[Federal Register Volume 68, Number 144 (Monday, July 28, 2003)]
[Rules and Regulations]
[Pages 44388-44412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-18912]



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 214



Roadway Maintenance Machine Safety; Final Rule

Federal Register / Vol. 68, No. 144 / Monday, July 28, 2003 / Rules 
and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2000-8156, Notice No. 2]
RIN 2130-AB28


Roadway Maintenance Machine Safety

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is amending its Railroad Workplace Safety regulations by 
adding a new subpart prescribing safety standards for railroad on-track 
roadway maintenance machines and hi-rail vehicles. The purpose of these 
standards is to protect roadway workers during the lawful operation of 
this equipment and to promote railroad safety overall.

DATES: (1) Effective Date: This regulation is effective September 26, 
2003.
    (2) Any petition for reconsideration of any portion of the rule 
must be submitted no later than September 26, 2003.

ADDRESSES: A petition for reconsideration (identified by DOT DMS Docket 
Number FRA-2000-8156) may be submitted by any of the following methods:
    [sbull] Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rulemaking. Note that all submissions received 
will be posted without change to http://dms.dot.gov including any 
personal information provided. Please see the Privacy Act heading under 
Regulatory Impact/Notices, below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Allison H. MacDowell, Staff Director, 
Office of Safety Enforcement, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone: 
202-493-6236), or Daniel L. Alpert, Trial Attorney, Office of Chief 
Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Mail Stop 10, Washington, DC 20590 (telephone: 202-493-6026).

SUPPLEMENTARY INFORMATION:

Introduction

Background

    In May 1990, the Brotherhood of Maintenance of Way Employes (BMWE) 
filed a petition with FRA to revise the Track Safety Standards and add 
to them new regulations addressing the safety of roadway workers and 
roadway maintenance machines. In response, FRA first initiated a 
negotiated rulemaking to address roadway worker safety. The final rule 
resulting from that rulemaking was published in December, 1996 (see 61 
FR 65959), and the regulations addressing roadway worker safety now 
reside in 49 CFR part 214, subpart C.
    Also in 1996, FRA requested that the newly formed Railroad Safety 
Advisory Committee (RSAC) develop recommendations to the Administrator 
on how to address by rulemaking the revision of the Track Safety 
Standards petitioned by the BMWE. The RSAC agreed to the task and 
formed a Track Working Group to draft a proposed revision. The Track 
Working Group decided by consensus that the draft revision would update 
the Track Safety Standards found at 49 CFR part 213, and that a new set 
of regulations addressing the safety of on-track roadway maintenance 
machines would be initiated in a separate rulemaking. The RSAC approved 
by majority consensus a draft Notice of Proposed Rulemaking (NPRM) for 
revision of part 213 in October, 1996. The Administrator approved and 
signed the NPRM, which was published on July 3, 1997. See 62 FR 36138. 
The final rule was published on June 22, 1998 (see 63 FR 33992), and 
the revised track standards became effective on September 21, 1998.
    Even after the publication of the revised Track Safety Standards, 
the Track Working Group remained in existence to accomplish two 
additional tasks accepted by the RSAC: The amendment of part 213 to add 
safety standards for Gage Restraint Measuring Systems (GRMS), and the 
amendment of part 214 to add safety standards for on-track roadway 
maintenance machines. To accomplish the latter, the Track Working Group 
appointed a six-member Task Group to draft, by consensus, rule text and 
analysis for the preamble.
    The Task Group consisted of representatives from FRA, Association 
of American Railroads (AAR), BMWE, Norfolk Southern Railway Co., and an 
equipment supplier. The Task Group met several times and conducted 
numerous conference calls before drafting proposed rule language to 
recommend to the RSAC for approval. The Task Group's recommended 
proposed rule was approved by the RSAC in 2000, and the proposed rule 
was subsequently issued by the Administrator and then published on 
January 10, 2001. See 66 FR 1930.
    FRA received comments from five organizations in response to the 
proposed rule. The commenters included the BMWE, the AAR, Loram 
Maintenance of Way, Inc. (Loram), Transtar, Inc. (Transtar), and the 
Wisconsin Central System (Wisconsin Central). Loram recommended that 
FRA terminate the rulemaking because the Task Group included only one 
representative of the equipment industry who could not adequately 
represent the diversity of roadway maintenance equipment. Loram further 
suggested that, in the alternative, FRA should convene a task group 
that included at least two representatives of manufacturers and 
operators of roadway maintenance equipment.
    In February 2002, the Task Group met with most of the commenters, 
as well as other representatives from the industry, to gain 
clarification of, and further discuss, the comments and suggestions 
provided by the commenters. The Task Group met with representatives of 
Loram, Plasser American, and the Railway Progress Institute, and then, 
by unanimous vote, recommended how this final rule would respond to 
each of the comments. (Discussion of those recommendations is detailed 
in the Section-by-Section Analysis segment of this document, below.) 
Thereafter, in May 2002, the Task Group's recommendations were 
unanimously approved by the full RSAC.

Categories of Equipment

    When the Task Group began the task of developing a proposed rule 
for roadway maintenance machine safety, it initially divided roadway 
maintenance machines into three broad categories: on-track, on/off 
track (such as hi-rail vehicles), and off-track. The Task Group quickly 
decided to confine the regulations to on-track equipment and

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equipment used both on and off track. The Task Group further divided 
two remaining categories of roadway maintenance machines into five sub-
categories: Large self-propelled equipment; medium self-propelled 
equipment; small ``walk-along'' equipment; hi-rail equipment; and motor 
cars.
    The Task Group conducted a systematic review of various types and 
configurations of machinery, as well as of their current use in the 
railroad industry. The Task Group determined that the railroad industry 
is rapidly phasing out the use of motor cars, replacing them with hi-
rail vehicles. In fact, motor cars have not been manufactured for use 
in the United States in several years. Therefore, it was decided that 
there was no need to write a rule covering motor cars. However, if in 
the future, the industry returns motor cars for widespread use as 
inspection vehicles, FRA may reconsider its decision to exclude motor 
cars from this regulation.
    Next, the Task Group decided to eliminate small ``walk-along'' 
track equipment from the scope of the new regulations. ``Walk-along'' 
equipment includes small pieces of track maintenance equipment that 
rolls on the rails but may not be self-propelled. This type of 
equipment includes tie borers, nut runners, portable rail grinders and 
other track maintenance equipment of similar size which can be placed 
on, or removed from, the track with relative ease by one or more 
roadway workers. The Task Group determined that the great variety of 
this type of equipment would necessitate writing a very complicated set 
of regulations governing a category of equipment that does not pose a 
very significant safety hazard. Therefore, the Task Group decided to 
focus the rulemaking on the three remaining sub-categories of roadway 
maintenance equipment: Large on-track machines, medium on-track 
machines, and hi-rail vehicles.
    To distinguish large on-track machines from medium-sized on-track 
machines, the Task Group decided to consider the light weight of the 
vehicles. Large equipment was designated as ``Category I'' equipment 
and included on-track self-propelled roadway maintenance machines 
having a light weight of 17,500 pounds or more. ``Category II'' 
machines included similar equipment whose light weight was less than 
17,500 pounds but more than 7,500 pounds.
    The final categorization of covered roadway maintenance machines 
dealt with the age of the vehicles. The Task Group determined that all 
of the regulations would apply to new machines. The Group decided to 
define ``new'' as any machine ordered for manufacture 90 days after the 
issuance of a final rule, to prevent the rule from interfering with the 
manufacture of new equipment already on order but not yet completed 
when the rule is issued.
    Likewise, the Task Group believed it necessary to limit the number 
of older roadway maintenance machines that would need retrofitting 
following the issuance of a final rule. Because technology has changed 
and many types of roadway maintenance machines have been redesigned in 
more recent years, the Task Group determined that the new rule should 
not apply to the oldest equipment in the industry's collective fleet. 
Therefore, the Task Group decided that the requirements for 
retrofitting would not apply to any roadway maintenance machine 
manufactured prior to January 1, 1991.
    With the parameters about types of equipment agreed upon, the Task 
Group then set out to determine what safety features on the machines 
should be covered by the regulations. The Group reviewed existing 
standards for work equipment issued by the Occupational Safety and 
Health Administration (OSHA) of the U.S. Department of Labor, and 
discussed the American National Standards Institute (ANSI) and the 
Society of Automotive Engineers (SAE) standards, which are voluntary 
industry standards. The Group identified 18 items on the Category I and 
Category II machines that should be included in the regulations:
    [sbull] Operator Seating;
    [sbull] Brakes;
    [sbull] Horn;
    [sbull] Work Lights;
    [sbull] Mirrors;
    [sbull] Change of Direction Alarm;
    [sbull] Fire Extinguisher;
    [sbull] Safety Glass;
    [sbull] Power Wipers;
    [sbull] Strobe Light;
    [sbull] Heat and Ventilation for Non-Pressurized Cab;
    [sbull] Flagging Equipment;
    [sbull] Headlights;
    [sbull] Turntable Positive Restraint Device;
    [sbull] Equipment Light Weight Displayed;
    [sbull] Heat, Ventilation, and Air Conditioning for Pressurized 
Cab;
    [sbull] Brake Lights; and
    [sbull] First-Aid Kit.
    For hi-rail vehicles, the Group determined that the regulations 
should address:
    [sbull] Operator Seating;
    [sbull] Brakes;
    [sbull] Horn;
    [sbull] Mirrors;
    [sbull] Fire Extinguisher;
    [sbull] Safety Glass;
    [sbull] Power Wipers;
    [sbull] Heat and Ventilation for Non-Pressurized Cab;
    [sbull] Headlights;
    [sbull] Equipment Light Weight Displayed;
    [sbull] Brake Lights;
    [sbull] Change of Direction Alarm;
    [sbull] Strobe Light;
    [sbull] Flagging Equipment; and
    [sbull] First-Aid Kit.

    Because the regulations are intended to cover hi-rail vehicles only 
when they are being used as on-track vehicles, the Task Group 
determined that the regulations should not replace any Federal or State 
requirements covering hi-rail vehicles when they are used as roadway 
motor vehicles.
    As the discussions continued over many months in preparation of a 
proposed rule, some early decisions made by the Task Group changed. For 
example, the Category I and II designations, which helped the Task 
Group early in the discussions, eventually became unnecessary as 
proposed requirements changed. This final rule makes the distinction 
between large equipment and medium-sized equipment in only two 
instances, making it unnecessary to maintain the designated categories 
for purposes of the rule.

Shunting

    Early in the deliberations, the Task Group explored whether or not 
the regulations should require that the covered track maintenance 
machines be non-insulated for the purpose of shunting the track 
circuits. Machines capable of shunting track circuits would enable a 
track circuit to indicate track occupancy by the machine, affording an 
extra measure of protection for the track crew through the signal 
system, as well as protection at highway-rail crossings through the 
activation of warning devices at crossings so equipped.
    The railroad industry has struggled many years to develop a 
technology that would provide reliable shunting capabilities for track 
maintenance machines. Even heavy equipment such as single unit self-
propelled passenger cars and single unit locomotive consists without 
cars do not always shunt the track circuits. The Task Group discussed 
the advantages of current shunting technologies when the technologies 
work successfully, and balanced them against the possibility that the 
technologies might fail. Roadway workers could develop a false sense of 
security when using machines designed to shunt track circuits, perhaps 
relying too heavily on shunting as a

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method of protection when the reliability of the shunting is not 
failsafe.
    The Task Group agreed that, because present shunting technology has 
not advanced enough to guarantee a level of reliability necessary for 
track maintenance machines, this rule should not require that the 
machines be non-insulated. However, if FRA finds in the future that the 
technology has advanced to a high level of reliability for track 
maintenance machines, the agency may reconsider its position regarding 
insulation.

Noise Conservation

    The Task Group considered including in the regulations a design 
standard that would require new roadway maintenance machines covered by 
the rule to maintain the noise level in the cab of the machine to no 
more than 85 dBA measured on the A-scale of a standard sound level 
meter at slow response over an eight-hour period. Hearing loss caused 
by exposure to loud levels of noise over an extended period of time is 
a significant issue among roadway workers. Workers on roadway 
maintenance machines are currently protected by OSHA regulations set 
forth in 29 CFR 1910.95, which require a covered employer to provide a 
hearing conservation program, hearing protection, and training for 
employees.
    However, if FRA were to establish noise exposure standards here 
with a new design standard, such standards would oust OSHA's 
jurisdiction over hearing conservation, pursuant to section 4(b)(1) of 
the Occupational Safety and Health Act, 29 U.S.C. 653(b)(1). Therefore, 
with a design standard for new equipment, but no requirement for a 
hearing conservation program, personal hearing protection or employee 
training, the roadway workers affected by this rule would receive less 
protection than they receive now under OSHA regulations. In addition, 
an effort by FRA to enter the field of hearing conservation on some 
roadway maintenance machines could result in FRA displacing OSHA 
regulations for all roadway maintenance machines. This result would 
leave operators of roadway equipment not under the design standard 
(i.e., older equipment or equipment weighing less than 7,500 pounds) 
with no hearing protection under Federal law whatsoever.
    To prevent such an unwanted result, FRA would need to institute its 
own set of comprehensive regulations dealing with hearing protection, 
hearing conservation programs, and testing. Given the fact that OSHA 
currently has authority to address noise exposure and hearing loss for 
these employees, as well as the requisite expertise at hand to do so 
effectively, FRA sees no need to duplicate such a program. In fact, as 
FRA understands, the railroads currently follow the OSHA regulations 
and have established hearing conservation programs that include these 
employees.

Environmental Controls in Cabs

    The issue of environmental controls in cabs of roadway maintenance 
machines, including heating, air conditioning, and protection from air 
contaminants like silica dust, was the topic of much discussion among 
Task Group members. The Task Group worked hard to find a balance 
between environmental controls perceived to be safety enhancements and 
those perceived by some to be merely ``comfort'' improvements. The 
resulting requirement in this rule is therefore designed to protect 
employees working on certain types of roadway machines from air 
contaminants that may cause respiratory health problems for employees 
while also protecting equipment components from the effects of 
temperature extremes or degradation from dust and debris. This standard 
will also enhance safety by reducing noise inside the cab, thereby 
effectuating clearer radio communications between employees. In 
addition, the standard will afford clearer visibility for those working 
inside the cab.
    Under this regulation, OSHA environmental standards, which already 
govern the working environments of roadway maintenance machines, 
essentially remain in effect. By cross-referencing in this regulation 
the OSHA standards contained in 29 CFR 1910.1000, FRA becomes the 
enforcing agency as to environmental controls over the selected types 
of equipment, rather than OSHA. Environmental controls in equipment not 
covered by this rule and the limiting of exposure to employees working 
outside equipment remain subject to OSHA enforcement, and the 
regulation is the same (29 CFR 1910.1000).
    It is important to note that the rule cross-references OSHA 
standards without limiting the references to OSHA standards in effect 
on a certain date. As with all regulatory agencies, OSHA from time to 
time revises and updates its standards. By cross-referencing the OSHA 
standards without limiting the references to standards in effect on a 
certain date, this regulation automatically references any revisions by 
OSHA to these standards so as to remain in conformance with any revised 
OSHA standards. This action prevents the undesirable result whereby 
operators of roadway maintenance machines covered by this regulation 
could receive less protection than other operators in the event that 
OSHA revises any of the referenced standards.
    The regulation requires positive pressurized ventilation systems 
with temperature controls only on new roadway maintenance machines as 
defined in Sec.  214.7. In addition, the requirement is limited to 
ballast regulators, tampers, mechanical brooms, rotary scarifiers, 
undercutters, and other equipment with equivalent functions. It is 
FRA's understanding that these types of equipment are now typically 
manufactured with engineering controls that prevent inhalation of 
hazardous substances. The regulation requires temperature controls 
because, by their nature, pressurized cabs require full enclosure 
without access to open windows or similar sources of ventilation. It 
becomes imperative, therefore, that the cabs also be equipped with a 
means to control the temperature inside the cab. If the engineering 
controls fail for the ventilation system of any roadway maintenance 
machine covered by the requirement, employees on the machine must be 
equipped with personal respiratory protective equipment that is 
operative and meets the OSHA standards contained in 29 CFR 1910.134.
    To prevent confusion about which agency has enforcement authority 
over specific roadway maintenance machines, the rule requires railroads 
to maintain a roster of machinery that falls under FRA's jurisdiction 
for purposes of this regulation. The roster may be maintained on paper 
or electronically, but it must be accessible and available to FRA, 
OSHA, and other Federal and State agencies so that inspectors may 
determine which agency has responsibility for inspection of which 
machines. The roster is intended to prevent confusion that may 
otherwise cause certain machines to be inspected by two Federal 
agencies while other machines go uninspected altogether.
    Although the regulation addresses pressurized cabs and temperature 
controls for only certain types of new roadway maintenance machines, 
railroads are not precluded from equipping other types of machinery, or 
older machinery, with the same features. If the railroad desires that 
FRA become the inspection agency for those machines so retrofitted, the 
railroad may simply add the designated machines to the roster. However, 
once added to the roster, a designated machine must remain on the 
roster until it is retired or its ownership changes.

