Roadway Worker Protection

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 6]

RIN 2130-AA86

Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA proposes rules for the protection of railroad employees

working on or near railroad tracks. This regulation would require 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 would 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: (1) Written comments must be received no later than May 13,

1996. Comments received after that date will be considered to the

extent possible without incurring additional expense or delay. Requests

for formal extension of the comment period must be made by April 29,

1996.

(2) Requests for a public hearing must be made by April 15, 1996.

Addresses: Written comments should be submitted to the Docket Clerk,

Office of Chief Counsel, Federal Railroad Administration, 400 Seventh

Street SW., Washington, DC 20590. Persons wishing notification that

their comments have been received should submit a stamped, self-

addressed postcard with their comments. The Docket Clerk will indicate

on the postcard the date on which the comments were received and will

return the card to the addressee. Written comments will be available

for examination, both before and after the comment period closes,

during regular business hours in Room 8201 of the Nassif Building

located at the address listed above. Any person interested in

requesting a hearing should contact the Docket Clerk at (202) 366-2257.

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

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

20590 (telephone: 202-366-0507); Phil Olekszyk, Deputy Associate

Administrator for Safety Compliance and Program Implementation, FRA,

400 Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0897);

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

Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0621).

Supplementary Information:

Comments and Hearing

In accordance with Executive Order 12866, FRA is allowing 60 days

for comments. FRA believes that a 60 day comment period is necessary

for parties with interests that were not represented on the Advisory

Committee. Public hearings are generally held to provide interested

parties an opportunity for oral presentations of data, views, or

arguments concerning the proposed standards. Proceeding pursuant to

regulatory negotiation has allowed participation by the public and a

public hearing will only be scheduled, if requested.

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

[[Page 10529]]

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, which is the subject of this notice.

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

reached consensus on a proposed rule that conformed to the

recommendations submitted in their report. The Committee recommended

that FRA publish that document as a proposed Federal regulation and

continue the rulemaking procedures necessary to adopt its principles in

a final rule. The differences in substance between this proposed rule

and that recommended by the Advisory Committee are enumerated below,

with the reasons therefore.

Safety Issues

Early Efforts

FRA attempted to analyze the safety concerns, known risks, and

prevention methods during the March, 1993 workshop. Information derived

from that workshop focused the agency's efforts. Discussions indicated

that major carriers, regional railroads, short lines, and commuter

railroads had rules addressing the hazards associated with working on

and near railroad track. Railroad representatives at the workshop

explained the safety procedures used on their respective properties,

including the use of watchmen, protection from trains on adjacent

tracks, use of radios, establishing working limits, use of line-ups,

slowing the speed of trains, protection while using maintenance of way

equipment, training, efficiency testing, and other related topics. The

concept of allowing workers the right to question the system set up for

their protection was also introduced into the discussion.

FRA presented information from its data base regarding employee

fatalities for the years 1988 through 1993 and attempted to categorize

the risks associated with these fatalities. FRA identified 23 accidents

resulting in fatalities and categorized these accidents into 6 groups:

employees struck by a train on live track while not directly engaged in

work, accounting for 11 fatalities; employees struck by a train while

directly engaged in work, accounting for 3 fatalities; employees struck

by a train or rolling stock moving without authority, accounting for

one fatality; employees who fell from track machines, accounting for 2

fatalities; employees struck by moving track machinery, accounting for

5 fatalities; and improper machine operation, accounting for one

fatality.

Although there was disagreement regarding FRA's designation of

certain accidents as belonging in certain categories, the discussion

successfully delineated the risks affecting workers and whether carrier

rules would have applied. This initial attempt to

[[Page 10530]]

categorize accident data provided the framework for additional analysis

of the safety problem. The following emerged:

A. Persons Affected by This Rule

One topic discussed was the scope of the population of employees

exposed to this risk. Attention was focused on terminology that would

appropriately describe the population of employees who were at risk of

death or injury while working on or about the track. All participants

agreed that the risk of injury or death to those working on or about

track is not restricted to a particular craft or class of employees. To

assure understanding of the broad reach of the proceeding, FRA coined

the term roadway worker and proposed use of that term in its Notice of

Intent.

B. The Specific Issues

FRA's Notice of Intent listed several specific issues for

negotiation by the Advisory Committee. FRA did not limit negotiations

to these subjects only, but determined that the following issues should

be covered:

The availability of any devices to reduce the risk of

danger to roadway workers and any costs associated with such devices;

Any additional or revised procedures or operating

practices that could be instituted to effectively reduce the risk of

danger, and any costs associated with these procedures;

Training programs that would reduce the risks of danger to

roadway workers, the proper intervals for such training, and the costs

associated with that training;

The topographical, environmental, or operational

conditions that must be considered in developing a program to reduce

the risks of harm to roadway workers and the costs of addressing these

conditions;

Possible variations in programs according to size of

railroads, and an explanation regarding why these variations are

necessary;

The recordkeeping and reporting requirements necessary to

implement programs to advance the safety of roadway workers, and the

cost of these requirements;

The enforcement procedures FRA would utilize to ensure

compliance with any rule that is developed;

Any additional benefits resulting from a rule, aside from

the obvious reduction of risk of injury and death;

The usefulness of operating practices currently used by

any particular railroad, their background, implementation,

effectiveness, and cost.

Accident Data and Statistical Analysis

FRA published a report entitled Engineering Department Fatalities

Resulting from the Operation or Maintenance of On-Track Equipment,

representing the findings of FRA's investigation of 22 Engineering

Department railroad employee fatalities during calendar years 1989-

1993. The document was officially published in 1994, but the

information was compiled in 1993, and was used in preliminary

discussions regarding on-track safety, beginning with the March, 1993,

workshop. Four categories of causes were established: struck by a

train, struck by on-track maintenance of way equipment, crushed or

pinned by on track equipment, and struck by free-rolling equipment.

A summary of information gathered from the investigation of each

accident was included in the report. This document provided an

information base from which to isolate causes and contributing factors

that could be addressed in a proposed rule. FRA accident data provided

the statistical basis to focus efforts toward certain prevention

measures.

The independent labor management task force mentioned earlier also

conducted an analysis of accident data. They focused on 43 accidents

resulting in 46 roadway worker fatalities from 1986 through 1994. They

also used data regarding 150 injuries to roadway workers reported to

FRA from 1989 through 1994, and additional injury data submitted from

carrier files. Questionnaires regarding the current industry practice

for roadway worker safety were submitted by representatives from

management and labor and reviewed by the task force. The cumulative

effort of the task force included review of over 2,600 FRA reports as

well as review of available NTSB reports related to roadway worker

fatalities and injuries.

The data analysis conducted by the independent task force suggested

that there were identifiable trends regarding these fatal accidents.

The following are examples of patterns discovered in the accident data:

Higher numbers of fatalities seem to occur in the fall and

winter months of October, November, December, and January, but two

summer months, May and July, also have a high number of fatalities.

Fatalities tend to occur more often on Wednesdays and

Thursdays.

The highest number of fatalities tend to occur around 9:00

a.m. or 10:00 a.m.

The largest number of employees killed are between the

ages of 40 and 49 years old. These individuals generally have at least

15 years of railroad experience, with some having more than 20 years of

experience.

The largest number of fatalities occurred within

approximately six months following rules training and safety training.

Most fatalities occurred while some form of protection

system was available or in use.

Maintenance of Way employees and Signal employees had the

highest number of fatalities.

