The rule does not specifically call for the involvement of

employees or their representatives in the program design or review

process, because the responsibility for the program's compliance with

this rule lies with the employer. However, it should be noted that this

rule itself is the product of a successful proceeding in which

management, employee representatives and the Federal government were

fully involved from the beginning. That fact should be an encouragement

to all concerned to realize that the success of an on-track safety

program will require the willing cooperation of all persons whose

duties or personal safety are affected by the program.

9. On-Track Safety Program Documents: Sec. 214.309

Section 214.309 specifies the type of on-track safety manual each

railroad must have. Essentially, the railroad must have all on-track

safety rules in one place, easily accessible to roadway workers. This

provision is intended to provide the roadway worker with a single

resource to consult for on-track safety, to avoid fragmentation of the

rules and the ultimate dilution of their vital message.

All on-track safety rules could be placed together as an on-track

safety section of an already existent manual. FRA is aware that many

railroads use a binder system for railroad manuals. Adding a section to

such a binder might be less burdensome than creating a separate manual,

and would clearly comply with this provision.

An employer, such as a contractor, whose roadway workers work on

another employer's railroad, will usually adopt and issue the on-track

safety manual of that railroad for use by their employees. It will be

the employer's responsibility to provide the manual to its employees

who are required to have it and to know that each of its employees is

knowledgeable about its contents.

This section also sets forth the responsibility of the employer to

provide this manual to all employees who are responsible for the on-

track safety of others, and those who are responsible for their own on-

track safety as lone workers. Workers who are responsible for the

protection of others must have the manual at the work site for easy

reference. Lone workers must also have this manual easily available to

them. FRA does not intend that the individual must necessarily have

this manual on his or her person while performing work, but to have it

available and readily accessible at the work site.

FRA also does not intend that all related operating rules,

timetables or special instructions must be reproduced in this manual.

Any related publications or documents should be cross-referenced in the

On-Track Safety Manual and provided to employees whose duties require

them.

Lastly, the manual must be at the work site available for reference

by all roadway workers. Many roadway workers will not be responsible

for providing protection for themselves or others, but still must

comply with the rules. All employees have a responsibility to remain at

a safe distance from the track unless they are assured that adequate

protection is provided. Although not responsible for providing

protection for others, they must be familiar with the rules to

determine whether adequate protection is provided and have the rules

readily available if it is necessary to consult them.

10. Responsibility of Employers: Sec. 214.311

Section 214.311 addresses the employer's responsibility in this

rule. This section applies to all employers of roadway workers.

Employers may be railroads, contractors to railroads, or railroads

whose employees are working on other railroads. Although most on-track

safety programs will be implemented by railroads rather than

contractors, both are employers and as such each is responsible to its

employees to provide them with the means of achieving on-track safety.

Railroads are specifically required by Sec. 214.303 to implement

their own on-track safety programs. Section 214.311 however, places

responsibility with all employers (whether they are railroads or

contractors) to see that employees are trained and supervised to work

with the on-track safety rules in effect at the work site. The actual

training and supervision of contractor employees might be undertaken by

the operating railroad, but the responsibility to see that it is done

rests with the employer.

The guarantee required in paragraph (b) of an employee's absolute

right to challenge on-track safety rules compliance will be a required

part of each railroad's on-track safety program, as will be the process

for resolution of such challenges. On-track safety depends upon the

faithful and intelligent discharge of duty by all persons who protect

or are protected by it. Any roadway worker who is in doubt concerning

the on-track safety provisions being applied at the job location should

resolve that uncertainty immediately.

The term at the job location is not meant to restrict who can raise

an issue or where an issue can be raised. Rather, the challenge must

address the on-track safety procedures being applied at a particular

job location.

A fundamental principle of on-track safety is that a roadway worker

who is not entirely certain that it is safe to be on the track should

not be there. A discrepancy might be critical to the safety of others,

and the first roadway worker who detects it should take the necessary

action to provide for the safety of all.

The Advisory Committee used the term No-Fault Right in its report

to describe the absolute right of each employee to challenge, without

censure, punishment, harm or loss, the on-track safety compliance

expressed in paragraph (b) of this section. A challenge must be made in

good faith in order to fall within the purview of this rule. A good

faith challenge would trigger the resolution process called for in

paragraph (c).

The written process to resolve challenges found in paragraph (c) is

intended to provide a prompt and equitable resolution of these

concerns. This is necessary in order that any problems that arise

regarding on-track safety should be resolved and that any possible

lapses in safety be quickly corrected.

The resolution process should include provisions to permit

determination by all parties as to the safe, effective application of

the on-track safety rule(s) being challenged at the lowest level

possible, and for successive levels of review in the event of inability

to

[[Page 65968]]

resolve a concern at lower levels. FRA believes it best for employers,

consulting with employees and their representatives where applicable,

to write effective processes to accomplish these objectives.

A railroad's on-track safety program will be reviewed and approved

in accordance with section 214.307(b). FRA will consider this written

process during its review and approval of the overall on-track safety

submission. FRA will consider whether the written processes afford a

prompt and equitable resolution to concerns asserted in good faith and

their effectiveness in promoting the intelligent, reasoned application

of the on-track safety principles.

11. Responsibility of Individual Roadway Workers: Sec. 214.313

Section 214.313 addresses the individual responsibility of each

roadway worker. Each roadway worker has a responsibility to comply with

this subpart which is enforceable under the provisions of individual

liability. FRA has a statement of Enforcement Policy set forth in

Appendix A to Part 209 that explains the way in which FRA employs its

enforcement powers. FRA's concerns regarding individual liability are

willful violations, which are intentional actions, or grossly negligent

behavior. Paragraph (a) requires that each roadway worker follow the

railroad's on-track safety rules. Paragraph (b) prohibits roadway

workers from fouling a track unnecessarily. It is FRA's opinion, as

well as that of the Advisory Committee, that roadway workers should

under no circumstances foul a track unless it is necessary to

accomplish their duties.

A reference to the definition of fouling a track is useful to

understand when protection is required. Fouling a track describes the

circumstance in which a person is in danger of being struck by a moving

train. Under paragraphs (c) and (d), each roadway worker has the

responsibility to know that on-track safety is being provided before

actually fouling a track, and to remain clear of the track and inform

the employer when the required level of protection is not provided. If

a roadway worker is not sure that sufficient on-track safety is being

provided, he or she can satisfy paragraph (c) by simply not fouling the

track.

It is a roadway worker's responsibility to advise the employer of

exceptions taken to the application of a railroad's rules, or

provisions of this subpart, in accordance with paragraph (d). Employees

must approach this responsibility in good faith. Essentially an

employee must have honest concerns whether the on-track safety

procedures being used provide the necessary level of safety in

accordance with the rules of the operating railroad. Furthermore,

employees must be able to articulate those concerns in order to invoke

the resolution process of the railroad. Initiating an action under the

resolution process, absent a good faith concern regarding the on-track

safety procedures being applied, would not be in compliance with this

subpart.

12. Supervision and Communication: Sec. 214.315

Section 214.315 details supervision and communication of on-track

safety methods prior to working. Employees must be notified and

acknowledge understanding of the on-track safety methods they are to

use, prior to commencing duties on or near the track. Paragraphs (a)

and (b) establish the duty of notification by the employer and the

reciprocal duty of communicating acknowledgment by the employee. These

sections essentially require a job briefing to inform all concerned of

on-track safety methods at the beginning of each work period. The

acknowledgment is an indication by the employee of understanding, or

the opportunity to request explanation of any issues that are not

understood.

Paragraph (c) requires that an employer designate at least one

roadway worker to provide on-track safety while a group is working

together. This designation can either be for a specific job or for a

particular work situation. This section is vital to the success of any

on-track safety program because the mere presence of two or more

persons together can be distracting for all persons involved. FRA

believes that awareness will be enhanced and confusion limited by

requiring railroads to formally designate a responsible person. This

designation must be clearly understood by all group members in order to

be effective. An individual, such as a foreman, may generally be

designated to be responsible for his or her group, but if two groups

are working together or roadway workers of different crafts are

assisting one another, it is imperative that this formal designation be

communicated to and understood by all affected employees.

Paragraph (d) explains the duties of the roadway worker designated

to provide on-track safety for the work group. Before roadway workers

foul a track, the designated person must inform each roadway worker in

the group of the on-track safety methods to be used at that time and

location, including all necessary details associated with the specific

form of on-track safety that will be used. Essentially, the designated

person must conduct an on-track safety briefing prior to the beginning

of work on or near the track. This briefing might also fulfill the

requirements of paragraph (a) of this section.

Before changing on-track safety methods during a work period, the

designated roadway worker must again inform the group of the new

methods to be used for their safety. If, for example, roadway workers

are working on a track within working limits when the on-track safety

method changes to train approach warning, all roadway workers fouling

the track must first be informed that trains might approach on that

track, and that they will be warned of the approaching train by

watchmen/lookouts. They must also know that they can no longer depend

on that track as a place of safety when a train approaches.

This provision also establishes methods to be used in the face of

unforeseen circumstances. In these emergency situations, where

notification of a change in methods cannot be accomplished, an

immediate warning to leave the fouling space and not return until on-

track safety is reestablished is required.

Paragraph (e) addresses the lone worker. The lone worker must also

have a job briefing before fouling the track. This briefing will be

slightly different, since the lone worker is not working under direct

supervision. At the beginning of the duty period, and prior to fouling

the track, the lone worker must communicate with a supervisor or

another designated employee to advise of his itinerary and the means by

which he or she plans to protect himself. This briefing should include

his geographical location, approximate period of time he or she is

expected to be in this general locality, different locations planned

for the day, and the planned method of protection. This paragraph

assumes that in accordance with other sections, the lone worker is

capable of determining the proper means to achieve his or her own on-

track safety.

