[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Rules and Regulations]
[Pages 74586-74620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30250]
[[Page 74585]]
Vol. 76
Wednesday,
No. 230
November 30, 2011
Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 214
Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway
Workers; Final Rule
Federal Register / Vol. 76 , No. 230 / Wednesday, November 30, 2011 /
Rules and Regulations
[[Page 74586]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 214
[Docket No. FRA-2008-0059, Notice No. 4]
RIN 2130-AB96
Railroad Workplace Safety; Adjacent-Track On-Track Safety for
Roadway Workers
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FRA is amending its regulations on railroad workplace safety
to further reduce the risk of serious injury or death to roadway
workers performing work with potentially distracting equipment near
certain adjacent tracks. In particular, this final rule requires that
roadway workers comply with specified on-track safety procedures that
railroads must adopt to protect those workers from the movement of
trains or other on-track equipment on ``adjacent controlled track.''
FRA defines ``adjacent controlled track'' to mean ``a controlled track
whose track center is spaced 19 feet or less from the track center of
the occupied track.'' These on-track safety procedures are required for
each adjacent controlled track when a roadway work group with at least
one of the roadway workers on the ground is engaged in a common task
with on-track, self-propelled equipment or coupled equipment on an
occupied track. In addition, FRA is removing the provision on
preemptive effect.
DATES: This final rule is effective May 1, 2012.
FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track
Division, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590
(telephone (202) 493-6236); or Anna Winkle, Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail Stop 10,
Washington, DC 20590 (telephone (202) 493-6166 or (202) 493-6052).
SUPPLEMENTARY INFORMATION: The NPRM issued as Notice No. 1 under this
same docket number and published July 17, 2008, was withdrawn by Notice
No. 2 published August 13, 2008. A second NPRM issued as Notice No. 3
under this same docket number was published November 25, 2009. All
references to ``the NPRM'' in this final rule are to this second NPRM
unless otherwise specified.
Table of Contents
I. Executive Summary
II. Overview of the Existing Roadway Worker Protection (RWP) Rule
A. Applicability and Basic Definitions
B. Authorized Methods of Establishing On-Track Safety
C. Existing On-Track Safety Requirements for Roadway Work Groups
With Respect to Adjacent Tracks
III. Notice of Safety Advisory 2004-01
IV. Recent Roadway Worker Accidents (1997-2010)
V. Joint Petition to FRA for an Emergency Order
VI. Current Rulemaking To Revise the RWP Rule
A. Overview of the RSAC [Railroad Safety Advisory Committee]
B. Proceedings in This Rulemaking to Date Generally
C. Proceedings Concerning On-Track Safety Procedures for
Adjacent Tracks
D. Response to Comments on the November 25, 2009 NPRM
1. On-Ground Work Performed to the Clear Side
2. Hi-Rail Vehicles and Clarification of ``Common Task''
3. Rail-Bound Geometry or Detector Cars
4. Continuous Barrier
5. Requests for Additional Exceptions to, or Relief From, the
Requirements of Proposed Sec. 214.336 or for a Narrowing of Its
Scope
a. Requested Exception Where There Is Only One Worker on the
Ground
b. Requested Revision of Proposed Sec. 214.336(c) To Permit
Work by the Machine Operator Within the Areas 25 Feet in Front of
and 25 Feet Behind Equipment During Low-Speed Movements on an
Adjacent-Controlled-Track
c. Requested Revision of Proposed Sec. 214.336(b)(2) to Permit
a Roadway Work Group Component To Resume Work After the Head-End Has
Passed the Component's Location
d. Request To Raise the Threshold Speed in Sec. 214.336(b) and
Sec. 214.336(c) From 25 MPH to 40 MPH for Passenger Trains
6. Predetermined Place of Safety
7. The Effect of the Proposed Rule on Dispatchers
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
A. Executive Order 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact
H. Trade Impact
I. Privacy Act
I. Executive Summary
As will be detailed in this final rule, the recent increase in
roadway worker fatalities that have occurred on an adjacent track
(i.e., under the existing rule, any track within 25 feet of the
centerline of the track to which the roadway work group was assigned to
perform one or more roadway worker duties) has caused considerable
concern at FRA and throughout the industry, even prompting the filing
of a joint petition for emergency order under 49 U.S.C. 20104 on April
11, 2008. See 49 CFR part 214, subpart C (``Roadway Worker Protection
Rule'' or ``RWP Rule'').\1\ FRA had issued a notice of safety advisory
to address this same issue in May of 2004; however, it appears that the
salutary effects of the safety advisory, which produced a period of 16
months with no fatalities on an adjacent track, were not long-lasting,
as four fatalities have since occurred on an adjacent track where a
roadway work group, with at least one of the roadway workers on the
ground, was engaged in a common task with on-track, self-propelled
equipment on an occupied track. These amendments to the Roadway Worker
Protection Rule are based on the consensus language developed through
the Roadway Worker Protection Working Group of FRA's Railroad Safety
Advisory Committee (RSAC), which is comprised of various
representatives of the groups that are affected by this rule (including
railroad management, railroad labor organizations, and contractors).
Because incidents involving adjacent controlled tracks appear to
present clear evidence of significant risk that is not effectively
addressed by the existing regulation, FRA has concluded that moving
forward with this final rule in advance of the other proposals
contained in the RSAC consensus \2\ is necessary and appropriate.
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\1\ The RWP rule was published on December 16, 1996, and became
effective on January 15, 1997. See 61 FR 65959.
\2\ While the consensus language relating to adjacent track
issues that was developed through the RSAC was originally intended
to be published as part of a larger NPRM, FRA decided to propose the
adjacent-track-related provisions in a separate NPRM (which led to
the issuance of this final rule) so that an appropriate provision
would be in effect in a more timely fashion than if the provision
were one of many in the larger rulemaking that would need to undergo
internal review and approval and public notice and comment. The
remaining provisions not related to adjacent track will be proposed
in a separate NPRM at a later date, as part of the larger RWP
rulemaking.
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As will be discussed in more detail in Section II.C, below, until
this final rule's amendments to Sec. 214.335(c) become effective, the
RWP Rule requires that roadway work groups engaged in ``large-scale
maintenance or construction'' be provided with on-track safety in the
form of ``train approach warning'' for
[[Page 74587]]
train or equipment movements on adjacent tracks if the adjacent tracks
are not already included within the working limits. Applying the
definition of ``adjacent tracks'' to the criteria discussed above, on-
track safety is required for any tracks with track centers spaced less
than 25 feet apart from the center of the track to which a roadway work
group is assigned to perform ``large-scale maintenance or
construction.'' The track to which the roadway work group is assigned
to perform the large-scale maintenance or construction is commonly
referred to as the ``occupied track.''
Although FRA did provide some guidance on the term ``large-scale
maintenance or construction'' in the preamble of the 1996 final rule,
many railroads were not providing on-track safety on adjacent tracks
for surfacing operations, small tie renewal operations, or similar
maintenance operations that, while smaller in scale, still included one
or more pieces of on-track, self-propelled equipment. Fatalities
occurred on the adjacent track during such operations when on-track
safety was not established on the adjacent track or had been
temporarily or permanently nullified or suspended to permit the passage
of a train or other on-track equipment. This final rule makes the
conditions that trigger the requirement for adjacent-track on-track
safety more objective.
New Sec. 214.236 requires that railroads adopt specified on-track
safety procedures to protect certain roadway work groups from the
movement of trains or other on-track equipment on ``adjacent controlled
track.'' An ``adjacent controlled track'' is ``a controlled track whose
track center is spaced 19 feet or less from the track center of the
occupied track.'' The ``occupied track'' is ``the track on which on-
track, self-propelled equipment or coupled equipment is authorized or
permitted to be located while engaged in a common task with a roadway
work group with at least one of the roadway workers on the ground.''
These on-track safety procedures are required for each adjacent
controlled track when a roadway work group with at least one of the
roadway workers on the ground is engaged in a common task with on-
track, self-propelled equipment or coupled equipment on an occupied
track.
As a general rule, the procedures in paragraph (b) of new Sec.
214.336 require all on-ground work and equipment movement on the
occupied track to stop and each roadway worker to occupy a
predetermined place of safety upon receiving a notification or warning
that there is an authorized train or other on-track equipment movement
on an adjacent controlled track. A roadway worker affected by such
movement is permitted to resume work only after the trailing-end of the
movement has passed such worker. As further described, below, the final
rule provides a limited exception to the general rule in paragraph (c)
of this section (i.e., by establishing different procedures to be used
during low-speed movements on an adjacent controlled track than during
higher-speed movements), and also establishes three categories of
exceptions to the requirement to cease work in paragraphs (e)(1)
through (e)(3) of this section. See Sec. Sec. 214.336(c) and
214.336(e)(1) through (3).
Due to the lower risk associated with adjacent-controlled-track
movements at low speeds (25 mph or less), certain work is permitted to
continue after receiving a notification or warning of such a movement
on an adjacent controlled track. The work permitted to continue is (1)
equipment movement on the rails of the occupied track, and (2) on-
ground work performed exclusively between the rails of the occupied
track, provided that no on-ground work is performed within the areas 25
feet in front of and 25 feet behind any on-track, self-propelled
equipment or coupled equipment permitted to move on the occupied track.
See Sec. 214.336(c).
There are three categories of exceptions to the requirement to
cease work. See Sec. 214.336(e)(1) through (3). The first two (``On-
ground work performed on a side of the occupied track meeting specified
condition(s)'' and ``Maintenance or repairs performed alongside
machines or equipment on the occupied track'') permit work to continue
if performed on a side of the occupied track where there should
essentially be no danger posed by equipment movement on an adjacent
track. See Sec. 214.336(e)(1)(i) through (iii), regarding the side
with no adjacent track, the side with working limits and no movements
permitted within such working limits, and the side with an inter-track
barrier. The third type of exception permits work to continue if it
involves certain types of equipment (i.e., hi-rail vehicles, automated
inspection cars, and catenary maintenance tower cars) used for certain
purposes (e.g., inspection or minor correction purposes) that, as
indicated by the fatality data, do not present a significant level of
distraction. See Sec. 214.336(e)(3)(i) through (iii). To help roadway
workers and the regulated community at large better understand the
exceptions and the interrelation of the various requirements of the
sections, Table 1 in the rule text summarizes how the procedures apply
to different factual scenarios. The diagrams (Figure 1) that follow
Table 1 correspond to the same examples in the table, and help the
reader to visualize the factual scenarios.
Given the importance of an on-track safety job briefing in roadway
workers' understanding of the nature of the work that they will be
conducting and the conditions under which they will conduct it, FRA has
expanded the on-track safety job briefing requirements to cover the new
procedures for adjacent-track on-track safety in Sec. 214.336 (if
applicable) and a discussion of adjacent tracks (if any), generally.
In addition, FRA is removing the provision on preemptive effect.
This section was prescribed in 1996 and has become outdated and,
therefore, misleading because it does not reflect post-1996 amendments
to 49 U.S.C. 20106. FRA now believes that the section is unnecessary
because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of
part 214.
This final rule will impose costs that are likely outweighed by the
quantified safety benefits. For the 20-year period analyzed, the
estimated quantified cost that will be imposed on industry totals
$285.7 million (undiscounted) with a present value (PV) (7 percent) of
$151.4 million, and a PV (3 percent) of $212.6 million. For the same
20-year period, the estimated quantified benefits total $286.2 million
(undiscounted), with a PV (7 percent) of approximately $151.6 million
and a PV (3 percent) of $212.9 million. The costs will primarily be
imposed by a small increase in job briefing time and additional
resources spent to provide on-track safety for the safe conduct of
other than large-scale maintenance and construction of track located
adjacent to (and within a certain distance of) one or more controlled
tracks on which train movements may be occurring. Training costs will
also accrue. The benefits will primarily accrue from a reduction in
roadway worker casualties (fatalities and injuries). This analysis
estimates that there will be 10.3 fewer roadway worker fatalities over
the next 20 years. In addition, it estimates that this final rule will
reduce roadway worker injuries by 182 over the next 20 years. Business
benefits stemming from avoided train delays and property damages, as
well as benefits from reduced safety stand downs \3\ resulting from
roadway worker
[[Page 74588]]
fatalities will also accrue. FRA finds that the estimated quantified
benefits will exceed the estimated quantified costs.
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\3\ Currently, when a railroad experiences a roadway worker
fatality, the railroad leadership holds a ``safety stand down,''
during which all scheduled maintenance work is postponed so that the
railroad managers and employees are able to discuss the accident and
reinforce pertinent safety practices, oftentimes through refresher
training. A discussion of the cost savings that result from reduced
safety stand downs is found in Section 10.8 of the Regulatory Impact
Analysis (RIA).
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The following table presents the quantified costs broken down by
section of the RIA and by section of the rule:
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PV Rate, PV Rate,
Estimated cost of final rule 3%* 7%*
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9.2 Job Briefings--Sec. 214.315............. $1.94 $1.38
9.4 On-Track Safety--Sec. 214.336........... 207.60 147.83
9.4 Other (Signalmen, Lone Workers)--Sec. 2.76 1.97
Sec. 214.315/336...........................
9.4 Training--Sec. 214.336.................. 0.25 0.18
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Total..................................... 212.55 151.36
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* Dollars are in millions and are discounted over a 20-year period.
The table below presents the estimated benefits associated with
this final rule by section of the RIA and by benefit category:
------------------------------------------------------------------------
PV Rate, PV Rate,
Estimated benefits of final rule 3%* 7%*
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10.1 Casualty Mitigation (Sec. 214.336)-- $43.72 $31.13
Fatality (Struck by Train)...................
10.2 Casualty Mitigation (Sec. 214.336)-- 71.62 51.00
Injury (Struck by Train).....................
10.3 Casualty Mitigation (Sec. 214.336)-- 15.30 10.90
Injury (Struck by Object Other Than Train)...
10.4 Adjacent Track Revision.................. 9.79 6.97
10.5 Damage Reduction......................... 0.89 0.64
10.6 Reporting/Recordkeeping--Cost Savings.... 0.02 0.01
10.7 Business Industry Benefit................ 46.71 33.26
10.8 Reduction in Safety Stand Downs.......... 19.98 14.23
10.9 Job Briefing Fatality Prevention (Sec. 3.69 2.63
214.315).....................................
10.9 Job Briefing Injury Prevention (Sec. 1.16 0.83
214.315).....................................
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Total..................................... 212.88 151.59
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* Dollars are in millions and are discounted over a 20-year period.
II. Overview of the Existing Roadway Worker Protection (RWP) Rule
A. Applicability and Basic Definitions
As background, since the RWP Rule \4\ became effective in 1997, it
has imposed certain safety requirements. In particular, the RWP Rule
requires each railroad that operates rolling equipment on track that is
part of the general railroad system of transportation to ``adopt and
implement a program that will afford on-track safety to all roadway
workers whose duties are performed on that railroad.'' See 49 CFR
214.3, 214.303(a).\5\ ``On-track safety'' is defined in the RWP Rule as
``a state of freedom from the danger of being struck by a moving
railroad train or other railroad equipment, provided by operating and
safety rules that govern track occupancy by personnel, trains and on-
track equipment.'' See Sec. 214.7. The roadway workers that must be
afforded on-track safety are any employees of a railroad, or of a
contractor to a railroad, whose duties include ``inspection,
construction, maintenance or repair of railroad track, bridges,
roadway, signal and communication systems, electric traction systems,
roadway facilities or roadway maintenance machinery on or near track or
with the potential of fouling a track, and flagmen and watchmen/
lookouts * * *.'' See Sec. 214.7, ``Roadway worker.''
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\4\ The RWP rule was published in the Federal Register on
December 16, 1996 (61 FR 65959), and became effective on January 15,
1997.
\5\ All references in this preamble to a section or other
provision of a regulation are to a section, part, or other provision
in title 49, Code of Federal Regulations unless otherwise specified.
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B. Authorized Methods of Establishing On-Track Safety
Several methods are authorized to be used to provide on-track
safety for roadway workers, and many of those methods involve
establishing ``working limits,'' which is defined in part as ``a
segment of track with definite boundaries established in accordance
with [part 214] upon which trains and engines may move only as
authorized by the roadway worker having control over that defined
segment of track.'' See Sec. Sec. 214.7 and 214.319. Working limits
may be established on controlled track (i.e., ``track upon which the
railroad's operating rules require that all movements of trains must be
authorized by a train dispatcher or a control operator'') through
exclusive track occupancy (Sec. 214.321), foul time (Sec. 214.323),
or train coordination (Sec. 214.325). See Sec. Sec. 214.7 and
214.319. Regardless of which method is chosen, the working limits are
only permitted to be under the control of a qualified roadway worker in
charge, and all affected roadway workers must be notified and either
clear of the track or provided on-track safety through train approach
warning (in accordance with Sec. 214.329) before the working limits
are released to permit the operation of trains or other on-track
equipment through the working limits. See id.
Train approach warning is another common method of establishing on-
track safety in which a trained and qualified watchman/lookout provides
warning to roadway worker(s) of the approach of a train or on-track
equipment in sufficient time to enable each roadway worker to move to
and occupy a previously arranged place of safety not less than 15
seconds before a train moving at the maximum speed authorized on that
track would arrive at the location of the roadway worker. See
Sec. Sec. 214.329 and 214.7 ``Watchman/
[[Page 74589]]
lookout.'' Train approach warning is sometimes used as a temporary form
of on-track safety when a roadway worker in charge needs to nullify the
on-track safety previously established by working limits in order to
permit a train or piece of on-track equipment to enter the roadway work
group's working limits. Train approach warning permits the roadway
workers to continue working for longer (than if working limits were the
only form of on-track safety in effect) if the working limits span
several miles and the train or equipment will not be passing by the
work area for some time due to a speed restriction, the distance away,
or the train or equipment halting its movement. It should be noted that
switching temporarily to ``train approach warning'' is permissible only
if the change was discussed in detail with the roadway work group,
prior to the change occurring, in an updated on-track safety job
briefing pursuant to Sec. 214.315(d).
C. Existing On-Track Safety Requirements for Roadway Work Groups With
Respect to Adjacent Tracks
Until the amendments to Sec. 214.335(c) become effective, the
provision of the 1996 RWP Rule requires that roadway work groups
engaged in ``large-scale maintenance or construction'' be provided with
on-track safety in the form of ``train approach warning'' for train or
equipment movements on adjacent tracks if the adjacent tracks are not
already included within the working limits. Under the current
definition of ``adjacent tracks,'' on-track safety as discussed above
is required for any tracks with track centers spaced less than 25 feet
apart from the track center of the track to which a roadway work group
is assigned to perform large-scale maintenance or construction. See
Sec. Sec. 214.7 and 214.335(c). The track to which the roadway work
group is assigned to perform the large-scale maintenance or
construction is commonly referred to as the ``occupied track.'' Thus,
in triple-main track territory, if a roadway work group is occupying
the middle track (e.g., Main Track No. 2) in order to perform large-
scale maintenance or construction, and the track centers of the tracks
on either side of the occupied track are within 25 feet of the track
center of the occupied track, then on-track safety is required to be
established on both adjacent tracks (e.g., Main Track Nos. 1 and 3). In
some yards or territories, where track centers are spaced only 12 feet
apart, an occupied track (e.g., Yard Track No. 3) may have up to four
adjacent tracks (e.g., Yard Track Nos. 1, 2, 4, and 5). In such cases,
the existing rule requires on-track safety to be established on all
four adjacent tracks, in addition, of course, to the on-track safety
required for the occupied track itself. See Sec. 214.335(c) (61 FR
65976) and Sec. 214.337(a).