There are numerous possible explanations for these trends. Multiple

factors may have contributed to these incidents, and isolating a single

distinct cause or explanation is virtually impossible. Inclusion of

these patterns was not intended for that purpose, but to merely to

inform the group of identifiable tendencies that appear in the accident

data.

Advisory Committee Report

As noted earlier, the Advisory Committee reached consensus on a

report containing 11 specific recommendations and 9 general

recommendations. The specific recommendations provided the concepts

that formed the basis for the text of this proposed rule. The data

review by the independent task force and the Advisory Committee

revealed other useful information regarding conditions that need

special emphasis in the on-track safety programs. The Advisory

Committee made the general recommendation that this information should

be published by FRA with this rule.

This information identifies particular conditions to which roadway

workers should devote special attention, as they appear to be more

problematic than others. This information and other relevant trends are

included here, so that these facts might be considered by railroads

when devising on-track safety programs.

Analysis of the data indicates that 16% of the fatal accidents and

37% of the injury incidents were the result of on-track equipment

striking roadway workers or other roadway equipment. The Advisory

Committee concluded that training, job briefings, and operation of on-

track equipment should place special emphasis on:

Attention to visibility/stopping distance

Review of stopping capability and limitations

Purpose and limits of work zones

Attention to existing weather conditions

[[Page 10531]]

Importance of maintaining proper equipment spacing

Briefing concerning joint track occupancy

Procedures for traveling on track

Further analysis indicated that 35% of non-fatality incidents were

on Thursdays, and 50% of non-fatality incidents occurred between 7:30

a.m. and 10:30 a.m. to Maintenance of Way roadway workers. The

Committee could not explain this trend with any degree of certainty.

However, it was generally agreed that special emphasis to alert

Maintenance of Way roadway workers to these facts must be made in

safety awareness training during job briefings, safety meetings and

rules training.

The Committee also discovered that 69% of fatal incidents to signal

maintainers occurred during November, December, and January. The

Committee recommended that employers should consider and point out this

fact in safety awareness training during job briefings, safety

meetings, and rules training.

Considerable discussion in the Committee sessions centered around

training. Because statistics indicate that 65% of the fatally-injured

roadway workers had attended rules training within the previous 12

months, the Advisory Committee concluded that training must be

improved. Areas to focus on for improvement would include:

Curriculum development and content

Learning environment

Presentation and interactive instruction

Understanding and application

Peer training

On-Track Safety specific subjects

It had been thought by some that employees involved in these

accidents were generally among newer employees who perhaps were not

familiar with the railroad environment. Contrary to this likely

assumption, the data indicated that 26% of the fatalities involved

supervisory employees. These roadway workers are familiar with the

railroad environment and protection methods, and had many years of

railroad experience. The Committee therefore concluded that additional

emphasis should be placed on the following:

Selection of Managers

Quality of Training

Management commitment to on-track safety

Priority to on-track safety

Serving as a role model

The negotiated rulemaking process has been a success. Continued

joint efforts such as this should be of great benefit to the railroad

industry, its employees, and the public. In recognition of this, the

Advisory Committee adopted the following recommendations to foster

continued collaboration among the interested parties:

Establish a joint labor/management/FRA process to evaluate

analyze and encourage emerging technologies which may enhance roadway

on-track worker safety. This recommendation is made to allow prompt and

thorough evaluation of such emerging technology.

The Joint Labor-Management On-Track Safety Task Force

should meet on a periodic basis (at least semi-annually) to review

progress, to review current data and to continue a joint labor/

management dialogue seeking ways to improve roadway worker on-track

safety.

It should be noted that the Joint Labor-Management On-Track Safety

Task Force is not the Federal Advisory Committee on Roadway Worker

Protection, nor does the Joint Task Force have any official standing

with the Federal government. The Federal Advisory Committee recommended

that the Joint Labor-Management On-Track Safety Task Force remain in

existence and meet periodically, and to the extent that the parties

represented on the Task Force elect to do so, it undoubtedly will. FRA

encourages close cooperation among the various parties and interests to

resolve safety problems both in this rule and as a matter of good

public policy. FRA also gives considerable attention to proposals that

represent a consensus of the interested parties, and anticipates that

the Joint Labor-Management On-Track Safety Task Force will facilitate

this type of cooperative effort.

Scope of the Rule

FRA and the Advisory Committee deliberated at length over how much

the proposed rule would cover. Scoping discussions ranged from who

would be covered under this rule, as discussed earlier, to what

measurement of the surrounding track space places an employee in danger

of being struck by a train or moving equipment. During these

discussions, two additional issues surfaced requiring an explanation of

who would be covered under this rule, contractors and tourist

railroads.

Contractors

FRA realizes that parties who have not traditionally been

considered railroads will be affected by this regulation. The decision

to include employees of contractors as roadway workers in this

regulation was a well-reasoned one. FRA's objective was to promulgate

standards applicable to anyone working on or about railroad tracks who

may be in danger while performing their duties. The craft or job title

of an employee is of little relevance. Equally irrelevant is whether an

employee is paid by a railroad or by a contractor engaged by a

railroad. The most important issue is the prevention of deaths and

injuries. FRA holds no position on the practice of a railroad

contracting work out to another company, but FRA strongly believes that

contractor employees are entitled to the same level of safety as

railroad employees. To the extent that contractor employees work under

circumstances presenting the hazards addressed here they must be

protected.

FRA understands the circumstances under which many contractors

conduct their work and realizes that adhering to the standards of this

rule may appear burdensome to contractors. However, a closer

examination of the standards in the rule shows that contractors will

not normally devise their own on-track safety programs, but would

follow the programs established by the railroads on which they are

working. Most of a contractor's employee training will be of a basic

nature, as railroad employees are usually working with and protecting

contractors working near moving trains. Those railroad employees will

normally arrange protection in accordance with the rules and procedures

of the railroad.

Contractors will, however, be responsible for compliance with this

subpart. They are responsible as employers to ensure that their

employees have protection prior to assigning them to work on or near

the track, and to ensure that their employees have been properly

trained to work safely in the railroad environment. Since contractors

were not represented on the Advisory Committee, FRA specifically

invites comments from contractors on this proposed rule.

Tourist Railroads

Tourist and excursion railroads that operate on the general system

of railroad transportation will be included. Tourist and excursion

railroads that do not operate on the general system will be excluded.

FRA realizes that adhering to the standards in this rule may appear

burdensome to railroads operating in the tourist industry. However, a

closer examination of the issue reveals that many tourist railroads

operating on the general system actually operate on track owned by

another railroad. Those tourist railroads would be required to follow

the rules of the track owners, if they were to operate over that

portion of track or conduct any maintenance on that portion of track.

[[Page 10532]]

Additionally, it is FRA's understanding that many tourist and

excursion railroads do not conduct their maintenance work under

traffic, but do so during periods when there is little or no traffic.

Therefore, any program devised to adhere to the standards of this

subpart by a tourist railroad could be fairly simple, and any required

training for roadway workers would be of a basic and general nature.

FRA does not intend to unduly burden railroads operating in the

tourist industry. However, if these railroads are going to operate in

the general system of transportation and there is any chance that their

employees will be confronted with the risk of injury and death from

trains or moving equipment, they must adhere to the standards of this

regulation. Since tourist railroads were not represented on the

Advisory Committee, FRA specifically invites comments from tourist

railroads on this proposed rule.