This paragraph also provides for emergencies in which the channels

of communication are disabled. In those cases, the briefing must be

conducted as soon as possible after communication is restored. An

interruption in communication does not prevent the lone worker from

commencing work. However, since the lone worker will not have described

his or her itinerary and the on-track safety methods to be used in this

location to another qualified employee, he or she must do all that is

[[Page 65969]]

necessary to maintain the requisite awareness of his surroundings.

13. On-track Safety Procedures, Generally: Sec. 214.317

Section 214.317 refers to the following sections 214.319 through

214.337 that prescribe several different types of procedures that may

be used to achieve on-track safety. It requires employers to adopt one

or more of these types of procedures whenever employees foul a track.

The definition of fouling a track includes a minimum distance limit

of four feet from the field, or outer, side of the running rail nearest

to the roadway worker. A person could be outside that distance and

still be fouling the track under this rule if the person's expected or

potential activities or surroundings could cause movement into the

space that would be occupied by a train, or if components of a moving

train could extend outside the four-foot zone.

Railroad equipment is commonly 10 feet 8 inches wide. Standard

track gauge is 4 feet 8\1/2\ inches but when adding the nominal width

of the rail, the rail spacing can be taken as 5 feet 0 inches for the

purposes of this rule. The fouling space would therefore be 13 feet

wide (5+4+4 feet).

One exception to the four-foot minimum distance is found in

paragraph Sec. 214.339(c) (Roadway maintenance machines) and is

discussed in the analysis of that section.

The report of the Advisory Committee includes the statement that

``The provisions of restricted speed do not solely provide protection

for track equipment, or roadway workers, performing maintenance.'' The

rule does not recognize restricted speed as a sole means of providing

on-track safety.

The Advisory Committee also found, and FRA agrees, that although

the definitions of ``restricted speed'' found in this rule and in use

throughout the railroad industry provide adequate separation between

trains and on-track machines in a traveling mode, a blanket provision

that would rely upon restricted speed to protect persons working while

fouling the track would not be effective. Individual locations at which

unusual circumstances could result in sufficient protection for roadway

workers from trains moving at restricted speed would be addressed by

FRA through the waiver process.

14. Working Limits, Generally: Sec. 214.319

Section 214.319 prescribes the general requirements for the

establishment of working limits. A reference to the definition of

Working Limits is helpful to the understanding of this section.

Working limits is an on-track safety measure which when established

eliminates the risk of being struck by trains. Several methods of

establishing working limits are found in this subpart. Those methods

are distinguished by the method by which trains are authorized to move

on a track segment, the physical characteristics of the track, and the

operating rules of the railroad.

Paragraphs (a) and (b) specifically refer to the roadway worker who

is given control over working limits. These requirements assure that

the roadway worker has the requisite knowledge and training, and

prevent confusion by giving control to only one qualified roadway

worker.

Paragraph (c) addresses the procedure when working limits are

released. It requires that all affected roadway workers be notified

before trains will begin moving over the affected track. They must be

either away from the track, or provided with another form of on-track

safety.

An example is a work group using a crane to replace rail. Rails are

removed from the track, the crane is on the track, and on-track safety

is provided by the establishment of working limits. When the rails have

been replaced, the crane moves out of the working limits onto another

track, the roadway worker in charge stations watchmen/lookouts to

provide train approach warning and notifies all the roadway workers at

the work site that train approach warning is now in effect and the

working limits are to be released. The roadway worker in charge then

releases the working limits to the train dispatcher to permit the

movement of trains. The roadway workers at the work site continue to

work with hand tools while on-track safety is provided by the watchmen/

lookouts.

15. Exclusive Track Occupancy: Sec. 214.321

Section 214.321 prescribes working limits on controlled track as

one form of on-track safety allowed in accordance with the provisions

of this subpart. Reference to the definitions of Controlled Track and

Exclusive Track Occupancy are helpful to the understanding of this

section.

Controlled track is track on which trains may not move without

authorization from a train dispatcher or a control operator. On most

railroads, trains move on main tracks outside of yard limits, and

through interlockings, only when specifically authorized by a train

dispatcher or control operator. This authorization might take the form

of an indication conveyed by a fixed signal, or a movement authority

transmitted in writing, orally, or by digital means. Such track would

conform to the definition of controlled track.

Some railroads extend the control of a train dispatcher to main

tracks within yard limits. This control is exercised by requiring the

crew of every train and engine to obtain a track warrant specifying the

limits of the territory in which the crew may operate. The track

warrant lists all restrictions that are in effect within the limits

specified, including any working limits established to protect roadway

workers or train movements. The working limits are delineated by flags

as specified in section 214.321(c)(5). Track from which trains can be

effectively withheld by such a procedure would conform to the

definition of controlled track.

Exclusive track occupancy is the means prescribed in this section

to establish working limits on controlled track. The procedures

associated in this section with exclusive track occupancy are intended

to assure that unauthorized train movements will not occur within

working limits established by exclusive track occupancy.

This section addresses controlled track, as it is the type of track

upon which exclusive track occupancy can be established by the

dispatcher or control operator. By virtue of their authority to control

train movements on a segment of controlled track, a dispatcher or

control operator can also hold trains clear of that segment by

withholding movement authority from all trains. The procedure depends

upon communication of precise information between the train dispatcher

or control operator, the roadway worker in charge of the working

limits, and the crews of affected trains. This section is intended to

prescribe that level of precision.

Paragraph (a) requires that authority for exclusive track occupancy

may only be granted by the train dispatcher or control operator who has

control of that track to a roadway worker who has been trained and

designated to hold such an authority. No other person may be in control

of the same track at the same time.

Paragraph (b) and corresponding subparagraphs prescribe the methods

for transferring the authority for exclusive track occupancy to the

roadway worker with the requisite level of accuracy.

Paragraphs (c) and corresponding subparagraphs prescribe physical

markers or features that may be used to indicate the extent of working

limits established under this paragraph with the requisite level of

precision. Flagmen are included as a valid means of establishing

exclusive track occupancy

[[Page 65970]]

because they are effective, and they might be the only means available

on short notice or at certain locations.

16. Foul Time: Sec. 214.323

Section 214.323 prescribes another form of on-track safety

involving the establishment of working limits through exclusive track

occupancy. This method of protection is called foul time and is only

authorized for use on controlled track. The definition of foul time

should be referenced for a complete understanding of this concept. Foul

time requires oral or written notification by the train dispatcher or

control operator to the responsible roadway worker that no trains will

be operating within a specific segment of track during a specific time

period. The steps to obtain foul time are detailed in this section.

Once foul time is given, a dispatcher or control operator may not

permit the movement of trains onto the protected track segment until

the responsible roadway worker reports clear.

17. Train Coordination: Sec. 214.325

This section provides procedures for establishing working limits

using the train itself and the exclusive authority the train holds on a

segment of track as a method of on-track safety. This method could be

used during an unforeseen circumstance or at any other time the

railroad deems appropriate and authorizes its use in their respective

program.

18. Inaccessible Track: Sec. 214.327

Section 214.327 requires that working limits on non-controlled

track be established by rendering the track physically inaccessible to

trains and equipment. A reference to the definitions of non-controlled

track and inaccessible track is useful to the understanding of this

section. Trains and equipment can operate on non-controlled track

without having first received specific authority to do so. Trains and

equipment cannot be held clear of non-controlled track by simply

withholding their movement authority. The roadway worker in charge of

the working limits must therefore render non-controlled track within

working limits physically inaccessible to trains and equipment, other

than those operating under the authority of that roadway worker, by

using one or more of the provisions of this section.

Typical examples of non-controlled track to which this section

would apply include main tracks within yard limits where trains are

authorized by an operating rule to move without further specific

authority, yard tracks, and industrial side tracks. Paragraph (a) and

corresponding subparagraphs detail the physical features that may be

used to block access to non-controlled track within working limits.

Paragraph (b) provides the restrictions under which trains and

roadway maintenance machines will be allowed to operate within working

limits. The intent is that the roadway worker in charge will be able to

communicate with a train while it is within the working limits, and to

control its movement to prevent conflicts between trains, machines and

roadway workers.

The requirement that trains move at restricted speed in working

limits unless otherwise authorized by the roadway worker in charge is

intended as a fail-safe provision to afford the highest level of safety

in the absence of authority for higher speed. FRA does not contemplate,

nor would it condone, a situation in which a roadway worker could

authorize a higher speed for a train than would be otherwise permitted

by the operating rules and instructions of the railroad. Paragraph (c)

merely prohibits other locomotives from being within these established

working limits.

19. Train Approach Warning Provided by Watchmen/lookouts: Sec. 214.329

Section 214.329 establishes the procedures for on track safety of

groups that utilize train approach warning. A reference to the

definition of train approach warning would be useful to the

understanding of this section. Section 214.329 specifies the

circumstances and the manner in which roadway work groups may use this

method of on-track safety. Prescribed here is the minimum amount of

time for roadway workers to retreat to a previously arranged place of

safety (usually designated during job briefing), the duties of the

watchman/lookout and the fundamental characteristics of train approach

warning communication.

This section further imposes a duty upon the employer to provide

the watchman/lookout employee with the requisite equipment necessary to

carry out his on-track safety duties. It is intended that a railroad's

on-track safety program would specify the means to be used by watchmen/

lookouts to communicate a warning, and that they be equipped according

to that provision.

The rule does not include a provision for train approach warning by

any means other than the use of watchmen/lookouts. FRA is not aware of

any other means of effectively performing this function with the

requisite reliability, and will not place requirements for an untried

system in this rule. However, the Advisory Committee report states that

``FRA will incorporate a near-term time-specific requirement to utilize

on-track personal warning systems for roadway workers working alone

under any conditions not requiring positive protection.'' FRA realizes

that the technological advancements incorporated in ATCS, PTC or PTS

might in the future provide another method of establishing on-track

safety in compliance with this subpart. Although such technology is not

specifically provided for in the current rule, opportunities to employ

advancements in this area will be handled pursuant to the waiver

process. FRA will therefore be most interested in knowing when such

systems are developed, tested, and proven reliable.