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Crane Safety

    In 1998, the BMWE petitioned FRA to issue new regulations governing 
the safety of on-track railroad maintenance cranes. Currently, the 
safety of railroad crane operations is governed generally by OSHA 
regulations at 29 CFR 1910.180. Through its petition, the BMWE sought 
to reduce the number of railroad crane operators who are killed or 
seriously injured when cranes accidentally tip over due to shifting 
loads, excessive loads, defective equipment, supervisor misjudgment, or 
operator error.
    However, this rule is not intended to cover crane safety as 
envisioned by the petition. For example, this rule does not address 
those elements of crane safety involving the lifting and transferring 
of loads. Further, FRA makes clear that this rule is not intended to 
displace OSHA's regulations governing crane safety at 29 CFR 1910.180. 
FRA has made a commitment to gather additional data and information 
regarding crane safety. Upon completing that effort, FRA will consult 
with members of the Task Group and, if appropriate, seek the advice of 
the RSAC about the necessity of issuing FRA regulations as called for 
in the BMWE's petition.

Section-by-Section Analysis

    FRA is amending 49 CFR part 214 by adding a new subpart D 
specifically devoted to the prevention of accidents and casualties 
caused by the operation of on-track roadway maintenance machines and 
hi-rail vehicles. FRA is also amending subpart A of part 214 by adding 
new definitions to Sec.  214.7 that describe and categorize the types 
of on-track roadway maintenance machines and hi-rail vehicles that 
subpart D addresses.

Section 214.7 Definitions

    Section 214.7 contains additional entries which are particularly 
important to the understanding of the types of equipment that are to be 
covered by the new rule. Subpart D addresses two general types of 
roadway maintenance machines. ``On-track roadway maintenance machines'' 
are defined as self-propelled, rail-mounted, non-highway roadway 
maintenance machines whose light weight is in excess of 7,500 pounds 
and whose purpose is not for the inspection of railroad track. ``Hi-
rail vehicles'' are defined as roadway maintenance machines that are 
manufactured to meet Federal Motor Vehicle Safety Standards and are 
equipped with retractable flanged wheels so that the vehicles may 
travel over the highway or on railroad tracks.
    Both on-track roadway maintenance machines and hi-rail vehicles are 
further classified as ``new'' for the purposes of this rule. A ``new'' 
on-track roadway maintenance machine is defined as an on-track roadway 
maintenance machine which is ordered after December 26, 2003 and 
completed after September 27, 2004. Whereas, a ``new'' hi-rail vehicle 
is defined as a hi-rail vehicle which is ordered after December 26, 
2003 or completed after September 27, 2004. The result of these 
somewhat different definitions is to afford new on-track roadway 
maintenance machines more time to be built in compliance with the rule, 
due to the concern that it would take longer to do so for such machines 
than for hi-rail vehicles. On-track roadway maintenance machines are 
further classified as ``existing,'' comprising any on-track roadway 
maintenance machines covered by this subpart which do not meet the 
definition of ``new'' on-track roadway maintenance machines. Hi-rail 
vehicles are not further classified as ``existing'' in the text of this 
rule, due to the structure of the rule. However, when the term ``hi-
rail vehicle'' is used in the rule text, in distinction to the term 
``new hi-rail vehicle,'' any hi-rail vehicle covered by this subpart is 
included, whether ``new'' or not. Nevertheless, in some portions of 
this rule's preamble FRA does refer to ``existing'' hi-rail vehicles 
for added clarity in explaining when a specific section of the rule 
addresses all hi-rail vehicles covered by this subpart.
    Roadway maintenance machines not included within the scope of 
subpart D are ``on-track roadway maintenance machines'' whose light 
weight does not exceed 7,500 pounds, off-track equipment such as 
bulldozers, backhoes, and road graders, as well as that class of 
antiquated equipment referred to as motor cars. Although this equipment 
is not covered under the scope of subpart D, it nevertheless meets the 
general definition of ``roadway maintenance machines'' as defined in 
this section for purposes of the Roadway Worker Protection regulations 
contained in subpart C of this part.
    In addition, it is important to note here that the term 
``employer'' as defined in subpart A includes both railroads and 
contractors of railroads. In subpart D, FRA has used the term 
``employer'' as defined; that is, both railroads and their contractors 
are subject to the requirements of subpart D.
    One commenter, Loram, objected to the definition of ``new'' roadway 
maintenance equipment, stating that the proposed definition was 
confusing and provided a lead-time that is too short. The commenter 
also questioned the definition's apparent assumption that all roadway 
maintenance machines are ordered to specifications when in fact some 
machines are built in anticipation of future orders. The commenter 
suggested that the definition of ``new'' machines be ``any machines 
completely manufactured more than one year after issuance of the final 
rule.'' After discussion of the comment, the Task Group voted 
unanimously that the definition already developed by its members and 
approved by the entire RSAC is a more effective definition to apply to 
the regulation. FRA agrees with the reasoning of the Task Group; 
therefore, no change has been made.

Section 214.501 Purpose and Scope

    The purpose for the minimum safety standards prescribed under this 
subpart is the protection of roadway workers during the lawful 
operation of on-track roadway maintenance machines and hi-rail 
vehicles. This subpart prescribes minimum safety standards for on-track 
roadway maintenance machines and hi-rail vehicles, although railroads 
and railroad contractors (referred to collectively as ``employer'' 
throughout subpart D, as the term is defined in subpart A) may adopt 
more stringent standards as long as they are consistent with this 
subpart. As it has done in other regulations, FRA is including railroad 
contractors within the scope of this regulation. A good deal of track 
maintenance is performed by contractors to railroads, so it is 
important for those entities to fall within the requirements for safe 
performance of that work.
    This section further states that any working condition which 
involves the protection of railroad employees engaged in roadway 
maintenance duties but which is not specifically addressed in this 
subpart (for example, noise exposure) continues to be governed by the 
regulations of OSHA. The purpose of this section is to avoid the 
unintentional displacement of OSHA safety regulations governing the 
roadway maintenance machine work environment.
    Furthermore, all of the provisions set forth in subpart A to this 
part, which concerns the purpose and scope of this part, apply to 
subpart D as well.
    FRA received no comments in response to this section of the 
proposed rule; therefore, no changes from the proposed rule have been 
made.

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Section 214.503 Good-Faith Challenges; Procedures for Notification and 
Resolution

    This section outlines the circumstances under which employees 
operating on-track roadway maintenance machines and hi-rail vehicles 
are guaranteed the right and have the responsibility to make challenges 
relative to the operation or condition of on-track roadway maintenance 
machines and hi-rail vehicles. In the final rule, FRA has expressly 
added hi-rail vehicles as roadway maintenance machines covered by the 
requirements of this section. Hi-rail vehicles were not intended to be 
treated differently and excluded from this section's requirements. It 
is consistent with safety to afford the operators of hi-rail vehicles 
the same protections- and impose on them the same obligations-under 
this section as the operators of on-track roadway maintenance machines.
    Paragraph (a) addresses the employee's responsibility to inform the 
employer whenever the employee makes a good-faith determination that 
the on-track roadway maintenance machine or hi-rail vehicle does not 
comply with FRA regulations or has a condition that inhibits its safe 
operation. The employee should consider not only the minimum safety 
requirements specified in this subpart, but also the general 
requirements specified in Sec.  214.341 of subpart C, which also 
address the safety of roadway workers who operate or work near roadway 
maintenance machines.
    A challenge must be made in good faith in order to fall within the 
purview of this section.
    Paragraph (b) guarantees the employee's right of refusal to operate 
any on-track roadway maintenance machine or hi-rail vehicle once the 
employee has made a good-faith determination that the machine or 
vehicle does not meet all the requirements of this subpart, or has a 
condition that inhibits its safe operation. As specified in Sec.  
214.531, this rule generally allows the employer up to seven days to 
repair a roadway maintenance machine or hi-rail vehicle found to be 
noncompliant. However, the employer cannot require an employee, who in 
good faith challenges the fitness of a machine or vehicle, to operate 
the machine or vehicle until the challenge has been resolved.
    Under paragraph (c), each employer must have in place, and must 
adhere to, written procedures for attaining a prompt and equitable 
resolution of challenges resulting from good-faith determinations made 
in accordance with this section. The procedures shall outline the steps 
the employer will take to investigate each good-faith challenge. They 
shall also include steps to be taken when the employer's investigation 
shows that the challenged machine or vehicle should not be used as it 
is, to ensure that the challenged machine or vehicle is not used until 
repaired or removed from service to comply with this subpart. Further, 
the written procedures shall include the title and location of the 
employer's designated official(s) for the purpose of reporting 
conditions found to be in non-compliance with this subpart, to ensure 
that machine and vehicle operators are informed as to whom they should 
address any good-faith challenges. FRA's purpose in requiring these 
procedures is to make certain that a machine or vehicle operator who 
makes a good-faith challenge of a machine's or vehicle's fitness to 
operate receives an explanation of the employer's decision to either 
keep the machine or vehicle in service, repair it, or replace it. FRA 
will not consider an employer to be in compliance with this section if 
it responds to any good-faith challenge with a mere ``yes'' or ``no'' 
answer.
    FRA envisions that operators will challenge the fitness of an 
assigned machine or vehicle only in good faith, and the employer 
likewise will respond in good faith as well. FRA realizes that an 
employer's fleet of roadway maintenance machines and hi-rail vehicles 
may be very large and that machines and vehicles may sometimes become 
unfit for safe use without the employer's immediate knowledge. This 
provision seeks to establish a system under which a machine or vehicle 
operator, who on any day may be in the best position to assess the 
safety fitness of a particular machine or vehicle, can bring to the 
employer's attention safety deficiencies and other defects that should 
be immediately addressed.
    However, FRA does realize that sometimes defects can appear to be 
more serious than they actually are. What may appear to be a defect 
jeopardizing operational safety may in reality be a minor flaw that can 
be addressed at a later, more convenient time or location. This section 
allows an employer to investigate a good-faith challenge to a roadway 
maintenance machine's and hi-rail vehicle's safety fitness and make its 
own good-faith determination that the machine or vehicle may be used 
without immediate repairs. However, this section requires good faith on 
the part of all parties involved. If FRA determines that an employer 
has not exercised good faith in determining that a machine or vehicle 
need not be immediately repaired or replaced, FRA may seek enforcement 
action against the employer for being in violation of this section. On 
the other hand, FRA will not consider an employer's response to a 
challenge to be a violation of this section if FRA determines that the 
challenge was made for purposes of disrupting or delaying work or in a 
manner demonstrating motivations other than good faith and concern for 
safety.
    In the final rule, FRA has modified paragraph (a) to make it more 
consistent with paragraphs (b) and (c) by expressly focusing the 
employee's good-faith challenge on the condition of the machine or 
vehicle, instead of on the employer's rules governing the machine or 
vehicle. As paragraph (a) read in the NPRM, the employee would have 
been required to inform the employer whenever the employer's rules 
governing the machine did not comply with FRA regulations. However, 
paragraphs (b) and (c) in the NPRM expressly focused on the safety of 
the machine itself. For example, paragraph (c) referred to the 
employer's ``challenged machine''--not to the employer's ``challenged 
rule.'' FRA's modification of paragraph (a) eliminates this 
inconsistency.
    One of the commenters to the proposed rule, Loram, objected to the 
rule's guarantee of an employee's right to refuse to operate a roadway 
maintenance machine which the employee has determined in good faith to 
be non-compliant with the regulation. The commenter suggested that one 
employee could, in effect, shut down a rail operation if a single 
machine does not meet all of the many requirements of the rule. Loram 
stated that mechanisms are already in place on railroads for such 
disputes to be resolved. Furthermore, Loram added that the provision 
itself suggests that there is necessarily an adversarial relationship 
between employers and employees in the railroad industry. According to 
Loram, this regulation would add to the burden of regulations already 
imposed on the industry.
    In considering this comment, it was noted that the language of the 
regulation is modeled after the good-faith challenge that is permitted 
of employees who are working under the roadway worker safety 
regulations in subpart C to this part. Since the early months of 1997 
when the roadway worker safety regulations became effective, few 
roadway workers have exercised the good-faith challenge provision. As 
far as FRA is aware, in each case where the challenge has been 
exercised, the

[[Page 44393]]

roadway worker sought to address a legitimate safety concern. The Task 
Group reiterated its belief that the provision is a necessary part of 
the new regulation. FRA believes that this provision is necessary for 
employee safety and that it does not impose an undue burden; therefore, 
FRA has declined to adopt Loram's comment.

Section 214.505 Required Environmental Control and Protection Systems 
for New On-Track Roadway Maintenance Machines

    This section requires that certain types of new on-track roadway 
maintenance machines be equipped with enclosed cabs with positive 
pressurized ventilation systems that include climate control. By 
design, most pressurized ventilation systems do not provide a means of 
exchanging internal air for outside air while the roadway maintenance 
machine is in operation. In other words, the machine cabs with 
pressurized ventilation systems generally are not equipped with other 
means of ventilation or climate control, such as operable windows. 
Therefore, the requirement for positive pressurized ventilation systems 
necessitates that these machines also be equipped with operative 
heating and air conditioning systems.
    The equipment covered by this section includes ballast regulators, 
tampers, mechanical brooms, rotary scarifiers, undercutters, and other 
equipment with equivalent functions. This equipment is used to perform 
track and roadbed maintenance and typically causes significant noise, 
debris, and dust. This work often occurs while employees are situated 
both in the cab of the equipment and along the right-of-way, in close 
proximity to the equipment as it is operated.
    The requirements of this section provide for the safety of employer 
operations and employees in a variety of ways:
    [sbull] The visibility of those working in the cab is improved.
    [sbull] Employees working in the cab are protected from exposure to 
unhealthy levels of silica dust, which is prevalent in many regions of 
the country where track repair work is done, as well as other air 
contaminants.
    [sbull] Equipment components are protected from temperature 
extremes and the degradation that may occur due to concentrations of 
dust and debris.
    [sbull] Any combustion fumes generated by the equipment are 
prevented from entering the cab, so that employees are not exposed to 
the potential hazards of fuel exhaust.
    [sbull] With diminished noise, dust, and debris in the cab, 
employees are better able to communicate with one another in the cab 
and, through the use of radios, with those employees working on the 
ground who might be placed at risk if the equipment moves or operates 
unexpectedly.
    FRA is cross-referencing and enforcing OSHA environmental standards 
contained in 29 CFR 1910.1000. Environmental controls of on-track 
roadway maintenance machines not covered by Sec.  214.505 are governed 
by these same OSHA regulations, but compliance continues to be enforced 
by OSHA. It is FRA's understanding that new roadway maintenance 
machines of the types covered by this section are manufactured with 
engineering controls that prevent the inhalation of hazardous 
substances, as required by OSHA standards. By adopting the OSHA 
regulations for such new machinery, FRA is in a position to make 
progressive improvements in the environmental quality of roadway 
equipment based upon a foundation of protection already established by 
OSHA.
    Employers must maintain a roster of roadway maintenance machines 
that come under FRA's jurisdiction for purposes of this regulation. The 
roster, which may be electronic, must be readily available to FRA and 
other Federal and State agencies upon request so that inspectors may 
determine which agency has responsibility for enforcement of 
respiratory safety regulations for each roadway maintenance machine.
    Employers may elect to include on the roster existing roadway 
maintenance machines that are equipped with engineering controls for 
air ventilation. These machines designated for inclusion on the roster 
may be ones manufactured with engineering controls for ventilation or 
machines retrofitted by the employer to have engineering controls. When 
added to the roster, a designated machine becomes subject to FRA 
inspection and enforcement, and it must remain on the roster until it 
is retired or its ownership changes.
    FRA recognizes that engineering controls for ventilation may fail 
from time to time. Consequently, when a new or designated roadway 
maintenance machine of the type listed in paragraph (a), or 
functionally equivalent thereto, does not offer the protection required 
by 29 CFR 1910.1000 because the engineering controls have temporarily 
failed, the employer must provide employees in the cab of the machine 
with personal respiratory protective equipment for protection from air 
contaminants, in accordance with paragraph (e). Paragraph (f) specifies 
that the personal respiratory protective equipment must be operative 
and comply with standards issued by OSHA in 29 CFR 1910.134. These OSHA 
standards require employers to use respirators certified by the 
National Institute for Occupational Safety and Health (NIOSH). 
Employers must have in place a respiratory protection program including 
procedures for proper inspection and maintenance of the respirators and 
medical evaluations of personnel designated to use the respirators.
    By referencing OSHA's regulations already in effect, FRA is not 
imposing a new burden on employers. Rather, FRA is simply adopting 
standards that are already required by another government agency. The 
requirement for heating, air conditioning, pressurized cabs, and 
personal respiratory protective equipment in these new roadway 
maintenance machines constitutes an exercise of FRA jurisdiction over 
the working condition of employee exposure to temperature extremes and 
air contaminants for those employees working in the cabs of this 
equipment. This exercise of FRA jurisdiction consequently ousts any 
authority or enforcement power of OSHA concerning working conditions 
related to the operation of air conditioning and heating systems or 
high levels of air contaminants in the cabs of this equipment. FRA 
makes clear that it is prepared to address any failure to comply with 
the working condition requirements, either through consultation with 
employers to remedy any problems or by taking enforcement action to 
bring about compliance.
    In cross-referencing the OSHA standards, FRA makes clear that when 
OSHA revises the standards FRA will enforce the revised standards on 
those machines over which FRA has jurisdiction. This will ensure that 
any OSHA revision does not create an inconsistency whereby some types 
of roadway maintenance machines would be governed by the revised 
standards enforced by OSHA and others would be governed by the 
standards without the revisions as enforced by FRA.
    FRA makes clear that it is not adopting those OSHA standards that 
include protection from silica dust for employees not working inside 
the cabs of on-track roadway maintenance machines covered by this 
section. The extent of FRA's adoption of OSHA standards in this section 
reaches only as far as the cab of the covered on-track roadway 
maintenance machine. As a result, when working inside the cab,