Rights and Responsibilities of Employees and Employers

FRA agreed with the Advisory Committee that roadway workers must

understand, and therefore must be able to review and question, on-track

safety provisions. The proposed rule therefore provides that a roadway

worker who finds that the on-track safety provisions in place do not

comply with the rules of the operating railroad has both a right and a

responsibility to occupy a place of safety until the question is

resolved. Section 214.313 imposes a reciprocal responsibility for on-

track safety onto each individual roadway worker. Accordingly, a

roadway worker has to be able to decide whether on-track safety is

being provided and if not, he or she has a right and an obligation to

remain off the track until the matter is resolved, and to notify the

employer of possible flaws in on-track safety provisions.

FRA has considerable authority in the area of railroad safety. This

authority extends to individuals as well as to railroad carriers. FRA

will act whenever it finds or receives notice of possible violations of

this rule. Should a potential violation involve the rights and

responsibilities of an individual roadway worker to question on-track

safety procedures, FRA will consider all available evidence, including

written records maintained by parties in the case, statements of

witnesses, the nature of the on-track safety provisions in effect at

the time, and whether the involved employee or employees had been

correctly informed of those on-track safety provisions.

Deviations From the Advisory Committee Reports

FRA committed to adhere to the consensus reached by the Advisory

Committee, unless the agreed upon course of action violated legal

requirements, statutory authority, departmental regulations, or in the

agency's view, did not adequately address the subject matter. The

Advisory Committee produced two documents, an initial report of

principles to be addressed in this proceeding, and later a proposed

Notice of Proposed Rulemaking which incorporated the basic principles

in language recommended by the Committee.

The two substantive deviations between the Advisory Committee

Report and the proposed NPRM involved changes in terminology. They were

enumerated in the proposed NPRM, and are retained here for reference.

Term, Positive Protection

The report submitted by the Advisory Committee used the term

Positive Protection to describe several circumstances in which roadway

workers would be safe from the threat of approaching trains, or

essentially ``protected'' from them.

Analysis of the Committee recommendation by FRA showed that two

quite different procedures were contemplated under the provision of

Positive Protection. One was a broad group of existing railroad

procedures designed to hold trains clear of certain tracks, and the

other was a procedure in which roadway workers would be warned of an

approaching train in time to clear the tracks before the train arrived.

Strictly for purposes of semantics, to permit consistency in the text

of the rule, FRA has divided the procedures grouped in the

recommendation under the term Positive Protection into two categories:

Working Limits and Train Approach Warning. Explanation of these two

categories of on-track safety procedures are found in the rule text and

corresponding section-by-section analysis.

Term, Positive Train Location System

The Advisory Committee proposed use of the term positive train

location system to identify a type of on-track safety protection

available in accordance with this rule. The term positive has greater

implications than the Committee intended. FRA does not wish to confound

the terminology of this or other proceedings by using terms already

applied to concepts that were under development for several years

before this proceeding began. FRA particularly does not wish to limit

or inhibit the development of any aspect of Advanced Train Control

Systems (ATCS), Positive Train Control (PTC), or Positive Train

Separation (PTS). Promulgating a regulation that would limit a practice

termed positive train location could be misconstrued as somehow

limiting ATCS, PTC, or PTS.

FRA therefore substitutes the term definite train location as the

name of a system which is the same as that termed by the Advisory

Committee a positive train location system. The definition will not

change. It is FRA's contention that this new term captures the meaning

of the former term. Essentially, the proposition is the same, in which

trains will only be authorized to pass certain locations at or after

definite times.

FRA also found it necessary to deviate from the exact language of

the NPRM proposed by the Advisory Committee in several instances. Most

were simple editorial changes for clarification or correction, and the

renumbering of sections for correct sequencing behind section 214.229.

Some substantive changes were also made, which are enumerated and

either explained or referenced here.

Term , Definite Train Location

FRA removed three sentences of operational requirements from the

definition, and replaced them with a reference to section 214.329 of

this part, which implements and specifies the requirements for definite

train location. The change was made to eliminate redundancy and to

conform to standards of proper regulatory language.

Term--Exclusive Track Occupancy

FRA made an editorial change, and added the cross reference to

section 214.321 of this part for reasons stated under Term, Definite

train location, above.

Term--Foul Time

FRA made an editorial change, and added the cross reference to

section 214.323 of this part for reasons stated under Term, Definite

train location, above.

Term--Inaccessible Track

FRA inserted additional clarifying language at the end of the

definition, by physically preventing entry and movement of trains and

equipment, to clarify the definition.

Term--Restricted Speed

FRA added references to train or other equipment and the range of

vision of the

[[Page 10533]]

person operating the train or other equipment. This term as originally

written is commonly found in railroad operating rules which govern the

movement of trains. In that context, the applicability is clear.

However, in this regulation FRA feels that the applicability should be

more clearly specified. There is no intent by FRA to supersede this

definition in other regulations or applications.

Term--Roadway Maintenance Work Train

FRA deleted references to roadway maintenance work train from the

rule, and from the definition of roadway maintenance machine. The term

is not used in the regulation, and was an artifact of an earlier draft.

There is no distinction between roadway maintenance work trains and

trains operated for any other purpose under the same types of controls.

Term--Working Limits

FRA made editorial changes to this definition to replace the word

limits within the definition with the word boundaries simply to avoid

use of a defined word in its own definition. The meaning of the

definition is not changed.

Section 214.317 On Track Safety Procedures, Generally

FRA proposes that a phrase be added to his section that more

clearly requires an employer to adopt a program containing specific

rules that comply with the requirements of this section. FRA also

proposes to eliminate the qualifier, roadway workers who foul a track,

because roadway workers are, by definition, employees whose duties

situate them where they may potentially foul a track.

Section 214.329 Definite Train Location

Besides the change in the definition of the term Definite train

location mentioned above, FRA proposes to add operative language,

previously found in the definition of definite train location, to this

section, which is referenced in the definition.

Section Analysis

FRA proposes to amend 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

FRA proposes that 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. However, FRA reserves the right to include

tourist and excursion railroads that do not operate on the general

system of railroad transportation in the final rule, if the record

reflects such a need.

2. 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 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-

[[Page 10534]]

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

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 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.

Many other terms are defined and explained in the section by section

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

3. 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 in accordance with

this subpart.

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

Section 214.303 gives 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.

5. Effective Dates: Sec. 214.305

Section 214.305 establishes the schedule for the rule to go into

effect. 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

required effective date on smaller railroads, this would not prevent

smaller railroads from implementing their programs sooner.

6. 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 FRA review or approval of its program.

Likewise, a railroad may amend its program following FRA 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

secure FRA's approval. The railroad will still be responsible for

compliance with this rule, and subject 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.

7. On-track Safety Program Documents: Sec. 214.309

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

railroad

[[Page 10535]]

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.

8. 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, the employer 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 railroads'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 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.

9. 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. 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

[[Page 10536]]

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.

10. 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. 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 plans to protect himself. This briefing should include his

geographical location, approximate period of time he 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 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 itinerary and the on-track safety methods to be used in this

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

necessary to maintain the requisite awareness of his surroundings.

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

Section 214.317 refers to the following sections 214.319 through

214.335 that prescribe several different types of procedures that may

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

[[Page 10537]]

roadway workers from trains moving at restricted speed would be

addressed by FRA through the waiver process.

12. 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) 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 (d) 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.

13. 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.

Paragraph (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 because they are effective, and they might be

the only means available on short notice or at certain locations.

14. 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

prescribed 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.