20. Definite Train Location: Sec. 214.331

Section 214.331 describes a system of on-track safety which

provides roadway workers with information as to the earliest times at

which trains may leave certain stations, having been restricted at

those stations by the train dispatcher or control operator. This form

of on-track safety is called Definite Train Location. A reference to

its definition is helpful to distinguish it from an informational

lineup of trains, which is addressed in Sec. 214.333.

Paragraph (a) limits the use of definite train location for on-

track safety by Class I railroads and Commuter railroads to track where

such a system was already in use on the effective date of this rule.

Paragraph (b) requires that a Class I railroad or commuter railroad

using definite train location system must phase its use out according

to a schedule submitted to FRA with that railroad's on-track safety

program.

Paragraph (c) establishes that definite train location can be used

on certain subdivisions owned by railroads other than Class I and

Commuter railroads under certain specified conditions. These conditions

include whether the system was in use before the effective date of this

rule, or whether the subdivision has railroad traffic density below

certain levels specified in that section during periods when roadway

workers are normally on and about the track. Advisory Committee members

felt that the amount and frequency of the traffic on a particular track

dictated whether this form of on-track safety was feasible. FRA

therefore proposes to incorporate this factor into the rule to allow

some short lines and regional railroads to utilize this system.

Paragraph (d) and corresponding subparagraphs (1) through (7) set

forth the requirements for a definite train location system and the

qualifications

[[Page 65971]]

that a roadway worker must have before using this system as a form of

on-track safety.

21. Informational Line-ups of Trains: Sec. 214.333

Section 214.333 specifies conditions for the use of informational

line-ups of trains. Some railroads have used a form of informational

line-ups to provide on-track safety for roadway workers for many years.

Such a procedure requires the roadway worker to have a full

understanding of the particular procedure in use, and the physical

characteristics of the territory in which they are working. The

Advisory Committee addressed this issue with the following specific

recommendation:

The Committee realizes that line-ups are being used less as a

form of protection in the industry and recommends that line-up use

be further reduced, eventually discontinued and replaced with

Positive Protection as quickly as feasible, grandfathering line-up

systems presently in use. * * *

Line-ups as used in this section differ from lists of trains in

Sec. 214.331 in that line-ups need not include definite restriction as

to the earliest times at which trains may depart stations. FRA

therefore follows the Advisory Committee recommendation by allowing

railroads presently using line-ups to continue doing so under

conditions presently in effect, provided that their on-track safety

programs that are reviewed and approved by FRA contain adequate

provisions for safety, and a definite date for completion of phase-out.

22. On-track Safety Procedures for Roadway Work Groups: Sec. 214.335

Section 214.335 specifies requirements for on-track safety to be

provided for roadway work groups. Other sections of the regulation

discuss matters affecting the group such as the different types of on-

track safety protection available to a group and the job briefing

necessary for a group, but this section prescribes what procedures are

required to fully comply with this subpart. The definition of roadway

work group enables the distinction between general methods of providing

on-track safety for groups and for individuals working alone. Examples

of roadway work groups are a large or small track gang, a pair of

signal maintainers, a welder and welder helper, and a survey party.

Paragraph (a) indicates that employers shall not require or permit

roadway work groups to foul a track unless they have established on-

track safety through working limits, train approach warning, or

definite train location.

The reciprocal responsibility for the roadway worker is expressed

in Paragraph (b). He of she should not foul a track without having been

informed by the roadway worker in charge that on-track safety is being

provided.

The concept of protecting roadway workers from the hazards of

trains and other on-track equipment on adjacent tracks is also

important in this rule. A reference to the definition of adjacent

tracks will clarify the meaning of paragraph (c) which details the

conditions under which train approach warning must be used on adjacent

tracks that are not within working limits. These are conditions in

which the risk of distraction is significant, and which require

measures to provide on-track safety on adjacent tracks.

The principle behind the reference to large scale maintenance or

construction is the potential for distraction, or the possibility that

a roadway worker or roadway maintenance machine might foul the adjacent

track and be struck by an approaching or passing train. This issue was

addressed in the report of the Advisory Committee with the

recommendation:

Before performing any work that requires Fouling the track or

Adjacent Track(s) Positive Protection must be obtained and verified

to be in effect by the roadway worker assigned responsibility for

the work. Large scale track maintenance and/or renovations, such as

but not limited to, rail and tie gangs, production in-track welding,

ballast distribution, and undercutting, must have Positive

Protection on Adjacent Tracks as well.

FRA will consider the provisions made for this situation when

reviewing each railroad's on-track safety program.

The spacing of less than 25 feet between track centers, which

defines adjacent tracks for the purpose of this rule, represents a

consensus decision of the Advisory Committee. Several railroads have

recently extended their lateral track spacing to 25 feet. Tracks spaced

at that distance may not cause a hazard to employees in one track from

trains and equipment moving on the other track. FRA believes that no

purpose would be served by requiring these tracks to be again spaced at

a slightly greater distance. Therefore, tracks spaced at 25 feet are

not defined as adjacent tracks, but tracks spaced at a lesser distance

will be so defined. Tracks that converge or cross will be considered as

adjacent tracks in the zone through which their centers are less than

25 feet apart.

As a practical matter, FRA will apply a rule of reason to the

precision used in measuring track centers, so that minor alignment

deviations within the limits of the Federal Track Safety Standards (49

CFR 213) would not themselves place such short segments of track within

the definition of adjacent tracks.

23. On-track Safety Procedures for Lone Workers: Sec. 214.337

Section 214.337 establishes specific on-track safety procedures for

the lone worker. Paragraph (a) sets forth the general requirement that

restricts the use of individual train detection to circumstances

prescribed in this section and the corresponding on-track safety

program of the railroad.

Paragraph (b) represents the clear consensus of the Advisory

Committee that a decision to not use individual train detection should

rest solely with the lone worker, and may not be reversed by any other

person. On the other hand, improper use of individual train detection

where this rule or the on-track safety program of the railroad prohibit

it would be subject to review. This provision was stated by the

Advisory Committee as part of its Specific Recommendation 3, which part

reads, ``All roadway workers have the absolute right to obtain positive

protection at any time and under any circumstances if they deem it

necessary, or to be clear of the track if adequate protection is not

provided.''

Paragraph (c) establishes a method of on-track safety for the lone

worker, in which the roadway worker is capable of visually detecting

the approach of a train and moving to a previously determined location

of safety at least 15 seconds before the train arrives. A reference to

the definition of individual train detection is useful to understand

this concept.

It is important to note that the Advisory Committee decided that

the use of individual train detection is appropriate only in limited

circumstances. FRA has therefore drafted this section to prescribe

strictly limited circumstances in which an individual may foul a track

outside of working limits while definitely able to detect the approach

of a train or other on-track equipment in ample time to move to a place

of safety. This safety method requires the lone worker to be in a state

of heightened awareness, since no other protection system will be in

place to prevent one from being struck by a train or other on-track

equipment. The corresponding subparagraphs to paragraph (c) provide

detailed requirements for the use of this form of on-track safety.

Paragraph (f) prescribes the concept of a written Statement of On-

track safety, prepared by the lone roadway worker. The reasoning behind

this requirement

[[Page 65972]]

is to assist the roadway worker in focusing on the nature of the task,

the risks associated with the task, and the form of on-track safety

necessary to safely carry out assigned duties.

24. Audible Warning from Trains: Sec. 214.339

Section 214.339 requires audible warning from locomotives before

trains approach roadway workers. The implementation of this requirement

will necessitate railroad rules regarding notification to trains that

roadway workers are on or about the track. This notification could take

the form of portable whistle posts, train movement authorities, or

highly visible clothing to identify roadway workers and increase their

visibility. This section is not optional for a railroad, and FRA

intends that this provision covers the same subject matter as that of

any state or local restrictions on the sounding of locomotive whistles.

25. Roadway Maintenance Machines: Sec. 214.341

Section 214.341 addresses specific issues concerning roadway

maintenance machines that need to be included in individual railroad

program submissions. FRA decided to address the hazards associated with

these machines separately from those associated with trains, as the

nature of the hazard is different. Referencing the definition of this

term is a good place to start to understand this section. Roadway

maintenance machines are devices, the characteristics or use of which

are unique to the railroad environment. The term includes both on-track

and off-track machines. A roadway maintenance machine need not have a

position for the operator on the machine nor need it have an operator

at all; it could operate automatically, or semi-automatically.

This provision excludes hand-powered devices in order to

distinguish between hand tools which are essentially portable, and

devices which either are larger, move faster, or produce more noise

than hand tools. Hand-held power tools are not included in the

definition, but because of the noise they produce, and because of the

attention that must be paid to their safe operation they are addressed

specifically in Sec. 214.337, On-track safety for lone workers.

Examples of devices covered by this section include, but are not

limited to, crawler and wheel tractors operated near railroad tracks,

track motor cars, ballast regulators, self-propelled tampers, hand-

carried tampers with remote power units, powered cranes of all types,

highway-rail cars and trucks while on or near tracks, snow plows-self

propelled and pushed by locomotives, spreader-ditcher cars, locomotive

cranes, electric welders, electric generators, air compressors--on-

track and off-track.

Roadway maintenance machines have a wide variety of configurations

and characteristics, and new types are being developed regularly. Each

type presents unique hazards and necessitates unique accident

prevention measures. Despite the wide diversity of the subject matter,

FRA attempted to provide some guidance for the establishment of on-

track safety when using roadway maintenance machines.