[[Page 44394]]

workers receive protection from FRA; when working outside the cab, 
workers receive protection from OSHA. For example, roadway workers 
working along the right-of-way will continue to receive silica dust 
protection as administered by OSHA. In addition, to make clearer which 
employees are protected by this section when the ventilation system 
fails on a machine, FRA has modified paragraph (e) to make clear FRA's 
intent that the protections of this section apply only to employees 
``in the cab'' of the machine, and not generally to any employee ``on 
the'' machine, whether inside the cab or not, as stated in the NPRM.
    FRA also makes clear that this section of the final rule does not 
constitute an exercise of FRA authority over noise exposure for 
employees working on or around equipment covered by this section. This 
section does not establish permissible noise exposure levels for 
employees working on or around this equipment. OSHA's existing 
standards for noise exposure at 29 CFR 1910.95 continue to apply.
    Paragraph (g) applies to new on-track roadway maintenance machines 
with enclosed cabs that are not of the type covered by paragraph (a). 
These new on-track roadway maintenance machines must be equipped with 
operative heating and ventilation systems.
    Paragraph (h) refers to new on-track roadway maintenance machines 
that have, in addition to the main cab, non-enclosed operator stations 
in other places on the machine. These stations must be equipped with a 
covering of some kind that protects the operator in that position from 
midday sun or from normal rain. Of course, there will be times during 
the day when the sun is in such a position in the sky that a covering 
will not completely protect the operator from the sun. Likewise, a 
cover may not completely protect an operator from very heavy or wind-
driven rain. This paragraph is not intended to require coverings to 
protect the operator in all circumstances. The coverings are required 
only when the design of the machine allows for the placement of a 
covering. Some operators' positions may be situated such that the 
addition of a covering is either impossible or would obstruct another 
working part of the equipment. In those instances, the coverings are 
not required.
    One of the commenters to the NPRM, Loram, noted that the proposed 
rule referenced silica dust as an air contaminant that would be 
addressed by pressurized cabs on roadway maintenance machines. Loram 
suggested that the final rule be directed more specifically to silica 
dust contamination. The Task Group disagreed. Air contaminants 
generated by roadway maintenance work may include more than silica. 
Following a discussion of the issue at a meeting with the Task Group, 
Loram withdrew the comment stating that it agreed that the rule should 
address the broader issue of contaminants.
    Loram further suggested that the final rule clearly define the word 
``cab'' as a ``structure in which crews are housed and from which they 
operate controls required for the machine to carry out its primary 
function or movement.'' According to Loram, some machines are equipped 
with ``work rooms, convenience areas and storage locations'' which may 
resemble a cab. The Task Group disagreed that the word ``cab'' requires 
specific definition, and FRA has not adopted Loram's comment. FRA does 
not believe there should be any confusion about the term ``cab.'' The 
types of compartments described by Loram as resembling a cab are 
typically found on rail grinders only. However, rail grinders are not 
covered by this section of the rule.
    Loram also commented that the proposed rule did not clearly 
distinguish between the types of equipment requiring enclosed cabs from 
equipment that must be provided with an overhead covering above the 
operator's stand. Loram suggested that this distinction could be 
accomplished by listing the elements each type of feature (enclosed cab 
or overhead covering) is meant to shield against. The Task Group 
discussed this comment directly with representatives of Loram at the 
Task Group meeting following publication of the NPRM. Loram 
acknowledged that it had misread the proposed regulation and withdrew 
the comment from consideration.
    In commenting on the NPRM, Transtar maintained that small railroads 
would bear an onerous burden from the requirement that personal 
respiratory protective equipment be supplied to employees in the event 
of a failure of the environmental controls in a pressurized cab. 
Transtar suggested that the regulation permit employers to use 
``engineering and/or administrative controls'' when the environmental 
controls fail on pressurized cabs. Transtar did not identify what those 
engineering and administrative controls should be. The Task Group 
disagreed with Transtar and FRA has not adopted the comment. The 
provision would not present a new burden since it mirrors OSHA 
regulations already in effect.
    Transtar also stated that the proposed regulation did not clearly 
describe the demarcation between FRA's jurisdiction and OSHA's 
jurisdiction over the working conditions of the roadway maintenance 
machines. The Task Group believed that this division of enforcement 
jurisdiction between the two agencies was discussed extensively in the 
preamble and recommended that the language of the proposed rule remain 
the same. FRA believes that it has addressed this issue in both the 
NPRM and this final rule.

Section 214.507 Required Safety Equipment for New On-Track Roadway 
Maintenance Machines

    This section contains requirements for safety equipment for all new 
on-track roadway maintenance machines. Several of the requirements are 
structural in nature, such as seats and handrails, and would be best 
met through engineering design by the equipment manufacturer. Other 
requirements, like fire extinguishers and first-aid kits, can be 
installed either by the manufacturer or by the employer after delivery 
from the manufacturer.
    Paragraph (a) requires that each new on-track roadway maintenance 
machine be equipped with a seat for each operator, unless the machine 
is designed to be operated by an operator in the standing position. 
Further, each roadway worker transported on an on-track roadway 
maintenance machine is required to have a safe and secure position with 
handholds, handrails, or a secure seat. These safe and secure positions 
must be located so that they offer protection from moving parts of the 
machine which could entangle clothing or body extremities. In the final 
rule, FRA has modified paragraph (a)(2) to make clear that moving parts 
of the machine which could entangle clothing or body extremities are 
not located only inside of the cab. This is consistent with the 
preamble to the NPRM which described the proposed protection from 
moving parts of the machine generally, without limiting that protection 
to parts located inside of the cab, and makes good safety sense.
    In the NPRM, FRA offered to consider adding regulatory language to 
the final rule to describe ``safe and secure positions'' with more 
specificity. FRA requested comment on the need for a more specific 
description and asked for suggestions about what the description should 
include. The AAR responded to the request by stating that the phrase 
``safe and secure positions'' needed no further definition. The BMWE 
suggested that a safe and secure position should have a minimum of 
three points of contact for a person riding in that position. Loram 
commented that any description of ``safe and secure'' should

[[Page 44395]]

not include a definition of how seats should be mounted, as this 
decision should be left to the vendor's discretion. In this final rule, 
FRA has decided to follow the recommendation of the Task Group by not 
changing the proposed language, except to place the last clause of the 
paragraph in its own sentence for clarity. Only the comment from the 
BMWE could be considered as supporting a more specific requirement, 
and, in any event, FRA believes that the requirement is consistent with 
three-point protection.
    Some on-track roadway maintenance machines are equipped with 
turntables to allow them to quickly change working direction when wye 
or loop tracks are not readily accessible. Paragraph (a)(3) requires 
that new machines equipped with turntables have a positive method of 
mechanical securement, through engagement of pins and hooks, to prevent 
the lowering of the turntable device below the head of the rail when 
not in use. This arrangement of pins and hooks provides a safety 
redundancy in case the main activation system fails or is accidentally 
triggered.
    In commenting on the NPRM, Loram stated that the proposed rule 
neglected to address positive lockouts for other types of roadway 
maintenance equipment that may also encroach on the area below the top 
of the rail. The Task Group concluded that the proposed rule, which 
addressed positive securement of turntables for new and existing 
roadway maintenance machines, adequately addressed the machinery 
intended to be covered by this rule. FRA agrees. The rule focuses on 
roadway maintenance machines equipped with turntables because 
turntables may be held in place simply by hydraulic pressure, which may 
be bleed off and unintentionally lower the turntable device. Other 
roadway maintenance machines have pins, clamps, or other devices to 
positively secure equipment that may encroach on the area below the top 
of the rail. FRA is not aware of any other type of roadway maintenance 
machine, other than machines equipped with turntables, which needs to 
be subject to this requirement. Accordingly, FRA has not adopted the 
comment.
    Paragraph (a)(4) requires new on-track roadway maintenance machines 
to have windshields made of safety glass or other material with similar 
properties, such as Lexan. The machinery is also required to have power 
windshield wipers. However, in cases where traditional windshield 
wipers are incompatible with the windshield material, the employer must 
provide a suitable alternative that offers the operator an equivalent 
level of vision.
    Paragraph (a)(5) requires that new on-track roadway maintenance 
machines be equipped with primary braking systems capable of 
effectively controlling the movement of the machines under normal 
operating conditions.
    Paragraphs (a)(6) and (7) together require that new on-track 
roadway maintenance machines must have a suitable first-aid kit and 
fire extinguisher readily accessible to the operator(s). The first-aid 
kit must comply with OSHA regulations prescribed at 29 CFR 
1926.50(d)(2). Consequently, the first-aid supplies in the kits must be 
in individual sealed packages for each type of item and placed in a 
weatherproof container. Further, the OSHA regulations specify that the 
kits must be inspected before being sent out on each job and at least 
weekly to ensure that expended items are replaced. The referenced OSHA 
standard does not regulate the minimum contents of the first-aid kit, 
but it recommends as an example the description of the contents of a 
generic first-aid kit described in American National Standard (ANSI) 
Z308.1-1978, ``Minimum Requirements for Industrial Unit-Type First-aid 
Kits.'' See Appendix A to 29 CFR 1926.50.
    FRA does not intend that a railroad be required to open the first-
aid kit each time to confirm that the proper supplies are in the kit. 
Rather, FRA would expect that railroads would apply a seal of some kind 
to a properly supplied first-aid kit to show that it contains the 
proper supplies. An employee inspecting a first-aid kit with an 
unbroken seal would be able to presume that the kit contains the proper 
supplies. As a result, the burden of inspecting the first-aid kits 
would be significantly minimized.
    The fire extinguisher required by this section must be operative 
and properly charged, securely mounted near the operator's work 
station, and designed with a rating of 5 BC or higher. A fire 
extinguisher with a ``BC'' rating is suitable to combat fires generated 
by flammable liquids or electrical equipment. The ``5'' designation 
indicates the extinguisher's volume and fire-fighting capacity. A 
requirement of a 5 BC rating is consistent with workplace standards in 
other industries.
    In commenting on the NPRM, Transtar stated that a requirement for 
first-aid kits and fire extinguishers to be on board roadway 
maintenance machines would be too expensive for the railroad industry, 
given the vulnerability of this type of equipment to vandalism and 
theft. Transtar suggested that the regulation require that first-aid 
kits and fire extinguishers be ``readily available.'' During the 
development of the NPRM, the placement of first-aid kits and fire 
extinguishers was extensively discussed by the Task Group. The Task 
Group was able to reach consensus on the proposed language after 
lengthy debate, and the RSAC later agreed with the proposal. After 
discussing Transtar's comment, the Task Group recommended that FRA 
decline to change the language of this portion of paragraph (a). FRA 
agrees with the Task Group's recommendation, and has not changed the 
final rule in response to the comment. FRA has not found the cost of 
complying with the requirements to be burdensome, and in any case 
first-aid kits and fire extinguishers serve vital safety interests.
    When new on-track roadway maintenance machines are designed to be 
operated with the operator in a standing position, the requirements of 
paragraph (a)(1) of this section do not apply. Instead, paragraph (b) 
requires these machines to be designed and equipped with handholds and 
handrails that provide the operator with a safe and secure position.
    Paragraph (c) requires that each new on-track roadway maintenance 
machine with a light weight in excess of 32,500 pounds be equipped with 
a speed indicator if the machine is operated at speeds in excess of 20 
mph. The speed indicator must be calibrated to be accurate within +/- 5 
mph of the actual speed when speeds are 10 mph or greater.
    Paragraph (d) requires the manufacturer of new on-track roadway 
maintenance machines to display the as-built light weight of the 
machine. The light weight of the machine is calculated when the machine 
is not loaded with passengers or extraneous equipment not part of the 
machine itself. The light weight must be displayed in a conspicuous 
location on the machine and will serve to identify its proper category 
for the purposes of this regulation. The light weight will also provide 
essential information to crane operators in the event the machines are 
lifted on to--or loaded off of--flatbed trucks or rail cars for 
movement from one work site to another.

Section 214.509 Required Visual Illumination and Reflective Devices for 
New On-Track Roadway Maintenance Machine

    This section prescribes requirements for lights and reflective 
devices for new on-track roadway maintenance machines. An on-track 
roadway maintenance machine operator must

[[Page 44396]]

have sufficient light to safely work or travel, especially during 
nighttime operations. The requirements will also help to make these 
machines more visible to roadway workers on the track and to vehicular 
traffic at highway-rail grade crossings.
    This section makes several references to visibility in normal 
weather and atmospheric conditions. The requirement to illuminate the 
track ahead for a minimum distance of 300 feet is a measure to be 
considered under generally clement weather and atmospheric conditions. 
FRA understands that during periods of rain, fog, snow and other 
occurrences that are common in normal weather patterns, the lighting 
capability of the illumination devices may temporarily be unable to 
reach a full 300 feet. These temporary instances when full illumination 
is not possible will not be considered a violation of this regulation. 
In addition, FRA will not consider unusual weather events such as 
hurricanes, tornadoes, eclipses, or horizontally driven snow to be 
normal weather and atmospheric conditions under which the regulation 
must be met.
    Paragraph (a) requires an illumination device, such as a headlight, 
capable of illuminating obstructions on the track ahead in the 
direction of travel for a minimum distance of 300 feet under normal 
weather and atmospheric conditions. In commenting on the NPRM, Loram 
stated that the requirement should define the area of the track and 
roadbed to illuminate and include a specific value of adequate 
illumination or a light intensity minimum. Nevertheless, the Task Group 
was satisfied with the language of paragraph (a) in the NPRM for 
purposes of its application to new on-track roadway maintenance 
machines. FRA has elected not to change paragraph (a). FRA believes 
that this performance requirement provides sufficient specificity for 
the regulated industry.
    When on-track roadway maintenance machines are operated during the 
period between one-half hour after sunset and one-half hour before 
sunrise, or in dimly lit areas such as tunnels, they are required by 
paragraph (b) to be equipped with operating work lights unless 
equivalent lighting is otherwise provided, for example, by portable 
wayside lighting.
    Paragraph (c) requires an operative warning light or beacon mounted 
to the roof of new on-track roadway maintenance machines. The light or 
beacon must be designed to flash intermittently while rotating 360 
degrees or otherwise emitting light in a 360-degree field. Exempt from 
this requirement are on-track roadway maintenance machines designed 
without fixed roofs that have a light weight less than 17,500 pounds.
    In commenting on the NPRM, Loram stated that the proposed 
requirement for a light that rotates 360 degrees would seem to disallow 
the use of strobe lights. In considering Loram's comment, the Task 
Group concluded that the NPRM's preamble language concerning paragraph 
(c) was confusing. FRA agrees with Loram and the Task Group and makes 
clear that, while the light or beacon required by this paragraph must 
emit light in a 360-degree field, it does not have to rotate to do so. 
The intent is that the light or beacon be visible to someone in the 
vicinity of the machine, whether that person is in front, back, or to 
the side of the machine. A strobe light that intermittently flashes 
light in a 360-degree field, but does not need to rotate to do so, 
would certainly fulfill the requirements of this paragraph.
    FRA notes that in the NPRM the second sentence of paragraph (c) 
reads: ``New roadway maintenance machines that are not equipped with 
fixed roofs and have a light weight greater than 7,000 pounds but less 
than 17,500 pounds are exempt from this requirement;'' (emphasis 
added). The reference to ``7,000 pounds'' was in error and should have 
read ``7,500 pounds.'' Yet, FRA is removing the reference as 
unnecessary because a machine having a weight of 7,500 pounds or less 
does not meet the definition of an ``on-track roadway maintenance 
machine'' in Sec.  214.7 and, therefore, is not subject to the 
requirements of this section.
    Paragraph (d) requires new on-track roadway maintenance machines to 
be equipped with brake lights activated by an application of the 
machine braking system. The brake lights must be visible for a distance 
of at least 300 feet under normal weather and atmospheric conditions.
    In commenting on this paragraph, Loram pointed out that the 
regulation does not seem to consider roadway maintenance machines that 
move in both directions. To the extent Loram's comment concerns older 
equipment, FRA notes that such equipment is not covered by the 
requirements of this section. Rather, existing on-track roadway 
maintenance machines are covered by the requirements of Sec.  
214.517(d), below, which permits the use of reflective material instead 
of brake lights. Of course, new on-track roadway maintenance machines 
must be equipped with brake lights, and those new machines that move in 
both directions will need to have brake lights on both ends of the 
machines. Even if a machine that moves in both directions is wired so 
that the brake lights apply on both ends at the same time, FRA does not 
believe that this creates an operational problem that needs to be 
addressed as FRA has done in this rule for change-of-direction alarms. 
See Sec.  214.511(b). In fact, this may even enhance safety in certain 
situations. Nevertheless, as was noted in the Task Group's discussions, 
a machine may be equipped with a toggle switch to allow the operator to 
indicate the direction of the machine's travel so that the brake lights 
operate only on the trailing end of the machine's movement. For the 
foregoing reasons, the text of paragraph (d) remains unchanged from the 
NPRM.
    Paragraph (e) requires that new on-track roadway maintenance 
machines be equipped with operative rearward viewing devices, such as 
rearview mirrors or their functional equivalent, to enable machine 
operators to better see other machines or roadway workers within their 
immediate work zone. Video cameras and monitors may be used to comply 
with the requirements of this paragraph.