15. Inaccessible Track: Sec. 214.325

Section 214.325 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

[[Page 10538]]

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. Paragraphs (a)

through (d) detail the physical features that may be used to block

access to non-controlled track within working limits.

16. Train Approach Warning Provided by Watchmen/Lookouts: Sec. 214.327

Section 214.327 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 214.327 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, 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.

17. Definite Train Location: Sec. 214.329

Section 214.329 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. 214.331.

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

track safety by Class I 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 using a definite

train location system must phase it 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 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 (6) set

forth the requirements for a definite train location system and the

qualifications that a roadway worker must have before using this system

as a form of on-track safety.

18. Informational Line-ups of Trains: Sec. 214.331

Section 214.331 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, grand fathering line-up

systems presently in use. * * *

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

Sec. 214.329 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.

19. On-track Safety Procedures for Roadway Work Groups: Sec. 214.333

Section 214.333 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 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

[[Page 10539]]

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.

20. On-track Safety Procedures for Lone Workers: Sec. 214.335

Section 214.335 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 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.

21. Audible Warning from Trains: Sec. 214.337

Section 214.337 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 with a railroad, and FRA

intends that it will preempt any local restrictions on the sounding of

locomotive whistles.

22. Roadway Maintenance Machines: Sec. 214.339

Section 214.339 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. 214.335, 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

[[Page 10540]]

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.

23. Training and Qualification, General: Sec. 214.341

Section 214.341 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 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 copying 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.

24. Training for All Roadway Workers: Sec. 214.343

Section 214.343 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. 214.345

through 214.353. Any testing required to demonstrate qualification need

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

practical demonstration of ability and understanding.

25. Training and Qualification for Lone Workers: Sec. 214.345

Section 214.345 requires a higher degree of qualification, as the

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

26. Training and Qualification of Watchmen/lookouts: Sec. 214.347

Section 214.347 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.

27. Training and Qualification of Flagmen: Sec. 214.349

Section 214.349 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 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.

28. Training and Qualification of Roadway Workers Who Provide On-track

Safety for Roadway Work Groups: Sec. 214.351

Section 214.349 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.

29. Training and Qualification in On-track Safety for Operators of

Roadway Maintenance Machines: Sec. 214.353

Section 214.353 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.

Environmental Impact

FRA has evaluated these proposed 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 proposed regulations meet the criteria that establish

this as a non-major action for environmental purposes.

[[Page 10541]]

Appendix

FRA plans to revise Appendix A to Part 214.--Schedule of Civil

Penalties, to include penalties for violations of the provisions of

this Subpart to be included in the final rule. Because such penalty

schedules are statements of policy, notice and comment are not required

prior to their issuance. (see 5 U.S.C. 553(b)(3)(A)). Nevertheless,

interested parties are welcome to submit their views on what penalties

may be appropriate.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed 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 proposed

rule. It may be inspected and photocopied at Office of Chief Counsel,

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

Washington, D.C. 20590. Photocopies may also be obtained by submitting

a written request to the FRA Docket Clerk at the above address.

Consistent with the mandate of Executive Order 12866 for regulatory

reform, FRA conducted a Negotiated Rulemaking which provided the basis

for this proposed rule. 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 benefit-cost analysis the FRA has assessed

quantitative measurements of costs and benefits expected from the

adoption of the proposed rule. The Net Present Value (NPV) of the net

benefits is 28.7 million. Over a ten year period, the NPV of the

estimated quantifiable societal benefits is $252.6 million, and the NPV

of the estimated societal quantified costs is $223.87 million.

The NPV of major benefits anticipated from adopting the proposed

rule include:

$10 million from averted roadway worker injuries;

$174 million from worker productivity increases that are a

due to a safer working environment;

$62 million from averted roadway workers fatalities (a

statsitical estimation of 32.6 lives saved); and

$1.5 million from the reduction in lost work days.

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

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

include:

$26 million for additional dispatching resources;

$47 million for watchmen/lookouts;

$22 million for miscellaneous forms of positive

protection;

$63 million for job briefings; and

$53 million for the various types of roadway training.

Sections 8.0--10.0 of this analysis outline the above findings in

greater detail. FRA anticipates significant other qualitative benefits

accruing from the proposed rule which are not factored into the

quantified benefit-cost analysis. These non-quantified benefits include

a possible increase in the capacity or volume of some rail lines, and

an improved employee morale.

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

briefings. Many railroads currently conduct job briefings and others

have alloted the time for such briefings. FRA contends that the

proposed rule will structure time already alloted or spent in job

briefings. Although FRA considered this 2 minute briefing a cost and

included it within the quantified benefit-cost calculations, it is

conceivable that structuring the existing job briefing time actually

means no additional cost. The job briefing requirement essentially

mandates a more efficient use of already allotted time.

With respect to the quantified benefits anticipated, expected

savings from a one percent increase in workplace productivity was

included. FRA estimates that productivity of roadway workers should

increase because adoption of the proposed rule will decrease the amount

of risk that exists in their work environment. This is especially true

in certain work areas where the risk is the highest such as within

interlocking limits. Individual worker productivity should increase

since there will be less time and concentration being focused on

whether a train is approaching. The requirements for positive

protection in this rule will provide this mental and physical relief in

numerous roadway work situations. The productivity increases will be

reflected in less time needed to complete work that will be performed

on or near the track. FRA estimates that a one percent increase in rail

workplace productivity, or less than 5 minutes per day, is a reasonable

and conservative estimate.

FRA's sensitivity assessment conducted as part of this regulatory

impact analysis (see Section 14.0) calculates a three percent increase

in productivity as well. If a three percent productivity is achieved as

a result of this rulemaking the expected quantified benefits would

increase to a NPV of $600.1 million. The sensitivity assessment also

shows estimated benefits given an assumption of no increased

productivity. FRA does not believe this is a reasonable assumption. If

productivity did not increase at all as a result of this rule and the

other non-quantified benefits discussed above are not considered then

the benefits would be reduced by a NPV of $174 million.

FRA also conducted sensitivity assessments on key components of the

cost estimates. The cost estimates were sensitive to assumptions about

the incremental time for job briefings (including the proportion of

briefings that take place during ``down time'') and the number of

additional employee years necessary to comply with the proposal. Under

alternative assumptions regarding these parameters, the discounted 10-

year cost estimates range from $187 million to $338 million.

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

beneficial (greater benefits than costs), and further identifies

substantial qualitative benefits. The recommendation of the Roadway

Worker Safety Federal Advisory Committee that the FRA adopt the

proposed rule reflects the consensus of the rail labor and management

representatives on the committee that the proposed rule is beneficial.

As previously noted, FRA is allowing 60 days for comments and

invites public comment on the issue of regulatory impact. FRA seeks

comment and or data to help identify or quantify other factors that may

affect the benefits or costs of the proposal, including alternatives

that were not explored by the advisory committee and any costs or

benefits associated with such alternatives. FRA specifically invites

comments from contractors and tourist railroads on regulatory impact,

since they were not members of the Advisory Committee. Comments

received after May 13, 1996 will be considered to the extent possible

[[Page 10542]]

without incurring additional expense or delay. In addition, a public

hearing will be scheduled only if requested by April 15, 1996. It

should be noted that a final rule may change based on comments

received. However, FRA will take the appropriate prompt action at the

close of the comment period.