FRA believes that it is most effective to promulgate a general

requirement for on-track safety around roadway maintenance machines,

and require that the details be provided by railroad management,

conferring with their employees, and industry suppliers. Several

railroads have adopted comprehensive rules that accommodate present and

future machine types, as well as their own operating requirements. FRA

has seen the text of such rules, as well as witnessed their application

and believes that they can set examples for other railroads. The

requirement for issuance of on-track safety procedures for various

types of roadway maintenance machines may be met by general procedures

that apply to a group of various machines, supplemented wherever

necessary by any specific requirements associated with particular types

or models of machines.

26. Training and Qualification, General: Sec. 214.343

Section 214.343 requires that each roadway worker be given on-track

safety training once every calendar year. Adequate training is integral

to any safety program. Hazards exist along a railroad, not all of which

are obvious through the application of common sense without experience

or training. An employee who has not been trained to protect against

those hazards presents a significant risk to both himself or herself

and others.

Roadway workers can be qualified to perform various duties, based

on their training and demonstrated knowledge. Training will vary

depending on the designation of a roadway worker. Furthermore, roadway

workers should generally know the designations of others in their

group, so that proper on-track safety protection arrangements can be

made. Written or electronic records must be kept of these

qualifications, available for inspection and photocopying by the

Administrator.

The term ``demonstrated proficiency'' is used in this and other

sections relative to employee qualification in a broad sense to mean

that the employee being qualified would show to the employer sufficient

understanding of the subject that the employee can perform the duties

for which qualification is conferred in a safe manner. Proficiency may

be demonstrated by successful completion of a written or oral

examination, an interactive training program using a computer, a

practical demonstration of understanding and ability, or an appropriate

combination of these in accordance with the requirements of this

subpart.

27. Training for All Roadway Workers: Sec. 214.345

Section 214.345 represents the basic level of training required of

all roadway workers who work around moving railroad trains and on-track

equipment. All persons subject to this rule must have this training.

This basic level of training is required in addition to any specialized

training required for particular functions called for in Secs. 214.347

through 214.355. Any testing required to demonstrate qualification need

not be written, because the requirements can be fulfilled by a

practical demonstration of ability and understanding.

28. Training and Qualification for Lone Workers: Sec. 214.347

Section 214.347 requires a higher degree of qualification, as the

lone worker is fully responsible for his or her own protection.

29. Training and Qualification of Watchmen/Lookouts: Sec. 214.349

Section 214.349 details the standards for qualification of a

lookout, who by definition is responsible for the protection of others.

The definition of watchman/lookout is useful to understand the

functions of roadway workers discussed in this section. Watchmen/

lookouts must be able to perform the proper actions in the most timely

manner without any chance of error in order to provide proper

protection for those who are placed in their care.

30. Training and Qualification of Flagmen: Sec. 214.351

Section 214.351 requires that flagmen be qualified on the operating

rules of the railroad on which they are working. Referencing the

definition of flagman would be useful to identify the class of

[[Page 65973]]

roadway workers discussed in this section. Generally, flagmen are

already required to be qualified on the operating rules that apply to

their work. Flagging is an exacting procedure, and a flagman must be

ready to act properly at all times in order to provide proper

protection for those under his care. The distinction between flagmen

and watchmen/lookouts should be noted, in that flagmen function to

restrict or stop the movement of trains, while watchmen/lookouts detect

the approach of trains and provide warning thereof to other roadway

workers.

31. Training and Qualification of Roadway Workers Who Provide On-Track

Safety for Roadway Work Groups: Sec. 214.353

Section 214.353 details training standards applicable to the

roadway worker who is qualified to provide on-track safety for roadway

work groups. This roadway worker has the most critical responsibilities

under this subpart. This individual must be able to apply the proper

on-track safety rules and procedures in various circumstances, to

communicate with other railroad employees regarding on-track safety

procedures, and to supervise other roadway workers in the performance

of their on-track safety responsibilities.

This section is unique in this subpart in requiring a recorded

examination as part of the qualification process. This requirement

reflects the additional responsibility of this position. The recorded

examination might be written, or it might be, for example, a computer

file with the results of an interactive training course.

32. Training and Qualification in On-Track Safety for Operators of

Roadway Maintenance Machines: Sec. 214.355

Section 214.355 requires training for those roadway workers

operating roadway maintenance machines. As noted earlier, there is a

wide variety of equipment requiring specific knowledge. However, FRA

determined that establishing minimum qualifications closely associated

with the type of machine to be operated, and the circumstances and

conditions under which it is to be operated, was necessary.

33. Appendix A: Penalty Schedule

The revision to Appendix A includes a penalty schedule which

establishes civil penalty amounts that for assessment when specific

provisions of this subpart are violated. This penalty schedule

constitutes a statement of FRA enforcement policy.

Environmental Impact

FRA has evaluated these regulations in accordance with its

procedures for ensuring full consideration of the potential

environmental impacts of FRA actions, as required by the National

Environmental Policy Act (42 U.S.C. 4321 et seq.) and related

directives. These regulations meet the criteria that establish this as

a non-major action for environmental purposes.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This rule has been evaluated in accordance with existing policies

and procedures. It is considered to be significant under both Executive

Order 12866 and DOT policies an procedures (44 FR 11034; February 26,

1979). FRA has prepared and placed in the docket a regulatory analysis

addressing the economic impact of the rule. Document inspection and

copying facilities are available at 1120 Vermont Avenue, 7th Floor,

Washington, D.C. Photocopies may also be obtained by submitting a

written request to the FRA Docket Clerk at Office of Chief Counsel,

Federal Railroad Administration, 400 Seventh Street, S.W., Room 8201,

Washington, D.C. 20590.

Consistent with the mandate of Executive Order 12866 for regulatory

reform, FRA conducted a Negotiated Rulemaking which provided the basis

for the proposed and final rules. This collaborative effort included

representatives from the railroad industry and railroad labor, along

with an agency representative as members on a Federal Advisory

Committee. This Advisory Committee held several negotiation sessions

throughout the past year to reach consensus on the concepts that this

proposed rule would embody. As envisioned by regulatory reform, public

participation was encouraged by holding open Advisory Committee

meetings. This negotiated Rulemaking's success has clearly met many of

the objectives highlighted in this Executive Order.

As part of the regulatory impact analysis the FRA has assessed

quantitative measurements of costs and benefits expected from the

adoption of the final rule. Over a ten year period, the NPV of the

estimated quantifiable societal benefits is $88.1 million, and the NPV

of the estimated societal quantified costs is $228.63 million.

The NPV of major benefits anticipated from adopting the final rule

include:

$11.9 million from averted roadway worker injuries; and

$62 million from averted roadway workers fatalities (a

statistical estimation of 32.6 lives saved).

The NPV of major costs (including estimated paperwork burdens) over

the ten year period expected to accrue from adopting the final rule

include:

$26 million for additional dispatching resources;

$47 million for watchmen/lookouts;

$22 million for other forms of positive protection;

$63 million for job briefings; and

$53 million for the various types of roadway training.

Additionally, FRA anticipates other qualitative benefits accruing

from the final rule which are not factored into the quantified cost

analysis that could be significant. These non-quantified benefits

include potential worker productivity increases, a possible increase in

the capacity or volume of some rail lines, and an improved employee

morale.

FRA's quantified cost estimate includes time allotted for daily job

briefings. Many railroads currently conduct job briefings and others

have allotted the time for such briefings. FRA contends that the rule

will structure time already allotted or spent in job briefings.

Although FRA considered this 2 minute briefing a cost and included it

within the quantified cost calculations, it is conceivable that

structuring the existing job briefing time actually imposes very little

additional cost. The job briefing requirement essentially mandates the

specific information to be communicated during briefings that would be

held, even in the absence of this rule.

FRA's regulatory impact analysis finds the final rule to be cost

justified based on the values associated with the safety benefits, and

the additional qualitative benefits identified. The recommendation of

the Roadway Worker Federal Advisory Committee that FRA adopt this rule

reflects the consensus of the rail labor and management representatives

on the committee that the final rule is beneficial.

Federalism Implications

This rule has been analyzed in accordance with the principles of

Executive Order 12612 (``Federalism''). As noted previously, there are

potential preemption issues resulting from a provision of this rule,

requiring audible warning before entering work sites. Various States

and local authorities have ``whistle bans'' preventing railroads from

sounding whistles or ringing locomotive bells while operating through

those communities. FRA

[[Page 65974]]

acknowledges an impact on scattered States and localities throughout

the country, depending on the time of day and the frequency with which

track maintenance occurs. However, these measures are necessary to

protect roadway workers from possible death and injury. Sufficient

Federalism implications have been identified to warrant the preparation

of a Federalism Assessment and it has been placed in the docket.

Document inspection and copying facilities are located at 1120 Vermont

Avenue, 7th Floor, Washington, D.C. Photocopies may also be obtained by

submitting written requests to the FRA Docket Clerk at Office of Chief

Counsel, Federal Railroad Administration, 400 Seventh Street, S.W.,

Room 8201, Washington, D.C. 20590.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires a review of final rules to assess their impact on small

entities. FRA's assessment on small entities can be found in Appendix B

of the final rule's Regulatory Impact Analysis, located in the docket.

After consultation with the Office of Advocacy, Small Business

Administration (SBA), FRA made the determination to use the Surface

Transportation Board's (STB) classification of Class III railroads as

representing small entities. This is a revenue based classification

where Class III railroads earn less than $40 million per annum. Both

FRA and the industry routinely use the STB classifications for data

collection and regulation. By using the Class III classification, FRA

is capturing most railroads that would be defined by the SBA as small

businesses.

FRA certifies this rule is not expected to have a significant

economic impact on a substantial number of small entities. There are no

small government jurisdictions affected by this regulation.