Section 214.511 Required Audible Warning Devices for New On-Track 
Roadway Maintenance Machines

    This section requires audible warning devices on new on-track 
roadway maintenance machines to provide additional safety for roadway 
workers and other machine operators.
    Paragraph (a) requires audible warning devices, such as horns, that 
produce sound loud enough to be heard by roadway workers and other 
machine operators within the immediate work area. The triggering 
mechanism for the audible warning device must be clearly identifiable 
and within easy reach of the machine operator.
    Paragraph (b) requires automatic change-of-direction alarms that 
produce an audible signal that is at least three seconds long and 
uniquely distinguishable from any surrounding noise. Except as noted 
below, the change-of-direction alarm must sound automatically in each 
instance when the on-track roadway maintenance machine changes its 
designated forward direction to a reverse direction.
    In commenting on the proposed rule, Loram stated that some 
machines, by their work function on the track, move back and forth at 
intervals so short that their change-of-direction alarms would sound 
almost continually while they are performing track work. Such a result 
could effectively hamper the safety of track work rather than enhance 
it. In

[[Page 44397]]

response to this comment, FRA has added language to paragraph (b) 
permitting operators of such machines to interrupt or turn off the 
change-of-direction alarms on those machines when they are performing 
functions that would cause the alarms to sound constantly or almost 
constantly. Nevertheless, FRA has not found it possible to specify a 
precise list of machines that would typically fit these criteria. 
Therefore, FRA has added a sentence to paragraph (b) to indicate that 
FRA will presume that all machines must engage their change-of-
direction alarms, unless the employer can show that the alarm on a 
particular machine would sound constantly or almost constantly while 
the machine is performing its work function. Of course, the employer 
has to make such a showing only in the event that FRA inquires about a 
particular machine.
    In developing the requirement as to how loud the audible warning 
devices and change-of-direction alarms must be, the Task Group rejected 
proposing a decibel standard, choosing instead to propose simply that 
the warning devices be ``loud enough to be heard by roadway workers and 
other machine operators within the immediate work area.'' However, FRA 
invited comment on whether or not the requirement should specify a 
particular decibel level, and if so, what level. Two commenters, AAR 
and Loram, stated that a standard decibel level would remove 
flexibility needed to address varying noise levels in different 
situations. Transtar disagreed, however, stating that the varying sound 
levels of different warning devices could result in excess noise and 
confusion for the work crews, especially as machines repeatedly change 
direction to perform their functions, and employees may ignore the 
warning alarms if they hear them all day long. Transtar also noted that 
the proposal did not specify minimum distances at which the audible 
warning devices need to be heard, or whether different tones should be 
used to help employees distinguish between different machines.
    After discussing the comments, the Task Group concluded that 
different work situations require different decibel levels for the 
audible warnings and recommended that the language of the final rule 
not specify a decibel level for these warning devices. FRA agrees with 
the Task Group's reasoning and also notes that no comment was received 
recommending what decibel level(s) should be set. Accordingly, the 
final rule does not specify any decibel level(s). In regard to the 
concern that the rule may lead to excessive noise and confusion for 
work crews, the final rule provides, as noted above, that change of 
direction alarms may be interrupted by the machine operator when 
operating a machine in the work mode if the function of the machine 
would result in a constant, or almost constant, sounding of the device.

Section 214.513 Retrofitting of Existing On-Track Roadway Maintenance 
Machines; General

    This section specifies a schedule of retrofit items applicable to 
all existing on-track roadway maintenance machines. Pursuant to Sec.  
214.7, an existing on-track roadway maintenance machine is defined as 
any on-track roadway maintenance machine other than a new on-track 
roadway maintenance machine. Consequently, an existing on-track roadway 
maintenance machine is any on-track roadway maintenance machine in 
existence or on order on or before December 26, 2003, or completed on 
or before September 27, 2004.
    Paragraph (a) states that each roadway worker transported on an 
existing on-track roadway maintenance machine shall have a safe and 
secure position that also provides protection from moving machine parts 
that could entangle clothing or body extremities. These positions may 
include seats or foot platforms with handholds so that the roadway 
worker can maintain a stable and balanced position on the machine as it 
is moving down the track. Roadway workers are prohibited from being 
transported on machines on which it is not possible to provide safe and 
secure positions for them. In the final rule, FRA notes that it has 
modified paragraph (a) in the same way it has modified Sec.  
214.507(a)(2) to make clear that moving parts of the machine which 
could entangle clothing or body extremities are not located only inside 
of the cab. See discussion of Sec.  214.507(a)(2), above.
    In the NPRM, FRA proposed requiring in paragraph (b) that each 
existing machine be stenciled or have documentation on the machine to 
clearly identify the location of safe and secure positions for the 
machine operator and any roadway workers transported on the machine. In 
the final rule, that requirement has been revised from the NPRM and re-
designated as Sec.  214.518. Discussion of this revised requirement is 
included under the heading for that section in this portion of the 
preamble, below.
    In paragraph (b) of the final rule, formerly paragraph (c) of the 
proposed rule, each existing on-track roadway maintenance machine is 
required to have a permanent or portable horn or other audible warning 
device by March 28, 2005. The audible warning device shall be easily 
accessible to the machine operator and shall produce a sound loud 
enough to be heard by roadway workers and other machine operators 
within the immediate work area.
    As in the case of the similar requirement for new on-track roadway 
maintenance machines in Sec.  214.511, the Task Group recommended not 
setting a decibel standard to address how loud the audible warning 
devices on existing roadway maintenance machines must be. In addition, 
comments received in response to the proposed requirement were the same 
as those received in response to Sec.  214.511. Consequently, this 
paragraph's requirements are the same as those proposed in the NPRM.
    Paragraph (c), formerly paragraph (d) in the proposed rule, states 
that by March 28, 2005, each existing on-track roadway maintenance 
machine shall be equipped with a permanent illumination device, such as 
a headlight, or a portable light source securely placed on the machine 
and not hand-held. The portable light does not have to be permanently 
affixed to the vehicle, however. FRA will consider the light source to 
be securely placed on the machine if it is held in place through any 
arrangement of screws, bolts, mounting clips, or heavy-duty magnets 
that maintains the light steadily in place without requiring a person 
to hold it. Lights are required if the machine is operated during the 
period between one-half hour after sunset and one-half hour before 
sunrise or in dimly lit areas such as tunnels. The illumination device 
or portable light source must be capable of illuminating obstructions 
on the track ahead for a distance of at least 300 feet under normal 
weather and atmospheric conditions.
    The regulation affords employers up to twenty months after the date 
of publication of the final rule to retrofit existing on-track roadway 
maintenance machines with audible warning and illumination devices on 
those machines not so equipped. This is sufficient time for employers 
to order these safety appurtenances and fit them on machines not so 
equipped, and FRA expects all machines to be in compliance by the 
retrofit date.

Section 214.515 Overhead Covers for Existing On-Track Roadway 
Maintenance Machines

    This section addresses the reinstallation and maintenance of 
overhead covers on existing on-track roadway maintenance machines, as 
well as the feasibility of providing overhead

[[Page 44398]]

covers on certain machines not originally designed and manufactured 
with such protection.
    Paragraph (a) states that for those existing on-track roadway 
maintenance machines either currently or previously equipped with 
overhead covers for the operator's position, defective covers shall be 
repaired, and missing covers shall be reinstalled, by March 28, 2005, 
and thereafter maintained in accordance with the provisions of Sec.  
214.531. FRA has modified the text of this paragraph from that proposed 
in the NPRM. In the NPRM, FRA proposed that ``[o]verhead covers on 
existing on-track roadway maintenance machines will be repaired by * * 
* and thereafter maintained in accordance with the provisions of Sec.  
214.531.'' FRA has clarified the text by stating what had been 
implicit: a cover does not have to be repaired if it is not defective. 
Further, FRA has made clear that if a machine has previously been 
equipped with an overhead cover that has since been removed, that cover 
must be reinstalled. In addition, FRA has made clear that the cover is 
for the operator's position. FRA believes that this paragraph more 
accurately reflects the intent of the Task Group as it has been 
revised.
    Many older on-track roadway maintenance machines were not designed 
with overhead covers, although machine operators could greatly benefit 
from their presence. Paragraph (b) allows an operator assigned to 
operate a particular on-track roadway maintenance machine, or that 
operator's designated representative, to request in writing that the 
employer evaluate the feasibility of providing an overhead cover for 
the operator's position where original design specifications did not 
provide for one or where the overhead cover was an option that was not 
purchased. Under paragraph (b), the employer must respond in writing 
within 60 days to each such request.
    If the employer finds that the addition of an overhead cover is not 
feasible for a particular machine, the written response must state why. 
There may be a number of reasons why an employer would find that the 
addition of an overhead cover is not feasible. There may be no room on 
the machine to install an effective cover or canopy to protect the 
operator's position, or the machine may not provide a safe place on 
which a cover may be mounted or attached. Employers must proceed with 
caution in retrofitting a cover that is supported by an additional pole 
or stanchion. A roadway worker may try to use a stanchion as a 
handhold, depending on its location. Consequently, if a stanchion is in 
a location identified as a safe and secure location for a roadway 
worker to ride on the machine, the stanchion must be securely attached 
to the machine so that it may serve as a handhold.
    In preparing the final rule, FRA has modified the text of paragraph 
(b) from that proposed in the NPRM to make the requirement clearer and 
consistent with the changes made to paragraph (a), noted above.
    As provided in paragraph (c), for purposes of this section the 
covers or canopies must be capable of shielding the operator from 
overhead sunlight, but are not expected to offer complete protection 
from the sun when the sun is relatively low in the sky, soon after 
sunrise or just before sunset. The covers must also be capable of 
shielding the operator from ordinary rainfall or snowfall, but are not 
expected to shield the operator from the effects of windblown 
precipitation. For clarity, FRA has added paragraph (c) to place in the 
rule text what FRA had proposed the covers protect against, as stated 
in the preamble discussion in the NPRM. In addition, FRA has used the 
same rule text contained in Sec.  214.505(h), which is the counterpart 
to this section for new on-track roadway maintenance machines.

Section 214.517 Retrofitting of Existing On-Track Roadway Maintenance 
Machines Manufactured on or After January 1, 1991

    This section specifies requirements for existing on-track roadway 
maintenance machines manufactured on or after January 1, 1991. 
Consequently, on-track roadway maintenance machines manufactured prior 
to 1991 are exempt from these requirements. Existing on-track roadway 
maintenance machines that are subject to the requirements of this 
section must conform to these requirements after March 28, 2005. As a 
result, such machines that are not already equipped with the safety 
appurtenances required by this section must have those appurtenances 
installed and comply with the other requirements of this section after 
this date.
    Under paragraph (a), existing on-track roadway maintenance machines 
covered by this section must have a change-of-direction alarm, or 
rearview mirror or other rearward viewing device, if adding the device 
is feasible from an engineering standpoint and promotes operational 
safety. Among the wide variety of roadway maintenance machines, there 
exist some machines for which such a retrofit would be useless, 
unnecessary, impossible, or impractical. Under this regulation, the 
feasibility and usefulness of retrofitting a change-of-direction alarm 
or rearward viewing device to a particular roadway maintenance machine 
will be determined by the employer after considering available 
compliance options and the durability and functional quality of the 
proposed retrofit.
    A change-of-direction alarm notifies workers near the roadway 
maintenance machine that its movement is about to change. A rearward 
viewing device assists the operator in safeguarding roadway workers in 
the vicinity of the machine. Both devices offer protection for roadway 
workers, but from two different perspectives. In the NPRM, FRA sought 
comment regarding whether this standard should require both a change-
of-direction alarm and a rearward viewing device in order to afford 
adequate protection for roadway workers working in the vicinity of a 
roadway maintenance machine. The BMWE responded that a requirement for 
both devices would offer roadway workers a higher level of protection. 
The AAR noted that installation of a rearward viewing device may be 
impracticable on some older machines and, in particular, that some 
older machines may not have the proper electrical system to sustain a 
change-of-direction alarm. According to the AAR, by requiring either 
one device or the other, rather than both, the rule would provide 
employers with the kind of flexibility they may need in retrofitting 
old machines. The AAR also stated that either device by itself would 
provide an adequate level of protection for roadway workers.
    Loram commented that the proper choice of either a rearward viewing 
device or a change-of-direction alarm, or both, depends on the 
particular machine. For example, Loram believed that rearward viewing 
devices would be of little use on large machine consists in protecting 
workers alongside the machines. Loram also stated that automatic 
change-of-direction alarms may not work on large machine consists in 
protecting workers alongside the machines or on certain roadway 
maintenance machines, such as ballast vacuum machines, which, by the 
nature of the work they do, move back and forth on the track at very 
short intervals. A change-of-direction alarm would sound almost 
constantly on such a machine.
    The Task Group recommended that FRA add language to the regulation 
that would exclude certain machines for which change-of-direction 
alarms and rearward viewing devices would make

[[Page 44399]]

no safety sense. FRA agrees that such an exclusion is reasonable, and 
as explained further the final rule includes the caveat that a change-
of-direction alarm or rearward viewing device needs to add some value 
to the operational safety of the machine, given its function on the 
roadway. In other words, an employer does not have to retrofit an 
existing on-track roadway maintenance machine with either a change-of-
direction alarm or a rearward viewing device if the machine's design or 
function is such that a retrofit of this nature would provide no safety 
value. However, FRA will presume that all existing on-track roadway 
maintenance machines may be retrofitted with either device in such a 
way that safety is enhanced. An employer who reaches a different 
conclusion about retrofitting a particular machine will have to 
demonstrate, if asked by FRA, that such a retrofit would not improve 
safety.
    Under paragraph (b), an existing on-track roadway maintenance 
machine covered by this section must also have an operative heater when 
the ambient temperature is less than 50 degrees Fahrenheit, if the 
machine is or has been equipped with a heater. Roadway workers 
typically dress in seasonal clothes appropriate to perform work 
outdoors, unlike locomotive cab employees who expect to spend most of 
the workday inside the cab of a locomotive. Therefore, the threshold 
ambient temperature may be as low as 49 degrees Fahrenheit before 
triggering the requirement for an operative heater in a roadway 
maintenance machine.
    In preparing the final rule, FRA modified the text of paragraph (b) 
to make clear that this requirement applies to machines that have 
previously been equipped with heaters that have since been removed. 
Heaters that have been removed must be reinstalled. Further, FRA has 
removed the text that limited the application of this section to 
heaters equipped by the manufacturers of the on-track roadway 
maintenance machines. Heaters could have been installed after the 
machines were manufactured, and it is not evident why heaters installed 
after manufacturer should not be subject to the requirements of this 
paragraph.
    Paragraph (c) requires that the light weight of an existing on-
track roadway maintenance machine covered by this section be stenciled 
or otherwise clearly displayed on the machine, if the light weight is 
known. The light weight of a machine is calculated when the machine is 
not loaded with passengers or extraneous equipment not part of the 
machine itself. It should be displayed in a conspicuous location on the 
machine. The light weight will identify the machine's proper category 
for the purposes of this regulation, as well as provide essential 
information to crane operators in the event the machine is lifted on 
to--or loaded off of--a flatbed truck or rail car for movement from one 
work site to another. FRA received no comment on the proposed 
requirement; therefore, paragraph (c) remains as proposed.
    Paragraph (d) requires existing on-track roadway maintenance 
machines covered by this section to be retrofitted with operable brake 
lights or other reflective devices or material, if not already so 
equipped. The purpose of this requirement is to enhance the visibility 
of a machine to operators of other machines and to other rail traffic. 
FRA received no comment on the proposed requirement; therefore, 
paragraph (d) remains as proposed.
    Paragraph (e) of the NPRM proposed that existing on-track roadway 
maintenance machines covered by this section be equipped with safety 
glass when glass is normally replaced on the machines. Because there 
may be a large number of existing roadway maintenance machines that do 
not have safety glass, FRA's approach in this paragraph is to enhance 
the safety of the roadway maintenance machines without creating an 
onerous burden in retrofitting such existing machines with safety 
glass. It is not the intent of the regulation to require employers to 
immediately replace all the glass on all existing machines covered by 
this section. Rather, the existing glass may remain in place until such 
time as it would normally be replaced, and then it must be replaced 
with safety glass. However, if the employer has on hand as of the 
effective date of this rule replacement glass that is other than safety 
glass and is specifically intended for use on these machines, the 
employer may utilize the supply of that replacement glass until it is 
exhausted.
    Although the proposed rule did not specify standards for safety 
glass, FRA requested comment as to whether the final rule should 
include specific standards, such as requirements similar to those 
delineated in 49 CFR part 223 (Safety Glazing Standards) for passenger 
rail cars, locomotives, and cabooses. Commenters responding to this 
request were unanimous in believing that this final rule should not 
require standards similar to those contained in the Safety Glazing 
Standards. The AAR and Loram suggested that if any safety glass 
standards were set, or recommendations made, they should be restricted 
to automotive safety glass or its equivalent, such as Lexan. The AAR 
pointed out that not all roadway maintenance machines have the 
structural strength to accommodate the type of glass required under 49 
CFR part 223. The BMWE concurred, stating that a similar OSHA standard 
at 29 CFR 1926.600(a)(5) requires safety glass ``or equivalent.'' The 
BMWE also stated that manufacturers likely follow ANSI recommendations 
for safety glass. After discussing these comments, the Task Group 
recommended that FRA not change the requirement as proposed in the 
NPRM. FRA has elected to follow that recommendation and paragraph (e) 
remains as proposed. As noted, OSHA has a similar requirement that is 
no more specific, and FRA does not believe that additional requirements 
are necessary at this time.
    Paragraph (f) of the proposed rule stated that an existing roadway 
maintenance machine covered by this section that is equipped with a 
turntable must have a turntable restraint device, such as an 
arrangement of pins and hooks designed to prevent an undesired lowering 
of the turntable device, or a warning light that would indicate to the 
machine operator that the turntable device is not in a normal travel 
position. In commenting on this proposal and its counterpart for new 
on-track roadway maintenance equipment in Sec.  214.507, Loram stated 
that the proposed rule neglected to address other types of roadway 
maintenance equipment that may also encroach on the track area below 
the rail. As explained above in the discussion of Sec.  214.507, FRA 
has not adopted Loram's comment. Yet, as a separate matter, FRA has 
revised paragraph (f) to make clear that the paragraph applies only to 
those machines equipped with turntables.
    In paragraph (g) of the NPRM FRA proposed to require handholds, 
handrails, or a secure seat or bench for each roadway worker 
transported on an existing roadway maintenance machine subject to the 
requirements of this section. FRA also noted that it was considering 
specifying regulatory standards for these handholds, handrails, seats 
and benches, and sought comment on the need for such additional 
standards. None of the commenters favored the addition of such 
standards. The AAR stated that the wide variety of roadway maintenance 
machines would make it very difficult to design standards suitable for 
all machines, and that standards for handholds and other such safety 
appliances on freight cars would not be appropriate because roadway 
maintenance machines are typically constructed of much thinner metal. 
Without stating a belief that such

[[Page 44400]]

standards are necessary, Loram pointed out that OSHA has standards 
defining a good handhold or handrail, but noted that they are vague 
about the best means of attachment. Separately, the BMWE commented that 
a safe and secure position should have a minimum of three points of 
contact for each roadway worker riding on a roadway maintenance 
machine. An example of three-point contact is two feet securely 
positioned and one hand on a structurally sound handhold or handrail.
    FRA has examined whether OSHA's regulations provide a definition of 
what is a good handhold or handrail for application to the requirements 
of this paragraph. OSHA regulations do address handrails for various 
work sites. However, FRA does not believe it appropriate at this time 
to refer to any specific OSHA regulation for application to this 
paragraph, and, in light of the comments received in response to this 
section, the paragraph remains unchanged.