Although the term ``large-scale maintenance or construction'' is
not specifically defined in the 1996 regulation, FRA noted in the
preamble to the 1996 final rule establishing the 1996 RWP Rule that the
principle behind the reference to large-scale maintenance or
construction was ``the potential for distraction, or the possibility
that a roadway worker or roadway maintenance machine might foul the
adjacent track and be struck by an approaching or passing train,'' and
further stated that ``conditions in which the risk of distraction
[were] significant'' required measures to provide on-track safety on
adjacent tracks. See 61 FR 65971. To further clarify what is meant by
the term ``large-scale maintenance or construction,'' FRA referenced
the recommendation of the Roadway Worker Safety Advisory Committee,
which described large-scale track maintenance and/or renovations, such
as but not limited to, ``rail and tie gangs, production in-track
welding, ballast distribution, and undercutting.'' See id. Under such
guidance, many railroads were not providing on-track safety on adjacent
tracks for surfacing operations, small tie renewal operations, or
similar maintenance operations that, while smaller in scale (e.g.,
because these were often single-task operations, rather than the
multiple-task operations typical of production units), still included
one or more pieces of on-track, self-propelled equipment. Fatalities
occurred on the adjacent track during such operations when on-track
safety was not established on the adjacent track or had been
temporarily or permanently nullified or suspended to permit the passage
of a train or other on-track equipment.
III. Notice of Safety Advisory 2004-01
After the occurrence of five roadway worker fatalities in one
calendar year (2003), including one on an adjacent track, FRA responded
on April 27, 2004, by issuing Notice of Safety Advisory 2004-01, which
was later published in the Federal Register on May 3, 2004. See 69 FR
24220. FRA issued this safety advisory to recommend certain safety
practices, to review existing requirements for the protection of
roadway workers from traffic on adjacent tracks, and to heighten
awareness to prevent roadway workers from inadvertently fouling a track
when on-track safety is not provided. See id.
The safety advisory explained that the requirements of the RWP
Rule, including the requirement to provide adjacent track on-track
safety for large-scale maintenance or construction in Sec. 214.335(c),
are only minimum standards. The advisory emphasized that railroads and
railroad contractors are free to prescribe additional or more-stringent
standards consistent with the rule. See id. at 24222 and Sec.
214.301(b).
FRA recommended that railroads and contractors to railroads develop
and implement basic risk assessment procedures for use by roadway
workers to determine the likelihood that a roadway worker or equipment
would foul an adjacent track prior to initiating work activities,
regardless of whether those activities were ``large-scale'' or ``small-
scale.'' The advisory provided examples of relevant factors to consider
in making such an assessment. These factors included whether the work
could be conducted by individuals positioned between the rails of a
track on which on-track safety has been established, as opposed to
being positioned outside of the rails of such a track on a side of the
track that has an adjacent track; whether there was a structure between
the tracks to prevent intrusion (such as a fence between the tracks at
a passenger train station and the tall beam of a through-plate girder
bridge); the track-center distance, to ensure that the adjacent track
would not be fouled if a worker were to inadvertently trip and fall;
the nature of the work (inspection or repair); the sight distances; and
the speed of trains on the adjacent track. See 69 FR 24222. FRA further
noted that, upon completion of an on-site risk assessment, the on-track
safety briefing required by Sec. 214.315(a) would be the ideal
instrument to implement preventive measures concerning adjacent tracks.
See id.
In addition to the above recommendation concerning basic risk
assessment, FRA recommended that railroads and contractors to railroads
consider taking the following actions:
Use of working limits for activities where equipment could
foul adjacent track (whether large-scale or small-scale activities);
Use rotation stops to mitigate the dangers associated with
on-track equipment and trains passing on adjacent tracks;
Review procedures for directing trains through adjacent
track working limits, and enhance such procedures when necessary;
Install adjacent track warning signs/devices in the
operating cab of on-track machines to remind roadway maintenance
machine operators to not
[[Page 74590]]
inadvertently depart the equipment onto a track where there may be
trains and other on-track equipment passing;
Provide additional training and monitoring to employees,
emphasizing the need to cross tracks in a safe manner (i.e., single
file and after looking in both directions);
Reinforce to individual roadway workers that it is
critical not to foul a track except in the performance of duty and only
when on-track safety has been established. This training could be
accomplished through training sessions, as well as daily job briefings;
and
Institute peer-intervention measures by which workers are
encouraged to intervene when observing another roadway worker engaging
in potentially non-compliant and unsafe activity. See id.
IV. Recent Roadway Worker Accidents (1997-2010)
In the more than thirteen years since the RWP Rule went into effect
on January 15, 1997, there have been nine roadway worker fatalities on
an adjacent track. Seven of those fatalities have occurred on a
controlled track that was adjacent to the track on which a roadway work
group, with at least one of the roadway workers on the ground, was
engaged in a common task with on-track, self-propelled equipment. FRA
notes that there has been only one adjacent-track fatality where a
roadway work group had been engaged in a common task with a lone hi-
rail vehicle, defined in Sec. 214.7 as ``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.'' \6\ In addition, there
have been no adjacent-track fatalities where a roadway work group had
been engaged in a common task with a catenary maintenance tower car on
the occupied track. This is likely because the duties normally
performed by an employee operating a hi-rail vehicle or a catenary
maintenance tower car tend to be less distracting to on-ground roadway
workers and produce less dust and noise than a typical on-track roadway
maintenance machine. Given the above, FRA proposed that adjacent-track
on-track safety not be required for roadway work groups engaged in a
common task with a hi-rail vehicle or a catenary maintenance tower car,
as discussed in the section-by-section analysis of paragraphs (b)(2)
and (3), respectively, in new Sec. 214.336.
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\6\ In that case (which occurred on March 28, 2002, in
Langhorne, PA), the roadway workers were under the impression that
adjacent-track on-track safety was in effect, but it was not, due to
a miscommunication.
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Of the seven fatalities that occurred under the circumstances
described above and which this final rule is intended to address, three
occurred during the period after the effective date of the 1996 RWP
Rule and before the publication of the safety advisory on May 3, 2004,
and four have occurred since that period. In the four-year period prior
to May of 2004 (May 1, 2000-April 30, 2004), there has been one
adjacent-track fatality known to have occurred under such
circumstances, for a rate of .25 per year. In the four-year period
since (May 1, 2004-April 30, 2008), there have been four adjacent-track
fatalities, for a rate of one per year, which is four times the rate of
the previous four-year period. While FRA recognizes that even one death
can make rates change dramatically when the total number of deaths is
small, the increase in the rate of these deaths despite the safety
advisory continues to lead FRA to conclude that regulatory action is
needed to avert an escalating number of deaths. Moreover, given the
extensive participation in developing these consensus regulatory
provisions by representatives of all of the key interests involved in
this issue, it is contrary to the public interest to wait for all of
the other issues in the larger RWP rulemaking to be resolved or to
engage in lengthy periods for notice and public comment before acting
to prevent more deaths.
The following is a brief summary of the results of FRA's
investigations of the four most recent incidents that resulted in these
unfortunate fatalities:
October 5, 2005: A roadway surfacing gang tamper operator,
with 28 years of service, was walking up to the front of the tamper to
put away the light buggies as his surfacing gang, having just completed
its work, was getting ready to travel to clear the number two main
track. The operator was walking east on the side of the tamper between
the two main tracks when he was struck by a westbound train on the
adjacent track. The track centers were spaced approximately 13 feet
apart, and the train was traveling at an estimated speed of 40 miles
per hour (mph).
March 12, 2007: A surfacing gang was occupying the number
one main track in a double-main territory. The surfacing gang foreman
(the roadway worker in charge), who earlier had notified the other
members of the gang of pending movement on the adjacent track, was
standing in the gage of the same adjacent track when he was struck by a
train. It remains unclear why he was fouling the adjacent track at the
time of the incident. The track centers were spaced approximately 13
feet, 6 inches apart, and the maximum authorized speed on the adjacent
track was 50 mph. The foreman was the only roadway worker on the ground
at the time of the incident.
February 10, 2008: A train struck a roadway worker inside
an interlocking on a triple-main track territory. The worker was part
of a gang that consisted of approximately 10 workers that were engaged
in the repair of a crossover on the middle main track with a tamper.
Foul time was being used as adjacent-track on-track safety, but this
on-track safety was removed by the roadway worker in charge, who gave
permission to the dispatcher to permit a train to operate on the
adjacent track through the roadway work group working limits. As the
train entered the interlocking on a limited clear signal indication for
a crossover move past the work area, one of the roadway workers
attempted to cross the track in front of the train and was struck. The
track centers were spaced approximately 13 feet apart, and the maximum
authorized speed for the train on the adjacent track was 45 mph.
March 27, 2008: A surfacing gang was working on double-
main track territory. The surfacing gang foreman was standing in the
foul of the adjacent track while his surfacing crew worked on the
number two main track (the occupied track). A train operating on the
adjacent track struck the foreman. No on-track safety was in effect on
the adjacent track involved at the time of the incident. The track
centers were spaced approximately 14 feet, 7 inches apart, and the
maximum authorized speed on the adjacent track was 70 mph. The foreman
was the only roadway worker on the ground at the time of the incident.
While the above discussion focuses on those fatalities that have
occurred on an adjacent track where a roadway work group, with at least
one of the roadway workers on the ground, was engaged in a common task
with on-track, self-propelled equipment on an occupied track, it is
important to discuss some of the common circumstances in all nine of
the fatalities that have occurred on an adjacent track since the rule
went into effect, as these circumstances were considered by FRA in its
decision to issue the NPRM and this final rule. The first common
circumstance is the type of track. All nine of the fatalities occurred
on ``controlled'' track, rather than ``non-controlled'' track. This was
taken into consideration in writing FRA's proposed and final definition
of ``adjacent controlled track,'' which has
[[Page 74591]]
been included in new Sec. 214.336(a)(3) and would be limited to
controlled tracks whose track centers are spaced 19 feet or less from
the track center of the occupied track. The term would only be
applicable to Sec. 214.336 and would not replace the broader term
``adjacent tracks,'' which is defined in Sec. 214.7.
Second, all nine of the fatalities occurred on an adjacent track
that was quite closely-spaced to the track that the roadway work group
was occupying. Six of the adjacent tracks had track centers that were
spaced approximately 14 feet or less from the respective track centers
of the tracks that the roadway work groups were occupying, and all nine
of the adjacent tracks were spaced 15 feet or less from the track
centers of the respective occupied tracks. This common circumstance was
also taken into consideration in FRA's proposed and final definition of
``adjacent controlled track,'' which would have a narrower
applicability for purposes of proposed and final Sec. 214.336 than the
term ``adjacent tracks,'' because it would not include tracks with
track centers that were spaced more than 19 feet (but less than 25
feet) away from the track center of the occupied track.
The third common circumstance of the nine fatalities on adjacent
track is the time of year. Four of the fatalities occurred during the
first quarter (January-March), none of the fatalities occurred in the
second and third quarters of the year (April-June and July-September,
respectively), and the other five fatalities occurred during the fourth
quarter (October-December). As noted earlier in Section I, above,
because incidents involving adjacent controlled tracks appear to
present clear evidence of significant risk that is not effectively
addressed by the current regulation, FRA has concluded that moving
forward with this rulemaking to address adjacent-track on-track safety
in advance of the other proposals contained in the RSAC consensus is
necessary and appropriate in order to reduce the risk of additional
fatalities on adjacent track that are likely to occur late this year or
early next year in the absence of further regulatory action.
V. Joint Petition to FRA for an Emergency Order
On April 11, 2008, the Brotherhood of Maintenance of Way Employes
Division (BMWED) and the Brotherhood of Railroad Signalmen (BRS) filed
a joint petition requesting that FRA issue an emergency order under 49
U.S.C. 20104(a) requiring adjacent-track protection for roadway work
groups. The petition noted that similar requests, which were filed on
October 7, 2005, November 7, 2003, and December 21, 1999, were denied
by FRA. The petitioners expressed their belief that, under the existing
provisions of the rule, roadway workers will continue to suffer
preventable serious injuries and death. The petitioners asserted that
FRA should require railroads and their contractors to establish on-
track safety on adjacent tracks (``adjacent-track on-track safety'')
for a wider range of work activities. In FRA's January 5, 2006 denial
of the October 2005 petition, FRA noted that the RSAC working group
tasked to review and revise the RWP Rule (``RWP Working Group'') was
``committed to presenting comprehensive draft language * * * that would
more closely tailor the solution to the problem.'' And while the RWP
Working Group did in fact draft this language, and both the Working
Group and the full RSAC were able to reach consensus on such language,
BMWED and BRS were concerned that the language, which has not been
published as an NPRM, would not become a final rule for a considerable
period of time, leaving the possibility for further preventable
fatalities. BMWED and BRS urged FRA to issue an emergency order that
would adopt the adjacent-track consensus language of the RWP RSAC.
On April 18, 2008, the American Train Dispatchers Association
(ATDA) filed a letter in support of the BMWED and BRS joint petition.
In the letter, ATDA agreed that preventable injuries and deaths
continue to occur because of a lack of positive regulation mandating
adjacent-track on-track safety and urged FRA to issue an emergency
order based upon the RSAC-approved and consensus-based replacement
language for Sec. 214.235(c), as indicated in the joint petition.
As an emergency order does not require prior notice to the affected
party or an opportunity to be heard prior to issuance of the order,
Congress declared that such an order may be invoked only where an
unsafe condition or practice ``causes an emergency situation involving
a hazard of death or personal injury.'' 49 U.S.C. 20104. By letter
dated June 4, 2008, FRA denied the joint petition for emergency order,
noting that the increased rate of adjacent-track-related fatalities
cited in the joint petition makes a strong case for regulatory action,
but does not constitute an emergency situation ``that has developed
suddenly and unexpectedly in which the danger is immediate.'' To
address this serious safety concern, FRA decided to issue a separate
NPRM with an abbreviated comment period, as further discussed in
Section VI.C, below.
VI. Current Rulemaking To Revise the RWP Rule
A. Overview of the RSAC
In March 1996, FRA established RSAC, which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major stakeholder groups,
including railroads, labor organizations, suppliers and manufacturers,
and other interested parties. A list of member groups follows:
American Association of Private Railroad Car Owners
(AARPCO);
American Association of State Highway and Transportation
Officials (AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association
(ASLRRA);
ATDA;
Association of American Railroads (AAR);
Association of Railway Museums;
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
BMWED;
BRS;
The Chlorine Institute, Inc.;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace
Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement;*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association
(NRC);
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
[[Page 74592]]
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association, Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC
(TCIU/BRC);
Transportation Security Administration (TSA);* and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.
When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. If a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff play an active role at the working group level in discussing
the issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation, and the agency exercises its independent judgment on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal or final
rule. Any such variations would be noted and explained in the
rulemaking document issued by FRA. If the working group or RSAC is
unable to reach consensus on a recommendation for action, FRA moves
ahead to resolve the issue through traditional rulemaking proceedings.
B. Proceedings in This Rulemaking to Date Generally
On January 26, 2005, the RSAC formed the RWP Working Group
(``Working Group'') to consider specific actions to advance the on-
track safety of employees of covered railroads and their contractors
engaged in maintenance-of-way activities throughout the general system
of railroad transportation, including clarification of existing
requirements. The assigned task was to review the existing rule,
technical bulletins, and a safety advisory dealing with on-track
safety. The Working Group was to consider implications and, as
appropriate, consider enhancements to the existing rule. The Working
Group would report to the RSAC any specific actions identified as
appropriate, and would report planned activity to the full Committee at
each scheduled Committee meeting, including milestones for completion
of projects and progress toward completion.
The Working Group is comprised of members from the following
organizations:
Amtrak;
APTA;
ASLRRA;
ATDA;
AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway Company (CN), Canadian Pacific Railway,
Limited (CP), Consolidated Rail Corporation (Conrail), CSX
Transportation, Inc. (CSXT), The Kansas City Southern Railway Company
(KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific
Railroad Company (UP);
Belt Railroad of Chicago;
BLET;
BMWED;
BRS;
FRA;
Indiana Harbor Belt Railroad (IHB);
Long Island Rail Road (LIRR);
Metro-North Commuter Railroad Company (Metro-North);
Montana Rail Link;
NRC;
Northeast Illinois Regional Commuter Railroad Corporation
(Metra);
RailAmerica, Inc.;
Southeastern Pennsylvania Transportation Authority
(SEPTA);
UTU; and
Western New York and Pennsylvania Railroad (WNY&P).
The Working Group held 12 multi-day meetings. The group worked
diligently and was able to reach consensus on 32 separate items.
C. Proceedings Concerning On-Track Safety Procedures for Adjacent
Tracks
One of the items on which the Working Group was able to reach
consensus dealt specifically with the adjacent-track on-track safety
issue in Sec. 214.335 On-track safety procedures for roadway work
groups. The consensus language developed by the Working Group for this
topic, which was approved by the full RSAC and formally recommended to
FRA for paragraphs (c), (d), and (e), is as follows:
For paragraph (c)--``On-track safety is required for adjacent
controlled track within 19 feet of the centerline of the occupied track
when roadway work group(s) consisting of roadway workers on the ground
and on-track self-propelled or coupled equipment are engaged in a
common task on an occupied track.
``Except as provided by paragraph (c)(3) of this section,
when trains are cleared through working limits on an adjacent
controlled track, or when watchman/lookout warning in accordance with
Sec. 214.329 is the form of adjacent on-track safety, roadway workers
shall occupy a predetermined place of safety and all on-ground work and
equipment movement activity within the fouling space of the occupied
track shall cease upon notification of pending adjacent track movement
(working limits) or upon receiving the watchman/lookout warning.
``When single or multiple movements are cleared through
adjacent controlled track working limits, on-ground work and equipment
movement on the occupied track may resume only after all such movements
on adjacent track have passed each component of the Roadway Work
Group(s). If the train stops before passing all roadway workers, the
employee in charge shall communicate with the engineer prior to
allowing the work to resume.
``When single or multiple movements are cleared through
adjacent controlled track working limits at a speed no greater than 25
mph, work performed exclusively between the rails of the occupied
track, or to the field side of the occupied track with no adjacent
track, may continue upon notification of each roadway worker of
movement on adjacent track. On-ground work shall not be performed
within 25 feet to the front or 25 feet to the rear of roadway
maintenance machine(s) on the occupied track during such adjacent track
movement.''
For paragraph (d), the Working Group recommended ``Equipment may
not foul an adjacent controlled track unless protected by working
limits and there are no movements authorized through the working limits
by the roadway worker in charge.''
And for paragraph (e), the Working Group recommended ``The
mandatory provisions for adjacent controlled track protection under
this subpart are not applicable to work activities involving--
[[Page 74593]]
``A hi-rail vehicle as defined in Sec. 214.7, provided such hi-rail
vehicle is not coupled to railroad cars. Where multiple hi-rail
vehicles are engaged in a common task, the on-track safety briefing
shall include discussion of the nature of the work to be performed to
determine if adjacent controlled track protection is necessary. Nothing
in this subpart prohibits the roadway worker in charge of the hi-rail
vehicle from establishing adjacent controlled track protection, as he/
she deems necessary.