Approximately 455 small entities will be impacted. However, the actual

burden on most of these railroads is limited because of the slower and

simpler operation of Class III railroads.

Entities that are not subject to this rule include railroads that

do not operate on the general system of railroad transportation, due to

FRA's current exercise of its jurisdiction. 49 CFR Part 209, Appendix

A. FRA's jurisdictional approach, greatly reduces the number of

tourist, scenic, historic, and excursion railroads that are subject to

this rule and its associated burdens. FRA estimates that approximately

180 small entities will be exempted from this regulation, since they do

not operate on the general system.

In general, the requirements for this rule can be met with minimal

effort by most small railroads. The requirements and burdens for this

rule are focused around the performance of work on or near tracks that

are live or adjacent to live tracks. The ability to perform track

related maintenance on track(s) that are taken out of service is

inversely related to the railroad's (or the line's) volume. Most small

railroads have a traffic volume low enough to avoid the burdens that

have higher costs.

A majority of the burdens from this regulation occur only when

roadway risks are present. For many of the small railroads this type of

work is performed on track that has been rendered out of use, or during

time periods where there is no traffic flow. Therefore, a small

railroad that does not perform track related maintenance or inspections

on tracks that are under traffic or adjacent to tracks under traffic,

will have very little burden at all from this rule. Essentially, these

railroads perform all or a majority of their track maintenance when the

roadway hazards are not present.

FRA has estimated that the average burden of this regulation per

roadway worker is $630 Net Present Value (NPV) per year. However,

forty-four percent of the total costs of this regulation are not likely

to affect small railroads. In addition, the affected small entities

represent less than 3 percent of the employment in the railroad

industry. Therefore, FRA estimates that this regulation will burden a

small railroad an average amount of $350 NPV per roadway worker, per

year, almost half the burden estimated for the industry as a whole.

Small Business Regulatory Enforcement Fairness Act of 1996

Pursuant to Section 312 of the Small Business Regulatory

Enforcement Fairness Act of 1996 (P.L. 104-121), FRA will issue a Small

Entity Compliance Guide to summarize the requirements of this rule. The

Guide will be made available to all affected small entities to assist

them in understanding the actions necessary to comply with the rule.

The Guide will in no way alter the requirements of the rule, but will

be a tool to assist small entities in the day-to-day application of

those requirements.

Paperwork Reduction Act

The Federal Railroad Administration may not conduct or sponsor, and

the respondent is not required to comply with an information collection

requirement that has been extended, revised, or implemented on or after

October 1, 1995, unless it displays a currently valid Office of

Management and Budget (OMB) control number. In accordance with the

Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.), the

information collection requirements in 49 CFR 214, Subpart C

established in this publication have been approved by OMB and assigned

OMB approval number 2130-0539.

The time needed to complete and file the information collection

requirements will vary by size of the railroads involved and the number

of accidents experienced by each railroad. The sections that contain

the new and/or revised information collection requirements and the

estimated average time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------

Respondent Total annual Average time per Total annual

CFR section universe responses response burden hours

----------------------------------------------------------------------------------------------------------------

Railroad on-track safety 620 RRs........... 65--First Year.... 2,000 hrs. Class I 69,750--First Year

programs 214.303-214.309- 1--Subsequent 1,400 hrs. Class 250--Subsequent

214.341-214.307-214.311-214.331. Years. II. Years.

250 hrs. Class III

3,500 hrs. Blanket

Class II.

3,000 hrs. Blanket

Class III.

Responsibility of individual 20 RRs............ 4 Challenges year 4 hrs............. 320.

roadway workers--214.313. per railroad.

Supervision and communication-- 51,500 employees.. 327 job briefings 2 minutes each 561,350.

Job Briefings--214.315-214.335. per year per briefing.

employee.

Working limits--214.319-214.325. N/A............... N/A............... Usual & customary N/A.

procedure no new

paperwork.

[[Page 65975]]

Exclusive track occupancy-- 8,583 employees... 700,739 40 seconds per 7,786.

working limits--214.321. authorities. authority.

Foul Time Working Limit N/A............... N/A............... Usual & customary N/A.

Procedures--214.323. procedure no new

paperwork.

Inaccessible Track--214.327..... 620 RRs........... 50,000 occurrences 10 minutes per 8,333.

occurrence.

Train approach warning provided 620 RRs........... 51,500 occurrences 15 seconds per 215.

by watchman/lookouts--214.329. occurrence.

On-track safety procedures for 10,300 employees 2,142,400 30 seconds per 17,853.

lone workers--214.337. per year. statements. statement.

Training requirements--record of 51,500 employees.. 51,500 records.... 2 minutes per 1,717.

Qualification--214.343-214.347- record.

214.349-214.351-214.353-214.355.

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These estimates include the time for reviewing instructions;

searching existing data sources; gathering and maintaining the data

needed; and completing and reviewing the collection of information.

List of Subjects in 49 CFR Part 214

Bridges, Occupational safety and health, Penalties, Railroad

safety, Reporting and recordkeeping requirements.

The Final Rule

In consideration of the foregoing, FRA amends Part 214, Title 49,

Code of Federal Regulations as follows:

PART 214--[AMENDED]

1. Revise the authority citation for Part 214 to read as follows:

Authority: 49 U.S.C. Chs. 210-213; 49 CFR 1.49.

2. Add Sec. 214.4 to read as follows:

Sec. 214.4 Preemptive effect.

Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad

Safety Act of 1970 (45 U.S.C. 434)), issuance of the regulations in

this part preempts any State law, rule, regulation, order, or standard

covering the same subject matter, except a provision directed at an

essentially local safety hazard that is not incompatible with this part

and that does not unreasonably burden on interstate commerce.

3. Amend Sec. 214.7 by removing the paragraph designations for each

definition, removing the definition for Railroad employee or employee,

and adding new definitions in alphabetical order to read as follows:

Sec. 214.7 Definitions.

Adjacent tracks mean two or more tracks with track centers spaced

less than 25 feet apart.

Class I, Class II, and Class III have the meaning assigned by,

Title 49 Code of Federal Regulations part 1201, General Instructions 1-

1.

Control operator means the railroad employee in charge of a

remotely controlled switch or derail, an interlocking, or a controlled

point, or a segment of controlled track.

Controlled track means track upon which the railroad's operating

rules require that all movements of trains must be authorized by a

train dispatcher or a control operator.

Definite train location means a system for establishing on-track

safety by providing roadway workers with information about the earliest

possible time that approaching trains may pass specific locations as

prescribed in Sec. 214.331 of this part.

Effective securing device when used in relation to a manually

operated switch or derail means one which is:

(a) Vandal resistant;

(b) Tamper resistant; and

(c) Designed to be applied, secured, uniquely tagged and removed

only by the class, craft or group of employees for whom the protection

is being provided.

Employee means an individual who is engaged or compensated by a

railroad or by a contractor to a railroad to perform any of the duties

defined in this part.

Employer means a railroad, or a contractor to a railroad, that

directly engages or compensates individuals to perform any of the

duties defined in this part.

Exclusive track occupancy means a method of establishing working

limits on controlled track in which movement authority of trains and

other equipment is withheld by the train dispatcher or control

operator, or restricted by flagmen, as prescribed in Sec. 214.321 of

this part.

Flagman when used in relation to roadway worker safety means an

employee designated by the railroad to direct or restrict the movement

of trains past a point on a track to provide on-track safety for

roadway workers, while engaged solely in performing that function.

Foul time is a method of establishing working limits on controlled

track in which a roadway worker is notified by the train dispatcher or

control operator that no trains will operate within a specific segment

of controlled track until the roadway worker reports clear of the

track, as prescribed in Sec. 214.323 of this part.

Fouling a track means the placement of an individual or an item of

equipment in such proximity to a track that the individual or equipment

could be struck by a moving train or on-track equipment, or in any case

is within four feet of the field side of the near running rail.

Inaccessible track means a method of establishing working limits on

non-controlled track by physically preventing entry and movement of

trains and equipment.

Individual train detection means a procedure by which a lone worker

acquires on-track safety by seeing approaching trains and leaving the

track before they arrive and which may be used only under circumstances

strictly defined in this part.

Informational line-up of trains means information provided in a

prescribed format to a roadway worker by the train dispatcher regarding

movements of trains authorized or expected on a specific segment of

track during a specific period of time.

Lone worker means an individual roadway worker who is not being

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.

Non-controlled track means track upon which trains are permitted by

railroad rule or special instruction to move without receiving

authorization from a train dispatcher or control operator.

[[Page 65976]]

On-track safety means a state of freedom from the danger of being

struck by a moving railroad train or other railroad equipment, provided

by operating and safety rules that govern track occupancy by personnel,

trains and on-track equipment.

Qualified means a status attained by an employee who has

successfully completed any required training for, has demonstrated

proficiency in, and has been authorized by the employer to perform the

duties of a particular position or function.

Railroad bridge worker or bridge worker means any employee of, or

employee of a contractor of, a railroad owning or responsible for the

construction, inspection, testing, or maintenance of a bridge whose

assigned duties, if performed on the bridge, include inspection,

testing, maintenance, repair, construction, or reconstruction of the

track, bridge structural members, operating mechanisms and water

traffic control systems, or signal, communication, or train control

systems integral to that bridge.

Restricted speed means a speed that will permit a train or other

equipment to stop within one-half the range of vision of the person

operating the train or other equipment, but not exceeding 20 miles per

hour, unless further restricted by the operating rules of the railroad.

Roadway maintenance machine means a device powered by any means of

energy other than hand power which is being used on or near railroad

track for maintenance, repair, construction or inspection of track,

bridges, roadway, signal, communications, or electric traction systems.

Roadway maintenance machines may have road or rail wheels or may be

stationary.

Roadway work group means two or more roadway workers organized to

work together on a common task.