Section 214.518 Safe and Secure Positions for Riders

    In discussing the NPRM and the comments received on it, the Task 
Group noted that while Sec.  214.513(b) of the NPRM proposed requiring 
employers to stencil or document the safe and secure positions for 
roadway workers to ride on existing roadway maintenance machines, no 
such requirement was expressly proposed for new machines. Consequently, 
the requirement proposed as Sec.  214.513(b) in the NPRM has been moved 
here so that it may apply to any on-track roadway maintenance machine, 
new or existing.
    Some members of the Track Working Group suggested that a systemwide 
operating rule prohibiting the transport of roadway workers on certain 
roadway maintenance machines, rather than stenciling or documentation, 
could serve as a more effective and efficient means of conveying 
information as to when it is prohibited to transport roadway workers on 
roadway maintenance machines. FRA expressly invited comment on this 
suggestion in the NPRM.
    The BMWE responded to the request for comment by stating that 
employers should not be given the option of using an operating rule to 
identify those roadway maintenance machines prohibited from 
transporting roadway workers because it would create too great a 
potential for error in its application. According to the BMWE, the wide 
variety of types and configurations of roadway maintenance machines 
would cause confusion about the proper application of a broad operating 
rule, especially for roadway workers encountering a particular machine 
with which they are unfamiliar. In addition, the BMWE stated that 
roadway workers do not have instant or easy access to operating rules, 
in case a question arises about the applicability of such a rule to a 
particular machine.
    The AAR stated that stenciling and documentation could be 
overlooked easily by busy roadway workers. According to the AAR, a more 
effective way to address the issue would be for the employers to 
emphasize training of employees as to operating rule restrictions on 
roadway maintenance machines. Transtar agreed with the AAR, as did 
Loram, which cautioned that an operating rule should also specify the 
speeds and distances workers are permitted to be transported.
    In extensive discussion about the language of the proposed rule and 
the comments received in response to the proposal, the Task Group noted 
that the rule as proposed would have required that all existing roadway 
maintenance machines be stenciled or documented, even if the stenciling 
and documentation merely stated, ``No riders.'' The Task Group 
concluded that a simpler way to reach the same result would be for the 
regulation to prohibit roadway workers, other than the machine 
operator(s), from riding on roadway maintenance machines (new and 
existing) unless the machines were stenciled or documented with 
information about the safe and secure riding positions.
    FRA has elected to adopt the Task Group's suggestion by adding this 
new section to indicate this prohibition. Under the new language, 
employers need only identify those machines intended to carry roadway 
workers, in addition to the machine operator(s), by stenciling, 
marking, or other written notice on the machines. Roadway workers, for 
their part, will know that they are prohibited from riding on a machine 
unless it has the required stenciling, marking, or other written 
notice. Any employer who allows its roadway workers to ride on a 
roadway maintenance machine that has neither stenciling, marking, nor 
other written notice identifying safe and secure riding positions will 
be deemed in violation of the regulation.
    Under Sec.  214.513(b) as proposed, employers would have had to 
document or stencil each and every existing roadway maintenance machine 
to indicate whether riders would be permitted on each machine and, if 
so, where the safe and secure positions were located. The proposed rule 
afforded employers one year from the effective date of the final rule 
to accomplish this requirement. Under this final rule, however, the 
requirement is less burdensome, with stenciling, marking, or other 
written notice required only for those machines permitted to transport 
riders. FRA therefore has concluded that the additional one-year 
interval for compliance is not necessary. This requirement becomes 
effective on the effective date of this final rule, and any machine 
that is not stenciled, marked, or otherwise has written notice 
indicating it can accept riders will not be permitted to carry riders 
until that indication is in place.
    FRA notes that in preparing the final rule it has clarified how the 
safe and secure position on each machine will be identified. The rule 
text provides that each such position shall be identified by 
``stenciling, marking, or other written notice on the machine,'' 
instead or stating by ``stenciling or documentation on the machine'' as 
proposed in the NPRM. FRA believes that the proposed language could 
possibly have been too restrictive in limiting the manner in which a 
safe and secure position is identified. FRA makes clear that a safe and 
secure position may certainly be identified by documentation on the 
machine, but such a position may also be identified by other written 
notice on the machine.

Section 214.519 Floors, Decks, Stairs, and Ladders for On-Track Roadway 
Maintenance Machines

    All new and existing on-track roadway maintenance machines shall 
have floors, decks, stairs, and ladders that are of appropriate design. 
The purpose of this requirement is to provide secure footing for the 
machine operator and any roadway workers transported on the machine. 
Current industry standards specifying material such as diamond plate, 
rubber tile, or other slip-resistant material design will be considered 
appropriate for the purposes of this regulation. Accumulations of oil, 
grease, or other contaminants or obstructions that could create a 
slipping, falling, or fire hazard must be promptly removed from floors, 
decks, stairs, and ladders.
    FRA received no comment on this section in the NPRM; therefore, the 
language of the final rule remains as proposed.

[[Page 44401]]

Section 214.521 Flagging Equipment for On-Track Roadway Maintenance 
Machines and Hi-Rail Vehicles

    This section requires that flagging kits be available when on-track 
roadway maintenance machines and hi-rail vehicles are operated over 
trackage subject to a railroad operating rule requiring flagging. 
Flagging kits must comply with the requirements specified in the 
operating rules of the railroads over which the equipment is operated. 
This requirement applies to each on-track roadway maintenance machine 
and hi-rail vehicle that is operated alone or as the leading or 
trailing piece of equipment in a roadway work group operating under the 
same occupancy authority. Flagging kits are not required for roadway 
maintenance machines and hi-rail vehicles that are operated in the 
middle of a single roadway work group. However, the vehicles must be 
under the same occupancy authority to be considered part of a single 
group.
    In commenting on the proposed rule, Transtar inquired whether 
employers are already required to equip roadway maintenance machines 
with flagging kits under the Roadway Worker Protection regulations in 
subpart C of this part. FRA notes that flagging kits required under 
this final rule are for operating rule purposes only and do not relate 
to any requirements under the Roadway Worker Protection regulations in 
subpart C. FRA received no other comments on this section; therefore, 
the language of the section remains as proposed.

Section 214.523 Hi-Rail Vehicles

    This section prescribes certain inspection and record keeping 
requirements for all hi-rail vehicles, new as well as existing. It also 
prescribes specific requirements applicable only to new hi-rail 
vehicles.
    By definition, hi-rail vehicles have retractable flanged wheels 
giving them the ability to operate over the general highway system as 
well as on railroad track. Operation of these vehicles over the general 
highway system requires them to be manufactured to meet Federal motor 
vehicle safety standards.
    Paragraph (a) requires that all hi-rail vehicles have the safety-
critical components of their hi-rail gear inspected at least once per 
year. At a minimum, pursuant to this inspection requirement, tram, 
wheel wear and gage measurements must be checked and adjusted, if 
necessary, to provide for continued safe operation. This requirement is 
not necessarily intended to coincide with a calendar year, January to 
December. Further, FRA has added language to this final rule that 
allows up to 14 months between annual inspections. What this means is 
that the first annual inspection of all existing hi-rail vehicles is 
due under this rule within one year from the effective date of this 
final rule. Thereafter, the inspection of such existing hi-rail 
vehicles comes due each year on the anniversary date of its first 
inspection required under this rule. However, employers are allowed up 
to a two-month window in which to perform the inspection once it 
becomes due. As new hi-rail vehicles enter service, the inspection 
required by this paragraph is due within one year of the date the 
vehicles enter service. Thereafter, the inspection of such new hi-rail 
vehicles comes due each year on the anniversary date of the first 
inspection required under this rule. Again, employers are allowed up to 
a two-month window in which to perform the inspection once it becomes 
due. Any hi-rail vehicle that has not received an annual inspection 
within the previous 14 months will be deemed in violation of this 
paragraph.
    Wisconsin Central provided the only comment on this paragraph. The 
operator of Class II and Class III carriers in the Midwest stated that 
the requirement for an annual inspection of hi-rail vehicles is 
unnecessary because most such vehicles are assigned to one employee who 
knows the vehicle and immediately notices when a defect develops. The 
Task Group disagreed that this requirement is burdensome to railroads 
and it further noted that the Task Group discussed the provision at 
length when the proposed rule was being developed. The Group 
recommended that the language in the final rule remain as proposed. FRA 
believes that the inspection requirement is necessary as a minimum 
requirement to provide for the safety of hi-rail vehicles, and has not 
adopted the Wisconsin Central's comment.
    Paragraph (b) specifies a record keeping requirement to document 
safety inspections. Records may be retained on paper forms devised by 
the employer, or they may be stored electronically in a computer 
database. The employer must maintain the record of the last inspection 
of each vehicle until the next inspection is performed. The employer 
may choose to keep the record on the hi-rail vehicle itself or at a 
designated location. In either case, the records must be made available 
for inspection and copying during normal business hours by 
representatives of FRA and States participating under part 212 of this 
chapter.
    The requirements specific only to new hi-rail vehicles are 
contained in paragraph (c). Each new hi-rail vehicle shall be equipped 
with an automatic change-of-direction alarm or backup alarm which 
produces an audible signal that is at least three seconds long and 
uniquely distinguishable from any surrounding noise. Paragraph (c) does 
not specify what particular decibel level is required for the change-
of-direction or backup alarms on new hi-rail vehicles. In the preamble 
of the NPRM, FRA proposed that these devices be ``loud enough to be 
heard by roadway workers and other machine operators within the 
immediate area.'' Noting in the NPRM that such a standard could invite 
too many variables, making it difficult for FRA to enforce, FRA 
requested comment as to whether or not a decibel standard should be 
required for these devices, and, if so, what that decibel level should 
be. Consistent with Sec. Sec.  214.511 and 214.513, the Task Group 
recommended not setting a decibel standard to address how loud the 
audible warning devices on new hi-rail vehicles must be, and comments 
received on this paragraph were the same as those for the other 
sections cited. As in those other sections, the language of this 
paragraph in the final rule is the same as that proposed in the NPRM.
    Paragraph (c)(2) requires each new hi-rail vehicle to be equipped 
with an operative warning light or beacon mounted to the roof of the 
vehicle. The light or beacon must be designed to flash intermittently 
while rotating 360 degrees or otherwise emitting light in a 360-degree 
field.
    In the NPRM, FRA requested comment about whether or not the final 
rule should specify a color for the warning light and, if so, what 
color would be appropriate. In response, the BMWE noted that orange 
would be an appropriate color for warning lights on hi-rail vehicles 
because it is the color associated with ``caution.'' The BMWE suggested 
that if no color is specified, the final rule should require that 
equipment warning lights be uniform for each railroad. The AAR 
responded that the rule need not specify a color for hi-rail vehicle 
warning lights. According to the AAR, some lights cannot display colors 
as well as others, and sometimes railroads find the use of two colors 
to be more effective. The AAR believed that the rule should allow the 
marketplace to experiment and determine which color(s) would work best. 
In addition, Loram suggested the following specific colors to 
correspond to the following specific functions: blue would signify 
``parked'; yellow would signify ``operating'; white would designate 
``front'; and red would designate ``rear.''

[[Page 44402]]

    FRA has elected not to change the language of this paragraph from 
that in the proposed rule. The agency could detect no clear consensus 
among the commenters about which color(s) would work best. Different 
railroads utilize different colors. FRA can point to no clear safety 
benefit from a new requirement that would force railroads to change a 
large number of light bulbs.
    Paragraph (d)(1) requires the operator of each hi-rail vehicle to 
inspect the vehicle for compliance with this subpart prior to using the 
vehicle at the start of the operator's work shift. The intent of the 
inspection of hi-rail equipment prior to use is to identify a condition 
that inhibits the safe operation of the vehicle. For hi-rail vehicles 
that are in constant use, such as during a construction project, it is 
expected that each designated employee at the beginning of his or her 
shift will inspect the hi-rail gear. If multiple employees use the same 
equipment during the same work shift, it is expected that only the 
first employee will inspect the equipment for that shift.
    In preparing the final rule, FRA recognized that this paragraph did 
not expressly cover the inspection of existing hi-rail vehicles. Yet, 
it is not evident to FRA why only new hi-rail vehicles should be made 
subject to an inspection requirement for compliance with this subpart. 
Consequently, FRA has modified the rule to make clear that existing hi-
rail vehicles must be inspected for compliance with this subpart, such 
as checking for flagging kits when required by Sec.  214.521. FRA would 
also expect that a hi-rail vehicle operator conduct at least a visual 
inspection following a derailment or accident involving the hi-rail 
vehicle to ensure that the vehicle remains safe to operate.
    In commenting on the NPRM, Transtar noted that the paragraph 
included no requirement for recording the performance of these 
inspections. Although Transtar's observation is accurate, the omission 
was deliberate. FRA believes that the chief purpose of a requirement 
for keeping records of these checks of hi-rail vehicles would be to 
strengthen the enforceability of this paragraph. In this regard, 
paragraph (d)(2) requires that each non-complying condition not 
immediately repaired following an inspection be tagged and reported to 
the employer's designated official. (Paragraph (d)(2) was formerly 
proposed as paragraph (e) in the NPRM.) If FRA finds a hi-rail vehicle 
operating with a non-complying condition that has not been properly 
tagged or reported, FRA will presume that the hi-rail has not received 
a proper inspection prior to operation that shift, unless the operator 
or employer can show that the defect developed after the inspection was 
performed. FRA believes that this presumption will provide the agency 
with adequate ability to enforce the provisions of the paragraph 
without further burdening the employer with daily record keeping 
requirements.
    This same rationale underlies the requirements of Sec.  214.527. 
Section 214.527 requires a pre-work inspection of roadway maintenance 
machines and the tagging and reporting of any discovered defects, but 
no record keeping of the inspections themselves. Of course, nothing in 
this paragraph or in Sec.  214.527 prohibits an employer from 
maintaining records of these inspections for its own purposes.
    Paragraph (d)(3) states that defective automatic change-of-
direction or backup alarms and 360-degree intermittent warning lights 
or beacons must be repaired or replaced as soon as practicable within 
seven calendar days. This paragraph is consistent with Sec.  214.531, 
and was formerly proposed as paragraph (f) in the NPRM.

Section 214.525 Towing With On-Track Roadway Maintenance Machines or 
Hi-Rail Vehicles

    This section prescribes the manner in which on-track roadway 
maintenance machines or hi-rail vehicles may be used to tow pushcars or 
other on-track maintenance-of-way equipment. Paragraph (a) specifies 
that whenever an on-track roadway maintenance machine or hi-rail 
vehicle is used to tow such equipment, it must be equipped with a 
towing bar or other coupling device designed for that purpose that 
provides a safe and secure attachment.
    The towing of pushcars or other on-track maintenance-of-way 
equipment is prohibited under paragraph (b) when it would exceed the 
braking capabilities of the on-track roadway maintenance machine or hi-
rail vehicle doing the towing. When determining whether or not the 
braking capability of a machine or vehicle would be exceeded, the 
employer must consider the track gradient or slope in the area, as well 
as the number and weight of pushcars or other equipment to be towed. 
Paragraph (b) does not cover locomotives hauling conventional rail cars 
used in track maintenance work, such as ballast cars. Such locomotives 
must comply with the requirements in 49 CFR part 229 (Railroad 
Locomotive Safety Standards).
    Transtar commented that the requirement for towing equipment under 
this section would force railroads to keep multiple towing apparatuses 
for towing different types of equipment. Transtar suggested that the 
final rule provide some relief from the requirements of this section 
for towing performed on an emergency basis, such as by including an 
exception that under emergency circumstances equipment may be towed by 
any safe method. In considering this comment, the Task Group believed 
that the language of this section is general enough to adequately cover 
all types of towing situations, including emergency situations. FRA 
agrees, and the text of the final rule remains as proposed.