Federalism Implications

This proposed 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 proposed rule, requiring audible warning before

entering worksites. Various States and local authorities have ``whistle

bans'' preventing railroads from sounding whistles or ringing

locomotive bells while operating through those communities. FRA

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. It may

be inspected and photocopied at Office of Chief Counsel, Federal

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

Washington, D.C. 20590. Photocopies may also be obtained by submitting

written requests to the FRA Docket Clerk at the above address.

Regulatory Flexibility Act

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

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

entities. In reviewing the economic impact of the proposed rule, FRA

has concluded that it will have a moderate economic impact on small

entities. There are no direct or indirect adverse economic impacts for

small units of government, businesses, or other organizations.

Paperwork Reduction Act

The proposed rule contains information collection requirements. FRA

will submit these information collection requirements to the Office of

Management and Budget for review and approval in accordance with the

Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.). FRA has

endeavored to keep the burden associated with this proposal as simple

and minimal as possible. The proposed sections that contain information

collection requirements and the estimated time to fulfill each

requirement are as follows:

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

Proposed

section Brief description Estimated average time

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

214.303.. Railroad On-Track Safety 2,000 hrs. Class I.

Programs.

214.309.. .............................. 1,400 hrs. Class II.

214.337.. .............................. 250 hrs. Class III.

214.307.. .............................. 3,500 hrs. Blanket Class II.

214.311.. .............................. 3,000 hrs. Blanket Class III.

214.329..

214.313.. Responsibility of Individual 4 hrs.

Road Workers.

214.315.. Supervision and 2 minutes.

Communications--Job Briefings.

214.333..

214.319.. Working Limits................ Usual & Customary Procedure--

No new paperwork.

214.321.. Exclusive Track Occupancy-- 40 seconds.

Working Limits Authorities.

214.323.. Foul Time Working Limit Usual & Customary Procedure--

Procedures. No new paperwork.

214.325.. Inaccessible Track............ 10 minutes.

214.327.. Train Approach Warning 15 seconds.

Provided by Watchman/Lookouts.

214.335.. On-Track Safety Procedures for 30 seconds.

Lone Workers.

214.339.. Training Requirements--Record 2 minutes.

of Qualifications.

214.343..

214.345..

214.347..

214.349..

214.351..

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

All estimates include the time for reviewing instructions;

searching existing data sources; gathering or maintaining the needed

data; and reviewing the information. FRA solicits comments on the

accuracy of the estimates, the practical utility of the information,

and alternative methods that might be less burdensome to obtain this

information. Persons desiring to comment on this topic should submit

their views in writing to Gloria D. Swanson, Federal Railroad

Administration, 400 Seventh Street, S.W., Washington D.C. 20590; and to

the Office and Regulatory Affairs, Office of Management and Budget,

Attention: Desk Officer (DOT/FRA), New Executive Office Bldg., 726

Jackson Place, N.W., Washington, D.C. 20530. Copies of any such

comments should also be submitted to the docket of this rulemaking at

the address provided above.

List of Subjects in 49 CFR Part 214

Bridges, Occupational safety and health, Penalties, Railroad

safety, Reporting and recordkeeping requirements.

The Proposed Rule

In consideration of the foregoing, FRA proposes to amend 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. 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 CFR 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. 214.329.

[[Page 10543]]

Effective securing device when used in relation to a manually

operated switch or derail means one which is:

(1) Vandal resistant;

(2) Tamper resistant; and

(3) 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.

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.

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.

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

part.

* * * * *

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 dispatcher means the railroad employee assigned to control

and issue orders governing the movement of trains on a specific segment

of railroad track in accordance with the operating rules of the

railroad that apply to that segment of track.

Watchman/lookout means an employee who has been annually trained

and qualified to provide warning to roadway workers of approaching

trains or on-track equipment. Watchmen/lookouts shall be properly

equipped to provide visual and auditory warning such as whistle, air

horn, white disk, red flag, lantern, fusee. A watchman/lookout's sole

duty is to look out for approaching trains/on-track equipment and

provide at least fifteen seconds advanced warning to employees before

arrival of trains/on-track equipment.

Working limits means a segment of track with definite boundaries

established in accordance with this rule upon which trains and engines

may move only as authorized by the roadway worker having control over

that defined segment of track. Working limits may be established

through ``exclusive track occupancy,'' ``inaccessible track,'' or

``foul time'' as defined in this section.

3. Add subpart C to read as follows:

Subpart C--Roadway Worker Protection

Sec.

214.301 Purpose and scope.

214.303 Railroad on-track safety programs, generally.

214.305 Effective dates.

214.307 Review and approval of individual on-track safety programs

by FRA.

214.309 On-track safety program documents.

214.311 Responsibility of employers.

214.313 Responsibility of individual roadway workers.

[[Page 10544]]

214.315 Supervision and communication.

214.317 On-track safety procedures, generally.

214.319 Working limits, generally.

214.321 Exclusive track occupancy.

214.323 Foul time.

214.325 Inaccessible track.

214.327 Train approach warning provided by watchmen/lookouts.

214.329 Definite train location.

214.331 Informational line-ups of trains.

214.333 On-track safety procedures for roadway work groups.

214.335 On-track safety procedures for lone workers.

214.337 Audible warning from trains.

214.339 Roadway maintenance machines.

214.341 Training and qualification, general.

214.343 Training for all roadway workers.

214.345 Training and qualification for lone workers.

214.347 Training and qualification of watchmen/lookouts.

214.349 Training and qualification of flagmen.

214.351 Training and qualification of roadway workers who provide

on-track safety for roadway work groups.

214.353 Training and qualification in on-track safety for operators

of roadway maintenance machines.

Subpart C--Roadway Worker Protection

Sec. 214.301 Purpose and scope.

(a) The purpose of this subpart is to prevent accidents and

casualties caused by moving railroad cars, locomotives or roadway

maintenance machines striking roadway workers or roadway maintenance

machines.

(b) This subpart prescribes minimum safety standards for roadway

workers. Each railroad and railroad contractor may prescribe additional

or more stringent operating rules, safety rules, and other special

instructions that are consistent with this subpart.

(c) This subpart prescribes safety standards related to the

movement of roadway maintenance machines where such movements affect

the safety of roadway workers. This subpart does not otherwise affect

movements of roadway maintenance machines that are conducted under the

authority of a train dispatcher, a control operator, or the operating

rules of the railroad.

Sec. 214.303 Railroad on-track safety programs, generally.

(a) Each railroad to which this part applies shall adopt and

implement a program that will afford on-track safety to all roadway

workers whose duties are performed on that railroad. Each such program

shall provide for the levels of protection specified in this subpart.

(b) Each on-track safety program adopted to comply with this part

shall include procedures to be used by each railroad for monitoring

effectiveness of and compliance with the program.

Sec. 214.305 Effective dates.

Each program adopted by a railroad to comply with this Rule shall

be effective not later than the date specified in the following

schedule:

(a) For each Class I railroad (including National Railroad

Passenger Corporation) and each railroad providing commuter service in

a metropolitan or suburban area, June 1, 1996.

(b) For each Class II railroad, September 1, 1996.

(c) For each Class III railroad, switching and terminal railroad,

and any railroad not otherwise classified, December 1, 1996.

(d) For each railroad commencing operations after the pertinent

date specified in this paragraph, the date on which operations

commence.

Sec. 214.307 Review and approval of individual on-track safety

programs by FRA.

(a) Each railroad shall notify the Associate Administrator for

Safety, Federal Railroad Administration, RRS-15, 400 Seventh Street SW,

Washington, DC 20590, not less than one month before its on-track

safety program becomes effective. The notification shall include the

effective date of the program, the address of the office at which the

program documents are available for review by representatives of the

Federal Railroad Administrator, and the name, title, address and

telephone number of the primary person to be contacted with regard to

review of the program.