Roadway worker means any employee of a railroad, or of 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

roadway maintenance machinery on or near track or with the potential of

fouling a track, and flagmen and watchmen/lookouts as defined in this

section.

Train approach warning means a method of establishing on-track

safety by warning roadway workers of the approach of trains in ample

time for them to move to or remain in a place of safety in accordance

with the requirements of this part.

Train coordination means a method of establishing working limits on

track upon which a train holds exclusive authority to move whereby the

crew of that train yields that authority to a roadway worker.

Train dispatcher means the railroad employee assigned to control

and issue orders governing the movement of trains on a specific segment

of railroad track in accordance with the operating rules of the

railroad that apply to that segment of track.

Watchman/lookout means an employee who has been annually trained

and qualified to provide warning to roadway workers of approaching

trains or on-track equipment. Watchmen/lookouts shall be properly

equipped to provide visual and auditory warning such as whistle, air

horn, white disk, red flag, lantern, fusee. A watchman/lookout's sole

duty is to look out for approaching trains/on-track equipment and

provide at least fifteen seconds advanced warning to employees before

arrival of trains/on-track equipment.

Working limits means a segment of track with definite boundaries

established in accordance with this part upon which trains and engines

may move only as authorized by the roadway worker having control over

that defined segment of track. Working limits may be established

through ``exclusive track occupancy,'' ``inaccessible track,'' ``foul

time'' or ``train coordination'' as defined herein.

4. Add subpart C to read as follows:

Subpart C--Roadway Worker Protection

Sec.

214.301 Purpose and scope.

214.302 Information and collection requirements.

214.303 Railroad on-track safety programs, generally.

214.305 Compliance dates.

214.307 Review and approval of individual on-track safety programs

by FRA.

214.309 On-track safety program documents.

214.311 Responsibility of employers.

214.313 Responsibility of individual roadway workers.

214.315 Supervision and communication.

214.317 On-track safety procedures, generally.

214.319 Working limits, generally.

214.321 Exclusive track occupancy.

214.323 Foul time.

214.325 Train coordination.

214.327 Inaccessible track.

214.329 Train approach warning provided by watchmen/lookouts.

214.331 Definite train location.

214.333 Information line-ups of trains.

214.335 On-track safety procedures for roadway work groups.

214.337 On-track safety procedures for lone workers.

214.339 Audible warning from trains.

214.341 Roadway maintenance machines.

214.343 Training and qualification, general.

214.345 Training for all roadway workers.

214.347 Training and qualification for lone workers.

214.349 Training and qualification of watchmen/lookouts.

214.351 Training and qualification of flagmen.

214.353 Training and qualification of roadway workers who provide

on-track safety for roadway work groups.

214.355 Training and qualification in on-track safety for operators

of roadway maintenance machines.

Subpart C--Roadway Worker Protection

Sec. 214.301 Purpose and scope.

(a) The purpose of this subpart is to prevent accidents and

casualties caused by moving railroad cars, locomotives or roadway

maintenance machines striking roadway workers or roadway maintenance

machines.

(b) This subpart prescribes minimum safety standards for roadway

workers. Each railroad and railroad contractor may prescribe additional

or more stringent operating rules, safety rules, and other special

instructions that are consistent with this subpart.

(c) This subpart prescribes safety standards related to the

movement of roadway maintenance machines where such movements affect

the safety of roadway workers. This subpart does not otherwise affect

movements of roadway maintenance machines that are conducted under the

authority of a train dispatcher, a control operator, or the operating

rules of the railroad.

Sec. 214.302 Information and collection requirements.

(a) The information collection requirements of this part were

reviewed by the Office of Management and Budget pursuant to the

Paperwork Reduction Act of 1995, Public Law 104-13, Sec. 2, 109

Stat.163 (1995) (codified as revised at 44 U.S.C. Secs. 3501-3520), and

are assigned OMB control number 2130-0539. FRA may not conduct or

sponsor and a respondent is not required to respond to, a collection of

information unless it displays a currently valid OMB control number.

(b) The information collection requirements are found in the

following sections: Secs. 214.303, 214.307, 214.309, 214.311, 214.313,

214.315, 214.319, 214.321, 214.323, 214.325, 214.327, 214.329, 214.331,

214.335, 214.341.

Sec. 214.303 Railroad on-track safety programs, generally.

(a) Each railroad to which this part applies shall adopt and

implement a

[[Page 65977]]

program that will afford on-track safety to all roadway workers whose

duties are performed on that railroad. Each such program shall provide

for the levels of protection specified in this subpart.

(b) Each on-track safety program adopted to comply with this part

shall include procedures to be used by each railroad for monitoring

effectiveness of and compliance with the program.

Sec. 214.305 Compliance dates.

Each program adopted by a railroad shall comply not later than the

date specified in the following schedule:

(a) For each Class I railroad (including National Railroad

Passenger Corporation) and each railroad providing commuter service in

a metropolitan or suburban area, March 15, 1997.

(b) For each Class II railroad, April 15, 1997.

(c) For each Class III railroad, switching and terminal railroad,

and any railroad not otherwise classified, May 15, 1997.

(d) For each railroad commencing operations after the pertinent

date specified in this section, the date on which operations commence.

Sec. 214.307 Review and approval of individual on-track safety

programs by FRA.

(a) Each railroad shall notify, in writing, the Associate

Administrator for Safety, Federal Railroad Administration, RRS-15, 400

Seventh Street SW, Washington, DC 20590, not less than one month before

its on-track safety program becomes effective. The notification shall

include the effective date of the program, the address of the office at

which the program documents are available for review and photocopying

by representatives of the Federal Railroad Administrator, and the name,

title, address and telephone number of the primary person to be

contacted with regard to review of the program. This notification

procedure shall also apply to subsequent changes to a railroad's on-

track safety program.

(b) After receipt of the notification from the railroad, the

Federal Railroad Administration will conduct a formal review of the on-

track safety program. The Federal Railroad Administration will notify

the primary railroad contact person of the results of the review, in

writing, whether the on-track safety program or changes to the program

have been approved by the Administrator, and if not approved, the

specific points in which the program or changes are deficient.

(c) A railroad's on-track safety program will take effect by the

established compliance dates in Sec. 214.305, without regard to the

date of review or approval by the Federal Railroad Administration.

Changes to a railroad's program will take effect on dates established

by each railroad without regard to the date of review and approval by

the Federal Railroad Administration.

Sec. 214.309 On-track safety program documents.

Rules and operating procedures governing track occupancy and

protection shall be maintained together in one manual and be readily

available to all roadway workers. Each roadway worker responsible for

the on-track safety of others, and each lone worker, shall be provided

with and shall maintain a copy of the program document.

Sec. 214.311 Responsibility of employers.

(a) Each employer is responsible for the understanding and

compliance by its employees with its rules and the requirements of this

part.

(b) Each employer shall guarantee each employee the absolute right

to challenge in good faith whether the on-track safety procedures to be

applied at the job location comply with the rules of the operating

railroad, and to remain clear of the track until the challenge is

resolved.

(c) Each employer shall have in place a written procedure to

achieve prompt and equitable resolution of challenges made in

accordance with Secs. 214.311(b) and 214.313(d).

Sec. 214.313 Responsibility of individual roadway workers.

(a) Each roadway worker is responsible for following the on-track

safety rules of the railroad upon which the roadway worker is located.

(b) A roadway worker shall not foul a track except when necessary

for the performance of duty.

(c) Each roadway worker is responsible to ascertain that on-track

safety is being provided before fouling a track.

(d) Each roadway worker may refuse any directive to violate an on-

track safety rule, and shall inform the employer in accordance with

Sec. 214.311 whenever the roadway worker makes a good faith

determination that on-track safety provisions to be applied at the job

location do not comply with the rules of the operating railroad.

Sec. 214.315 Supervision and communication.

(a) When an employer assigns duties to a roadway worker that call

for that employee to foul a track, the employer shall provide the

employee with a job briefing that includes information on the means by

which on-track safety is to be provided, and instruction on the on-

track safety procedures to be followed.

(b) A job briefing for on-track safety shall be deemed complete

only after the roadway worker has acknowledged understanding of the on-

track safety procedures and instructions presented.

(c) Every roadway work group whose duties require fouling a track

shall have one roadway worker designated by the employer to provide on-

track safety for all members of the group. The designated person shall

be qualified under the rules of the railroad that conducts train

operations on those tracks to provide the protection necessary for on-

track safety of each individual in the group. The responsible person

may be designated generally, or specifically for a particular work

situation.

(d) Before any member of a roadway work group fouls a track, the

designated person providing on-track safety for the group under

paragraph (c) of this section shall inform each roadway worker of the

on- track safety procedures to be used and followed during the

performance of the work at that time and location. Each roadway worker

shall again be so informed at any time the on-track safety procedures

change during the work period. Such information shall be given to all

roadway workers affected before the change is effective, except in

cases of emergency. Any roadway workers who, because of an emergency,

cannot be notified in advance shall be immediately warned to leave the

fouling space and shall not return to the fouling space until on-track

safety is re-established.

(e) Each lone worker shall communicate at the beginning of each

duty period with a supervisor or another designated employee to receive

a job briefing and to advise of his or her planned itinerary and the

procedures that he or she intends to use for on-track safety. When

communication channels are disabled, the job briefing shall be

conducted as soon as possible after the beginning of the work period

when communications are restored.

Sec. 214.317 On-track safety procedures, generally.

Each employer subject to the provisions of this part shall provide

on-track safety for roadway workers by adopting a program that contains

specific rules for protecting roadway workers that comply with the

provisions of Secs. 214.319 through 214.337 of this part.

[[Page 65978]]

Sec. 214.319 Working limits, generally.