``On-ground roadway workers exclusively performing work on
the field side of the occupied track.
``Catenary maintenance tower cars with roadway workers
positioned on the ground within the gage of the occupied track for the
sole purpose of applying or removing grounds. Nothing in this subpart
prohibits the roadway worker in charge of the catenary maintenance
tower car from establishing adjacent track protection, as he/she deems
necessary.''
Upon reviewing the joint petition of the BRS and BMWED for an
emergency order, the consensus language of the Working Group quoted
above, and the relevant accident data concerning roadway workers
fouling adjacent tracks, FRA decided to issue a separate NPRM \7\ to
lower the safety risk associated with roadway workers fouling adjacent
tracks. Although FRA's safety advisory may have had an initial effect
and have raised awareness enough to help keep the number of all
categories of roadway worker fatalities in 2004 and through almost six
months in 2005 at zero, the effect was not sustained enough to combat
the rise of roadway worker fatality incidents since late June of 2005,
when the first roadway worker fatality occurred after the issuance of
the safety advisory, or since October of 2005, when the first adjacent
track roadway worker fatality occurred.
---------------------------------------------------------------------------
\7\ As noted in Section I of this preamble, the provisions
related to on-track safety for certain adjacent tracks were
originally intended to be published as part of a larger NPRM
concerning part 214, but were proposed as a separate NPRM (which led
to the issuance of this final rule) to expedite the effective date
of such provisions.
---------------------------------------------------------------------------
In light of recent roadway worker fatality trends, FRA determined
that the agency must propose a more prescriptive approach to prevent
further fatalities. The need to mandate adjacent-track on-track safety
was recognized by FRA, members of the Working Group, and members of the
full RSAC. The consensus language developed by the Working Group and
recommended by the full RSAC was expected to reduce the risk of roadway
worker fatalities due to fouling an adjacent track while working in
conjunction with on-track, self-propelled equipment or coupled
equipment on an occupied track. As part of the process in drafting the
NPRM in the larger RWP rulemaking, FRA circulated the consensus rule
text concerning adjacent track and other items to the Working Group for
errata review. Both AAR and BMWED submitted comments on this provision.
To address these issues, and other potential ambiguities discovered
upon a closer review of the rule text, FRA reorganized and modified the
consensus text in issuing an NPRM.
FRA published an NPRM addressing adjacent-track on-track safety on
July 17, 2008 (73 FR 41214), but formally withdrew the notice on August
13, 2008 (73 FR 47124). The withdrawal stated, in part--
[i]n crafting the NPRM, FRA presented the RSAC consensus
language in the preamble verbatim and transparently explained its
rationale for all changes it made to the consensus language. As this
was an NPRM, FRA sought comment on the entire proposal, including
those portions that FRA sought to clarify.
FRA recognizes that inadvertent errors do sometimes occur in
formulating a proposal and expects that interested parties would
provide comments to both FRA and all other interested parties
through the established comment process detailed in the NPRM. Given
the alleged discrepancies between the consensus language and the
proposed rule, the need to clarify the essential issues and move
toward resolution of the safety concern at hand, and the ex parte
communications regarding this proposed rule, FRA has decided to
withdraw this rulemaking and will take such further regulatory steps
as safety requires.
Id. Due to the inherent dangers of roadway workers working in
multiple-track territories among machines, FRA decided to revisit the
issues and language of the withdrawn NPRM in light of the comments
received, formal and informal (i.e., phone calls and emails), and issue
a revised NPRM, which was published on November 25, 2009 (74 FR 61633).
In accordance with DOT's policy (Order No. 2100.2 (1970)), all
communications (including informal phone calls and emails) between FRA
employees and other parties since the publication of the July 17, 2008
NPRM and prior to its withdrawal were reduced to writing and placed in
the public docket. While some comments were marked ``draft'' or
received after the withdrawal of the NPRM, FRA posted them to the
docket, since they were still taken into consideration in drafting the
NPRM and this final rule. A summary of the comments on the July 17,
2008 NPRM and FRA's response to those comments appears in the preamble
to the November 25, 2009 NPRM, and therefore is not repeated in the
preamble to this final rule unless it is necessary to discussion of a
pending issue.
A summary of the comments on the November 25, 2009 NPRM and any
pertinent earlier comments and FRA's response to those comments follows
in Section VI.D, below. However, there is one issue that was raised by
AAR in its comments on the July 17, 2008 NPRM that merits further
discussion in this section, namely the effective date of the rule. In
its comments, AAR had urged FRA to make the effective date for training
on the new requirements consistent with the railroads' training
schedules. Specifically, AAR indicated that if a rule were published
before October 1st of a calendar year, then training could be completed
by July 1st of the next calendar year. In support of this recommended
effective date, AAR explained that most employees are trained during
the first six months of each year, many during the first quarter, when
there is typically less demand for railroad services. AAR further noted
that railroads spend considerable resources to ensure that their
training materials are comprehensive and effective, and that training
outside the normal training cycle could be counterproductive and could
potentially lead to errors in implementation, as the trainers may have
a more difficult time effectively conveying the information. The BMWED
and BRS comments on the July 17, 2008 NPRM, though not expressly
commenting on a particular effective date, expressed concern that the
separate training and recordkeeping requirements proposed in Sec.
214.336(c) would have shifted the burden for effective training from
the employer to the employees, and would have infringed on the
employees' right to quality, employer-provided training. FRA had
proposed these separate training and recordkeeping requirements to
serve as a stop-gap measure until the time of the employee's recurrent
training pursuant to Sec. 214.343(d). However, given the complexity of
new Sec. 214.336, FRA agrees that it would be best to allow the
railroads additional time to create comprehensive and helpful training
materials and to train their employees during the normal training
cycle. As a result, FRA has decided to make the rule effective on May
1, 2012. This should help ensure uniformity and quality of training.
Until this final rule becomes effective, FRA strongly encourages
railroads and contractors to take measures to increase awareness on
[[Page 74594]]
the issue of the dangers posed by adjacent tracks, such as making it a
topic of discussion at safety meetings or enhancing their on-track
safety job briefings to include information about any adjacent tracks,
on-track safety for such tracks, and identification of any roadway
maintenance machines that will foul such tracks.
D. Response to Comments on the November 25, 2009 NPRM
FRA received four comments on the November 25, 2009 NPRM. Comments
were submitted by a variety of affected parties, namely, BMWED and BRS
(joint comments), AAR, APTA, and ATDA. FRA has extensively reviewed and
evaluated the comments. In this section, FRA has responded to the
comments regarding the following issues:
(1) On-ground work performed to the clear side;
(2) Hi-rail vehicles and clarification of ``common task'';
(3) Rail-bound geometry or detector cars;
(4) Continuous barrier;
(5) Requests for additional exceptions to, or relief from, the
requirements of proposed Sec. 214.336 or for a narrowing of its scope;
(6) Predetermined place of safety; and
(7) The effect of the proposed rule on dispatchers.
FRA has responded to some of the smaller concerns within the Section-
by-Section Analysis at Section VII of this preamble.
1. On-Ground Work Performed to the Clear Side
BMWED and BRS raised several issues in their joint comments on the
NPRM. First and foremost, however, was their concern with the concept
and definition of the term ``clear side,'' which they believed was an
``unproven and novel concept'' that had not been discussed in the RSAC
and the Working Group, and that was a ``dangerous surrogate for the
consensus language defining `Field Side' within the body of the text
adopted by the Working Group in 214.335(c)(3).'' In the NPRM, FRA had
proposed the term ``clear side'' as a shorthand to describe the side on
which there should essentially be no danger posed by any other adjacent
track, for purposes of the exception in paragraph (e)(1) of proposed
Sec. 214.336 for ``[o]ne or more on-ground roadway workers performing
work while exclusively positioned on the clear side of the occupied
track.'' In particular, FRA noted that, assuming compliance with the
proposed rule, there would be no danger posed by any other adjacent
track either because there is no adjacent track on that particular side
of the occupied track or, even though there is an adjacent track on
that side of the occupied track, working limits have been established
in accordance with this subpart on the closest adjacent track on that
side and, therefore, there are no movements authorized through the
working limits on that adjacent track.
This proposed exception was based on paragraph (e)(2) of the
consensus language, which read ``[o]n-ground roadway workers
exclusively performing work on the field side of the occupied track.''
As discussed at length in the preamble of the NPRM (see 74 FR 61640),
FRA believed that this language was broader than the consensus language
in consensus paragraph (c)(3), which would have permitted work to
continue ``to the field side of the occupied track with no adjacent
track'' during a low-speed movement on an adjacent controlled track on
the opposite side of the occupied track. Additionally, FRA noted that
there were two field sides to each occupied track, beginning at each
rail and continuing outward and away from the track center of the
occupied track. However, in their joint comments on the NPRM, BMWED and
BRS expressed their beliefs that the term ``field side'' was clear, and
that each right-of-way (rather than each track) has only two field
sides (i.e., the outermost extremes of the right-of-way). It was their
opinion that FRA was mistaken in its conclusion that there was a
conflict between consensus paragraphs (c)(3) and (e)(2) because the
term ``field side'' in (e)(2) clearly referred to the side of the
occupied track that had no adjacent track on that side; without such a
conflict, they believed there was no need to introduce the term ``clear
side.''
FRA notes that the term ``field side'' is used by roadway workers
inspecting track to indicate on which side of a rail a bolt was
replaced (e.g., field side vs. gage side), regardless of whether the
track is in single-track territory or multiple-track territory. Given
this use of the term and BMWED's and BRS' view that the term has been
used differently in the common parlance of roadway workers, it is
evident that the term ``field side'' was understood by different people
to mean different things. FRA has considered this fact as well as the
comments raised concerning the safety of permitting work to continue on
a side of the occupied track that had an adjacent track.
FRA had originally proposed in the July 17, 2008 NPRM (later
withdrawn) that work would be permitted to continue on that side as
long as on-track safety (including train approach warning) had been
established on that side. In response to the concerns raised by BMWED
and BRS that it would be unsafe to permit work on that side if working
limits are not specifically required on any adjacent track on that side
(with no movements permitted through such limits), FRA adjusted its
proposal in the November 25, 2009 NPRM so as to better ensure the
safety of the workers on that side of the occupied track. See 74 FR
61640.
In this final rule, FRA has considered the additional comments
received from BMWED and BRS on the proposed section, particularly on
the use of the term ``clear side'' and ``field side'' and has removed
both terms to eliminate any confusion. However, FRA still believes that
it is safe to work on the side of an occupied track with working limits
on the closest adjacent track on that side and no movements within such
limits on that side, and that establishing the near running rail as a
demarcation point is a ``bright line'' approach that will make it
easier both for roadway workers and the regulated community at large to
follow and for FRA to enforce. Thus, this final rule permits work while
exclusively positioned on the side of the occupied track with one or
more adjacent tracks, the closest of which has working limits on it and
no movements permitted within such working limits by the roadway worker
in charge. See Sec. 214.336(e)(1)(ii) of the final rule.
2. Hi-Rail Vehicles and Clarification of ``Common Task''
In response to the exception proposed for hi-rail vehicles in the
NPRM in paragraph (e)(2) of Sec. 214.336, FRA received comments from
BMWED and BRS indicating that the exception was written too broadly and
should be amended so as to limit it to only those hi-rail vehicles
being used for inspection or minor correction purposes. These
commenters submitted that this was the intent of the consensus
language, and that failing to impose this limitation would permit work
to be performed by hi-rail vehicles that was equally as distracting
(such as a thermite welding crew working out of the back of a large hi-
rail vehicle work platform) as that performed by other types of on-
track, self-propelled equipment or coupled equipment subject to the
requirements of this section.
AAR requested clarification of the exception for hi-rail vehicles,
noting that the language limiting the exception for hi-rail vehicles
(i.e., to those that are not operating on the same occupied track and
within the limits of a roadway
[[Page 74595]]
work group as described in Sec. 214.336(a)) should be modified so as
to exclude from the exception only those hi-rail vehicles working on
the occupied track within 300 feet in front of or behind any roadway
maintenance machine of a roadway work group. AAR noted that there are
circumstances where the working limits could extend between two control
points for several miles, and that the hi-rail vehicle may be operated
a considerable distance away from the roadway work group, but within
the control points.
APTA raised a similar concern regarding the roadway workers'
proximity to the on-track, self-propelled equipment, noting that
proposed Sec. 214.336 would require adjacent-track on-track safety for
workers in a tie gang applying rail anchors on an occupied track where
no power tools or roadway maintenance machines are in use within their
hearing, and for an on-ground worker taking rail profile measurements
behind a rail grinder. Because the fatalities recounted in the NPRM all
suggest proximity to the on-track equipment as a defining factor, APTA
suggested that FRA should narrowly define the phrase ``common task'' so
as to exclude from the limitations of Sec. 214.336(a) workers who are
not in proximity to the on-track equipment and whose ability to see and
hear approaching trains or other equipment on adjacent tracks is not
limited by noise, lights, or other conditions.
FRA agrees with BMWED and BRS that the language in the NPRM would
have permitted work to be performed by hi-rail vehicles that was
equally as distracting, and thus has adopted BMWED's and BRS'
suggestion in the final rule. See Sec. 214.336(e)(3)(i). As explained
in detail in the Section-by-Section Analysis at Section VII of this
preamble, FRA has added a definition of the term ``minor correction
purposes'' to paragraph (a)(3) of this section for additional clarity.
Additionally, in response to the concern raised by AAR (and a
similar concern raised by APTA) that a hi-rail vehicle that is operated
within the same working limits but a considerable distance away from
the distractions of the roadway work group would not qualify for the
exception, FRA has added language to permit the hi-rail vehicle
exception to apply in this situation if both of the following
conditions are met. The first is that the roadway worker in charge of
the working limits has conducted an on-track safety job briefing with
the principal (``non-excepted'') roadway work group and the entering
(``excepted'') roadway work group and determined that adjacent-
controlled-track on-track safety is not necessary for the entering
``excepted group'' (i.e., a group that would otherwise qualify for one
of the exceptions in paragraph (e)(3)).
The second condition that would need to be met in order to permit
the hi-rail vehicle exception to still apply in the above scenario is
that the entering group is not working in such proximity to the
principal (``non-excepted'') group so that the ability of a roadway
worker in the entering (``excepted'') group to hear or see approaching
trains and other on-track equipment is impaired by background noise,
lights, sight obstructions or any other physical conditions caused by
the equipment of the principal group. FRA notes that this additional
language was based in part on the existing on-track safety procedures
for lone workers, and that the selected language would be enforced in a
similar manner. See Sec. 214.337(c)(6). Additionally, in recognition
that, under the reverse scenario, the principal group could be the
``excepted group'' and the entering group could be the ``non-excepted
group,'' FRA has written the language in such a manner so as to apply
to both scenarios.
While the above approach is similar to what APTA suggested in its
comments, FRA has decided not to apply this approach to any members of
a roadway work group that includes equipment that triggers the
requirements of Sec. 214.336 and that is not subject to an exception,
regardless of whether the individual roadway workers are in proximity
of such equipment. FRA notes that unless those individual roadway
workers comprise an entirely separate roadway work group with its own
roadway worker in charge, it is safer to provide uniformity in
procedures for the work group as a whole. This approach, as applied to
an entering group, is also safer than AAR's suggestion that FRA permit
the exception to apply to hi-rail vehicles that are at least 300 feet
away from any roadway maintenance machine in the principal roadway work
group, because it will capture distractions that impair the abilities
of roadway workers from further than 300 feet away, due to factors such
as the size of the on-track, self-propelled equipment or coupled
equipment, and the amount of noise or dust generated by such equipment.
Because the concept of a ``common task'' is at the core of
determining whether roadway workers are part of the same work group,\8\
and thus subject to the same adjacent-controlled-track on-track safety
procedures per the triggering language in paragraph (a), FRA believes
that it is important to provide clarification as to this concept. While
the term ``common task'' is not defined in part 214, FRA has provided
guidance in the preamble to the 1996 RWP Rule concerning the term in
the context of a ``lone worker'' who, by definition, is not engaged in
a common task with another roadway worker. See Sec. 214.7. This
guidance may also be helpful in understanding the use of the term
``common task'' in the context of the new Sec. 214.336. The preamble
provides the following:
---------------------------------------------------------------------------
\8\ A ``roadway work group'' is defined in Sec. 214.7 as ``two
or more roadway workers organized to work together on a common
task.''
Generally, a common task is one in which two or more roadway
workers must coordinate and cooperate in order to accomplish the
objective. Other considerations are whether the roadway workers are
under one supervisor at the worksite; or whether the work of each
roadway worker contributes to a single objective or result.
For instance, a foreman and five trackmen engaged in replacing a
turnout would be engaged in a common task. A signal maintainer
assigned to adjust the switch and replace wire connections in the
same turnout at the same time as the track workers would be
considered a member of the work group for the purposes of on-track
safety. On the other hand, a bridge inspector working on the deck of
a bridge while a signal maintainer happens to be replacing a signal
lens on a nearby signal would not constitute a roadway work group
just by virtue of their proximity. FRA does not intend that a common
task may be subdivided into individual tasks to avoid the use of on-
track safety procedures required for roadway work groups.
61 FR 65965-66.
3. Rail-Bound Geometry or Detector Cars
In the NPRM, FRA had sought comment regarding whether the hi-rail
vehicle exception should be expanded to include rail-bound geometry and
detection equipment. See 74 FR 61641, 61648. As discussed in the NPRM,
AAR had requested that the exception for hi-rail vehicles be expanded
to include rail-bound geometry and detection equipment, since the level
of distraction posed by this equipment is similar to that posed by hi-
rail vehicles. AAR suggested that FRA expand the hi-rail vehicle
exception by adding ``or self-propelled track geometry or detector
car'' after ``a hi-rail vehicle.'' In seeking comments, FRA noted that
``it seems that the level of distraction is similar for a roadway
worker on the ground who is field-verifying a measurement behind a
[[Page 74596]]
geometry car and a roadway worker on the ground who is replacing a bolt
behind a hi-rail.'' 74 FR 61641.
BMWED and BRS responded that they believed that the distractions
are dissimilar, in that the detector cars are larger (reducing
visibility) and much louder than a hi-rail pickup, and could therefore
reduce a person's ability to detect the approach of a train.
Additionally, they noted that there are other roadway maintenance
machines performing a common task with such detection equipment that
will also be at risk. In contrast, APTA expressed support for expanding
the hi-rail vehicle exception to self-propelled detector (and
``inspection-type'') cars, noting its belief that roadway workers
engaged in a common task with self-propelled detector cars are
performing work under the same circumstances as those engaged in a
common task with hi-rail vehicles, and thus, should be granted the same
exemption.
FRA has decided to adopt this exception in this final rule because
the level of distraction posed by the task of inspecting or performing
minor correction is the same. Additionally, FRA has considered that
inspection or minor correction work performed by a roadway work group
with this type of equipment would clearly not have triggered the
requirement for adjacent-track on-track safety under existing Sec.
214.335(c) (as this would not have been considered ``large scale
maintenance or construction'').