(b) After receipt of the notification from the railroad, the

Federal Railroad Administration will conduct a formal review of the on-

track safety program. The Federal Railroad Administration will notify

the primary railroad contact person of the results of the review,

whether the on-track safety program has been approved by the

Administrator, and if not approved, the specific points in which the

program is deficient.

(c) A railroad's on-track safety program will take effect by the

date established in Sec. 214.305, without regard to the date of review

or approval by the Federal Railroad Administration.

Sec. 214.309 On-track safety program documents.

Rules and operating procedures governing track occupancy and

protection shall be maintained together in one manual and be readily

available to all roadway workers. Each roadway worker responsible for

the on-track safety of others, and each lone worker, shall be provided

with and shall maintain a copy of the program document.

Sec. 214.311 Responsibility of employers.

(a) Each employer is responsible for the understanding and

compliance by its employees with its rules and the requirements of this

part.

(b) Each employer shall guarantee each employee the absolute right

to challenge in good faith whether the on-track safety procedures to be

applied at the job location comply with the rules of the operating

railroad, and to remain clear of the track until the challenge is

resolved.

(c) Each employer shall have in place a written procedure to

achieve prompt and equitable resolution of challenges made in

accordance with paragraph (b) of this section and Sec. 214.313(d).

Sec. 214.313 Responsibility of individual roadway workers.

(a) Each roadway worker is responsible for following the on-track

safety rules of the railroad upon which the roadway worker is located.

(b) A roadway worker shall not foul a track except when necessary

for the performance of duty.

(c) Each roadway worker is responsible to ascertain that on-track

safety is being provided before fouling a track.

(d) Each roadway worker may refuse any directive to violate an on-

track safety rule, and shall inform the employer in accordance with

Sec. 214.311 whenever the roadway worker makes a good faith

determination that on-track safety provisions to be applied at the job

location do not comply with the rules of the operating railroad.

Sec. 214.315 Supervision and communication.

(a) When an employer assigns duties to a roadway worker that call

for that employee to foul a track, the employer shall provide the

employee with a job briefing that includes information on the means by

which on-track safety is to be provided, and instruction on the on-

track safety procedures to be followed.

(b) A job briefing for on-track safety shall be deemed complete

only after the roadway worker has acknowledged understanding of the on-

track safety procedures and instructions presented.

(c) Every roadway work group whose duties require fouling a track

shall have one roadway worker designated by the employer to provide on-

track safety for all members of the group. The designated person shall

be qualified under the rules of the railroad that conducts train

operations on those

[[Page 10545]]

tracks to provide the protection necessary for on-track safety of each

individual in the group. The responsible person may be designated

generally, or specifically for a particular work situation.

(d) Before any member of a roadway work group fouls a track, the

designated person providing on-track safety for the group under

paragraph (c) of this section shall inform each roadway worker of the

on-track safety procedures to be used and followed during the

performance of the work at that time and location. Each roadway worker

shall again be so informed at any time the on-track safety procedures

change during the work period. Such information shall be given to all

roadway workers affected before the change is effective, except in

cases of emergency. Any roadway workers who, because of an emergency,

cannot be notified in advance shall be immediately warned to leave the

fouling space and shall not return to the fouling space until on-track

safety is re-established.

(e) Each lone worker shall communicate at the beginning of each

duty period with a supervisor or another designated employee to receive

a job briefing and to advise of his or her planned itinerary and the

procedures that he or she intends to use for on-track safety. When

communication channels are disabled, the job briefing shall be

conducted as soon as possible after the beginning of the work period

when communications are restored.

Sec. 214.317 On-track safety procedures, generally.

Each employer subject to the provisions of this part shall provide

on-track safety for roadway workers by adopting a program that contains

specific rules for protecting roadway workers that comply with the

provisions of Secs. 214.319 through 214.335.

Sec. 214.319 Working limits, generally.

Working limits established on controlled track shall conform to the

provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323

Foul time. Working limits established on non-controlled track shall

conform to the provisions of Sec. 214.325 Inaccessible track. Working

limits established under any procedure shall, in addition, conform to

the following provisions:

(a) Only a roadway worker who is qualified in accordance with

Sec. 214.351 shall establish or have control over working limits for

the purpose of establishing on-track safety.

(b) Only one roadway worker shall have control over working limits

on any one segment of track.

(c) Movements of trains and roadway maintenance machines within

working limits shall be made only under the direction of the roadway

worker having control over the working limits. Such movements shall be

at restricted speed unless a higher speed has been specifically

authorized by the roadway worker in charge of the working limits.

(d) All affected roadway workers shall be notified before working

limits are released for the operation of trains. Working limits shall

not be released until all affected roadway workers have either left the

track or have been afforded on-track safety through train approach

warning in accordance with Sec. 214.327.

Sec. 214.321 Exclusive track occupancy.

Working limits established on controlled track through the use of

exclusive track occupancy procedures shall comply with the following

requirements:

(a) The working limits shall be placed under the control of one

roadway worker, who is designated in accordance with Sec. 214.351, by

the train dispatcher or control operator in charge of the track.

(b) The authority for exclusive track occupancy given to the

roadway worker in charge of the working limits shall be transmitted on

a written or printed document directly, by relay through a designated

employee, in a data transmission, or by oral communication, to the

roadway worker by the train dispatcher or control operator in charge of

the track:

(1) Where authority for exclusive track occupancy is transmitted

orally, the authority shall be written as received by the roadway

worker in charge and repeated to the issuing employee for verification.

(2) The roadway worker in charge of the working limits shall

maintain possession of the written or printed authority for exclusive

track occupancy while the authority for the working limits is in

effect.

(3) The train dispatcher or control operator in charge of the track

shall make a written or electronic record of all authorities issued to

establish exclusive track occupancy.

(c) The extent of working limits established through exclusive

track occupancy shall be defined by one of the following physical

features clearly identifiable to a locomotive engineer or other person

operating a train or railroad equipment:

(1) A flagman with instructions and capability to hold all trains

and equipment clear of the working limits.

(2) A fixed signal that displays an aspect indicating ``Stop''.

(3) A station shown in the time-table, and identified by name with

a sign, beyond which train movement is prohibited by train movement

authority or the provisions of a direct train control system.

(4) A clearly identifiable milepost beyond which train movement is

prohibited by train movement authority or the provisions of a direct

train control system.

(5) A clearly identifiable physical location prescribed by the

operating rules of the railroad which that trains may not pass without

proper authority.

Sec. 214.323 Foul time.

Working limits established on controlled track through the use of

foul time procedures shall comply with the following requirements:

(a) Foul time may be given orally or in writing by the train

dispatcher or control operator only after that employee has withheld

the authority of all trains to move into the working limits during the

foul time period.

(b) Each roadway worker to whom foul time is transmitted orally

shall repeat the track number, track limits and time limits of the foul

time to the issuing employee for verification before the foul time

becomes effective.

(c) Each roadway worker who obtains foul time shall first have been

trained and qualified by the operating railroad to provide on-track

safety to roadway work groups or as a lone worker.

(d) The train dispatcher or control operator shall not permit the

movement of trains or other on-track equipment onto the working limits

protected by foul time until the roadway worker who obtained the foul

time has reported clear of the track.

Sec. 214.325 Inaccessible track.