Working limits established on controlled track shall conform to the

provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323

Foul time, or Sec. 214. 325 Train coordination. Working limits

established on non-controlled track shall conform to the provision of

Sec. 214.327 Inaccessible track. Working limits established under any

procedure shall, in addition, conform to the following provisions:

(a) Only a roadway worker who is qualified in accordance with

Sec. 214.353 of this part shall establish or have control over working

limits for the purpose of establishing on-track safety.

(b) Only one roadway worker shall have control over working limits

on any one segment of track.

(c) All affected roadway workers shall be notified before working

limits are released for the operation of trains. Working limits shall

not be released until all affected roadway workers have either left the

track or have been afforded on-track safety through train approach

warning in accordance with Sec. 214.329 of this subpart.

Sec. 214.321 Exclusive track occupancy.

Working limits established on controlled track through the use of

exclusive track occupancy procedures shall comply with the following

requirements:

(a) The track within working limits shall be placed under the

control of one roadway worker by either:

(1) Authority issued to the roadway worker in charge by the train

dispatcher or control operator who controls train movements on that

track,

(2) Flagmen stationed at each entrance to the track within working

limits and instructed by the roadway worker in charge to permit the

movement of trains and equipment into the working limits only as

permitted by the roadway worker in charge, or

(3) The roadway worker in charge causing fixed signals at each

entrance to the working limits to display an aspect indicating

``Stop.''

(b) An authority for exclusive track occupancy given to the roadway

worker in charge of the working limits shall be transmitted on a

written or printed document directly, by relay through a designated

employee, in a data transmission, or by oral communication, to the

roadway worker by the train dispatcher or control operator in charge of

the track.

(1) Where authority for exclusive track occupancy is transmitted

orally, the authority shall be written as received by the roadway

worker in charge and repeated to the issuing employee for verification.

(2) The roadway worker in charge of the working limits shall

maintain possession of the written or printed authority for exclusive

track occupancy while the authority for the working limits is in

effect.

(3) The train dispatcher or control operator in charge of the track

shall make a written or electronic record of all authorities issued to

establish exclusive track occupancy.

(c) The extent of working limits established through exclusive

track occupancy shall be defined by one of the following physical

features clearly identifiable to a locomotive engineer or other person

operating a train or railroad equipment:

(1) A flagman with instructions and capability to hold all trains

and equipment clear of the working limits;

(2) A fixed signal that displays an aspect indicating ``Stop'';

(3) A station shown in the time-table, and identified by name with

a sign, beyond which train movement is prohibited by train movement

authority or the provisions of a direct train control system.

(4) A clearly identifiable milepost sign beyond which train

movement is prohibited by train movement authority or the provisions of

a direct train control system; or

(5) A clearly identifiable physical location prescribed by the

operating rules of the railroad that trains may not pass without proper

authority.

(d) Movements of trains and roadway maintenance machines within

working limits established through exclusive track occupancy shall be

made only under the direction of the roadway worker having control over

the working limits. Such movements shall be restricted speed unless a

higher speed has been specifically authorized by the roadway worker in

charge of the working limits.

Sec. 214.323 Foul time.

Working limits established on controlled track through the use of

foul time procedures shall comply with the following requirements:

(a) Foul time may be given orally or in writing by the train

dispatcher or control operator only after that employee has withheld

the authority of all trains to move into or within the working limits

during the foul time period.

(b) Each roadway worker to whom foul time is transmitted orally

shall repeat the track number, track limits and time limits of the foul

time to the issuing employee for verification before the foul time

becomes effective.

(c) The train dispatcher or control operator shall not permit the

movement of trains or other on-track equipment onto the working limits

protected by foul time until the roadway worker who obtained the foul

time has reported clear of the track.

Sec. 214.325 Train coordination.

Working limits established by a roadway worker through the use of

train coordination shall comply with the following requirements:

(a) Working limits established by train coordination shall be

within the segments of track or tracks upon which only one train holds

exclusive authority to move.

(b) The roadway worker who establishes working limits by train

coordination shall communicate with a member of the crew of the train

holding the exclusive authority to move, and shall determine that:

(1) The train is visible to the roadway worker who is establishing

the working limits,

(2) The train is stopped,

(3) Further movements of the train will be made only as permitted

by the roadway worker in charge of the working limits while the working

limits remain in effect, and

(4) The crew of the train will not give up its exclusive authority

to move until the working limits have been released to the train crew

by the roadway worker in charge of the working limits.

Sec. 214.327 Inaccessible track.

(a) Working limits on non-controlled track shall be established by

rendering the track within working limits physically inaccessible to

trains at each possible point of entry by one of the following

features:

(1) A flagman with instructions and capability to hold all trains

and equipment clear of the working limits;

(2) A switch or derail aligned to prevent access to the working

limits and secured with an effective securing device by the roadway

worker in charge of the working limits;

(3) A discontinuity in the rail that precludes passage of trains or

engines into the working limits;

(4) Working limits on controlled track that connects directly with

the inaccessible track, established by the roadway worker in charge of

the working limits on the inaccessible track; or

(5) A remotely controlled switch aligned to prevent access to the

working limits and secured by the control operator of such remotely

controlled

[[Page 65979]]

switch by application of a locking or blocking device to the control of

that switch, when:

(i) The control operator has secured the remotely controlled switch

by applying a locking or blocking device to the control of the switch,

and

(ii) The control operator has notified the roadway worker who has

established the working limits that the requested protection has been

provided, and

(iii) The control operator is not permitted to remove the locking

or blocking device from the control of the switch until receiving

permission to do so from the roadway worker who established the working

limits.

(b) Trains and roadway maintenance machines within working limits

established by means of inaccessible track shall move only under the

direction of the roadway worker in charge of the working limits, and

shall move at restricted speed.

(c) No operable locomotives or other items of on-track equipment,

except those present or moving under the direction of the roadway

worker in charge of the working limits, shall be located within working

limits established by means of inaccessible track.

Sec. 214.329 Train approach warning provided by watchmen/lookouts.

Roadway workers in a roadway work group who foul any track outside

of working limits shall be given warning of approaching trains by one

or more watchmen/lookouts in accordance with the following provisions:

(a) Train approach warning shall be given in sufficient time to

enable each roadway worker to move to and occupy a previously arranged

place of safety not less than 15 seconds before a train moving at the

maximum speed authorized on that track can pass the location of the

roadway worker.

(b) Watchmen/lookouts assigned to provide train approach warning

shall devote full attention to detecting the approach of trains and

communicating a warning thereof, and shall not be assigned any other

duties while functioning as watchmen/lookouts.

(c) The means used by a watchman/lookout to communicate a train

approach warning shall be distinctive and shall clearly signify to all

recipients of the warning that a train or other on-track equipment is

approaching.

(d) Every roadway worker who depends upon train approach warning

for on-track safety shall maintain a position that will enable him or

her to receive a train approach warning communicated by a watchman/

lookout at any time while on-track safety is provided by train approach

warning.

(e) Watchmen/lookouts shall communicate train approach warnings by

a means that does not require a warned employee to be looking in any

particular direction at the time of the warning, and that can be

detected by the warned employee regardless of noise or distraction of

work.

(f) Every roadway worker who is assigned the duties of a watchman/

lookout shall first be trained, qualified and designated in writing by

the employer to do so in accordance with the provisions of

Sec. 214.349.

(g) Every watchman/lookout shall be provided by the employer with

the equipment necessary for compliance with the on-track safety duties

which the watchman/lookout will perform.

Sec. 214.331 Definite train location.

A roadway worker may establish on-track safety by using definite

train location only where permitted by and in accordance with the

following provisions:

(a) A Class I railroad or a commuter railroad may only use definite

train location to establish on-track safety at points where such

procedures were in use on January 15, 1997.

(b) Each Class I or commuter railroad shall include in its on-track

safety program for approval by FRA in accordance with Sec. 214.307 of

this part a schedule for phase-out of the use of definite train

location to establish on-track safety.

(c) A railroad other than a Class I or commuter railroad may use

definite train location to establish on-track safety on subdivisions

only where:

(1) Such procedures were in use on January 15, 1997, or

(2) The number of trains operated on the subdivision does not

exceed:

(i) Three during any nine-hour period in which roadway workers are

on duty, and

(ii) Four during any twelve-hour period in which roadway workers

are on duty.

(d) Definite train location shall only be used to establish on-

track safety according to the following provisions:

(1) Definite train location information shall be issued only by the

one train dispatcher who is designated to authorize train movements

over the track for which the information is provided.

(2) A definite train location list shall indicate all trains to be

operated on the track for which the list is provided, during the time

for which the list is effective.

(3) Trains not shown on the definite train location list shall not

be operated on the track for which the list is provided, during the

time for which the list is effective, until each roadway worker to whom

the list has been issued has been notified of the train movement, has

acknowledged the notification to the train dispatcher, and has canceled

the list. A list thus canceled shall then be invalid for on-track

safety.

(4) Definite train location shall not be used to establish on-track

safety within the limits of a manual interlocking, or on track over

which train movements are governed by a Traffic Control System or by a

Manual Block System.

(5) Roadway workers using definite train location for on-track

safety shall not foul a track within ten minutes before the earliest

time that a train is due to depart the last station at which time is

shown in approach to the roadway worker's location nor until that train

has passed the location of the roadway worker.

(6) A railroad shall not permit a train to depart a location

designated in a definite train location list before the time shown

therein.

(7) Each roadway worker who uses definite train location to

establish on-track safety must be qualified on the relevant physical

characteristics of the territory for which the train location

information is provided.

Sec. 214.333 Informational line-ups of trains.

(a) A railroad is permitted to include informational line-ups of

trains in its on-track safety program for use only on subdivisions of

that railroad upon which such procedure was in effect on March 14,

1996.

(b) Each procedure for the use of informational line-ups of trains

found in an on-track safety program shall include all provisions

necessary to protect roadway workers using the procedure against being

struck by trains or other on-track equipment.