4. Continuous Barrier
FRA requested comment in the NPRM as to whether a new exception
should be added for locations where there is a physical barrier, such
as a fence, between the occupied track and the adjacent track and, if
so, whether it should be limited to where there is a continuous
permanent or semi-permanent physical barrier of a certain height (such
as a chain-linked fence at least 4' in height or a concrete barrier at
least 32'' in height) between the occupied track and the adjacent
controlled track. 74 FR 61642, 61648. FRA received three comments from
interested parties on this issue.
BMWED and BRS opposed a new exception for fences, etc., due to
concerns that the fence and/or concrete barriers would not necessarily
encompass the entire work environment of one or more roadway work
groups, and would not prevent inadvertent fouling of the adjacent
controlled track by roadway maintenance machines. The commenters noted
in closing that if, however, FRA is inclined to grant this new
exception, then FRA must establish clearly-prescribed minimum criteria
for such a barrier, including that it be permanently-installed and
continuous, of sufficient strength, without voids, openings, or defects
and at least four feet in height, and FRA must require that all roadway
workers are positioned or performing work ``exclusively within the
confines'' of the barrier. The commenters believed that a minimum
height requirement of four feet would be reasonable and necessary to
prevent a roadway worker who stumbles from going over the top of a
shorter barrier and landing in the foul of a live adjacent controlled
track.
AAR suggested that an exception be added for ``[w]ork on an
occupied track where there is a physical barrier between the occupied
track and the adjacent track of sufficient height to prevent the worker
from stepping over the barrier.'' APTA also supported the creation of
an exception for locations that have permanent or semi-permanent
barriers between the occupied and adjacent tracks, and noted that FRA
should not be concerned about the use of plastic fencing for this
purposes, as it has been used effectively in many passenger rail
applications where short-term work is performed in multiple-track and
shared-corridor alignments. APTA submitted that the plastic fencing is
highly visible to workers on the ground and train operators alike, and
its dielectric properties make it a preferred option in situations
where work is performed near third rail or catenary power sources.
Having considered these comments and reviewed the fatality data,
FRA has determined that it is safe to perform work on a side of the
occupied track that has an inter-track barrier between it and the
closest adjacent track on that side, provided that the inter-track
barrier meets minimum requirements to ensure that it is sturdy enough
to prevent a roadway worker from fouling the adjacent track. As a
result, FRA has adopted a new exception for such inter-track barriers.
See Sec. 214.336(e)(1)(iii). FRA has incorporated several of the
suggestions from the comments received and defined the term ``inter-
track barrier'' to mean ``a continuous barrier of a permanent or semi-
permanent nature that spans the entire work area, that is at least four
feet in height, and that is of sufficient strength to prevent a roadway
worker from fouling the adjacent track.'' See Sec. 214.336(a)(3)
(``inter-track barrier''). Further, FRA believes that this exception,
as a practical matter, will be used primarily in commuter territories
that already have permanent, sturdy chain-linked fences in place, often
to prevent passengers from crossing the tracks. Most other semi-
permanent barriers, such as concrete extra-tall jersey barriers (since
standard jersey barriers are less than four feet in height), would be
labor intensive to set up for a short work project. Regarding the use
of plastic fencing, FRA notes that those fences are not typically
permanently or semi-permanently installed, and FRA is also concerned
that this material may be easily defeated by vandals with a pocket
knife, thereby weakening the plastic fencing or leaving gaps in it
through which a roadway worker could fall. As a result, FRA does not
consider plastic fencing as an acceptable ``inter-track barrier'' for
purposes of this section.
Finally, in order to address BMWED's concern that the inter-track
barrier would not prevent inadvertent fouling of the adjacent
controlled track by roadway maintenance machines, FRA has added
clarifying language to the introductory text in paragraph (e) that
cross-references the requirements in paragraph (f), concerning
components of roadway maintenance machines fouling an adjacent
controlled track. This language is intended to reiterate that, the
exception in paragraph (e)(1)(iii) exempts the roadway workers from the
procedures in paragraphs (a), (b), and (c) only; they must still follow
the procedures in paragraph (f), which generally provides that
components of roadway maintenance machines shall not foul an adjacent
controlled track unless working limits have been established on the
adjacent controlled track and there are no movements permitted within
the working limits by the roadway worker in charge that would affect
the roadway worker operating such machine.
5. Requests for Additional Exceptions to, or Relief From, the
Requirements of Proposed Sec. 214.336 or for a Narrowing of Its Scope
FRA received several comments requesting additional exceptions to,
or relief from, the requirements of proposed Sec. 214.336 or for a
narrowing of its scope. Three of the requests were made by AAR, and the
other two were made by APTA. Each request or set of similar requests is
described and then addressed.
a. Requested Exception Where There Is Only One Worker on the Ground
AAR commented that FRA had disagreed with its draft comments on the
withdrawn NPRM that FRA's proposal to apply adjacent-track protection
requirements where there is only one worker on the ground is contrary
to the intent of the Working
[[Page 74597]]
Group. AAR indicated that, even assuming FRA is correct, adjacent-track
protection is not required when activities are performed between the
rails of the occupied track or on the clear side, since employees
undertaking such activities are not in danger from trains passing on
adjacent track. AAR submitted that adjacent-track on-track safety
serves no purpose for employees checking track characteristics (e.g.,
cross level, gage, or profile), a machine operator re-supplying a
machine with materials, a mechanic repairing a machine, or where a
machine is just being fueled. AAR further stated that the last three
activities described above do not even constitute roadway work, thus
the proposed adjacent-track protection requirements would not apply.
Accordingly, AAR proposed that FRA add an additional exception to
proposed Sec. 214.336(e) for ``a single employee performing work
exclusively between the rails of the occupied track.'' AAR noted that
it would not be opposed to limiting the exception by requiring that the
employee must first communicate with the operator of the roadway
machine.
Regarding AAR's request that FRA add an additional exception to
proposed Sec. 214.336(e) for ``a single employee performing work
exclusively between the rails of the occupied track,'' FRA again notes,
as it did in the NPRM, that an analysis of the agency's accident
investigations of these types of incidents revealed that four of the
seven fatalities that involved a roadway work group engaged in a common
task with on-track, self-propelled equipment on an adjacent track
occurred with only one of the roadway workers on the ground. FRA
specifically chose the clarifying words ``one or more roadway workers
on the ground'' because FRA believed that this was the intent of the
Working Group, since there was no safety rationale for excluding
roadway work groups that consisted of only two roadway workers.
Further, FRA notes that a lot of the work performed in a common task
with on-track, self-propelled equipment or coupled equipment, other
than hi-rail vehicles and automated rail inspection cars being used for
inspection or minor correction and catenary maintenance tower cars,
does not lend itself to being performed within the gage of the track
without breaking the plane of the rails. Additionally, the exception in
Sec. 214.336(e)(2) would permit a roadway worker to refuel a machine,
provided that he or she is positioned on a side of the occupied track
meeting specified conditions, with the machine effectively preventing
the roadway worker from fouling the adjacent controlled track on the
other side of such machine.
Additionally, FRA wants to make explicit that it disagrees with
AAR's characterization of a machine operator re-supplying a machine
with materials, a mechanic repairing a machine, or a machine being
fueled as not constituting work subject to the RWP rules (or ``roadway
work,'' as used in AAR's comments). The first activity is ``roadway
work'' because the gathering or distribution of materials necessary to
the performance of track maintenance duties is part of those duties,
and the last activities are maintenance of roadway maintenance
machinery. See Sec. 214.7 (definition of ``roadway worker''). FRA also
disagrees with AAR's characterization that adjacent-track on-track
safety is not required when activities are performed between the rails
of the occupied track, since employees undertaking such activities are
not in danger from trains passing on adjacent track. Both the NPRM and
final rule versions of paragraph (b) clearly require (or would have
required) work to cease between the rails of the occupied track during
adjacent-controlled-track movements authorized or permitted at speeds
over 25 mph. FRA also notes that a train passing by at a speed over 25
mph presents a higher risk of injury to roadway workers from abnormal
consist conditions or track construction/maintenance materials that may
become airborne while the train passes the roadway workers.
b. Requested Revision of Proposed Sec. 214.336(c) To Permit Work by
the Machine Operator Within the Areas 25 Feet in Front of and 25 Feet
Behind Equipment During Low-Speed Movements on an Adjacent Controlled
Track
In its draft comments on the withdrawn NPRM, AAR had recommended
that FRA permit the machine operator to perform work on the ground
within 25 feet of the front or rear of the roadway maintenance machine
that he or she was operating, during adjacent-controlled-track
movements of 25 mph or less. AAR noted it would be impractical not to
allow the operator to step off of his machine and walk directly behind
it. Accordingly, AAR suggested that the proposed paragraph Sec.
214.336(a)(2)(i) in the withdrawn NPRM (and later proposed as Sec.
214.336(c) in the NPRM) be amended by adding after the word
``movement'' the phrase ``unless the employee is operating the
machine.'' FRA noted its belief (without agreeing to the concept as a
whole, contrary to what was suggested by AAR's comments on the NPRM)
that the phrase ``unless the employee is the assigned operator of the
machine'' would have better addressed AAR's concerns, since presumably
the employee would place the machine in the idle position and set the
brakes before alighting and, therefore, would not be operating or
moving the machine from the ground. FRA sought comment as to whether
this amendment should be added.
AAR commented that it supported the revised language suggested by
FRA, with one slight modification in order to address a situation where
two workers, such as an operator and a helper, are assigned to a
machine. Thus, AAR suggested that FRA add the following language to
paragraph (c), ``unless the employees are the assigned operators of the
machines.''
BMWED and BRS submitted comments indicating that they are opposed
to amending proposed Sec. 214.336(c) by adding after the word
``movement'' the phrase ``unless the employee is the assigned operator
of the machine.'' The risk from adjacent track movements associated
with working on the occupied track within 25 feet to the front or rear
of a roadway maintenance machine is not reduced simply because the
roadway worker happens to be the ``assigned operator.'' The noise of
the machine, the reduced visibility, and the distraction of performing
work within 25 feet to the front or rear of the machine is the same for
all roadway workers, regardless of whether or not the person is the
assigned operator.
While FRA believes that the intent of this provision is mainly to
prevent roadway workers from being struck by the machines or equipment,
and generally agrees that if the machine is not being operated the main
danger would be prevented; FRA does not believe that the danger would
be adequately addressed if there is more than one assigned operator to
a machine, as AAR stated is often the case. This presents a dangerous
situation where one of the operators of a machine would be permitted to
begin to operate a machine without first having to provide notice to
the other operator(s), who would be permitted to work within the 25-
foot areas in front of and behind the machine, and could potentially be
positioned in a blind spot. Additionally, even if only one operator
were permitted, if a roadway worker observed the operator in the 25-
foot area and thought that because the machine was off or in idle it
was safe to approach the machine within 25 feet and he positioned
himself in a blind
[[Page 74598]]
spot, that roadway worker may be injured if the operator started the
machine suddenly. Given all of the above, FRA has decided not to adopt
this requested exception.
c. Requested Revision of Proposed Sec. 214.336(b)(2) To Permit a
Roadway Work Group Component To Resume Work After the Head-End Has
Passed the Component's Location
AAR believes that work should be permitted to resume when the
leading end of the equipment has passed, provided that the work is
performed exclusively between the rails of the occupied track or on the
clear side, and suggests that FRA adopt language to that effect in
paragraph (b)(2) of Sec. 214.336, noting that there is no evidence of
employees walking into the sides of trains. With respect to FRA's
review of the related meeting documents and its conclusion in the NPRM
that railroad management's proposal appears to have conceded that the
entire movement must pass before permitting work to resume, regardless
of speed, AAR submits that it did not make any such concession.
FRA has decided that even if it were mistaken as to AAR's
concession in this regard, each affected roadway worker whose work is
not subject to an exception shall not be permitted to resume such work
until after the entire movement (the trailing-end of the movement) has
passed by the location of the roadway worker, due to the concerns
raised by BMWED and BRS on this issue, namely that there are hazards
presented to roadway workers by abnormal consist conditions (e.g.,
``shifted loads/shifted ladings, loose banding, dragging chains/
binders, loose brake piping, loose/swinging boxcar doors, [and]
fragmented brake shoes'') and by ``dust, rust, debris, stone, and track
construction/maintenance materials'' which may become airborne while
trains pass roadway workers.
d. Request To Raise the Threshold Speed in Sec. 214.336(b) and Sec.
214.336(c) From 25 MPH to 40 MPH for Passenger Trains
APTA commented that it believes that the threshold speed that
determines whether the stricter procedures in Sec. 214.336(b) apply
should be raised from in excess of 25 mph for all trains to a minimum
of 40 mph for passenger trains, noting that passenger trains have
historically been permitted to operate at higher maximum authorized
speeds than freight trains on the same track. APTA further noted that
passenger trains can stop more quickly and easily than freight trains,
and the roadway worker in charge is in the best position to gauge
whether a slower speed is necessary for safe operations, based on local
conditions and the type of work being performed.
FRA has decided not to adopt APTA's proposed change. FRA responds
that because passenger trains are shorter and do not present the same
dangers of shifted loads/shifted ladings as freight trains, the roadway
worker in charge is likely to send the passenger train through the
working limits at the maximum authorized speed. Thus, the amount of
time that the work would not be permitted to continue on the side of
the occupied track closest to the movement and between the rails of the
occupied track would be minimal.
6. Predetermined Place of Safety
Both AAR and APTA requested in their comments that FRA provide
clarification on what it considers a ``place of safety'' for purposes
of the language in proposed Sec. 214.336(b)(1) to require that each
roadway worker cease work and ``occupy a predetermined place of
safety.'' APTA requested that FRA affirmatively state that the occupied
track may be designated as a place of safety for purposes of that
proposed provision, and AAR noted its belief that ``a place of safety''
includes between the rails of the occupied track, and that it may be
safer for the roadway workers to stay between the rails of the occupied
track (particularly if the roadway workers are occupying a track
located between two or more tracks), rather than to cross the other
track(s) to reach an alternative location.
FRA agrees with AAR and APTA that under some circumstances, it may
be safer for the roadway worker to stay between the rails of the
occupied track, and that this is permitted to be an appropriate
predetermined place of safety, as determined by the roadway worker in
charge. In response to the comments made by APTA and AAR, FRA has
provided clarification as to what is meant by ``a predetermined place
of safety'' in Table 1 of this section. Specifically, FRA has added a
note in Table 1, which provides that a ``predetermined place of
safety'' (or ``PPOS''), as used in the table, means a specific location
that an affected roadway worker must occupy upon receiving a watchman/
lookout's warning of approaching movement(s) (``warning'') or a roadway
worker in charge's notification of pending movement(s) on an adjacent
track (``notification''), as designated during the on-track safety job
briefing required by Sec. 214.315. The PPOS may not be on a track,
unless the track has working limits on it and no movements permitted
within such working limits by the RWIC.\9\ Thus, under these
circumstances, the space between the rails of the occupied track may be
designated as a place to remain in position or to otherwise occupy upon
receiving a warning or notification. Additionally, in response to
concerns raised by BMWED and BRS in their joint comments concerning the
potential dangers of having contingent places of safety, note 1 further
explains that the roadway worker in charge must determine any change to
a PPOS, and communicate such change to all affected roadway workers
through an updated on-track safety job briefing.
---------------------------------------------------------------------------
\9\ This is consistent with how FRA has applied a similar term,
``a previously determined place of safety'' (see Sec.
214.337(c)(4)) in the context of on-track safety procedures for lone
workers: ``The place of safety to be occupied by a lone worker upon
the approach of a train may not be on a track, unless working limits
are established on that track.'' See Sec. 214.337(d).
---------------------------------------------------------------------------
7. The Effect of the Proposed Rule on Dispatchers
FRA received comments from ATDA, submitted by Mr. Greg J. M.
Godfrey (ATDA Local Chairman, New York Dispatchers), which are
summarized in this paragraph. ATDA's comments favored increased
railroad workplace safety, but noted that adoption of the proposed rule
would result in additional requests for protection from the train
dispatchers. The comments asserted that as a result of technological
innovation to reduce workforce and the understaffing of other crafts
(e.g., a roadway worker may be forced to request foul time to complete
work that could have been conducted with a watchman/lookout instead),
the dispatchers are already under an enormous amount of pressure. ATDA
stated its belief that this significant pressure is the reason for the
rise in unfortunate incidents that could have been prevented through a
sufficient workforce and that the train dispatcher will need additional
support and additional desks if the final rule provides increased
measures of protections for roadway workers. Finally, ATDA indicated
that this situation entails a real cost that needs to be factored in
and that train dispatching districts will need to be studied to ensure
adequate focus can be maintained by the train dispatchers.
FRA notes in response that it believes this final rule will not
result in a significant increase in the number of calls to a
dispatcher, as the economic analysis assumes that the majority of the
time, the roadway workers will be
[[Page 74599]]
utilizing train approach warning provided by watchmen/lookouts, rather
than working limits established by a dispatcher. And in those
circumstances where working limits need to be established, FRA
anticipates that they will be established at the same time as the
working limits for the occupied track are established; thus, FRA does
not anticipate more than a de minimis increase in the workload of a
dispatcher, especially since this rule will also eliminate many
requests for working limits on adjacent tracks that are greater than 19
feet away from the occupied track (as measured from centerline to
centerline).
VII. Section-by-Section Analysis
Amendments to 49 CFR Part 214, Railroad Workplace Safety
Subpart A--General
Section 214.4 Preemptive Effect
FRA has removed this section from 49 CFR part 214. This section was
prescribed in 1996 and has become outdated and, therefore, misleading
because it does not reflect post-1996 amendments to 49 U.S.C. 20106.
See 61 FR 65975; Sec. 1710(c), Public Law 107-296, 116 Stat. 2319; Sec.
1528, Public Law 110-53, 121 Stat. 453. Although FRA considered
updating this regulatory section, FRA now believes that the section is
unnecessary because 49 U.S.C. 20106 sufficiently addresses the
preemptive effect of part 214. In other words, providing a separate
Federal regulatory provision concerning the proposed regulation's
preemptive effect is duplicative of 49 U.S.C. 20106 and, therefore,
unnecessary.
There has been no opportunity for public comment on this particular
amendment in the final rule. FRA has determined, pursuant to section 4
of the Administrative Procedure Act (5 U.S.C. 553), that prior notice
and an opportunity for comment on the removal of Sec. 214.4 are not
necessary. The amendment is administrative in nature and merely
eliminates an outdated and incomplete restatement of the preemptive
effect of part 214. As such, FRA finds that notice and public comment
procedures are ``impracticable, unnecessary, or contrary to the public
interest'' under 5 U.S.C. 553(b)(3)(B).
Section 214.7 Definitions
The existing version of Sec. 214.7 simply lists various terms used
in part 214 and provides a definition of each term. Unlike the
``definitions'' sections of most FRA safety regulations, the usual kind
of introductory text (e.g., ``As used in this part'' or ``In this
part'') is missing.
In this final rule, Sec. 214.7 has been amended by adding
introductory text, ``Unless otherwise provided, as used in this part--
'' prior to the list of definitions. This change is necessary for two
reasons: (1) to clarify that the definitions apply to part 214 and not
necessarily to other parts of the Code of Federal Regulations; and (2)
to ensure that the addition of similar definitions (``adjacent track''
and ``adjacent controlled track'') that are applicable only to Sec.