Working limits on non-controlled track shall be established by

rendering the track within working limits physically inaccessible to

trains. No operable locomotives or other items of on-track equipment,

except those moving under the direction of the roadway worker in

charge, shall be located within working limits on non-controlled track.

The extent of working limits established as inaccessible track shall be

defined by one of the following physical features:

(a) A flagman with instructions and capability to hold all trains

and equipment clear of the working limits.

(b) A switch or derail aligned to prevent access to the working

limits and

[[Page 10546]]

secured with an effective securing device by the roadway worker in

charge of the working limits.

(c) A remotely controlled switch aligned to prevent access to the

working limits and secured by the control operator of such remotely

controlled switch by application of a locking or blocking device to the

control of that switch, when:

(1) The control operator has secured the remotely controlled switch

by applying a locking or blocking device to the control of the switch;

and

(2) The control operator has notified the roadway worker who has

established the working limits that the requested protection has been

provided; and

(3) The control operator is not permitted to remove the locking or

blocking device from the control of the switch until receiving

permission to do so from the roadway worker who established the working

limits.

(d) A discontinuity in the rail that precludes passage of trains or

engines into the working limits.

Sec. 214.327 Train approach warning provided by watchmen/lookouts.

Roadway workers in a roadway work group who foul any track outside

of working limits shall be given warning of approaching trains and

engines by one or more watchmen/lookouts in accordance with the

following provisions:

(a) Train approach warning shall be given in sufficient time to

enable each roadway worker to move to and occupy a previously arranged

place of safety not less than 15 seconds before a train moving at the

maximum speed authorized on that track can pass the location of the

roadway worker.

(b) Watchmen/lookouts assigned to provide train approach warning

shall devote full attention to detecting the approach of trains and

communicating a warning thereof, and shall not be assigned any other

duties while functioning as watchmen/lookouts.

(c) The means used by a watchman/lookout to communicate a train

approach warning shall be distinctive and shall clearly signify to all

recipients of the warning that a train or other on-track equipment is

approaching.

(d) Every roadway worker who depends upon train approach warning

for on-track safety shall maintain a position that will enable him or

her to receive a train approach warning communicated by a watchman/

lookout at any time while on-track safety is provided by train approach

warning.

(e) Watchmen/lookouts shall communicate train approach warnings by

a means that does not require a warned employee to be looking in any

particular direction at the time of the warning, and that can be

detected by the warned employee regardless of noise or distraction of

work.

(f) Every roadway worker who is assigned the duties of a watchman/

lookout shall first be trained, qualified and designated in writing by

the employer to do so in accordance with the provisions of

Sec. 214.345.

(g) Every watchman/lookout shall be provided by the employer with

the equipment necessary for compliance with the on-track safety duties

which the watchman/lookout will perform.

Sec. 214.329 Definite train location.

A roadway worker may establish on-track safety by using definite

train location only where permitted by and in accordance with the

following provisions:

(a) A Class I railroad may only use definite train location to

establish on-track safety at points where such procedures were in use

on the effective date of the final rule.

(b) Each Class I railroad shall include in its on-track safety

program submitted to FRA in accordance with Sec. 214.307 a schedule for

phase-out of the use of definite train location to establish on-track

safety.

(c) A railroad other than a Class I railroad may use definite train

location to establish on-track safety on subdivisions only where:

(1) such procedures were in use on the effective date of this rule;

or

(2) the number of trains operated on the subdivision does not

exceed:

(i) three during any nine-hour period in which roadway workers are

on duty; and

(ii) four during any twelve-hour period in which roadway workers

are on duty.

(d) Definite train location shall only be used to establish on-

track safety according to the following provisions:

(1) Definite train location information shall be issued only by the

one train dispatcher who is designated to authorize train movements

over the track for which the information is provided.

(2) A definite train location list shall indicate all trains to be

operated on the track for which the list is provided, during the time

for which the list is effective.

(3) Trains not shown on the definite train location list shall not

be operated on the track for which the list is provided, during the

time for which the list is effective, until each roadway worker to whom

the list has been issued has been notified of the train movement, has

acknowledged the notification to the train dispatcher, and has canceled

the list. A list thus canceled shall then be invalid for on-track

safety.

(4) Definite train location shall not be used to establish on-track

safety within the limits of a manual interlocking, or on track over

which train movements are governed by a Traffic Control System or by a

Manual Block System.

(5) Roadway workers using definite train location for on-track

safety shall not foul a track within ten minutes before the earliest

time that a train is due to depart the last station at which time is

shown in approach to the roadway worker's location nor until that train

has passed the location of the roadway worker.

(6) A railroad shall not permit a train to depart a location

designated in a definite train location list before the time shown

therein.

(7) Each roadway worker who uses definite train location to

establish on-track safety must be qualified on the relevant physical

characteristics of the territory for which the train location

information is provided.

Sec. 214.331 Informational line-ups of trains.

(a) A railroad is permitted to include informational line-ups of

trains in its on-track safety program for use only on subdivisions of

that railroad upon which such procedure was in effect on March 14,

1996.

(b) Each procedure for the use of informational line-ups of trains

found in an on-track safety program shall include all provisions

necessary to protect roadway workers using the procedure against being

struck by trains or other on-track equipment.

(c) Each on-track safety program that provides for the use of

informational line-ups shall include a schedule for discontinuance of

the procedure by a definite date.

Sec. 214.333 On-track safety procedures for roadway work groups.

(a) No employer subject to the provisions of this part shall

require or permit a roadway worker who is a member of a roadway work

group to foul a track unless on-track safety is provided by either

working limits, train approach warning, or definite train location in

accordance with the applicable provisions of Secs. 214.319, 214.321,

213.323, 214.325, 214.327, 214.329 and 214.331.

(b) No roadway worker who is a member of a roadway work group shall

foul a track without having been informed by the roadway worker

responsible for the on-track safety of the

[[Page 10547]]

roadway work group that on-track safety is provided.

(c) Roadway work groups engaged in large-scale maintenance or

construction shall be provided with train approach warning in

accordance with Sec. 214.327 on adjacent tracks that are not included

within working limits.

Sec. 214.335 On-track safety procedures for lone workers.

(a) A lone worker who fouls a track while performing routine

inspection or minor correction may use individual train detection to

establish on-track safety only where permitted by this section and the

on-track safety program of the railroad.

(b) A lone worker retains an absolute right to use on-track safety

procedures other than individual train detection if he or she deems it

necessary, and to occupy a place of safety until such other form of on-

track safety can be established.

(c) Individual train detection may be used to establish on-track

safety only:

(1) by a lone worker who has been trained, qualified, and

designated to do so by the employer in accordance with Sec. 214.345;

(2) while performing routine inspection and minor correction work;

(3) on track outside the limits of a manual interlocking, a

controlled point, or a remotely controlled hump yard facility;

(4) where the lone worker is able to visually detect the approach

of a train moving at the maximum speed authorized on that track, and

move to a previously determined place of safety, not less than 15

seconds before the train would arrive at the location of the lone

worker;

(5) where no power-operated tools or roadway maintenance machines

are in use within the hearing of the lone worker; and

(6) where the ability of the lone worker to hear and see

approaching trains and other on-track equipment is not impaired by

background noise, lights, precipitation, fog, passing trains, or any

other physical conditions.

(d) The place of safety to be occupied by a lone worker upon the

approach of a train may not be on a track, unless working limits are

established on that track.