(c) Each on-track safety program that provides for the use of

informational line-ups shall include a schedule for discontinuance of

the procedure by a definite date.

Sec. 214.335 On-track safety procedures for roadway work groups.

(a) No employer subject to the provisions of this part shall

require or permit a roadway worker who is a member of a roadway work

group to foul a track unless on-track safety is provided by either

working limits, train approach warning, or definite train location in

accordance with the applicable provisions of Secs. 214.319, 214.321,

213.323, 214.325, 214.327, 214.329 and 214.331 of this part.

(b) No roadway worker who is a member of a roadway work group shall

[[Page 65980]]

foul a track without having been informed by the roadway worker

responsible for the on-track safety of the roadway work group that on-

track safety is provided.

(c) Roadway work groups engaged in large-scale maintenance or

construction shall be provided with train approach warning in

accordance with Sec. 214.327 for movements on adjacent tracks that are

not included within working limits.

Sec. 214.337 On-track safety procedures for lone workers.

(a) A lone worker who fouls a track while performing routine

inspection or minor correction may use individual train detection to

establish on-track safety only where permitted by this section and the

on-track safety program of the railroad.

(b) A lone worker retains an absolute right to use on-track safety

procedures other than individual train detection if he or she deems it

necessary, and to occupy a place of safety until such other form of on-

track safety can be established.

(c) Individual train detection may be used to establish on-track

safety only:

(1) By a lone worker who has been trained, qualified, and

designated to do so by the employer in accordance with Sec. 214.347 of

this subpart;

(2) While performing routine inspection and minor correction work;

(3) On track outside the limits of a manual interlocking, a

controlled point, or a remotely controlled hump yard facility;

(4) Where the lone worker is able to visually detect the approach

of a train moving at the maximum speed authorized on that track, and

move to a previously determined place of safety, not less than 15

seconds before the train would arrive at the location of the lone

worker;

(5) Where no power-operated tools or roadway maintenance machines

are in use within the hearing of the lone worker; and

(6) Where the ability of the lone worker to hear and see

approaching trains and other on-track equipment is not impaired by

background noise, lights, precipitation, fog, passing trains, or any

other physical conditions.

(d) The place of safety to be occupied by a lone worker upon the

approach of a train may not be on a track, unless working limits are

established on that track.

(e) A lone worker using individual train detection for on-track

safety while fouling a track may not occupy a position or engage in any

activity that would interfere with that worker's ability to maintain a

vigilant lookout for, and detect the approach of, a train moving in

either direction as prescribed in this section.

(f) A lone worker who uses individual train detection to establish

on-track safety shall first complete a written Statement of On-track

Safety. The Statement shall designate the limits of the track for which

it is prepared and the date and time for which it is valid. The

statement shall show the maximum authorized speed of trains within the

limits for which it is prepared, and the sight distance that provides

the required warning of approaching trains. The lone worker using

individual train detection to establish on-track safety shall produce

the Statement of On-track Safety when requested by a representative of

the Federal Railroad Administrator.

Sec. 214.339 Audible warning from trains.

Each railroad shall require that the locomotive whistle be sounded,

and the locomotive bell be rung, by trains approaching roadway workers

on or about the track. Such audible warning shall not substitute for

on-track safety procedures prescribed in this part.

Sec. 214.341 Roadway maintenance machines.

(a) Each employer shall include in its on-track safety program

specific provisions for the safety of roadway workers who operate or

work near roadway maintenance machines. Those provisions shall address:

(1) Training and qualification of operators of roadway maintenance

machines.

(2) Establishment and issuance of safety procedures both for

general application and for specific types of machines.

(3) Communication between machine operators and roadway workers

assigned to work near or on roadway maintenance machines.

(4) Spacing between machines to prevent collisions.

(5) Space between machines and roadway workers to prevent personal

injury.

(6) Maximum working and travel speeds for machines dependent upon

weather, visibility, and stopping capabilities.

(b) Instructions for the safe operation of each roadway machine

shall be provided and maintained with each machine large enough to

carry the instruction document.

(1) No roadway worker shall operate a roadway maintenance machine

without having been trained in accordance with Sec. 214.355.

(2) No roadway worker shall operate a roadway maintenance machine

without having complete knowledge of the safety instructions applicable

to that machine.

(3) No employer shall assign roadway workers to work near roadway

machines unless the roadway worker has been informed of the safety

procedures applicable to persons working near the roadway machines and

has acknowledged full understanding.

(c) Components of roadway maintenance machines shall be kept clear

of trains passing on adjacent tracks. Where operating conditions permit

roadway maintenance machines to be less than four feet from the rail of

an adjacent track, the on-track safety program of the railroad shall

include the procedural instructions necessary to provide adequate

clearance between the machine and passing trains.

Sec. 214.343 Training and qualification, general.

(a) No employer shall assign an employee to perform the duties of a

roadway worker, and no employee shall accept such assignment, unless

that employee has received training in the on-track safety procedures

associated with the assignment to be performed, and that employee has

demonstrated the ability to fulfill the responsibilities for on-track

safety that are required of an individual roadway worker performing

that assignment.

(b) Each employer shall provide to all roadway workers in its

employ initial or recurrent training once every calendar year on the

on-track safety rules and procedures that they are required to follow.

(c) Railroad employees other than roadway workers, who are

associated with on-track safety procedures, and whose primary duties

are concerned with the movement and protection of trains, shall be

trained to perform their functions related to on-track safety through

the training and qualification procedures prescribed by the operating

railroad for the primary position of the employee, including

maintenance of records and frequency of training.

(d) Each employer of roadway workers shall maintain written or

electronic records of each roadway worker qualification in effect. Each

record shall include the name of the employee, the type of

qualification made, and the most recent date of qualification. These

records shall be kept available for inspection and photocopying by the

Federal Railroad Administrator during regular business hours.

[[Page 65981]]

Sec. 214.345 Training for all roadway workers.

The training of all roadway workers shall include, as a minimum,

the following:

(a) Recognition of railroad tracks and understanding of the space

around them within which on-track safety is required.

(b) The functions and responsibilities of various persons involved

with on-track safety procedures.

(c) Proper compliance with on-track safety instructions given by

persons performing or responsible for on-track safety functions.

(d) Signals given by watchmen/lookouts, and the proper procedures

upon receiving a train approach warning from a lookout.

(e) The hazards associated with working on or near railroad tracks,

including review of on-track safety rules and procedures.

Sec. 214.347 Training and qualification for lone workers.

Each lone worker shall be trained and qualified by the employer to

establish on-track safety in accordance with the requirements of this

section, and must be authorized to do so by the railroad that conducts

train operations on those tracks.

(a) The training and qualification for lone workers shall include,

as a minimum, consideration of the following factors:

(1) Detection of approaching trains and prompt movement to a place

of safety upon their approach.

(2) Determination of the distance along the track at which trains

must be visible in order to provide the prescribed warning time.

(3) Rules and procedures prescribed by the railroad for individual

train detection, establishment of working limits, and definite train

location.

(4) On-track safety procedures to be used in the territory on which

the employee is to be qualified and permitted to work alone.

(b) Initial and periodic qualification of a lone worker shall be

evidenced by demonstrated proficiency.

Sec. 214.349 Training and qualification of watchmen/lookouts.

(a) The training and qualification for roadway workers assigned the

duties of watchmen/lookouts shall include, as a minimum, consideration

of the following factors:

(1) Detection and recognition of approaching trains.

(2) Effective warning of roadway workers of the approach of trains.

(3) Determination of the distance along the track at which trains

must be visible in order to provide the prescribed warning time.

(4) Rules and procedures of the railroad to be used for train

approach warning.

(b) Initial and periodic qualification of a watchman/lookout shall

be evidenced by demonstrated proficiency.

Sec. 214.351 Training and qualification of flagmen.

(a) The training and qualification for roadway workers assigned the

duties of flagmen shall include, as a minimum, the content and

application of the operating rules of the railroad pertaining to giving

proper stop signals to trains and holding trains clear of working

limits.

(b) Initial and periodic qualification of a flagman shall be

evidenced by demonstrated proficiency.

Sec. 214.353 Training and qualification of roadway workers who provide

on-track safety for roadway work groups.

(a) The training and qualification of roadway workers who provide

for the on-track safety of groups of roadway workers through

establishment of working limits or the assignment and supervision of

watchmen/lookouts or flagmen shall include, as a minimum:

(1) All the on-track safety training and qualification required of

the roadway workers to be supervised and protected.

(2) The content and application of the operating rules of the

railroad pertaining to the establishment of working limits.

(3) The content and application of the rules of the railroad

pertaining to the establishment or train approach warning.

(4) The relevant physical characteristics of the territory of the

railroad upon which the roadway worker is qualified.

(b) Initial and periodic qualification of a roadway worker to

provide on track safety for groups shall be evidenced by a recorded

examination.

Sec. 214.355 Training and qualification in on-track safety for

operators of roadway maintenance machines.

(a) The training and qualification of roadway workers who operate

roadway maintenance machines shall include, as a minimum:

(1) Procedures to prevent a person from being struck by the machine

when the machine is in motion or operation.

(2) Procedures to prevent any part of the machine from being struck

by a train or other equipment on another track.

(3) Procedures to provide for stopping the machine short of other

machines or obstructions on the track.

(4) Methods to determine safe operating procedures for each machine

that the operator is expected to operate.

(b) Initial and periodic qualification of a roadway worker to

operate roadway maintenance machines shall be evidenced by demonstrated

proficiency.

Appendix A to Part 214 [Amended]

5. Amend Appendix A to Part 214 by adding the provisions of this

subpart C into the table as set forth below.

Appendix A to Part 214--Schedule of Civil Penalties

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Section Violation Wilful

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