Section 214.527 On-Track Roadway Maintenance Machines; Inspection for 
Compliance and Schedule for Repairs

    This section prescribes the manner in which on-track roadway 
maintenance machines are to be inspected and repaired. The title of 
this section has been modified to make clear that it applies only to 
on-track roadway maintenance machines.
    Paragraph (a) requires the operator of an on-track roadway 
maintenance machine to perform an inspection of that machine for 
compliance with the requirements of this subpart. The operator must 
perform the inspection prior to using the machine at the start of the 
operator's work shift. As is the case for the inspection of hi-rail 
vehicles pursuant to Sec.  214.523, if multiple employees use the same 
equipment during the same work shift, it is expected that only the 
first employee will inspect the equipment for that shift.
    Under paragraph (b), any non-complying condition that cannot be 
immediately repaired must be tagged and dated according to established 
employer procedures and reported to the designated official. As in 
Sec.  214.523, this section does not require an employer to maintain 
records of each daily inspection. However, should FRA find an on-track 
roadway maintenance machine operating with a defect that has not been 
properly tagged or reported to the employer's designated official, FRA 
will presume that the daily inspection was not properly performed--a 
presumption the employer or operator may rebut by showing that the 
defect occurred after the inspection was performed.
    Paragraph (c) allows for the continued operation of an on-track 
roadway maintenance machine with a reported non-complying condition 
subject to certain requirements:
    (1) A machine with non-complying headlights or work lights may be 
operated only between the period from one-half hour before sunrise to 
one-half hour after sunset for no more than seven calendar days. In 
other words, it may

[[Page 44403]]

not be operated during the darkness between sunset and sunrise. The 
thirty-minute periods both before sunrise (dawn) and after sunset 
(dusk) are thought to provide enough light for safe operation on a 
temporary basis.
    (2) A portable horn may be substituted for a non-complying or 
missing horn or other audible warning device for no more than seven 
calendar days.
    (3) A temporary, portable fire extinguisher that is readily 
available for use may replace a missing, defective, or discharged 
permanent fire extinguisher on a new on-track roadway maintenance 
machine for no more than seven calendar days, after which time the 
permanent fire extinguisher must be replaced or repaired.
    (4) Non-complying change-of-direction alarms or backup alarms, and 
360-degree intermittent warning lights or beacons, shall be repaired or 
replaced as soon as practicable within seven calendar days.
    (5) A structurally defective or missing operator's seat shall be 
replaced or repaired within 24 hours, or by the start of the machine's 
next tour of duty, whichever is later. This paragraph provides 
flexibility for the employer in cases such as where the operator's seat 
is found to be defective on a Thursday afternoon and the next tour of 
duty for that machine is not scheduled until the following Monday. If 
the operator's seat becomes defective during the machine operator's 
tour of duty, the machine may be operated for the remainder of the 
operator's duty tour only if it is determined that the operation may 
continue in a safe manner.
    In commenting on the proposed rule's requirement for repairs to be 
made within seven calendar days, Transtar suggested that the provision 
should be changed to require repairs to be made within seven working 
days to allow employers adequate time to contact suppliers and perform 
the work around weekends and holidays. The Task Group considered this 
comment and recommended that the language of this section remain the 
same as that in the proposed rule. The provisions in this section were 
discussed at length by the Task Group when the proposed rule was being 
developed, and the resulting proposal was endorsed by the RSAC. FRA 
does not believe that this requirement is burdensome for the railroad 
industry, and has not modified the final rule in response to Transtar's 
comment.

Section 214.529 In-Service Failure of Primary Braking System

    Paragraph (a) states that in the event of a total in-service 
failure of an on-track roadway maintenance machine's primary braking 
system, the machine may be operated for the remainder of its tour of 
duty through the use of a secondary braking system, if the machine is 
so equipped, or by coupling to another on-track roadway maintenance 
machine. In either case, the employer must determine that continued 
operation of the machine is safe.
    In the NPRM, FRA stated that it was considering adding to this 
section criteria to be used by the employer in determining the safety 
of continuing to use an on-track roadway maintenance machine after its 
primary braking system has experienced a total in-service failure. FRA 
sought comment about the need for such criteria and what the criteria 
should include. The AAR was the only commenter to respond to this 
request. The railroad organization stated that the judgment as to the 
safety of the machine's continued operation is best left to the 
employer in the situation and that more specific criteria is not 
required. FRA therefore has decided that the language in this paragraph 
of the final rule should remain as proposed in the NPRM.
    Paragraph (b) states that in the event of a total in-service 
failure of an on-track roadway maintenance machine's primary braking 
system, when no secondary braking system is available and no other 
machine is available for coupling, the machine may, if it is determined 
to be safe to do so, travel to a clearance or repair point where it 
shall be placed out of service until repaired. The BMWE observed in its 
comments on the proposed rule that this provision would permit a 
roadway maintenance machine to be operated to a clearance or repair 
point with no braking system whatsoever. FRA notes, however, that the 
machine may be moved only if it is determined that such movement can be 
done safely. For instance, the wings and broom on a ballast regulator 
or the rail clamps on a tamping machine could be used to slow or stop 
the machine, if the operator determines that it is safe to do so in his 
or her particular situation. A roadway machine operator operating a 
machine with failed brakes may, in accordance with Sec.  214.503, 
challenge in good faith the safety of any instruction to move the 
machine to a clearance or repair point. The good-faith challenge 
provision should provide the machine operator protection from an 
improper order by the employer to operate a machine that has no braking 
capability when it is unsafe to do so.

Section 214.531 Schedule of Repairs; General

    This section specifies a general schedule of repairs for all on-
track roadway maintenance machines and hi-rail vehicles. If an on-track 
roadway maintenance machine or hi-rail vehicle does not meet all of the 
requirements of this subpart, it shall be repaired as soon as 
practicable within seven calendar days.
    More restrictive requirements for repairs to on-track roadway 
maintenance machines apply to missing or defective operator seats as 
prescribed in Sec.  214.527(c)(5), and a total in-service failure of a 
primary braking system as prescribed in Sec.  214.529. In the event a 
part necessary for the repair of a non-complying on-track roadway 
maintenance machine or a hi-rail vehicle is not in the employer's 
inventory and must be ordered, the repair schedule is governed by the 
requirements specified in Sec.  214.533, which addresses the 
availability of repair parts.
    FRA has modified the rule text in this section to make clear that 
it applies to both existing and new hi-rail vehicles. This is 
consistent with the preamble discussion of this section in the NPRM, 
which made no distinction between existing and new hi-rail vehicles. 
Further, this subpart imposes requirements on existing hi-rail 
vehicles. For example, Sec.  214.521 requires hi-rail vehicles to have 
flagging kits as specified in that section, and makes no distinction 
between whether the machine is new or existing.
    In commenting on the NPRM, Transtar observed that this section 
requires hi-rail vehicles to be removed from service if non-complying 
conditions are not repaired within seven days. Noting that hi-rail 
vehicles are frequently used off the track, Transtar suggested that the 
language of the rule specify that the hi-rail should be removed from 
track service only, since the defect may not prevent the vehicle from 
being safely used off the track. FRA notes that the requirements of 
this rule apply to roadway maintenance machines as they are used for 
on-track maintenance; they do not apply to service performed by the 
machines in another capacity off the track. To clarify this point, FRA 
has followed Transtar's suggestion and revised this section to read 
that on-track roadway maintenance machines and hi-rail vehicles must be 
kept out of on-track service if not repaired within seven calendar 
days. Consistent with this change, FRA has

[[Page 44404]]

modified paragraphs (b) and (c) of Sec.  214.533, below, to read that 
on-track roadway maintenance machines and hi-rail vehicles not repaired 
in accordance with the requirements of that section must be removed 
from on-track service.

Section 214.533 Schedule of Repairs Subject to Availability of Parts

    Under paragraph (a) of this section, when a part needed to repair a 
non-complying condition on an on-track roadway maintenance machine or 
hi-rail vehicle is not in the employer's inventory, the employer must 
order the necessary part by the end of the next business day following 
the report of the non-complying condition.
    In commenting on the proposed rule, Transtar stated that, as long 
as a piece of equipment is removed from service so that it poses no 
risk to an operator, there should be no requirement that repair parts 
be ordered within a specified period of time. In declining to adopt 
this comment, FRA notes that the requirement to order repair parts is 
integral to the structure of this section, which provides flexibility 
to the employer, and cannot be viewed in isolation. By taking the step 
of ordering a necessary repair part that is not held in the employer's 
inventory, the employer is permitted to keep the machine or vehicle in 
on-track service if safe to do so until the part arrives. Thereafter, 
as specified in paragraph (b), below, the employer must repair the 
machine or vehicle within seven calendar days after receiving the 
necessary part(s). The employer may simply choose to remove the machine 
or vehicle from on-track service altogether. Yet, FRA does not intend 
to withdraw the flexibility provided to the employer to keep the 
machine or vehicle in on-track service by ordering the necessary 
part(s). Of course, if the employer wishes to remove the machine or 
vehicle from service altogether, it is free to forgo ordering a 
necessary repair part, and the machine or vehicle must be kept out of 
service until brought into compliance with this subpart, pursuant to 
paragraph (c), below.
    FRA notes that, in preparing this final rule, it has modified the 
text of this section by using the term repair ``part'' in the singular, 
rather than as repair ``parts'' as proposed in the NPRM. The use of the 
word ``parts'' suggests that more than one part is necessary to repair 
each non-complying condition, which may not necessarily be the case. As 
modified, the rule text better effectuates FRA's intent. Further, as in 
Sec.  214.531, FRA has modified the rule text in this section to make 
clear that the section applies to both existing and new hi-rail 
vehicles.
    Paragraph (b) requires the employer to repair the non-complying on-
track roadway maintenance machine or hi-rail vehicle within seven 
calendar days after receiving the necessary part(s). However, if the 
non-complying condition still exists 30 days after the initial report 
of the condition, regardless of the reason, the employer must remove 
the on-track roadway maintenance machine or hi-rail vehicle from 
service until the condition is brought into compliance. FRA realizes 
that there may be times when a part needed to repair the condition is 
difficult or impossible for the employer to obtain. In such case the 
employer may continue to use the on-track roadway maintenance machine 
or hi-rail vehicle with a non-complying condition until the necessary 
part or parts are received, subject to the requirements of Sec.  
214.503. Yet, the defective machine or hi-rail vehicle must be removed 
from on-track service 30 days after the defect is reported, if it is 
still not repaired. This provision prevents the use of a defective on-
track roadway maintenance machine or hi-rail vehicle for a protracted 
and undetermined length of time.
    In commenting on the NPRM, Wisconsin Central suggested that this 
provision of the regulation is overly complicated and would impose an 
administrative burden on employers to track the arrival of replacement 
parts and repair dates. Wisconsin Central recommended that the 
provision simply state that repairs must be made within 30 days of 
discovery, or the on-track roadway maintenance machine or hi-rail 
vehicle must be removed from track service. As an alternative, 
Wisconsin Central suggested that the employer be given seven days to 
repair an on-track roadway maintenance machine or hi-rail vehicle once 
the part is received where the machine is located, noting that machines 
may break down when they are far away from their home locations.
    The Task Group disagreed with both of Wisconsin Central's 
suggestions. The Group found that the second (alternative) suggestion 
is unnecessary because machine parts can be delivered overnight to most 
locations. Seven days is ample time within which to repair a machine 
once the necessary part or parts are with the employer. The Task Group 
further noted that the proposed provisions of this paragraph were 
discussed at length when the Task Group was developing the proposed 
rule, and the proposed rule was endorsed by the RSAC. FRA agrees with 
the Task Group's reasoning and has elected not to change the rule in 
response to Wisconsin Central's comments.
    Paragraph (c) states that if the employer fails to order a 
necessary repair part as required in paragraph (a) of this section, or 
fails to install such a repair part within seven days after receiving 
it as required in paragraph (b) of this section, it must remove the on-
track roadway maintenance machine or hi-rail vehicle from on-track 
service until the equipment is brought into compliance. Of course, the 
equipment may continue in other service off the track, as in the case 
of hi-rail vehicles that may be defective for work on the track but may 
still operate on streets and highways.
    To ensure that the provisions of this section are followed, FRA 
must be able to review records concerning the ordering and installation 
of parts necessary to repair roadway maintenance machines and hi-rail 
vehicles. Paragraph (d) requires the employer to maintain records for 
one year relating to the ordering and installation of repair parts for 
on-track roadway maintenance machines and hi-rail vehicles. The records 
must be made available to FRA and State inspectors for inspection and 
copying during normal business hours, yet the employer may decide how 
and where the records are kept. For example, the records may be kept 
electronically or on paper and may be stored on the machines and 
vehicles or in a location chosen and designated by the employer.
    In commenting on the NPRM, Loram stated that the record keeping 
made necessary by this rule will detract from machine crews' ability to 
complete assigned objectives and will be costly to employers. FRA is 
aware of the added costs related to record keeping. However, the record 
keeping requirements are needed in order for FRA to enforce the rule. 
The additional costs created by the record keeping requirements have 
been factored into the cost/benefit analysis performed for this final 
rule. Accordingly, FRA has declined to modify the record keeping 
requirement in response to the comment.

Appendix A to Part 214--Schedule of Civil Penalties

    Pursuant to 49 U.S.C. 20111, this final rule includes amendments to 
the penalty schedule contained in Appendix A to part 214. The 
amendments consist of the addition of penalties associated with 
violations of the regulations under new subpart D to part 214.

[[Page 44405]]

    FRA's traditional practice has been to issue penalty schedules 
assigning to each particular regulation specific dollar amounts for 
initial penalty assessments. For each regulation, the schedule 
typically shows two amounts within the $500 to $11,000 range in 
separate columns, the first for ordinary violations, the second for 
willful violations (whether committed by railroads or individuals).
    The penalty schedule constitutes a statement of agency policy, and 
the schedule amounts are meant to provide guidance as to FRA's policy 
in predictable situations, not to bind FRA from using the full range of 
penalty authority where extraordinary circumstances warrant. 
Accordingly, under this revised schedule, and regardless of the fact 
that a lesser amount may be shown in both columns of the schedule, FRA 
reserves the right to assess the statutory maximum penalty of up to 
$22,000 per violation where a grossly negligent violation has created 
an imminent hazard of death or injury. (See Footnote 1 in appendix A to 
part 214.) This authority to assess a penalty for a single violation 
above $11,000 and up to $22,000 is used only in very exceptional cases 
to penalize egregious behavior. Where FRA avails itself of this right 
to use the higher penalties in place of the schedule amount, it will so 
indicate in a penalty demand letter.

Regulatory Impact/Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures. It is considered to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (see 44 FR 
11034, February, 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of the rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., Seventh Floor, Washington, DC. Photocopies also 
may be obtained by submitting a written request to the FRA Docket 
Clerk, Office of Chief Counsel, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590.
    This rule will cost about $1,500,000 per year. About 45 percent of 
that or $675,000 per year will go into safety enhancements which serve 
to prevent accidents and acute injuries of the type usually reported to 
FRA. That portion will generate benefits of about $1,900,000 per year. 
The remainder of the rule will address long-term risks like skin cancer 
and chronic diseases related to silica exposure, or address event 
mitigation, through requiring first-aid kits and fire extinguishers. 
FRA does not have a good way to quantify that portion of the benefit, 
although existing industry practices, and the willing participation of 
the representatives of the railroads are substantial evidence that the 
burden is likely not to be very great. The almost infinite variety of 
equipment involved, combined with limited information collection 
resources and reporting detail, make it impossible to measure more 
accurately the problem without a substantial expenditure of resources. 
But in consultation with our industry partners, we have agreed that 
there is a risk reduction opportunity. We have, together, come up with 
a reasonable minimum set of precautions and measures, at a reasonable 
level of costs, that we believe will achieve the desired reduction in 
risk. Our industry partners will willingly absorb these new costs 
because they believe it is justified to do so.
    A significant portion of the costs of environmental controls will 
be offset by productivity enhancements. The vast majority of new 
roadway maintenance machines are ordered with air conditioning because 
it enhances productivity. There may be some cases in which the 
additional productivity does not offset the cost of the environmental 
controls, but the there will be a safety benefit in terms of reduced 
long term exposure to silica dust.
    FRA found one fatal accident in the years 1996-2000 which would 
have been prevented by the rule. In that case a contract employee fell 
off a crane, which then rolled over him. The rule would have required a 
safe place to ride on the crane and likely would have prevented the 
fatality. See FRA accident file CFE-4-97, June, 23, 1997, Fort Worth, 
Texas.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 require a review of proposed and final rules to 
assess their impact on small entities. FRA has prepared and placed in 
the docket a Regulatory Flexibility Assessment (RFA) which assesses the 
small entity impact by this rule. Document inspection and copying 
facilities are available at the Department of Transportation Central 
Docket Management Facility located in Room PL-401 at the Plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://dms.dot.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
Federal Railroad Administration, 1120 Vermont Ave., NW., Washington, DC 
20590.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment.
    Pursuant to that authority, FRA has published a policy which 
formally establishes ``small entities'' as being railroads which meet 
the line haulage revenue requirements of a Class III railroad. 
Currently, the revenue requirements are $20 million or less in annual 
operating revenue. The $20 million limit is based on the Surface 
Transportation Board's threshold of a Class III railroad carrier, which 
is adjusted by applying the railroad revenue deflator adjustment (49 
CFR part 1201). The same dollar limit on revenues is established to 
determine whether a railroad shipper or contractor is a small entity. 
FRA uses this alternative definition of ``small entity'' for this 
rulemaking.
    FRA took steps during the proceedings for this rulemaking to 
minimize the adverse effects of the rule on small entities. FRA invited 
the American Short Line and Regional Railroad Association (ASLRRA) to 
be a member of the Task Group. ASLRRA declined, securing representation 
by the individual also representing the AAR. It appears the rule will 
have a minimal effect on small entities as the overwhelming majority of 
roadway maintenance machines owned by small entities were manufactured 
before 1991, and would be exempt from most of the rule's requirements. 
FRA was careful to limit retrofit requirements, which might have 
imposed an undue burden on small entities. There appears to be no 
substantial impact on a significant number of small entities.
    FRA sought comments on the effect of the proposed rule on small 
entities, but received only one comment relative to small businesses. 
Transtar noted that small railroads would bear an onerous

[[Page 44406]]

burden from the requirement in Section 214.505 that personal 
respiratory protective equipment be supplied to employees in the event 
of a failure of the environmental controls in a pressurized cab. 
However, this requirement does not present a new burden on small 
entities, as it simply mirrors OSHA regulations already in effect.
    The RFA concludes that this final rule will not have a significant 
economic impact on a substantial number of small entities. Thus, FRA 
certifies that this final rule is not expected to have a 
``significant'' economic impact on a ``substantial'' number of small 
entities under the Regulatory Flexibility Act and Executive Order 
13272.

Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
for Subpart D, which will be added to those of the Railroad Workplace 
Safety regulations (49 CFR part 214), and the estimated time to fulfill 
each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                  Respondent      Total annual     Average time    Total annual    Total annual
         CFR section               universe        responses       per response    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
214.503--Good-Faith            50,000 Roadway   250              10 minutes.....              42          $1,428
 Challenges; Procedures for     Workers.         notifications.
 Notification and Resolution.
--Resolution Procedures......  579 Railroads..  20 procedures..  2 hours........              40           1,400
214.505--Required              579 Railroads..  30 lists.......  2.5 hours......              75           2,625
 Environmental Control and
 Protection Systems For New
 On-Track Roadway Maintenance
 Machines with Enclosed Cabs.
--Designated Machines........  579 Railroads..  60 designations  5 minutes......               5             175
214.507--Required Safety       579 Railroads..  1,000 Stickers.  5 minutes......              83           2,822
 Equipment For New On-Track
 Roadway Maintenance Machines.
--Display of Light Weight in
 Conspicuous Location.
214.511--Required Audible      579 Railroads..  3,700            5 minutes......             308          10,472
 Warning Devices For New On-                     mechanisms.
 Track Roadway Maintenance
 Machines.
214.513--Retrofitting of       579 Railroads..  2,300            5 minutes......             192           6,528
 Existing On-Track Roadway                       mechanisms.
 Maintenance Machines;
 General.
--Identification of
 Triggering Mechanism--Horns.
214.515--Overhead Covers For   579 Railroads..  1,050 requests   10 minutes + 20             525          18,200
 Existing On-Track Roadway                       + 1,050          minutes.
 Maintenance Machines.                           responses.
214.517--Retrofitting of       579 Railroads..  6,000 stencils.  5 minutes......             500          17,000
 Existing On-Track Roadway
 Maintenance Machines
 Manufactured After 1990.
214.518--Safe and Secure       579 Railroads..  7,500 stencils.  5 minutes......             625          21,250
 Position For Riders.
214.523--Hi-Rail Vehicles--    579 Railroads..  2,000 records..  30 minutes.....           1,000          34,000
 Inspections--Records.
--Non-Complying Conditions...  579 Railroads..  250 tags + 250   5 min. + 15 min              84           2,856
                                                 reports.
214.527--On Track Roadway      579 Railroads..  550 tags + 550   5 min. + 15 min             184           6,256
 Maintenance Machines;                           reports.
 Inspection for Compliance
 and Repair Schedules.
214.533--Schedule of Repairs   579 Railroads..  250 records....  15 minutes.....              63           2,205
 Subject to Availability of
 Parts.
----------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions; searching 
existing data sources; gathering or maintaining the needed data; and 
reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA 
solicited comments concerning: whether these information collection 
requirements are necessary for the proper performance of the function 
of FRA, including whether the information has practical utility; the 
accuracy of FRA's estimates of the burden of the information collection 
requirements; the quality, utility, and clarity of the information to 
be collected; and whether the burden of collection of information on 
those who are to respond, including through the use of automated 
collection techniques or other forms of information technology, may be 
minimized. FRA received no replies in response to this request for 
comments. For information or a copy of the paperwork package submitted 
to OMB, contact Robert Brogan, FRA Information Clearance Officer, at 
(202) 493-6292.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of the final rule. The 
OMB control number, when assigned, will be

[[Page 44407]]

announced by separate notice in the Federal Register.

Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive 
Orders, and DOT Order 5610.1c. This final rule meets the criteria that 
establish this as a non-major action for environmental purposes.

Federalism Implications

    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132 issued on August 4, 
1999, which directs Federal agencies to exercise great care in 
establishing policies that have federalism implications. See 64 FR 
43255. In the NPRM, FRA acknowledged that the rule as proposed could 
have federalism implications. The governance of safety of hi-rail 
vehicles could have an unintended effect on State laws addressing the 
safety of these vehicles as they are operated over roads and highways, 
even though the rule is meant to cover the safety of hi-rail vehicles 
only while they are operated on railroad tracks. Although the 
requirements for hi-rail vehicles are not intended to preempt any State 
laws addressing motor vehicles, FRA requested comment concerning what 
State laws, if any, could be impacted by this rule. FRA received no 
comment in response to the request.
    The RSAC, which recommended the proposed rule, has as permanent 
members two organizations representing State and local interests: the 
American Association of State Highway and Transportation Officials 
(AASHTO) and the Association of State Rail Safety Managers (ASRSM). The 
RSAC regularly provides recommendations to the FRA Administrator for 
solutions to regulatory issues that reflect significant input from its 
State members. From the absence of further comment from these 
representatives, or of any other representatives of State government, 
FRA concludes that this final rule has no federalism implications.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each Federal agency ``shall, unless otherwise prohibited by law, 
assess the effects of Federal regulatory actions on State, local, and 
tribal governments, and the private sector (other than to the extent 
that such regulations incorporate requirements specifically set forth 
in law.'' (See Section 201). Section 202 of the Act further requires 
that ``before promulgating any general notice of proposed rulemaking 
that is likely to result in promulgation of any rule that includes any 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) in any one year, 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement * * *'' detailing the effect on State, local and tribal 
governments and the private sector. The final rule issued today will 
not result in the expenditure, in the aggregate, of $100,000,000 or 
more in any one year, and thus preparation of a statement is not 
required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355; May 22, 2001. Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this final rule in accordance with Executive Order 13211. FRA has 
determined that this final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of the Executive 
Order.

Privacy Act

    Anyone is able to search the electronic form of all public 
submissions to any of our dockets by the name of the individual making 
the submission (or signing the submission, if made on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or by visiting 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

The Final Rule

0
In consideration of the foregoing, chapter II, subtitle B of title 49, 
Code of Federal Regulations is amended as follows:

PART 214--[AMENDED]

0
1. The authority citation for part 214 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.


0
2. Section 214.7 is amended by adding in alphabetical order the 
following definitions:


Sec.  214.7  Definitions.

* * * * *
    Designated official means any person(s) designated by the employer 
to receive notification of non-complying conditions on on-track roadway 
maintenance machines and hi-rail vehicles.
* * * * *
    Hi-rail vehicle means a roadway maintenance machine that is 
manufactured to meet Federal Motor Vehicle Safety Standards and is 
equipped with retractable flanged wheels so that the vehicle may travel 
over the highway or on railroad tracks.
    Hi-rail vehicle, new means a hi-rail vehicle that is ordered after 
December 26, 2003 or completed after September 27, 2004.
* * * * *
    On-track roadway maintenance machine means a self-propelled, rail-
mounted, non-highway, maintenance machine whose light weight is in 
excess of 7,500 pounds, and whose purpose is not for the inspection of 
railroad track.
    On-track roadway maintenance machine, existing means any on-track 
roadway maintenance machine that does not meet the definition of a 
``new on-track roadway maintenance machine.''
    On-track roadway maintenance machine, new means an on-track roadway 
maintenance machine that is ordered after December 26, 2003, and 
completed after September 27, 2004.
* * * * *

0
3. Subpart D is added to part 214 reading as follows:
Subpart D--On-Track Roadway Maintenance Machines and Hi-Rail Vehicles
Sec.
214.501 Purpose and scope.

[[Page 44408]]

214.503 Good-faith challenges; procedures for notification and 
resolution.
214.505 Required environmental control and protection systems for 
new on-track roadway maintenance machines with enclosed cabs.
214.507 Required safety equipment for new on-track roadway 
maintenance machines.
214.509 Required visual illumination and reflective devices for new 
on-track roadway maintenance machines.
214.511 Required audible warning devices for new on-track roadway 
maintenance machines.
214.513 Retrofitting of existing on-track roadway maintenance 
machines; general.
214.515 Overhead covers for existing on-track roadway maintenance 
machines.
214.517 Retrofitting of existing on-track roadway maintenance 
machines manufactured on or after January 1, 1991.
214.518 Safe and secure positions for riders.
214.519 Floors, decks, stairs, and ladders of on-track roadway 
maintenance machines.
214.521 Flagging equipment for on-track roadway maintenance machines 
and hi-rail vehicles.
214.523 Hi-rail vehicles.
214.525 Towing with on-track roadway maintenance machines or hi-rail 
vehicles.
214.527 On-track roadway maintenance machines; inspection for 
compliance and schedule for repairs.
214.529 In-service failure of primary braking system.
214.531 Schedule of repairs; general.
214.533 Schedule of repairs subject to availability of parts.


Sec.  214.501  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties caused by the lawful operation of on-track roadway 
maintenance machines and hi-rail vehicles.
    (b) This subpart prescribes minimum safety standards for on-track 
roadway maintenance machines and hi-rail vehicles. An employer may 
prescribe additional or more stringent standards that are consistent 
with this subpart.
    (c) Any working condition that involves the protection of employees 
engaged in roadway maintenance duties covered by this subpart but is 
not within the subject matter addressed by this subpart, including 
employee exposure to noise, shall be governed by the regulations of the 
U.S. Department of Labor, Occupational Safety and Health 
Administration.


Sec.  214.503  Good-faith challenges; procedures for notification and 
resolution.

    (a) An employee operating an on-track roadway maintenance machine 
or hi-rail vehicle shall inform the employer whenever the employee 
makes a good-faith determination that the machine or vehicle does not 
comply with FRA regulations or has a condition that inhibits its safe 
operation.
    (b) Any employee charged with operating an on-track roadway 
maintenance machine or hi-rail vehicle covered by this subpart may 
refuse to operate the machine or vehicle if the employee makes a good-
faith determination that it does not comply with the requirements of 
this subpart or has a condition that inhibits its safe operation. The 
employer shall not require the employee to operate the machine or 
vehicle until the challenge resulting from the good-faith determination 
is resolved.
    (c) Each employer shall have in place and follow written procedures 
to assure prompt and equitable resolution of challenges resulting from 
good-faith determinations made in accordance with this section. The 
procedures shall include specific steps to be taken by the employer to 
investigate each good-faith challenge, as well as procedures to follow 
once the employer finds a challenged machine or vehicle does not comply 
with this subpart or is otherwise unsafe to operate. The procedures 
shall also include the title and location of the employer's designated 
official.


Sec.  214.505  Required environmental control and protection systems 
for new on-track roadway maintenance machines with enclosed cabs.

    (a) The following new on-track roadway maintenance machines shall 
be equipped with enclosed cabs with operative heating systems, 
operative air conditioning systems, and operative positive pressurized 
ventilation systems:
    (1) Ballast regulators;
    (2) Tampers;
    (3) Mechanical brooms;
    (4) Rotary scarifiers;
    (5) Undercutters; and
    (6) Functional equivalents of any of the machines identified in 
paragraphs (a)(1) through (a)(5) of this section.
    (b) New on-track roadway maintenance machines, and existing on-
track roadway maintenance machines specifically designated by the 
employer, of the types identified in paragraphs (a)(1) through (a)(5) 
of this section, or functionally equivalent thereto, shall be capable 
of protecting employees in the cabs of the machines from exposure to 
air contaminants, in accordance with 29 CFR 1910.1000.
    (c) An employer shall maintain a list of new and designated 
existing on-track roadway maintenance machines of the types identified 
in paragraphs (a)(1) through (a)(5) of this section, or functionally 
equivalent thereto. The list shall be kept current and made available 
to the Federal Railroad Administration and other Federal and State 
agencies upon request.
    (d) An existing roadway maintenance machine of the type identified 
in paragraphs (a)(1) through (a)(5) of this section, or functionally 
equivalent thereto, becomes ``designated'' when the employer adds the 
machine to the list required in paragraph (c) of this section. The 
designation is irrevocable, and the designated existing roadway 
maintenance machine remains subject to paragraph (b) of this section 
until it is retired or sold.
    (e) If the ventilation system on a new on-track roadway maintenance 
machine or a designated existing on-track roadway maintenance machine 
of the type identified in paragraphs (a)(1) through (a)(5) of this 
section, or functionally equivalent thereto, becomes incapable of 
protecting an employee in the cab of the machine from exposure to air 
contaminants in accordance with 29 CFR 1910.1000, personal respiratory 
protective equipment shall be provided for each such employee until the 
machine is repaired in accordance with Sec.  214.531.
    (f) Personal respiratory protective equipment provided under 
paragraph (e) of this section shall comply with 29 CFR 1910.134.
    (g) New on-track roadway maintenance machines with enclosed cabs, 
other than the types identified in paragraphs (a)(1) through (a)(5) of 
this section or functionally equivalent thereto, shall be equipped with 
operative heating and ventilation systems.
    (h) When new on-track roadway maintenance machines require 
operation from non-enclosed stations outside of the main cab, the non-
enclosed stations shall be equipped, where feasible from an engineering 
standpoint, with a permanent or temporary roof, canopy, or umbrella 
designed to provide cover from normal rainfall and midday sun.


Sec.  214.507  Required safety equipment for new on-track roadway 
maintenance machines.

    (a) Each new on-track roadway maintenance machine shall be equipped 
with:
    (1) A seat for each operator, except as provided in paragraph (b) 
of this section;
    (2) A safe and secure position with handholds, handrails, or a 
secure seat for each roadway worker transported on the machine. Each 
position shall be

[[Page 44409]]

protected from moving parts of the machine;
    (3) A positive method of securement for turntables, on machines 
equipped with a turntable, through engagement of pins and hooks that 
block the descent of turntable devices below the rail head when not in 
use;
    (4) A windshield with safety glass, or other material with similar 
properties, and power windshield wipers or suitable alternatives that 
provide the operator an equivalent level of vision if windshield wipers 
are incompatible with the windshield material;
    (5) A machine braking system capable of effectively controlling the 
movement of the machine under normal operating conditions;
    (6) A first-aid kit that is readily accessible and complies with 29 
CFR 1926.50(d)(2); and
    (7) An operative and properly charged fire extinguisher of 5 BC 
rating or higher which is securely mounted and readily accessible to 
the operator from the operator's work station.
    (b) Each new on-track roadway maintenance machine designed to be 
operated and transported by the operator in a standing position shall 
be equipped with handholds and handrails to provide the operator with a 
safe and secure position.
    (c) Each new on-track roadway maintenance machine that weighs more 
than 32,500 pounds light weight and is operated in excess of 20 mph 
shall be equipped with a speed indicator that is accurate within +/-5 
mph of the actual speed at speeds of 10 mph and above.
    (d) Each new on-track roadway maintenance machine shall have its 
as-built light weight displayed in a conspicuous location on the 
machine.


Sec.  214.509  Required visual illumination and reflective devices for 
new on-track roadway maintenance machines.

    Each new on-track roadway maintenance machine shall be equipped 
with the following visual illumination and reflective devices:
    (a) An illumination device, such as a headlight, capable of 
illuminating obstructions on the track ahead in the direction of travel 
for a distance of 300 feet under normal weather and atmospheric 
conditions;
    (b) Work lights, if the machine is operated during the period 
between one-half hour after sunset and one-half hour before sunrise or 
in dark areas such as tunnels, unless equivalent lighting is otherwise 
provided;
    (c) An operative 360-degree intermittent warning light or beacon 
mounted on the roof of the machine. New roadway maintenance machines 
that are not equipped with fixed roofs and have a light weight less 
than 17,500 pounds are exempt from this requirement;
    (d) A brake light activated by the application of the machine 
braking system, and designed to be visible for a distance of 300 feet 
under normal weather and atmospheric conditions; and
    (e) Rearward viewing devices, such as rearview mirrors.


Sec.  214.511  Required audible warning devices for new on-track 
roadway maintenance machines.