(e) A lone worker using individual train detection for on-track

safety while fouling a track may not occupy a position or engage in any

activity that would interfere with that worker's ability to maintain a

vigilant lookout for, and detect the approach of, a train moving in

either direction as prescribed in this section.

(f) A lone worker who uses individual train detection to establish

on-track safety shall first complete a written Statement of On-track

Safety. The Statement shall designate the limits of the track for which

it is prepared and the date and time for which it is valid. The

statement shall show the maximum authorized speed of trains within the

limits for which it is prepared, and the sight distance that provides

the required warning of approaching trains. The lone worker using

individual train detection to establish on-track safety shall produce

the Statement of On-track Safety when requested by a representative of

the Federal Railroad Administrator.

Sec. 214.337 Audible warning from trains.

Each railroad shall require that the locomotive whistle be sounded,

and the locomotive bell be rung, by trains approaching roadway workers

on or about the track. Such audible warning shall not substitute for

on-track safety procedures prescribed in this part.

Sec. 214.339 Roadway maintenance machines.

(a) Each employer shall include in its on-track safety program

specific provisions for the safety of roadway workers who operate or

work near roadway maintenance machines. Those provisions shall address:

(1) Training and qualification of operators of roadway maintenance

machines.

(2) Establishment and issuance of safety procedures both for

general application and for specific types of machines.

(3) Communication between machine operators and roadway workers

assigned to work near or on roadway maintenance machines.

(4) Spacing between machines to prevent collisions.

(5) Space between machines and roadway workers to prevent personal

injury.

(6) Maximum working and travel speeds for machines dependent upon

weather, visibility, and stopping capabilities.

(b) Instructions for the safe operation of each roadway machine

shall be provided and maintained with each machine large enough to

carry the instruction document:

(1) No roadway worker shall operate a roadway maintenance machine

without having been trained in accordance with Sec. 214.353.

(2) No roadway worker shall operate a roadway maintenance machine

without having complete knowledge of the safety instructions applicable

to that machine.

(3) No employer shall assign roadway workers to work near roadway

machines unless the roadway worker has been informed of the safety

procedures applicable to persons working near the roadway machines and

has acknowledged full understanding.

(c) Components of roadway maintenance machines shall be kept clear

of trains passing on adjacent tracks. Where operating conditions permit

roadway maintenance machines to be less than four feet from the rail of

an adjacent track, the on-track safety program of the railroad shall

include the procedural instructions necessary to provide adequate

clearance between the machine and passing trains.

Sec. 214.341 Training and qualification, general.

(a) No employer shall assign an employee to perform the duties of a

roadway worker, and no employee shall accept such assignment, unless

that employee has received training in the on-track safety procedures

associated with the assignment to be performed, and that employee has

demonstrated the ability to fulfill the responsibilities for on-track

safety that are required of an individual roadway worker performing

that assignment.

(b) Each employer shall provide to all roadway workers in its

employ initial or recurrent training once every calendar year on the

on-track safety rules and procedures that they are required to follow.

(c) Railroad employees other than roadway workers, who are

associated with on-track safety procedures, and whose primary duties

are concerned with the movement and protection of trains, shall be

trained to perform their functions related to on-track safety through

the training and qualification procedures prescribed by the operating

railroad for the primary position of the employee, including

maintenance of records and frequency of training.

(d) Each employer of roadway workers shall maintain written or

electronic records of each roadway worker qualification in effect. Each

record shall include the name of the employee, the type of

qualification made, and the most recent date of qualification. These

records shall be kept available for inspection and copying by the

Federal Railroad Administrator during regular business hours.

Sec. 214.343 Training for all roadway workers.

The training of all roadway workers shall include, as a minimum,

the following:

[[Page 10548]]

(a) Recognition of railroad tracks and understanding of the space

around them within which on-track safety is required.

(b) The functions and responsibilities of various persons involved

with on-track safety procedures.

(c) Proper compliance with on-track safety instructions given by

persons performing or responsible for on-track safety functions.

(d) Signals given by watchmen/lookouts, and the proper procedures

upon receiving a train approach warning from a lookout.

(e) The hazards associated with working on or near railroad tracks,

including review of on-track safety rules and procedures.

Sec. 214.345 Training and qualification for lone workers.

Each lone worker shall be trained and qualified by the employer to

establish on-track safety in accordance with the requirements of this

section, and must be authorized to do so by the railroad that conducts

train operations on those tracks.

(a) The training and qualification for lone workers shall include,

as a minimum, consideration of the following factors:

(1) Detection of approaching trains and prompt movement to a place

of safety upon their approach.

(2) Determination of the distance along the track at which trains

must be visible in order to provide the prescribed warning time.

(3) The rules and procedures prescribed by the railroad for

individual train detection, establishment of working limits, and

definite train location.

(4) The on-track safety procedures to be used in the territory on

which the employee is be qualified and permitted to work alone.

(b) Initial and periodic qualification of a lone worker shall be

evidenced by demonstrated proficiency .

Sec. 214.347 Training and qualification of watchmen/lookouts.

(a) The training and qualification for roadway workers assigned the

duties of watchmen/lookouts shall include, as a minimum, consideration

of the following factors:

(1) The detection and recognition of approaching trains.

(2) The effective warning of roadway workers of the approach of

trains.

(3) The determination of the distance along the track at which

trains must be visible in order to provide the prescribed warning time.

(4) The rules and procedures of the railroad to be used for train

approach warning.

(b) Initial and periodic qualification of a watchman/lookout shall

be evidenced by demonstrated proficiency .

Sec. 214.349 Training and qualification of flagmen.

(a) The training and qualification for roadway workers assigned the

duties of flagmen shall include, as a minimum, the content and

application of the operating rules of the railroad pertaining to giving

proper stop signals to trains and holding trains clear of working

limits.

(b) Initial and periodic qualification of a flagman shall be

evidenced by demonstrated proficiency .

Sec. 214.351 Training and qualification of roadway workers who provide

on-track safety for roadway work groups.

(a) The training and qualification of roadway workers who provide

for the on-track safety of groups of roadway workers through

establishment of working limits or the assignment and supervision of

watchmen/lookouts or flagmen shall include, as a minimum:

(1) All the on-track safety training and qualification required of

the roadway workers to be supervised and protected.

(2) The content and application of the operating rules of the

railroad pertaining to the establishment of working limits.

(3) The content and application of the rules of the railroad

pertaining to the establishment or train approach warning.

(4) The relevant physical characteristics of the territory of the

railroad upon which the roadway worker is qualified.

(b) Initial and periodic qualification of a roadway worker to

provide on track safety for groups shall be evidenced by a recorded

examination.

Sec. 214.353 Training and qualification in on-track safety for

operators of roadway maintenance machines.

(a) The training and qualification of roadway workers who operate

roadway maintenance machines shall include, as a minimum:

(1) Procedures to prevent a person from being struck by the machine

when the machine is in motion or operation.

(2) Procedures to prevent any part of the machine from being struck

by a train or other equipment on another track.

(3) Procedures to provide for stopping the machine short of other

machines or obstructions on the track.

(4) Methods to determine safe operating procedures for each machine

that the operator is expected to operate.

(b) Initial and periodic qualification of a roadway worker to

operate roadway maintenance machines shall be evidenced by demonstrated

proficiency.

Issued this 11th Day of March, 1996.

Jolene M. Molitoris,

Administrator. Federal Railroad Administration

[FR Doc. 96-6175 Filed 3-12-96; 8:45 am]

BILLING CODE 4910-06-P