214.336 do not conflict in any way with the same terms in this
``general definitions'' section. Note, however, that the definition of
``adjacent tracks'' still applies to any other sections in part 214
that reference the term, either in its plural or singular form, unless
otherwise provided in the section in which the term is used.
Subpart C--Roadway Worker Protection
Section 214.315 Supervision and Communication
Given the importance of an on-track safety job briefing in roadway
workers' understanding of the nature of the work that they will be
conducting and the conditions under which they will conduct it, the
existing requirements in Sec. 214.315 to hold a job briefing ``when an
employer assigns duties to a roadway worker that call for that employee
to foul a track'' have been expanded in revised Sec. 214.315 of this
final rule to cover the procedures for adjacent-controlled-track on-
track safety in new Sec. 214.336 if such procedures are required for
that assignment or if adjacent-track on-track safety is deemed
necessary by the roadway worker in charge (as provided in paragraph (d)
of that section). With a few minor changes, the text concerning the
additional components of an on-track safety job briefing that is
adopted in this final rule is the same as the consensus language
developed by the Working Group and recommended by the full RSAC. The
consensus language relating to adjacent tracks was proposed as a new
paragraph (a)(2) in existing Sec. 214.315, to read as follows:
(2) Information about any tracks adjacent to the track to be
occupied, on-track safety for such tracks, and identification of
roadway maintenance machines that will foul any adjacent track. In
such cases, the briefing shall include procedural instructions
addressing the nature of the work to be performed and the
characteristics of the work location to ensure compliance with this
part.
On December 18, 2007, FRA emailed the Working Group members and
requested an errata review of a document in which FRA had compiled all
of the consensus items. In its errata review comments, AAR requested
that FRA clarify that the provision was not intended to require a
discussion about the on-track safety of an adjacent track unless on-
track safety was required on that track by part 214. FRA agreed that
this was not the intent of the proposed requirement, and had added the
language ``if required by this subpart or deemed necessary by the
roadway worker in charge'' to the consensus rule text, which was
proposed as new paragraph (a)(3) in the NPRM. The language concerning
the discretion of the roadway worker in charge was added to emphasize
that the roadway worker in charge would still be permitted to establish
on-track safety on an adjacent track, regardless of whether it was
controlled or non-controlled, if that on-track safety was reasonably
necessary given the nature of the work that was to be performed. This
proposed section would still have required the on-track safety job
briefing to include information concerning any ``adjacent tracks'' (as
defined in Sec. 214.7), so as to serve as a warning to each roadway
worker of the potential danger in fouling such a track, even if no on-
track safety is required for that particular track because it does not
meet the definition of ``adjacent controlled track'' in proposed Sec.
214.336(a)(3). While the second sentence of the consensus language
began with the phrase ``in such cases,'' FRA deleted that language, and
had moved the rest of the language into a new paragraph (a)(4) in the
NPRM, since the on-track safety job briefing must always address the
nature of the work to be performed and the characteristics of the work
location to ensure compliance with this subpart, regardless of whether
there is an adjacent track present.
In the NPRM, FRA had further clarified in a proposed revision to
introductory paragraph (a) that this section would list only the
minimum items that would have to be discussed in an on-track safety
briefing. In proposed Sec. 214.315(a), the words ``at a minimum'' were
added, and the rest of existing paragraph (a) was moved to proposed
paragraphs (a)(1) and (a)(2). FRA received no comments on the proposed
amendments to this section, and FRA has adopted the amendments to this
section as proposed for the reasons stated above.
Section 214.335 On-Track Safety Procedures for Roadway Work Groups,
General
Currently, Sec. 214.335(c) reads as follows:
[[Page 74600]]
(c) Roadway work groups engaged in large-scale maintenance or
construction shall be provided with train approach warning in
accordance with Sec. 214.327 for movements on adjacent tracks that
are not included within working limits.
In this final rule, FRA has amended this section by deleting
paragraph (c) and creating new requirements in a separate section to
address on-track safety procedures for certain roadway work groups and
adjacent tracks, Sec. 214.336, for the reasons discussed below. This
final rule also amends the heading of Sec. 214.335 to reflect the
general nature of the remaining requirements in that section.
Section 214.336 On-Track Safety Procedures for Certain Roadway Work
Groups and Adjacent Tracks
Paragraph (a), Procedures; General
As discussed in Sections I and II.C, above, existing Sec.
214.335(c), which is in effect until this final rule becomes effective,
requires adjacent-track on-track safety for a roadway work group only
if such work group is engaged in ``large-scale maintenance or
construction.'' Under this criterion and the limited guidance provided
in the preamble to the 1996 final rule that prescribed the provision,
many railroads had not been providing on-track safety on adjacent
tracks for surfacing operations, small tie-renewal operations, or
similar maintenance operations that, while smaller in scale, still
include on-track, self-propelled equipment that may be similarly or
equally distracting to the roadway workers on the ground. New Sec.
214.336 seeks to eliminate this interpretive issue by establishing new,
more objective criteria for determining whether adjacent-track on-track
safety is required for a roadway work group.
In developing language to address the increasing number of roadway
worker fatalities on an adjacent track, the Working Group considered
that most of the fatalities on an adjacent track occurred when a
roadway work group with at least one of the roadway workers on the
ground, was engaged in a common task with on-track, self-propelled
equipment on an occupied track. In those circumstances, the potential
for a roadway worker in the group to be distracted from the danger of
an oncoming train was great due to the noise and dust generated by the
operation of on-track, self-propelled equipment, the need to avoid
entanglement in the operation of that equipment, and the need to
monitor the quality of the work being performed. This set of factual
circumstances became the basis for the new criteria for triggering the
requirement to establish adjacent-track on-track safety in introductory
paragraph (c)(1) of the consensus language, and in paragraph (a)(1) of
new Sec. 214.336, which, as a general rule, requires that on-track
safety be established for each adjacent controlled track when a roadway
work group with at least one of the roadway workers on the ground is
engaged in a common task with on-track, self-propelled equipment or
coupled equipment (including single-unit, self-propelled equipment or
units connected to non-powered on-track equipment by tow bars) on an
occupied track. In particular, the on-track safety must be provided in
accordance with Sec. 214.319 (Working limits, generally) (which
includes Sec. 214.321 (Exclusive track occupancy), Sec. 214.323 (Foul
time), and Sec. 214.325 (Train coordination)), or Sec. 214.329 (Train
approach warning provided by watchmen/lookouts) and as more
specifically described in this section.
This general rule is set forth in paragraph (a)(1), which also
directs the reader to the exceptions described in paragraph (e). The
more specific procedures for adjacent-controlled-track on-track safety
are set forth in paragraphs (b) and (c), concerning movements on an
adjacent controlled track at speeds over 25 mph, and at speeds of 25
mph or less, respectively. The language in RSAC-recommended paragraph
(a) was also modified in light of the new definition of ``adjacent
controlled track,'' namely by removing the reference to the 19-foot
track center distance and placing it in the definition in paragraph
(a)(3).
Paragraph (a)(2) addresses the special circumstances arising in
territories with at least three tracks, if an occupied track is between
two adjacent tracks, at least one of which is an adjacent controlled
track. This paragraph differs from that proposed in the NPRM in that it
now addresses two special circumstances, instead of one. The first,
which was proposed in the NPRM as paragraph (a)(2) and is now set forth
in paragraph (a)(2)(i) of this final rule, provides that if an occupied
track has two adjacent controlled tracks, and one of these adjacent
controlled tracks has one or more train or other on-track equipment
movements authorized or permitted at a speed of 25 mph or less, and the
other adjacent controlled track has one or more concurrent train or
other on-track equipment movements authorized or permitted at a speed
over 25 mph, the more restrictive procedures in paragraph (b) of this
section apply. This special circumstance requires that all work (i.e.,
both on-ground work and equipment movement) on or between the rails of
the occupied track and on both sides of the occupied track cease,
since, as will be further discussed below, there is no side of the
occupied track meeting the specified conditions for an exception to
these procedures. See Sec. 214.336(e)(1).
The second special circumstance arising in territories with at
least three tracks (if an occupied track is between two adjacent
tracks, at least one of which is an adjacent controlled track), is set
forth in new paragraph (a)(2)(ii). This paragraph provides that if an
occupied track has an adjacent controlled track on one side (Side X),
and a non-controlled track whose track center is spaced 19 feet or less
from the track center of the occupied track on the other side (Side Y),
the affected roadway workers must treat the non-controlled track on
Side Y as an adjacent controlled track for purposes of this section.
While this circumstance was not raised during the RSAC discussions or
in either of the NPRMs, FRA was concerned that the additional confusion
of working between two tracks that are spaced that closely to the
occupied track (i.e., with track centers spaced 19 feet or less from
the track center of the occupied track) and requiring that the on-track
safety procedures apply to one of the closely-spaced tracks (the
controlled track on Side X), but not the other (the non-controlled
track on Side Y), could result in fatalities on the non-controlled
adjacent track (on Side Y). This approach is consistent with FRA's
rationale for adopting the language in paragraph (e)(1)(ii) that
imposes conditions on the exception for work performed on a side with
one or more adjacent tracks so that work would be permitted on that
side only if the danger posed by the closest track on that side had
been essentially eliminated (i.e., either the closest adjacent track on
that side has working limits on it with no movement permitted within
such working limits by the roadway worker in charge (see paragraph
(e)(1)(ii)), or that side has an inter-track barrier between the
occupied track and the closest adjacent track on that side (see
paragraph (e)(1)(iii)).
Paragraph (a)(3) adds definitions of four new terms used
exclusively in Sec. 214.336 (``adjacent controlled track,'' ``inter-
track barrier,'' ``minor correction,'' and ``occupied track''). This
paragraph also adds a definition of the term ``adjacent track'' to this
section that in a sense is substantively the same as an existing term
(``adjacent tracks'') that is defined in Sec. 214.7, but which has
been made singular and reworded so as
[[Page 74601]]
to parallel the construction of the definition of the new term
``adjacent controlled track'' in this section and moreover is an
application of the general definition of a track adjacent to the
occupied track (not simply adjacent to another track).
For purposes of this section, ``adjacent controlled track'' means
``a controlled track whose track center is spaced 19 feet or less from
the track center of the occupied track.'' \10\ In contrast, the
definition of ``adjacent tracks'' (in Sec. 214.7) includes any tracks,
controlled or non-controlled (though this is implied, rather than
explicitly stated), whose track centers are spaced less than 25 feet
apart. The new definition of ``adjacent track'' in this section (``a
controlled or non-controlled track whose track center is spaced less
than 25 feet from the track center of the occupied track'') describes
the track with respect to its relationship to the occupied track, and
also explicitly states that the term could be applied to either a
controlled or a non-controlled track. This helps ensure that the reader
is aware of the distinctions between that term and the similar term
``adjacent controlled track.'' Additionally, as noted above in the
discussion of the amendments to Sec. 214.7, the definition of
``adjacent tracks'' still applies to any other sections in part 214
that reference the term, either in its plural or singular form, unless
otherwise provided. To ensure that the terms do not conflict in any
way, FRA has added qualifying language to the beginning of the general
definitions section (Sec. 214.7).
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\10\ The definition continues as follows: ``Note, however, that
under the special circumstances specified in paragraph (a)(2)(ii) of
this section, a non-controlled track whose track center is spaced 19
feet or less from the track center of the occupied track must be
treated as an adjacent controlled track for purposes of this
section.''
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FRA has adopted this narrower definition of ``adjacent controlled
track'' and used the term as part of the triggering language for the
requirements of this section based on the roadway worker fatality data
discussed above in ``IV. Recent Roadway Worker Accidents (1997-2010),''
which show that the adjacent tracks on which the roadway worker
fatalities occurred were all controlled tracks and that the track
centers of these controlled tracks were within 15 feet of the track
centers of the occupied track. In light of these data, the Working
Group agreed that 19 feet would be a reasonable and safe threshold at
which to trigger the requirement to establish on-track safety on an
adjacent track and that it would be reasonable to cover controlled
tracks within that 19-foot zone but to exclude non-controlled tracks.
FRA also agrees that it is wise to adopt a 19-foot threshold, rather
than a 15-foot threshold, to have an additional safety factor built in
to prevent fatalities as well as injuries that could occur as a result
of a shifted load/lading or debris, stones, or track construction/
maintenance materials becoming airborne while trains pass roadway
workers. FRA notes that the lack of fatalities on non-controlled
adjacent tracks may be attributable to the reduced operating speeds on
non-controlled tracks, where railroad operating rules generally require
that movements must stop short of obstructions within half the range of
vision. The Working Group discussed, and the full RSAC recommended for
inclusion in Sec. 214.335(c), that on-track safety be required for
``adjacent controlled track within 19 feet of the centerline of the
occupied track'' for certain work activities. FRA agrees with this
analysis, absent special circumstances (see discussion of Sec.
214.336(a)(2), above), and has reflected it in the proposed definition
of ``adjacent controlled track.'' Note, however, that this section also
uses the broader term ``adjacent track'' or ``adjacent tracks'' in
paragraphs (a)(2), (a)(3) (see definition of ``inter-track barrier''),
(d), and (e)(1)(i) through (iii), as further discussed, below.
The third definition in Sec. 214.336(a)(3) is of the term ``inter-
track barrier,'' which means ``a continuous barrier of a permanent or
semi-permanent nature that spans the entire work area, that is at least
four feet in height, and that is of sufficient strength to prevent a
roadway worker from fouling the adjacent track.'' As discussed in
Section VI.D.4, regarding the comment requesting establishment of an
exception for a ``continuous barrier,'' this term was added to clarify
that only sturdy and continuous barriers that are at least four feet
high are permissible for purposes of qualifying for this exception. See
Sec. 214.336(e)(1)(iii) of the final rule.
The fourth definition is of the term ``minor correction,'' which
means ``one or more repairs of a minor nature, including but not
limited to, spiking, anchoring, hand tamping, and joint bolt
replacement that is accomplished with hand tools or handheld pneumatic
tools only.'' The term does not include welding, machine spiking,
machine tamping, or any similar type of repair. This term was added to
provide guidance as to what type of work a roadway work group may
perform under the exceptions for hi-rail vehicles and automated
inspection cars being used for ``inspection or minor correction
purposes'' (see paragraphs (e)(3)(i) and (ii)). The definition itself
is based, in part, on the language in subpart B of part 214 describing
``repairs or inspections of a minor nature'' for purposes of an
exception to the fall protection requirements for bridge workers. See
Sec. 214.103(d). FRA recognizes that the language in the bridge worker
rule also contained the condition that the work be ``completed by
working exclusively between the outside rails [of the occupied
track].'' See id. As FRA has decided not to impose that same limitation
here, the language has been tailored to ensure that the hi-rail
vehicles or automated inspection cars are not being used in such a
manner so as to create similar levels of noise and dust generated by
the operation of on-track, self-propelled equipment performing machine
tamping or machine surfacing, for example.
The fifth definition to be used for purposes of Sec. 214.336 is
``occupied track.'' FRA has defined the term ``occupied track'' to mean
a track on which on-track, self-propelled equipment or coupled
equipment is authorized or permitted to be located while engaged in a
common task with a roadway work group with at least one of the roadway
workers on the ground. FRA had originally proposed to replace the
consensus language of ``on-track, self-propelled or coupled equipment''
with ``on-track roadway maintenance machine or coupled equipment'' so
as to use a term that was already defined in part 214. While FRA
recognized that the term ``on-track roadway maintenance machine''
excludes hi-rail vehicles, FRA did not anticipate any issues with the
triggering language, as FRA had proposed that there be an exception for
all hi-rail vehicles that were not coupled to one or more railroad cars
or not operating on the same occupied track and within the working
limits of a roadway work group as described in the NPRM-proposed
paragraph (a) (e.g., a roadway work group that had triggered the
applicability of this section due to being engaged in a common task
with a hi-rail vehicle and at least one other piece of equipment that
did in fact meet the definition of an on-track roadway maintenance
machine). However, now that FRA has decided to limit the hi-rail
vehicle exception in what is now paragraph (e)(3)(i) to those hi-rail
vehicles being used for inspection or minor correction purposes, the
broader consensus language needs to be reinstated in order to capture
those hi-rail vehicles that are being used for
[[Page 74602]]
purposes other than inspection or minor correction.
FRA has also added the words ``authorized or permitted to be'' in
front of ``located'' to make clear that if a roadway work group and an
on-track roadway maintenance machine, for example, were to be
physically located on a track without authorization or permission (and
would be occupying the track in the physical sense), FRA would not
consider the track to be an ``occupied track'' for purposes of
enforcing this section. Instead, FRA would enforce other sections of
the rule that would prohibit an operator of such a machine from fouling
a track without appropriate on-track safety on that track (see, e.g.,
Sec. Sec. 214.313(c) and 214.335(a)), as the roadway workers in this
scenario would be subject to a much greater danger than those that had
established appropriate on-track safety for the track on which they
were located but had failed to establish on-track safety on an adjacent
controlled track.
Another change from the NPRM-proposed language was to add the
phrase ``with at least one of the roadway workers on the ground''
following ``a roadway work group'' at the end of the sentence. This
change was made in response to a concern raised by BMWED and BRS in
their joint comments that it was unclear that one roadway worker on the
ground would trigger the requirements of this section. Their comments
noted that clarification was necessary because roadway worker
fatalities have occurred while only one roadway worker was on the
ground. FRA notes that while the definition as proposed in the NPRM did
not affect the triggering language in paragraph (a)(1), FRA decided to
make the definition consistent with such language for additional
clarity.
Paragraphs (b), Procedures for Adjacent-Controlled-Track Movements Over
25 mph; and (c), Procedures for Adjacent-Controlled-Track Movements 25
mph or Less
Paragraphs (b) and (c) list the specific procedures to follow
depending on the authorized or permitted speed of one or more train or
other on-track equipment movements on an adjacent controlled track
(``adjacent-controlled-track movements''). FRA believes that revising
and reorganizing the consensus language from paragraphs (c)(1) and
(c)(3) into paragraphs (b) and (c) and contrasting the procedures with
headings based on higher-speed (i.e., over 25 mph) versus low-speed
(i.e., 25 mph or less) movements makes the section easier to
understand.
Paragraph (b), Procedures for Adjacent-Controlled-Track Movements Over
25 mph
Paragraph (b) lists the procedures to follow for one or more
adjacent-controlled-track movements over 25 mph (i.e., if a train or
other on-track equipment is authorized by the dispatcher or by the
applicable timetable or permitted by the roadway worker in charge to
move on an adjacent controlled track at a speed greater than 25 mph).
Paragraph (c) lists the procedures to follow when one or more adjacent-
controlled-track movements are authorized or permitted at a speed of 25
mph or less.\11\ As noted above in the discussion of paragraph
(a)(2)(i), if an occupied track has two adjacent controlled tracks, and
one of these adjacent controlled tracks has one or more movements
authorized or permitted at 25 mph or less, and the other adjacent
controlled track has one or more concurrent movements authorized or
permitted at over 25 mph, the more restrictive procedures in paragraph
(b) would apply. Note that the word ``permitted'' has been added to
this section for consistency with its use in Sec. 214.321(a)(2) and to
ensure that there is no confusion caused by the use of the word
``authorized,'' which may be understood by some members of the
regulated community to denote authorized by a train dispatcher or by a
timetable (e.g., maximum authorized speed).
