# Roadway Worker Protection

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-31533

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 16, 1996
- **Citation:** 61 FR 65959

## Text

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.

-----------------------------------------------------------------------

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.
----------------------------------------------------------------------------------------------------------------

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-31533. Public record. Not legal advice.