    Each new on-track roadway maintenance machine shall be equipped 
with:
    (a) A horn or other audible warning device that produces a sound 
loud enough to be heard by roadway workers and other machine operators 
within the immediate work area. The triggering mechanism for the device 
shall be clearly identifiable and within easy reach of the machine 
operator; and
    (b) An automatic change-of-direction alarm which provides an 
audible signal that is at least three seconds long and is 
distinguishable from the surrounding noise. Change of direction alarms 
may be interrupted by the machine operator when operating the machine 
in the work mode if the function of the machine would result in a 
constant, or almost constant, sounding of the device. In any action 
brought by FRA to enforce the change-of-direction alarm requirement, 
the employer shall have the burden of proving that use of the change-
of-direction alarm in a particular work function would cause a 
constant, or almost constant, sounding of the device.


Sec.  214.513  Retrofitting of existing on-track roadway maintenance 
machines; general.

    (a) Each existing on-track roadway maintenance machine shall have a 
safe and secure position for each roadway worker transported on the 
machine and protection from moving parts of the machine.
    (b) By March 28, 2005, each existing on-track roadway maintenance 
machine shall be equipped with a permanent or portable horn or other 
audible warning device that produces a sound loud enough to be heard by 
roadway workers and other machine operators within the immediate work 
area. The triggering mechanism for the device shall be clearly 
identifiable and within easy reach of the machine operator.
    (c) By March 28, 2005, each existing on-track roadway maintenance 
machine shall be equipped with a permanent illumination device or a 
portable light that is securely placed and not hand-held. The 
illumination device or portable light shall be capable of illuminating 
obstructions on the track ahead for a distance of 300 feet under normal 
weather and atmospheric conditions when the machine is operated during 
the period between one-half hour after sunset and one-half hour before 
sunrise or in dark areas such as tunnels.


Sec.  214.515  Overhead covers for existing on-track roadway 
maintenance machines.

    (a) For those existing on-track roadway maintenance machines either 
currently or previously equipped with overhead covers for the 
operator's position, defective covers shall be repaired, and missing 
covers shall be reinstalled, by March 28, 2005 and thereafter 
maintained in accordance with the provisions of Sec.  214.531.
    (b) For those existing on-track roadway maintenance machines that 
are not already equipped with overhead covers for the operator's 
position, the employer shall evaluate the feasibility of providing an 
overhead cover on such a machine if requested in writing by the 
operator assigned to operate the machine or by the operator's 
designated representative. The employer shall provide the operator a 
written response to each request within 60 days. When the employer 
finds the addition of an overhead cover is not feasible, the response 
shall include an explanation of the reasoning used by the employer to 
reach that conclusion.
    (c) For purposes of this section, overhead covers shall provide the 
operator's position with cover from normal rainfall and midday sun.


Sec.  214.517  Retrofitting of existing on-track roadway maintenance 
machines manufactured on or after January 1, 1991.

    In addition to meeting the requirements of Sec.  214.513, after 
March 28, 2005 each existing on-track roadway maintenance machine 
manufactured on or after January 1, 1991, shall have the following:
    (a) A change-of-direction alarm or rearview mirror or other 
rearward viewing device, if either device is feasible, given the 
machine's design, and if either device adds operational safety value, 
given the machine's function. In any action brought by FRA to enforce 
this requirement, the employer shall have the burden of proving that 
neither device is feasible or adds operational safety value, or both, 
given the machine's design or work function.
    (b) An operative heater, when the machine is operated at an ambient 
temperature less than 50 degrees

[[Page 44410]]

Fahrenheit and is equipped with, or has been equipped with, a heater.
    (c) The light weight of the machine stenciled or otherwise clearly 
displayed on the machine, if the light weight is known.
    (d) Reflective material, or a reflective device, or operable brake 
lights.
    (e) Safety glass when its glass is normally replaced, except that 
replacement glass that is specifically intended for on-track roadway 
maintenance machines and is in the employer's inventory as of September 
26, 2003 may be utilized until exhausted.
    (f) A turntable restraint device, on machines equipped with a 
turntable, to prevent undesired lowering, or a warning light indicating 
that the turntable is not in the normal travel position.
    (g) Handholds, handrails, or a secure seat or bench position for 
each roadway worker transported on the machine.


Sec.  214.518  Safe and secure positions for riders.

    A roadway worker, other than the machine operator(s), is prohibited 
from riding on any on-track roadway maintenance machine unless a safe 
and secure position for each roadway worker on the machine is clearly 
identified by stenciling, marking, or other written notice.


Sec.  214.519  Floors, decks, stairs, and ladders of on-track roadway 
maintenance machines.

    Floors, decks, stairs, and ladders of on-track roadway maintenance 
machines shall be of appropriate design and maintained to provide 
secure access and footing, and shall be free of oil, grease, or any 
obstruction which creates a slipping, falling, or fire hazard.


Sec.  214.521  Flagging equipment for on-track roadway maintenance 
machines and hi-rail vehicles.

    When being operated over trackage subject to a railroad operating 
rule requiring flagging, each on-track roadway maintenance machine and 
each hi-rail vehicle shall have on board a flagging kit that complies 
with the operating rules of the railroad, if the equipment is not part 
of a roadway work group or is the lead or trailing piece of equipment 
in a roadway work group operating under the same occupancy authority.


Sec.  214.523  Hi-rail vehicles.

    (a) The hi-rail gear of all hi-rail vehicles shall be inspected for 
safety at least annually and with no more than 14 months between 
inspections. Tram, wheel wear, and gage shall be measured and, if 
necessary, adjusted to allow the vehicle to be safely operated.
    (b) Each employer shall keep records pertaining to compliance with 
paragraph (a) of this section. Records may be kept on forms provided by 
the employer or by electronic means. The employer shall retain the 
record of each inspection until the next required inspection is 
performed. The records shall be made available for inspection and 
copying during normal business hours by representatives of FRA and 
States participating under part 212 of this chapter. The records may be 
kept on the hi-rail vehicle or at a location designated by the 
employer.
    (c) A new hi-rail vehicle shall be equipped with:
    (1) An automatic change-of-direction alarm or backup alarm that 
provides an audible signal at least three seconds long and 
distinguishable from the surrounding noise; and
    (2) An operable 360-degree intermittent warning light or beacon 
mounted on the outside of the vehicle.
    (d)(1) The operator of a hi-rail vehicle shall check the vehicle 
for compliance with this subpart, prior to using the vehicle at the 
start of the operator's work shift.
    (2) A non-complying condition that cannot be repaired immediately 
shall be tagged and dated in a manner prescribed by the employer and 
reported to the designated official.
    (3) Non-complying automatic change-of-direction alarms, backup 
alarms, and 360-degree intermittent warning lights or beacons shall be 
repaired or replaced as soon as practicable within seven calendar days.


Sec.  214.525  Towing with on-track roadway maintenance machines or hi-
rail vehicles.

    (a) When used to tow pushcars or other maintenance-of-way 
equipment, each on-track roadway maintenance machine or hi-rail vehicle 
shall be equipped with a towing bar or other coupling device that 
provides a safe and secure attachment.
    (b) An on-track roadway maintenance machine or hi-rail vehicle 
shall not be used to tow pushcars or other maintenance-of-way equipment 
if the towing would cause the machine or hi-rail vehicle to exceed the 
capabilities of its braking system. In determining the limit of the 
braking system, the employer must consider the track grade (slope), as 
well as the number and weight of pushcars or other equipment to be 
towed.


Sec.  214.527  On-track roadway maintenance machines; inspection for 
compliance and schedule for repairs.

    (a) The operator of an on-track roadway maintenance machine shall 
check the machine components for compliance with this subpart, prior to 
using the machine at the start of the operator's work shift.
    (b) Any non-complying condition that cannot be repaired immediately 
shall be tagged and dated in a manner prescribed by the employer and 
reported to the designated official.
    (c) The operation of an on-track roadway maintenance machine with a 
non-complying condition shall be governed by the following 
requirements:
    (1) An on-track roadway maintenance machine with headlights or work 
lights that are not in compliance may be operated for a period not 
exceeding 7 calendar days and only during the period between one-half 
hour before sunrise and one-half hour after sunset;
    (2) A portable horn may be substituted for a non-complying or 
missing horn for a period not exceeding seven calendar days;
    (3) A fire extinguisher readily available for use may temporarily 
replace a missing, defective or discharged fire extinguisher on a new 
on-track roadway maintenance machine for a period not exceeding 7 
calendar days, pending the permanent replacement or repair of the 
missing, defective or used fire extinguisher;
    (4) Non-complying automatic change-of-direction alarms, backup 
alarms, and 360-degree intermittent warning lights or beacons shall be 
repaired or replaced as soon as practicable within 7 calendar days; and
    (5) A structurally defective or missing operator's seat shall be 
replaced or repaired within 24 hours or by the start of the machine's 
next tour of duty, whichever is later. The machine may be operated for 
the remainder of the operator's tour of duty if the defective or 
missing operator's seat does not prevent its safe operation.


Sec.  214.529  In-service failure of primary braking system.

    (a) In the event of a total in-service failure of its primary 
braking system, an on-track roadway maintenance machine may be operated 
for the remainder of its tour of duty with the use of a secondary 
braking system or by coupling to another machine, if such operations 
may be done safely.
    (b) If the total in-service failure of an on-track roadway 
maintenance machine's primary braking system occurs where other 
equipment is not available for coupling, the machine

[[Page 44411]]

may, if it is safe to do so, travel to a clearance or repair point 
where it shall be placed out of service until repaired.


Sec.  214.531  Schedule of repairs; general.

    Except as provided in Sec. Sec.  214.527(c)(5), 214.529, and 
214.533, an on-track roadway maintenance machine or hi-rail vehicle 
that does not meet all the requirements of this subpart shall be 
brought into compliance as soon as practicable within seven calendar 
days. If repairs are not made within seven calendar days, the on-track 
roadway maintenance machine or hi-rail vehicle shall be placed out of 
on-track service.


Sec.  214.533  Schedule of repairs subject to availability of parts.

    (a) The employer shall order a part necessary to repair a non-
complying condition on an on-track roadway maintenance machine or a hi-
rail vehicle by the end of the next business day following the report 
of the defect.
    (b) When the employer cannot repair a non-complying condition as 
required by Sec.  214.531 because of the temporary unavailability of a 
necessary part, the employer shall repair the on-track roadway 
maintenance machine or hi-rail vehicle within seven calendar days after 
receiving the necessary part. The employer may continue to use the on-
track roadway maintenance machine or hi-rail vehicle with a non-
complying condition until receiving the necessary part(s) for repair, 
subject to the requirements of Sec.  214.503. However, if a non-
complying condition is not repaired within 30 days following the report 
of the defect, the employer shall remove the on-track roadway 
maintenance machine or hi-rail vehicle from on-track service until it 
is brought into compliance with this subpart.
    (c) If the employer fails to order a part necessary to repair the 
reported non-complying condition, or if it fails to install an 
available part within the required seven calendar days, the on-track 
roadway maintenance machine or hi-rail vehicle shall be removed from 
on-track service until brought into compliance with this subpart.
    (d) Each employer shall maintain records pertaining to compliance 
with this section. Records may be kept on forms provided by the 
employer or by electronic means. The employer shall retain each record 
for at least one year, and the records shall be made available for 
inspection and copying during normal business hours by representatives 
of FRA and States participating under part 212 of this chapter. The 
records may be kept on the on-track roadway maintenance machine or hi-
rail vehicle or at a location designated by the employer.

0
4. Appendix A to part 214 is amended with the addition of the following 
new entries for subpart D:

Appendix A to Part 214--Schedule of Civil Penalties \1\
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $22,000 for any violation where circumstances 
warrant. See 49 CFR part 209, appendix A.
---------------------------------------------------------------------------

* * * * *

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
                              * * * * * * *
 Subpart D--On-Track Roadway Maintenance
      Machines and Hi-Rail Vehicles
214.503 Good-faith challenges;
 procedures for notification and
 resolution:
    (a) Failure of employee to notify     ..............           4,000
     employer that the machine or
     vehicle does not comply with this
     subpart or has a condition
     inhibiting safe operation..........
    (b) Roadway worker required to                 5,000          10,000
     operate machine or vehicle when
     good-faith challenge not resolved..
    (c) Failure of employer to have or             5,000          10,000
     follow written procedures to
     resolve good-faith challenges......
214.505 Required environmental control
 and protection systems for new on-track
 roadway maintenance machines with
 enclosed cabs:
    (a) Failure to equip new machines              5,000          10,000
     with required systems..............
    (b) Failure of new or existing                 5,000          10,000
     machines to protect employees from
     exposure to air contaminants.......
    (c) Failure of employer to maintain            2,000           4,000
     required list of machines or make
     list available.....................
    (d) Removal of ``designated                    2,000           4,000
     machine'' from list before retired
     or sold............................
    (e) Personal respiratory protective            5,000          10,000
     equipment not provided when
     ventilation system fails...........
    (f) Personal respiratory protective            5,000          10,000
     equipment fails to meet required
     standards..........................
    (g) Other new machines with enclosed           5,000          10,000
     cabs not equipped with operable
     heating and ventilation systems....
    (h) Non-enclosed station not                   5,000          10,000
     equipped with covering, where
     feasible...........................
214.507 Required safety equipment for
 new on-track roadway maintenance
 machines:
    (a)(1)-(5) Failure to equip new                5,000          10,000
     machine or provide protection as
     specified in these paragraphs......
    (a)(6)-(7) Failure to equip new                2,500           5,000
     machine with first-aid kit or
     operative and charged fire
     extinguisher.......................
    (b) Position for operator to stand             5,000          10,000
     not properly equipped to provide
     safe and secure position...........
    (c) New machine not equipped with              2,500           5,000
     accurate speed indicator, as
     required...........................
    (d) As-built light weight not                  2,500           5,000
     conspicuously displayed on new
     machine............................
214.509 Required visual illumination and           2,500           5,000
 reflective devices for new on-track
 roadway maintenance machines...........
214.511 Required audible warning devices           5,000          10,000
 for new on-track roadway maintenance
 machines...............................
214.513 Retrofitting of existing on-
 track roadway maintenance machines;
 general:
    (a) Failure to provide safe and                5,000          10,000
     secure position and protection from
     moving parts 2,000 4,000 inside cab
     for each roadway worker transported
     on machine.........................
    (b) Horn or other audible warning              2,500           5,000
     device is missing, inoperable, or
     has non-compliant triggering
     mechanism..........................
    (c) Illumination device or portable            2,500           5,000
     light missing, inoperable,
     improperly secured, or incapable of
     illuminating track as required.....
214.515 Overhead covers for existing on-
 track roadway maintenance machines:
    (a) Failure to repair, reinstall, or           5,000          10,000
     maintain overhead cover as required
    (b) Failure to provide written                 2,000           4,000
     response to operator's request
     within 60 days.....................
214.517 Retrofitting of existing on-
 track roadway maintenance machines
 manufactured on or after January 1,
 1991:
    (a) Failure to equip machine with              5,000          10,000
     change-of-direction alarm or
     rearward viewing device............

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    (b) Failure to equip machine with              5,000          10,000
     operative heater...................
    (c) Failure to display light weight            2,500           5,000
     of machine as required.............
    (d) Failure to equip machine with              5,000          10,000
     reflective material, reflective
     device, or operable brake lights...
    (e) Failure to install or replace              5,000          10,000
     safety glass as required...........
    (f) Failure to equip machine with              5,000          10,000
     turntable restraint device or
     warning light as required..........
    (g) Failure to equip machine with              5,000          10,000
     handholds, handrails, or secure
     seat or bench position as required.
214.518 Safe and secure position for               5,000          10,000
 riders.................................
214.519 Floors, decks, stairs, and                 5,000          10,000
 ladders for on-track roadway
 maintenance machines...................
214.521 Flagging equipment for on-track            2,500           5,000
 roadway maintenance machines and hi-
 rail vehicles..........................
214.523 Hi-rail vehicles:
    (a) Failure to inspect hi-rail gear            5,000          10,000
     annually...........................
    (b) Failure to maintain inspection             2,000           4,000
     record or make record available to
     FRA................................
    (c) Failure to equip new hi-rail               2,500           5,000
     vehicle with alarm and light or
     beacon as required.................
    (d)(2) Failure of operator to tag,             2,000           4,000
     date or report non-complying
     condition..........................
    (d)(3) Failure to repair or replace            2,500           5,000
     non-complying alarms, lights or
     beacons as required................
214.525 Towing with on-track roadway               5,000          10,000
 maintenance machines or hi-rail
 vehicles...............................
214.527 On-track roadway maintenance
 machines; inspection for compliance and
 schedule for repairs:
    (a) Failure of operator to check on-           2,000           4,000
     track roadway maintenance machine
     for compliance.....................
    (b) Failure of oeprator to tag,                2,000           4,000
     date, or report noncomplying
     condition..........................
    (c)(1)-(4) Failure to meet                     2,500           5,000
     requirements for operating on-track
     roadway maintenance machine with
     non-complying headlights, work
     lights, horn, fire extinguisher,
     alarm, warning light, or beacon....
    (c)(5) Failure to repair or replace            5,000          10,000
     defective or missing operator's
     seat within required time period...
214.529 In-service failure of primary              5,000          10,000
 braking system.........................
214.531 Schedule of repairs; general....           2,500           5,000
214.533 Schedule of repairs subject to
 availability of parts:
    (a)-(c) Failure to order necessary             2,500           5,000
     part(s), make repair(s), or remove
     on-track roadway maintenance
     machine or hi-rail vehicle from
     service as required................
    (d) Failure to maintain record or              2,000           4,000
     make record available to FRA.......
------------------------------------------------------------------------


    Issued in Washington, DC, on July 18, 2003.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 03-18912 Filed 7-25-03; 8:45 am]
BILLING CODE 4910-06-P