---------------------------------------------------------------------------
\11\ If a roadway worker in charge, in his or her discretion,
permits a train through the working limits on an adjacent controlled
track at 30 mph, but the train is actually traveling at a speed of
only 20 mph, the procedures in new paragraph (b), regarding
adjacent-controlled-track movements over 25 mph, would still apply.
Where exclusive track occupancy is the method of on-track safety
established on the adjacent controlled track, FRA notes that
existing Sec. 214.321(d) provides that movements of trains and
roadway maintenance machines within working limits shall be made
only under the direction of the roadway worker having control over
the working limits, and further notes that such movements shall be
at restricted speed unless a higher speed has been specifically
authorized by the roadway worker in charge of the working limits.
---------------------------------------------------------------------------
The first clause of the introductory language in paragraph (b) has
been slightly modified from what was proposed in the NPRM. The cross-
reference to the exceptions in paragraph (e) has been revised to be
more descriptive (``[e]xcept for the work activities as described in
paragraph (e)'' instead of ``except as provided in paragraph (e)'') and
moved to paragraph (b)(1) to ensure that it is read in conjunction with
the requirements listed in that paragraph.
The introductory language in paragraph (b) has also been modified
by limiting the applicability of the procedures (which include the
requirement to cease work) to only those roadway workers that would be
``affected by'' the adjacent-controlled-track movement(s). This
narrowing of the requirement is necessary because, in some situations,
a roadway worker in charge may have authority limits that span a
greater distance than the working limits (the specifically designated
area in which roadway workers have been given permission to work by the
roadway worker in charge) of the roadway work group, and he or she may
want to permit a train into the limits of the authority on an adjacent
controlled track, but hold the train short of the working limits (work
area) of the roadway work group on the occupied track. In such
situations, the rule does not require any work within the working
limits (work area) of the roadway work group to cease because the
roadway workers would not be affected by the movement (i.e., the train
would not be passing by the work area).
The addition of the word ``affected'' to this section is consistent
with how the existing notification procedures regarding a change in the
on-track safety procedures have been written and applied (see Sec.
214.315(d), which states in part, ``[s]uch information shall be given
to all roadway workers affected before the change is effective, except
in cases of emergency''). If no notification is necessary for certain
roadway workers because the change in on-track safety does not affect
them, then it follows that those roadway workers would not need to
cease work. Thus, this issue is not unique to the adjacent-controlled-
track context. For example, if a roadway worker in charge had ``track
and time'' (a form of exclusive track occupancy, which is one method of
establishing working limits) on a single main track from milepost (MP)
10 to MP 20, but explained in the on-track safety job briefing that the
roadway work group's working limits were only from MP 15 to MP 20, then
the roadway worker in charge would be permitted to allow a train to
come into the larger authority limits up to a designated point (i.e.,
between MP 10 and MP 15) short of the smaller working limits (i.e.,
between MP 15 and MP 20) given to the roadway workers, without first
having to notify those roadway workers of the pending movement because
they would not be ``affected'' by this movement.
In other cases, the limits of the track authority and the working
limits for the roadway work group start off the same, but as the work
is completed along the track, the roadway worker in charge may decide
that it is best to ``roll up,''
[[Page 74603]]
or shorten, the working limits of the group (and may even formally
relinquish a portion of the authority limits to the dispatcher). In
such cases, the roadway worker in charge must inform each affected
roadway worker in the roadway work group of the new working limits
through an updated on-track safety job briefing. See Sec. 214.315(d).
FRA believes that it is safe to apply the same principles that have
been applied outside of the adjacent-controlled-track context (e.g., to
single-main-track territory), regarding each ``affected'' roadway
worker, to the adjacent-controlled-track context, especially since the
train (or other on-track equipment movement) would be traveling on the
adjacent controlled track rather than the occupied track, where an
accidental incursion into the working limits of the roadway work group
would likely be more dangerous.
Paragraph (b)(1), Ceasing Work and Occupying a Predetermined Place of
Safety
Paragraph (b)(1) generally requires that, upon receiving a
watchman/lookout warning or notification of one or more pending
movements on an adjacent controlled track (as applicable), each roadway
worker in the roadway work group shall, as described in Table 1 of this
section, cease all on-ground work and equipment movement that is being
performed on or between the rails of the occupied track or on one or
both sides of the occupied track, and occupy a predetermined place of
safety. FRA has added the language ``as described in Table 1 of this
section'' to the rule text to ensure that the reader is aware that
Table 1 indicates the areas where the work must cease and, in addition
to providing clarifications of the rule text, expands upon the
requirements.
When Work Must Cease
When the work must cease depends upon which method of on-track
safety is being used. If on-track safety is established on the adjacent
controlled track through train approach warning in accordance with
Sec. 214.329 (either as the sole method of on-track safety or in
addition to working limits), all work must cease upon receiving a
watchman/lookout warning. See Sec. 214.336(b)(1)(ii). On the other
hand, if working limits are established on the adjacent controlled
track and the roadway work group has not been assigned a watchman/
lookout, all work must cease upon receiving a notification that the
roadway worker in charge intends to permit one or more train movements
or other on-track equipment movements within the working limits on the
adjacent controlled track. See Sec. 214.336(b)(1)(i). This
notification must occur before the roadway worker in charge releases
the working limits (or a portion thereof that would affect one or more
of the roadway workers in the roadway work group), in order to comply
with existing Sec. 214.319(c). See also, Table 1 of Sec. 214.336,
note 1. It should be noted that FRA has changed the word ``through'' to
``within'' so that there would be no doubt that the ``cease work''
procedures would also be triggered if, for example, a roadway worker in
charge decided to permit a train ``within'' the limits, but not all the
way ``through'' such limits. This same change has been made to
paragraphs (e)(1)(ii) and (f) for consistency throughout this section
and with existing Sec. 214.321(d), which states in part that movements
of trains and roadway maintenance machines ``within'' working limits
shall be made only under the direction of the roadway worker in charge.
Where Work Must Cease
Where the work must cease would depend upon various factors,
including the speed of the movement on the adjacent-controlled track,
the method(s) of on-track safety being used on one or both sides of the
occupied track, and whether the work that is being performed meets one
of the exceptions in paragraph (e). In order to help roadway workers
and the regulated community at large better understand how these
factors determine which procedures they are to follow, FRA has created
a table (Table 1) that summarizes how the procedures apply to different
factual scenarios. The accompanying diagrams (Figure 1), which were
created to correspond to the same example numbers in Table 1, help the
reader visualize the factual scenarios. While FRA refers to the tracks
in Table 1 and in the diagrams in Figure 1 with specific track numbers,
both Table 1 and the diagrams are intended to apply to similarly-
situated tracks, regardless of the actual number or letter of the
track.
As noted above, Table 1 is part of the rule text of Sec. 214.336
and provides examples of the application of the rest of the rule text,
but Table 1 also expands upon the requirements set forth in the
paragraphs of Sec. 214.336. One such expansion, which represents a
change from the NPRM, is the way in which FRA is interpreting the word
``side.'' The NPRM proposed to require that (upon receiving a
notification or a watchman/lookout warning, as applicable) work must
cease ``in the fouling space of the occupied track and the adjacent
controlled track.'' This language would have created a potential
loophole, in which a roadway worker would technically not have been
required to cease work in the small area (if any, depending on how
closely spaced the track centers are) between the fouling space of the
adjacent controlled track (e.g., Track 1 on Side A) and the fouling
space of the occupied track (e.g., Track 2) on Side A.
While FRA does not believe that any member of the Working Group
intended that work be permitted in any area between the fouling spaces
on Side A during a movement on Side A, FRA believes that it would have
been reasonable for some members to interpret this language as
permitting work to continue beyond the fouling space of the occupied
track on the opposite side of the occupied track (e.g., Side B), since
work beyond the fouling space of the occupied track on that side (e.g.,
Side B) was not specifically addressed by the rule text, and since
roadway workers that are fouling any adjacent track on that side would
already be required to have on-track safety for that track. However,
this interpretation would have presented a potential conflict with the
spirit of the proposed language in the NPRM that would have permitted
work to occur on a side that ``has an adjacent track or tracks on that
side if working limits had been established in accordance with this
subpart on the closest adjacent track on that side and there were no
movements authorized through the working limits by the roadway worker
in charge on that adjacent track.'' \12\
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\12\ 74 FR 61653. FRA noted in the NPRM that, in applying the
exception in proposed paragraph (e)(1), this language would have the
effect of requiring that working limits be established on an
adjacent track (on the side where the on-ground roadway workers are
exclusively positioned) that is non-controlled and whose centerline
is 25 feet from the centerline of the occupied track, while no form
of on-track safety (i.e., working limits or train approach warning)
would be required on the adjacent controlled track that is located
on the other side of the occupied track and whose centerline is
within 12 feet of the occupied track. See id. at 61640-61641. FRA
sought comment as to the frequency with which these, or similar,
circumstances would occur, and whether this language imposed an
unreasonable burden. See id. at 61641. BMWED and BRS commented that
the language proposed in paragraph (e)(1) was overly broad and would
impose an unreasonable safety burden on roadway workers, but did not
comment as to the frequency of these, or similar, circumstances. FRA
received no comments from AAR on this issue, thus it is FRA's
understanding that such circumstances are rare.
---------------------------------------------------------------------------
FRA has decided to resolve both the potential loophole and the
potential conflict by describing a ``side'' with an adjacent controlled
track (including an adjacent track that is being treated as an adjacent
controlled track, per Sec. 214.336(a)(2)(ii)), broadly in Table 1 as
[[Page 74604]]
``the side from the vertical plane of the near running rail of the
occupied track extending outward through to the fouling space of the
adjacent controlled track.'' FRA does not expect this interpretation of
a ``side'' to have a significant cost impact on a railroad because it
is FRA's understanding that the railroad would primarily be working on
the occupied track (e.g., Track 2) and would not be likely to take
Track 3 out of service (e.g., by establishing working limits, if Tracks
1 and 2 are already out of service) unless the work was of such a
nature to require that, rather than establishing train approach
warning. In such cases, the working limits would already need to be
established on that track due to the nature of the work being performed
on that track, rather than as a result of this rule. As Track 3 in this
scenario would essentially become an extension of the occupied track
(where work amongst components of a roadway work group on two tracks is
coordinated in much the same way as work amongst components of a
roadway work group on the same track), work would be permitted to
continue in the fouling space of that track (and the rest of Side B),
so long as there are no movements permitted within the working limits
on that track (other than movements of the roadway work group that is
occupying Tracks 2 and 3). FRA makes clear that it is concerned with
``outside'' movements, as all of the fatalities occurred on an adjacent
track with equipment that was not being operated by a roadway worker
that was a member of the same roadway work group as the employee that
was fatally injured.
Table 1 also illustrates the interrelation of various sections of
the rule. For example, note 2 (which is referenced in the center column
of examples 1-4, and 6) reminds the reader that, per Sec.
214.336(a)(2)(i), work would no longer be permitted to continue on or
between the rails of the occupied track during movement(s) on an
adjacent controlled track at 25 mph or less if there is a simultaneous
movement on the other adjacent controlled track at more than 25 mph.
Note 2 of Table 1 further provides that on-ground work is
prohibited in the areas 25' in front of and 25' behind equipment (on
the occupied track during a low-speed movement on an adjacent
controlled track), and must not break the plane of a rail on the
occupied track (Track 2) towards a side of the occupied track unless
work is permitted on that side. Without this clarifying note, a roadway
worker performing on-ground work exclusively between the rails of the
occupied track would not technically have been permitted to break the
plane of the rail closest to a side of the occupied track (e.g., Side
B) on which work was permitted during a low-speed (25 mph or less)
movement on an adjacent controlled track. Similarly, in note 3, FRA
clarifies that breaking the plane of the rail while working on a side
of the occupied track is permitted: 1) During the times that work is
permitted on or between the rails of the occupied track in accordance
with Sec. 214.336(c) (Procedures for adjacent-controlled-track
movements 25 mph or less); or 2) if such work is performed alongside a
roadway maintenance machine or coupled equipment in accordance with
Sec. 214.336(e)(2).
Another clarifying point in the table worth noting is that, while
the rule permits train approach warning to be used as a method for
providing on-track safety for an adjacent controlled track, work that
is being performed under train approach warning on both sides of an
occupied track (assuming there is an adjacent controlled track on each
side of the occupied track) must cease on both sides of the occupied
track upon receiving a watchman/lookout warning for a train or other
on-track equipment movement (at any speed) on the adjacent controlled
track on either side. See Table 1, Ex. 4. This is the practical effect
of not meeting the conditions for permitting work to continue on a side
of the occupied track under the exception in paragraph (e)(1)(ii),
which permits work on a side with one or more adjacent tracks if the
closest adjacent track has working limits on it and no movements
permitted within such working limits. The cessation of work on both
sides of the occupied track is necessary to ensure that a roadway
worker will not mistake a watchman/lookout's warning regarding a train
on Track 1, for example, for a warning regarding a train on Track 3,
and vice versa.
Additionally, FRA makes clear that upon receiving the warning for a
train on Track 1 in the above scenario, it would not be safe for a
roadway worker to occupy Track 3 as a predetermined place of safety, as
a train could arrive on that track at any time during the movement on
Track 1. Rather, the predetermined place of safety must be clear of all
tracks that do not have working limits established on them (with no
outside movements within such limits), and may be the space between the
rails of the occupied track under such circumstances. See Table 1, note
1; see also Section VI.D.6 of this preamble (regarding the response to
comments concerning a predetermined place of safety).
Paragraph (b)(2), Resuming Work
Regarding when the work required to cease in paragraph (b)(1) is
permitted to resume, paragraph (b)(2) provides that an affected roadway
worker may resume on-ground work and equipment movement (on or between
the rails of the occupied track or on one or both sides of the occupied
track as described in Table 1 of this section) only after the trailing-
end of all trains or other on-track equipment moving on the adjacent
controlled track (for which a warning or notification has been received
in accordance with paragraph (b)(1) of this section) has passed and
remains ahead of that roadway worker. As discussed in Section VI.D.5 of
this preamble, FRA received comments from AAR indicating that work
performed exclusively between the rails of the occupied track or on the
side of the occupied track furthest from the movement should be
permitted to resume when the leading end of the equipment has passed.
FRA has decided in this final rule that each affected roadway
worker whose work is not subject to an exception shall not be permitted
to resume such work until after the entire movement (the trailing-end
of the movement) has passed by the location of the roadway worker, due
to the concerns raised by BMWED and BRS on this issue. Those concerns
include hazards presented to roadway workers by abnormal consist
conditions (e.g., ``shifted loads/shifted ladings, loose banding,
dragging chains/binders, loose brake piping, loose/swinging boxcar
doors, [and] fragmented brake shoes'') and by ``dust, rust, debris,
stone, and track construction/maintenance materials,'' which may become
airborne while trains pass roadway workers. For the reasons set forth
in the NPRM and above, FRA has adopted the above language in this final
rule, with modifications for consistency with other modified sections.
For example, ``a component of a roadway work group'' was changed to
``an affected roadway worker,'' and the descriptions of the equipment
and where the work needed to cease was revised to parallel the language
for ceasing work in new paragraph (b)(1).
If the train or other on-track equipment stops before its trailing-
end has passed all of the affected roadway workers in the roadway work
group, the work to be performed (on or between the rails of the
occupied track or on one or both sides of the occupied track as
described in Table 1 of this section) ahead of the trailing-end of the
train or other on-track equipment on the
[[Page 74605]]
adjacent controlled track may resume only under two circumstances.
First, this work may resume if on-track safety through train approach
warning (Sec. 214.329) has been established on the adjacent controlled
track.\13\ See Sec. 214.336(b)(2)(ii)(A). Second, this work may resume
if the roadway worker in charge has communicated with a member of the
train crew or on-track equipment operator and established that further
movements of such train or other on-track equipment shall be made only
as permitted by the roadway worker in charge. See Sec.
214.336(b)(2)(ii)(B).
---------------------------------------------------------------------------
\13\ It should be noted that the train approach warning option
provided in new Sec. 214.336(b)(2)(ii)(A) would not be permitted
alongside the train on the adjacent controlled track (or for a
certain distance on the occupied track ahead of the location of the
train on the adjacent controlled track), since the train, if it were
traveling at the ``maximum speed authorized on that track'' would
already be at the roadway worker's location (or, at certain
distances, would be able to reach the roadway worker's location
sooner than 15 seconds) and would not permit the watchman/lookout to
give the roadway worker any (or sufficient) time to clear. Under
such circumstances, work would not be permitted to resume until the
conditions in Sec. 214.336(b)(2)(ii)(B) have been met, or until the
train resumes its movement and its trailing-end passes the affected
roadway worker's location, whichever comes first.
---------------------------------------------------------------------------
FRA received no comments on the proposed language in paragraph
(b)(2)(ii) of the NPRM. For the reasons stated in the NPRM, FRA has
adopted the proposed language with two minor modifications, namely,
revising the description of where the work would need to cease to
parallel the language for the requirement to cease work in new
paragraph (b)(1), and changing ``the train engineer or equipment
operator'' to ``a member of the train crew or the on-track equipment
operator'' to be more consistent with Sec. 214.325(b) (regarding train
coordination).
Paragraph (c), Procedures for Adjacent-Controlled-Track Movements 25
mph or Less
The procedures for adjacent-controlled-track movements at a speed
of 25 mph or less are the same as those procedures for adjacent-
controlled-track movements at a speed greater than 25 mph, except that
certain work would be permitted to continue, due to the low speed of
the movements. In paragraph (a)(2), FRA makes clear that if an occupied
track has two adjacent controlled tracks, and one of the tracks has one
or more adjacent-controlled-track movements authorized at a speed of 25
mph or less, and the other has one or more concurrent adjacent-
controlled-track movements authorized at a speed greater than 25 mph,
the more restrictive procedures in paragraph (b) apply.
Paragraph (c) provides that ``equipment movement on the rails of
the occupied track and on-ground work performed exclusively between the
rails (i.e., not breaking the plane of the rails) of the occupied track
may continue'' during low-speed movements on adjacent controlled
tracks, ``provided that no on-ground work is performed within the areas
25 feet in front of and 25 feet behind any on-track, self-propelled
equipment or coupled equipment that is moving or permitted to move on
the occupied track.'' Thus, unless the work falls under one of the
exceptions in paragraph (e), an affected roadway worker (after
receiving a warning or notification of an adjacent-controlled-track
movement at any speed \14\) would be required to cease all on-ground
work within the areas 25 feet in front of and 25 feet behind any on-
track, self-propelled equipment or coupled equipment that is moving or
permitted to move on the occupied track. The words ``that is moving or
permitted to move'' were added to this condition to permit some (very
limited) flexibility where preventative measures are in place to ensure
that the equipment would not move and pose a danger or distraction to
the on-ground roadway workers in its immediate vicinity. FRA makes
clear, however, that stationary on-track, self-propelled equipment or
coupled equipment located on the occupied track is considered to be
``permitted to move'' for purposes of this section unless it is
expressly prohibited from moving by the roadway worker in charge (and
discussed in an on-track safety job briefing) or an operating rule of
the railroad that prohibits all such equipment movement on the occupied
track during a low-speed movement on an adjacent controlled track.
---------------------------------------------------------------------------
\14\ If the movement were authorized or permitted at a speed
greater than 25 mph, on-ground work not subject to an exception
would need to cease between the rails of the occupied track
regardless of whether the work is being performed more than 25 feet
from on-track, self-propelled equipment or coupled equipment on the
occupied track.
---------------------------------------------------------------------------
For the reasons set forth in the NPRM, FRA has decided to adopt the
Working Group's recommendation of a 25-foot buffer zone as a condition
for permitting work to continue as described in paragraph (c). FRA has
modified the language proposed in the NPRM for consistency with other
changes to the rule text in this final rule, such as adding the concept
of the ``affected'' roadway worker, and also to add clarity. For
example, the NPRM language phrased the 25-foot buffer zone condition in
part as, ``provided that any on-ground work is performed more than 25
feet in front of or behind any roadway maintenance machine;'' however,
this language may have been interpreted by some as prohibiting work
alongside equipment (to verify the quality of the work being performed
by that equipment, for example) on a side of the occupied track meeting
specified condition(s) (see Sec. 214.336(e)(1)), which FRA intended to
permit. See 74 FR 61647. FRA has also revised the applicability of the
prohibition to the 25-foot areas in front of and behind any ``on-track,
self-propelled equipment or coupled equipment,'' rather than ``roadway
maintenance machines,'' because the need to maintain a safe distance
between on-ground roadway workers and such equipment is the same as the
need to maintain a safe distance between on-ground roadway workers and
roadway maintenance machines on the occupied track. Additionally, FRA
does not believe that the Working Group intended to recommend requiring
a distance between on-ground roadway workers and smaller roadway
maintenance machines that are not rail-mounted (i.e., that are not
designed to operate on the rails of a track) and self-propelled, such
as pneumatic hand tampers, as it is FRA's understanding that the
machine-spacing requirements already in existence (per Sec.
214.341(a)(5)) do not apply to these types of roadway maintenance
machines.
Paragraph (c) has also been revised from that proposed in the NPRM
to permit the continuation of on-ground work that is performed
``exclusively between the rails (i.e., not breaking the plane of the
rails) of the occupied track,'' rather than ``exclusively while
positioned on or between the rails of the occupied track,'' provided
that the on-ground work is not performed within the 25-foot areas
discussed above. This revision provides a clear, ``bright line''
approach to make it easier both for roadway workers and the regulated
community at large to follow and for FRA to enforce. As a result, on-
ground roadway workers must be mindful not to break the plane of the
rail with his or her person or tools towards a side of the occupied
track on which work is prohibited during a low-speed movement on an
adjacent controlled track. See Table 1, note 2. If, however, work is
permitted on one side of the occupied track during the low-speed
movement, then the roadway worker is permitted to break the plane of
the rail on that side only. See id.
The NPRM had also proposed a second set of circumstances in
paragraph (c) for permitting work to continue during a low-speed
movement
[[Page 74606]]
on an adjacent controlled track, which was when the work is performed
to the ``clear side'' of the occupied track, provided that it is
performed outside of the 25-foot areas described above. However, this
set of circumstances was for the most part repetitive of what was
proposed in the exceptions in paragraph (e) and was really provided as
more of a cross-reference so that the reader would be able to
understand the range of work that was permissible during a low-speed
movement on an adjacent controlled track. Given that the proposed term
``clear side'' has not been adopted in this final rule and that FRA has
created a table and diagrams that provide a more comprehensive overview
of how the exceptions fit in with the general rules and procedures of
this section (see, e.g., Table 1, note 3; Figure 1, Ex. 2), FRA has
decided that replacing the term ``clear side'' with a cross-reference
to the language in paragraph (e) is not necessary.
It should also be noted that paragraph (c) only directly addresses
the types of work that a roadway worker in the roadway work group
affected by the movement on the adjacent controlled track may continue
performing. Paragraph (c) does not directly address when all other work
(i.e., work that paragraph (c) does not cover) may resume. Thus,
roadway workers who are assigned to perform work not covered by
paragraph (c) must follow the procedures in paragraph (b)(2). For
example, since on-ground work that would need to be performed between
the rails and near a roadway maintenance machine (i.e., in the 25-foot
areas in front of or behind the specified equipment that is on the
occupied track) is not covered by paragraph (c), such work must cease
upon receiving a warning or notification (as applicable) and is not
permitted to resume until the conditions in paragraph (b)(2) have been
fulfilled. That is to say, such work (as well as all other work that an
affected roadway worker must cease, as noted in paragraph (b)(1), that
is not permitted to continue by paragraph (c) and not subject to one of
the exceptions in paragraph (e)) is permitted to resume only after the
trailing-end of all movements (for which a warning or notification (as
applicable) has been received in accordance with paragraph (b)(1) of
this section) has passed by (and remains ahead of) the affected roadway
worker (including any equipment or tools that he or she is using).
Paragraph (d), Discretion of Roadway Worker in Charge
This paragraph emphasizes that the on-track safety procedures of
this section are minimum requirements, and that a roadway worker in
charge is free to establish on-track safety on one or more adjacent
tracks as he or she deems necessary consistent with both the purpose
and requirements of this subpart. This paragraph was proposed in the
NPRM as paragraph (f), but has been switched with what was proposed as
paragraph (d) (``Procedures for a roadway maintenance machine or
coupled equipment fouling an adjacent controlled track'') in order to
accommodate a potential future deletion of that paragraph as discussed
in the analysis of paragraph (f), below.
Paragraph (d) is based on the language recommended by the Working
Group in consensus paragraphs (e)(1) and (3) for the reasons described
in the preamble of the NPRM. No comments on paragraph (f) as proposed
in the NPRM have been received, and proposed paragraph (f) has been
adopted verbatim in this final rule as paragraph (d).
Paragraph (e), Exceptions to the Requirements in Paragraphs (a), (b),
and (c) for Adjacent-Controlled-Track On-Track Safety
The Working Group also discussed, and the RSAC recommended, that
there be three exceptions when adjacent-controlled-track on-track
safety would not have to be established at all. See consensus
paragraphs (e)(1) through (3). In this final rule, FRA has adopted all
three exceptions proposed in the NPRM, with modifications for clarity,
and has also adopted two additional exceptions on which FRA sought
comment. See Sec. 214.336(e); 74 FR 61641-42.
In this final rule, the introductory language and heading in
paragraph (e) clarify that this paragraph is not meant to exempt
roadway workers from having to establish on-track safety in accordance
with paragraphs (d) (Discretion of roadway worker in charge) or (f)
(Procedures for components of roadway maintenance machines fouling an
adjacent controlled track). Rather, paragraph (e) is meant to exempt
roadway workers from the requirements in paragraphs (a), (b), and (c)
for adjacent-controlled-track on-track safety during the times that the
roadway work group is exclusively performing one or more of the work
activities listed in paragraphs (e)(1) through (3).
Paragraph (e)(1), On-Ground Work Performed on a Side of the Occupied
Track Meeting Specified Conditions(s)
The first exception to the requirement for adjacent-controlled-
track on-track safety is for on-ground work performed on a side of the
occupied track meeting specified condition(s) that would ensure that
those performing the work would essentially not be exposed to danger
caused by a train movement on any adjacent track on that side. FRA
believes that there are three types of sides meeting a condition (or
sets of conditions) that make it safe for on-ground work to be
performed on that side of an occupied track while there is no on-track
safety (or the on-track safety, such as a Form B (a form of exclusive
track occupancy) has been temporarily nullified to permit a train
within or through the working limits) on the opposite side of the
occupied track.
The first type of side of the occupied track is a side with no
adjacent track. See Sec. 214.336(e)(1)(i). This means that either that
side has no track whatsoever, or else that the closest track on that
side is at least 25 feet away from the occupied track (as measured from
track center to track center). In the latter situation, there is
sufficient distance to prevent inadvertent fouling of an adjacent
track, as supported by the accident data as well as by current (through
the effective date of this rule) Sec. 214.335(c), which does not
require on-track safety on tracks that are at least 25 feet away even
if the work is considered ``large-scale maintenance or construction.''
If, on the other hand, a side of the occupied track has one or more
adjacent tracks (i.e., one or more tracks within 25 feet), then work is
permitted on that side by this final rule only if either (1) the
closest adjacent track on that side has working limits on it and no
movements permitted within such working limits by the roadway worker in
charge, or (2) there is an inter-track barrier (meeting specified
criteria) between the occupied track and the closest adjacent track on
that side. See Sec. Sec. 214.336(e)(1)(ii) and (iii) and 214.336(a)(3)
(definition of ``inter-track barrier'').
In this final rule, FRA has considered the additional comments
raised by BMWED and BRS on this section, particularly on the use of the
term ``clear side,'' and has removed the term to eliminate any
confusion. However, FRA still believes that it is safe to work on the
side of an occupied track with working limits on the closest adjacent
track on that side and no movements permitted within such limits on
that
[[Page 74607]]
side, and that establishing the near running rail as a demarcation
point is a bright line approach that will make it easier both for the
roadway workers and the regulated community at large to follow and for
FRA to enforce. In addition, as discussed in the comments addressing
the inter-track barrier in Section VI.D.4, above, FRA also believes
that it is safe to work on a side of the track that has an inter-track
barrier (``a continuous barrier of a permanent or semi-permanent nature
that spans the entire work area, that is at least four feet in height,
and that is of sufficient strength to prevent a roadway worker from
fouling the adjacent track'') between the occupied track and the
closest adjacent track on that side. See Sec. Sec. 214.336(a)(3)
(``inter-track barrier'') and 214.336(e)(1)(iii).
Paragraph (e)(2), Maintenance or Repairs Performed Alongside Machines
or Equipment on the Occupied Track
The second exception to the requirements for adjacent-controlled-
track on-track safety is for maintenance or repairs performed alongside
roadway maintenance machines or coupled equipment (located on the
occupied track), provided that such machine or equipment would
effectively prevent the worker from fouling the adjacent controlled
track on the other side of such equipment, and that such maintenance or
repairs are performed while positioned on a side of the occupied track
where there should essentially be no danger posed by any other adjacent
track (i.e., a side of the occupied track as described in paragraph
(e)(1)(i), (ii), or (iii) and Table 1 of this section). This new
exception is really an outgrowth of the first exception which, as
proposed in the NPRM, would have permitted this type of work to be
performed during a train or other on-track equipment movement on the
opposite side of the occupied track. However, the joint comments of
BMWED and BRS expressed concern that work should not be permitted in
the foul of the occupied track (even if mostly positioned on the side
opposite from the movement) unless the machine acted as a physical
barrier between the roadway worker and the adjacent controlled track on
which the movement was occurring.
As this final rule adopts a bright line approach that would
generally not permit a roadway worker to break the plane of a rail
(into the gage of the occupied track towards an adjacent controlled
track on which a movement is occurring), and since, in order to change
out a grinding stone (one of the examples the Working Group sought to
address), the bright line of the rail must necessarily be crossed, FRA
has decided to adopt this physical barrier concept for any work that
would need to cross the plane of the rail into the gage of the occupied
track. Thus, this final rule permits one or more roadway workers to
perform maintenance or repairs alongside a roadway maintenance machine
or coupled equipment, provided that (1) such machine or equipment would
effectively prevent the worker from fouling the adjacent controlled
track on the other side of such equipment, and (2) that such
maintenance or repairs are performed while positioned on a side of the
occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and
Table 1 of this section. FRA specifically refrained from using the word
``barrier'' to describe this first condition in the rule text, so that
it would not be confused with the exception involving an ``inter-track
barrier.'' The second condition ensures that the roadway worker will
remain out of harm's way because he or she will need to be positioned
(standing, kneeling, sitting, squatting, or lying with both feet
outside of the gage of the track) for the most part on a side meeting
specified condition(s) (as described in paragraph (e)(1) and Table 1)
while performing such maintenance or repairs. For example, paragraph
(e)(2) permits a roadway worker to refuel a roadway maintenance
machine, if the machine would effectively prevent the worker from
fouling the adjacent controlled track on the other side of such
equipment and he or she is able to do so while positioned (for the most
part) on a side meeting the specified condition(s).
Paragraph (e)(3), Work Activities Involving Certain Equipment and
Purposes
The third exception to the requirements for adjacent-controlled-
track on-track safety is for work activities involving certain types of
equipment used for certain purposes. Specifically, this exception
applies to one or more on-ground roadway workers engaged in a common
task on an occupied track with on-track, self-propelled equipment or
coupled equipment consisting exclusively of one or more of three types
of equipment: hi-rail vehicles; automated inspection cars; and catenary
maintenance tower cars. This language mimicking the triggering language
in paragraph (a)(1) was moved to the introductory text in paragraph
(e)(3), rather than having to repeat it multiple times in the
paragraphs that follow paragraph (e)(3) (that is, paragraphs (e)(3)(i),
(ii), and (iii)).
The exception for the first type of equipment (hi-rail vehicles)
was proposed in the NPRM as paragraph (e)(2) of this section, but has
been modified in this final rule for clarity and in response to
comments. See Sec. 214.336(e)(3)(i) of this final rule. A hi-rail
vehicle is defined by Sec. 214.7 as ``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.'' As discussed in
Section IV of this preamble, there has been only one adjacent-track
fatality where a roadway work group had been engaged in a common task
with a hi-rail vehicle as defined in Sec. 214.7, and the roadway
workers in that case were under the impression that adjacent-track on-
track safety was in effect when, due to a miscommunication, it was not.
Given the circumstances of the one fatality and because the duties
normally performed by an employee operating a hi-rail vehicle tend to
be less distracting to on-ground roadway workers and produce less dust
and noise than a typical on-track roadway maintenance machine, FRA
proposed in the NPRM that adjacent-track on-track safety not be
required for roadway work groups engaged in a common task with a hi-
rail vehicle. Additionally, FRA proposed that, in accordance with Sec.
214.315(a)(3), where multiple hi-rail vehicles are engaged in a common
task, the on-track safety briefing shall include discussion of the
nature of the work to be performed to determine if adjacent-controlled-
track on-track safety is necessary.
The final rule adopts this proposed exception, but limits it to
those hi-rail vehicles being used only for inspection or minor
correction purposes. This new limitation is imposed in response to
comments from BMWED and BRS that this restriction intended by the
consensus language, and that failing to impose this limitation would
permit work to be performed by hi-rail vehicles that is equally as
distracting (such as a thermite welding crew working out of the back of
a large hi-rail vehicle work platform) as that performed by other types
of on-track, self-propelled equipment or coupled equipment subject to
the requirements of this section. FRA has added a definition of the
term ``minor correction purposes'' to paragraph (a)(3) of this section
for additional clarity. Additionally, paragraph (e)(3)(i) has been
revised for clarity by adding the parenthetical ``(other than a
catenary maintenance
[[Page 74608]]
tower vehicle)'' after the words ``a hi-rail vehicle'' because some
catenary maintenance tower vehicles are also hi-rail vehicles, and FRA
intends that roadway workers engaged in a common task with this subset
of hi-rail vehicles are instead subject to the different conditions
imposed in paragraph (e)(3)(iii).
Finally, as discussed above in Section VI.D.2 of this preamble, in
response to the concern raised by AAR (and a similar concern raised by
APTA) that a hi-rail vehicle that is operated within the same working
limits but a considerable distance away from the distractions of the
roadway work group would not qualify for the exception, FRA has
modified the language in proposed paragraph (e)(2) of the NPRM (now in
paragraph (e)(3)), so as to permit the exception to still apply if
certain conditions are met. In this situation, this final rule requires
that the groups conduct an on-track safety job briefing to determine if
adjacent-controlled-track on-track safety is necessary for the excepted
group. The determination as to whether on-track safety is necessary for
the excepted group shall be made by the roadway worker in charge of the
working limits, rather than by the roadway worker in charge of the
entering group. The roadway worker in charge of the working limits has
the discretion to require on-track safety for the excepted group;
however, if the two groups are in such proximity where the ability of
the roadway workers in the excepted group to hear or see approaching
trains and other on-track equipment is impaired by background noise,
lights, sight obstructions or any other physical conditions caused by
the equipment, then this exception does not apply, regardless of the
roadway worker in charge's initial determination, and adjacent-
controlled-track on-track safety must be provided to both groups.
The second type of equipment (``automated inspection cars'') is a
new exception on which FRA had sought comment in the NPRM. See Sec.
214.336(e)(3)(ii); 74 FR 61641, 61648. As discussed in Section VI.D.3,
above, AAR had requested in its comments on the first (July 17, 2008)
NPRM that the exception for hi-rail vehicles be expanded to include
rail-bound geometry and detection equipment, since the level of
distraction posed by this equipment is similar to that of hi-rail
vehicles. AAR suggested that FRA expand the hi-rail vehicle exception
by adding ``or self-propelled track geometry or detector car'' after
``a hi-rail vehicle.'' In seeking comments on AAR's request in the
November 25, 2009 NPRM, FRA noted that ``it seems that the level of
distraction is similar for a roadway worker on the ground who is field-
verifying a measurement behind a geometry car and a roadway worker on
the ground who is replacing a bolt behind a hi-rail.'' 74 FR 61641.
BMWED and BRS commented that they believed that the distractions
are dissimilar, in that the detector cars are larger (reducing
visibility) and much louder than a hi-rail pickup, and could therefore
affect a person's ability to detect the approach of a train.
Additionally, they note that there are other operators of roadway
maintenance machines performing a common task with such detection
equipment who will also be at risk. APTA expressed support for
expanding the ``hi-rail vehicle'' exception to self-propelled detector
(and ``inspection-type'') cars, noting its belief that self-propelled
detector cars are under the same circumstances as hi-rail vehicles, and
thus, should be granted the same exemption.
FRA has decided to adopt an exception in new paragraph (e)(3)(ii)
for ``an automated inspection car being used for inspection or minor
correction purposes'' because the level of distraction posed by the
task of inspecting or performing minor correction is the same, and if
there are other roadway maintenance machines (presumably on-track,
self-propelled equipment or coupled equipment not meeting the
exception) performing a common task with such equipment, then the
roadway work group would be subject to the requirements of this section
by virtue of the presence of the other equipment. An automated
inspection car includes rail-mounted, non-highway, self-propelled or
coupled equipment whose primary purpose is to take measurements or
collect data concerning the railroad right of way, such as rail-bound
track geometry cars, gage restraint measurement system cars, and rail
flaw detector cars. It does not generally include a locomotive equipped
with vehicle-track interaction because the primary purpose of that
locomotive is to haul freight or passenger cars, rather than to take
measurements or collect data concerning the railroad right of way. If,
however, such locomotive is hauling only a rail-bound geometry car that
is taking measurements and collecting data along the railroad right-of-
way, then this coupled equipment would be considered an automated
inspection car for purposes of this section. Additionally, FRA
considered that inspection or minor correction work performed by a
roadway work group with this type of equipment would clearly not have
triggered the requirement for adjacent-track on-track safety under the
former Sec. 214.335(c) (as this would not have been considered ``large
scale maintenance or construction'').
The third type of equipment (catenary maintenance tower cars or
vehicles) was proposed in the NPRM as paragraph (e)(3) of this section,
and has been modified in this final rule for clarity and consistency.
See Sec. 214.336(e)(3)(iii) of the final rule. FRA had proposed in the
NPRM that an exception be adopted for a catenary maintenance tower car
with one or more roadway workers positioned on the ground within the
gage of the occupied track for the sole purpose of applying or removing
grounds. As discussed in Section IV of this preamble and in the NPRM,
there have been no adjacent-track fatalities where a roadway work group
had been engaged in a common task with a catenary maintenance tower car
on the occupied track, and the duties normally performed by an employee
operating a catenary maintenance tower car tend to be less distracting
to on-ground roadway workers and produce less dust and noise than a
typical on-track roadway maintenance machine.
No comments were received on this exception, and FRA has adopted
the proposed exception with two modifications for clarity, along with
other changes for consistency with the hi-rail vehicle exception
(including moving similar language from the proposal for hi-rail
vehicles and the proposal for catenary maintenance tower cars into
introductory paragraph (e)(3)). First, the words ``or vehicle'' have
been added to the end of ``catenary maintenance tower car'' to clarify
that some of these maintenance machines are railroad cars and others
are vehicles, but both are subject to the conditions of this exception.
Second, FRA is requiring that all of the on-ground workers engaged in
the common task (other than those performing work in accordance with
another exception in paragraph (e) of this section), rather than ``one
or more roadway workers,'' be positioned within the gage of the
occupied track for the sole purpose of applying or removing grounds.
This language is necessary because otherwise, one could interpret that
as long as one of the roadway workers was positioned in the gage of the
occupied track, the rest were permitted to be outside of the gage. Note
that these roadway workers are permitted to break the vertical plane of
the rail of the occupied track in order to apply or remove a ground (as
it is not always possible to do so without
[[Page 74609]]
breaking the plane of the rail) as long as they would still be
positioned for the most part within the gage of the occupied track
(i.e., standing, kneeling, sitting, or squatting with both feet between
the rails of the occupied track).
Paragraph (f), Procedures for Components of Roadway Maintenance
Machines Fouling an Adjacent Controlled Track
Regarding the prohibition in consensus paragraph (d) against
``equipment'' fouling an adjacent controlled track unless protected by
working limits, FRA had changed the term to ``roadway maintenance
machines'' in the language proposed in the NPRM to clarify that this
prohibition is meant to be broad and includes hi-rail vehicles that
would otherwise come under the exception in paragraph (e)(2)(ii).
Further, FRA clarified in the NPRM that the prohibition is not meant to
be so broad as to forbid a roadway worker from using readily portable
tools or equipment similar to a jackhammer, such as a pneumatic tamping
gun or a spike driver, on an adjacent controlled track while afforded
on-track safety through train approach warning. FRA urged that
employers and employees use common sense in determining which tools or
equipment they would permit to be used or use under train approach
warning. If there is any doubt as to whether the tools or equipment
could be readily removed, the employee must not foul the track with
those tools or equipment under train approach warning provided by
watchmen/lookouts (Sec. 214.329). Because the issue of fouling a track
with heavier tools or equipment is not unique to the adjacent-
controlled-track context, FRA has decided to address the issue in the
larger RWP rulemaking in the section concerning the appropriate use of
train approach warning (Sec. 214.329). In the event that FRA is able
to address the issue broadly in that section, FRA has moved the
language proposed in paragraph (d) to paragraph (f), and vice versa, so
that this paragraph would be able to be deleted without leaving a gap
in the rule text paragraphs.
Additionally, in order to avoid a potential conflict with an
existing section in part 214, and to make the final rule consistent
with that language, FRA has added the introductory phrase ``[e]xcept as
provided for in Sec. 214.341(c),'' and the modifying language ``a
component of'' ahead of the remainder of the requirement in this final
rule that ``a roadway maintenance machine shall not foul an adjacent
controlled track unless working limits have been established on the
adjacent controlled track and there are no movements permitted within
the working limits by the roadway worker in charge that would affect
any of the roadway workers engaged in a common task with such
machine.'' This language has also been modified from that proposed in
the NPRM by (1) making ``roadway maintenance machines'' singular to
ensure that the prohibition is applied to each machine; (2)
substituting ``within the working limits'' for ``through the working
limits'' to ensure that a movement that is permitted within the working
limits, but not all the way ``through'' would still trigger the
prohibition against fouling in this paragraph; and (3) adding ``that
would affect any of the roadway workers engaged in a common task with
such machine'' at the end of the sentence so that a movement permitted
within the limits of the authority, but short of the group's working
limits (that would therefore not affect the roadway workers) would not
trigger this prohibition.
VIII. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This final rule has been evaluated in accordance with existing
policies and procedures in Executive Orders 12866 and 13563 and DOT
policies and procedures, and determined to be significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034,
Feb. 26, 1979. FRA has prepared and placed in the docket a Regulatory
Impact Analysis (RIA) addressing the economic impact of this final
rule. Document inspection and copying facilities are available at the
Federal Docket Management Facility, U.S. Department of Transportation,
West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590. Docket material is also available for inspection
on the Internet at http://www.regulations.gov. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration,
1200 New Jersey Avenue SE., Washington, DC 20590; please refer to
Docket No. FRA-2008-0059, Notice No. 4.
Certain requirements contained in this rule reflect current
industry practice, restate existing regulations, or both. As a result,
in calculating the costs of this final rule, FRA has included neither
the costs of those actions that would be performed voluntarily in the
absence of a regulation, nor the costs of those actions that are
required by an existing regulation. Similarly, in estimating the
benefits of this final rule, FRA has included neither the benefits that
result from those actions that would be performed voluntarily in the
absence of a regulation, nor the benefits that result from those
actions that are required by an existing regulation.
This analysis includes quantitative measurements and qualitative
discussions of implementation costs for this final rule. The costs will
primarily be imposed by a small increase in job briefing time and
additional resources spent to provide on-track safety for the safe
conduct of other than large-scale maintenance and construction of track
located adjacent to (and within a certain distance of) one or more
controlled tracks on which train movements may be occurring. Training
costs will also accrue. The benefits will primarily accrue from a
reduction in roadway worker casualties (fatalities and injuries).
Business benefits stemming from avoided train delays and property
damages will also accrue, as well as benefits from reduced safety stand
downs.
At the NPRM stage, FRA found that the accident-reduction benefits
expected to accrue over the first 20 years of the rule would exceed and
justify the costs imposed. Cost estimates were based on an uncertain
level of existing compliance with proposed requirements resulting from
a strong safety culture. Although FRA requested comments on the actual
level of such compliance, FRA received no comments. However, FRA
reviewed its methodology and found that some improvements could be
made, making the analysis more robust.
First, FRA increased the data period on which it based its estimate
of fatalities, from a four-year period to a ten-year period, 1999-2008.
This reduced the expected number of fatalities avoidable (had new Sec.
214.336 been in effect) from 1.0 per year to 0.6 per year. It should be
noted that FRA also added a benefit in this final rule for the revised
on-track safety job briefing requirements in Sec. 214.315, as the
revised requirements will affect roadway workers broadly, and not just
those required to establish adjacent-track on-track safety. Then, FRA
estimated the number of injuries avoidable directly from casualty data,
instead of from a loose ratio of injuries to fatalities. This reduced
the number of injuries avoidable per year from approximately 11 to
9.36. FRA then applied recently updated values for monetizing benefits
from casualties avoided. This entailed increasing the value of a
statistical life (VSL) from $6.0
[[Page 74610]]
million to $6.2 million, increasing the ratio of estimated costs per
Abbreviated Injury Scale Level 3 injuries from 0.0595 times VSL to
0.105 times VSL, and using a range of VSL from 55 percent to 145
percent of the basic VSL value, $6.2 million, for sensitivity analysis.
For the 20-year period analyzed, the estimated quantified cost that
will be imposed on industry totals $285.7 million, with a present value
(PV) (7 percent) of $151.4 million, and a PV (3 percent) of $212.6
million. For the same 20-year period, the estimated quantified benefits
total $286.2 million, with a PV (7 percent) of approximately $151.6
million and a PV (3 percent) of $212.9 million. Based on the annual
fatality rate leading up to this rulemaking, this analysis estimates
that there will be 10.3 fewer roadway worker fatalities over the next
20 years. In addition, it estimates that this final rule will reduce
roadway worker injuries by 182 over the next 20 years.
This analysis has been conducted using an implicit assumption that
railroads continue existing maintenance and scheduling practices. In
the past, when FRA has promulgated a new regulation, railroads have
adapted their operations over time to reduce the adverse impact of the
regulation. FRA is not in a position to predict how railroads may adapt
their operations, but, clearly, the railroads have an incentive to
reduce the adverse impact of such events as slowing a train as it
passes a work site. Hence, FRA believes that the railroads also have
the ability to reduce such impacts. Therefore, this analysis has been
conservative in using current operating and maintenance practices when
calculating the burdens from this final rule.
The following table presents the estimated quantified costs broken
down by section of the RIA and by section of the rule:
------------------------------------------------------------------------
PV rate, PV rate,
Estimated cost of final rule 3%* 7%*
------------------------------------------------------------------------
9.2 Job Briefings--Sec. 214.315............. $1.94 $1.38
9.4 On-Track Safety--Sec. 214.336........... 207.60 147.83
9.4 Other (Signalmen, Lone Workers)--Sec. 2.76 1.97
Sec. 214.315/336...........................
9.4 Training--Sec. 214.336.................. 0.25 0.18
-------------------------
Total..................................... 212.55 151.36
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.
FRA believes that introduction of wireless technologies, such as
Positive Train Control, may offer opportunities to reduce costs in the
years to come. For instance, such wireless technologies may reduce the
necessity to post watchmen/lookouts because automatic notification of
crews may be possible. FRA is aware of at least two railroads that
currently use or have successfully tested an advanced automatic warning
system for roadway workers.
The table below presents the estimated benefits associated with
this final rule by section of the RIA and by benefit category:
------------------------------------------------------------------------
PV rate, PV rate,
Estimated benefits of final rule 3%* 7%*
------------------------------------------------------------------------
10.1 Casualty Mitigation (Sec. 214.336)-- $43.72 $31.13
Fatality (Struck by Train)...................
10.2 Casualty Mitigation (Sec. 214.336)-- 71.62 51.00
Injury (Struck by Train).....................
10.3 Casualty Mitigation (Sec. 214.336)-- 15.30 10.90
Injury (Struck by Object Other Than Train)...
10.4 Adjacent Track Revision.................. 9.79 6.97
10.5 Damage Reduction......................... 0.89 0.64
10.6 Reporting/Recordkeeping--Cost Savings.... 0.02 0.01
10.7 Business Industry Benefit................ 46.71 33.26
10.8 Reduction in Safety Stand Downs.......... 19.98 14.23
10.9 Job Briefing Fatality Prevention (Sec. 3.69 2.63
214.315).....................................
10.9 Job Briefing Injury Prevention (Sec. 1.16 0.83
214.315).....................................
-------------------------
Total..................................... 212.88 151.59
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.
In accordance with guidance from DOT, the RIA casualty prevention
benefits are based on the value of a statistical life being $6.2
million. Office of Management and Budget (OMB) Circular A-4 states that
the majority of studies on the value of a statistical life use values
that range from approximately $1 million to $10 million. Use of a
higher or lower value of a statistical life could significantly affect
potential safety benefits and, ultimately, the relative ratio of costs
to benefits for this rulemaking. In recognition of this potential
impact and the imprecision of assumptions regarding the value of a
statistical life, FRA also analyzed the sensitivity of its findings by
evaluating safety benefits using the values of $3.41 million and $8.99
million (i.e., the DOT value of a statistical life ($6.2 million) plus
or minus 45 percent).
Applying $6.2 million for the value of a statistical life produces
a total benefit of $286.2 million, with a discounted value of $151.6
million (PV, 7 percent) or $212.9 million (PV, 3 percent). If $3.41
million is used for the value of a statistical life, then the total
benefit would be $204.2 million with a discounted value of $108.2
million (PV, 7 percent) or $151.9 million (PV, 3 percent). If $8.99
million is used for the value of a statistical life, then the total
benefit would be $368.1 million with a discounted value of $195.0
million (PV, 7 percent) or $273.8 million (PV, 3 percent). The
following table represents the range of benefits according to discount
rate:
[[Page 74611]]
------------------------------------------------------------------------
3% Discount 7% Discount
Benefit range analysis rate rate
------------------------------------------------------------------------
$3.41 Million Value of Statistical Life. $151,906,156 $108,169,968
$8.99 Million Value of Statistical Life. 273,849,809 195,004,112
------------------------------------------------------------------------
FRA finds that the estimated quantified benefits will exceed the
estimated quantified costs. Quantitative methodologies such as this
benefit-cost analysis are a useful way of organizing and comparing the
favorable and unfavorable effects of regulations like this one. A
benefit-cost analysis does not provide a policy answer, but rather
defines and displays a useful framework for debate and review.\15\
---------------------------------------------------------------------------
\15\ AEI-Brookings Joint Center for Regulatory Studies,
``Interests of Amici Curiae: American Trucking Associations, Inc. et
al., v. Carol Browner, Administrator of the Environmental Protection
Agency, et al.,'' July 21, 2000, p. 8.
---------------------------------------------------------------------------
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 (67 FR 53461, Aug. 16, 2002) require agency review of
proposed and final rules to assess their impact on small entities. FRA
has prepared and placed in the docket a Certification Statement
indicating that this final rule is not expected to have a significant
economic impact on a substantial number of small entities. Document
inspection and copying facilities are available at the Docket
Management Facility, U.S. Department of Transportation, West Building,
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC
20590. Docket material is also available for inspection on the Internet
at http://www.regulations.gov. Photocopies may also be obtained by
submitting a written request to the FRA Docket Clerk at Office of Chief
Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0059, Notice No. 4.
In order to determine the significance of the economic impact for
the final rule's Regulatory Flexibility Act requirements, FRA invited
comments from all interested parties concerning data and information
regarding the potential economic impact caused by the proposed rule,
during the comment period. No comments were received pertaining to the
potential impact on small entities.
``Small entity'' is defined in 5 U.S.C. 601 as including 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 for profit ``line-haul
railroad'' that has fewer than 1,500 employees, a ``short line
railroad'' with fewer than 500 employees, or a ``commuter rail system''
with annual receipts of less than seven million dollars. See ``Size
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A.
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. Federal agencies
may use a different standard for small entities, in consultation with
SBA and in conjunction with public comment. SBA's ``size standards''
may be altered by Federal agencies upon consultation with SBA and in
conjunction with public comment. Pursuant to that authority to alter
the ``size standards,'' FRA has published a final statement of agency
policy that formally establishes ``small entities'' or ``small
businesses'' as being railroads, contractors, and hazardous materials
shippers that meet the revenue requirements of a Class III railroad as
set forth in 49 CFR 1201.1-1, which is $20 million or less in
inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part
209. The $20-million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad carrier. Railroad
revenue is adjusted for inflation by applying a revenue deflator
formula in accordance with 49 CFR 1201.1-1. FRA is using this
definition of ``small entity'' for regulatory flexibility purposes in
this rulemaking.
There are approximately 668 small railroads.\16\ Potentially all
small railroads could be impacted by this proposed regulation. However,
because of certain characteristics that these railroads typically have,
there should not be any impact on the majority of them. Most small
railroads have only single-track operations. Some small railroads, such
as the tourist and historic railroads, operate across the lines of
other railroads that would bear the burden or impact of the final
rule's requirements. Finally, other small railroads, if they do have
more than a single track, typically have operations that are light
enough such that the railroads have generally always performed the
pertinent trackside work with the track and right-of-way taken out of
service, or conducted the work during hours that the track is not used.
---------------------------------------------------------------------------
\16\ Approximately 718 railroads--50 large freight, medium
freight, passenger, and commuter railroads = 665 small railroads.
---------------------------------------------------------------------------
In addition, FRA is not aware of any commuter railroads that
qualify as small entities. This is likely because commuter railroad
operations in the United States are part of larger governmental
entities whose jurisdictions exceed 50,000 in population. See 49 CFR
part 209, appendix C.
FRA is uncertain as to the number of contractors that will be
affected by this final rule. FRA is aware that some railroads hire
contractors to conduct some of the functions of roadway workers on
their railroads. However, most of the costs associated with the burdens
from this final rule will ultimately get passed on to the pertinent
railroad. Most likely, the contracts will be written to reflect that,
and the contractor will bear no additional burden for the final
requirements. In addition, at the proposed rule stage, FRA requested
information related to contractors and the burdens that might impact
them as a result of the proposed rule and received none. Hence, FRA is
confident that the final rule's requirements, which have not changed
significantly from those proposed in the NPRM, will not have an impact
on any contractors that will perform track work on a small railroad.
No other small businesses (non-railroads) are expected to be
impacted by this final rule.
The impacts from this regulation are primarily a result of the
requirements for roadway work groups to be provided on-track safety
when working on a track within close proximity of an adjacent track
that is controlled. Again, since small railroads either do not have any
adjacent track or conduct track work on the occupied track with an
adjacent track when the adjacent track is out of service, there is no
impact for small railroads. Since contractors generally pass on costs
to the railroads for which
[[Page 74612]]
they perform work, there should be no impact on contractors.
Having made these determinations, FRA certifies that this final
rule is not expected to have a significant economic impact on a
substantial number of small entities under 5 U.S.C. 605(b).
C. Paperwork Reduction Act
The information collection requirements in this final rule are
being submitted upon publication in the Federal Register for approval
to OMB under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et
seq. The sections that contain the new and current information
collection requirements, and the estimated time to fulfill each
requirement, are as follows:
----------------------------------------------------------------------------------------------------------------
Total
Total annual Average time per annual
CFR Section Respondent universe responses response burden
hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214 350 Safety Inspectors 150 forms........... 4 hours............. 600
Railroad Workplace Safety
Violation Report.
214.303--Railroad On-Track Safety
Programs:
--Amendments to Programs...... 60 Railroads......... 20 amend. + 584 20 hours; 4 hrs..... 2,736
amend.
--Subsequent Years: New 5 New Railroads...... 5 new programs...... 250................. 1,250
Programs.
214.313--Good Faith Challenges to 20 Railroads......... 80 challenges....... 4 hours per 320
On-Track Safety Rules. challenge.
214.315/335--Supervision and
Communication:
--Job Briefings............... 50,000 Rdwy. Workers. 16,350,000 briefings 2 minutes per 545,000
briefing.
--Adjacent-Track Safety 24,500 Rdwy. Workers. 2,403,450 briefings. 30 seconds per 20,029
Briefings (New Requirement). briefing.
214.321--Exclusive Track 8,583 Rdwy. Workers.. 700,739 written 1 minute............ 11,679
Occupancy--Working Limits. authorities.
214.325--Train Coordination:
--Establishing Working Limits 50,000 Rdwy. Workers. 36,500 15 seconds.......... 152
through Communication. communications.
214.327--Inaccessible Track:
--Working Limits on Non- 718 Railroads........ 50,000 notifications 10 minutes.......... 8,333
Controlled Track:
Notifications.
214.336--Procedures for Adjacent-
Controlled-Track Movements Over
25 mph (New Requirements)
--Notifications/Watchmen/ 100 Railroads........ 10,000 notifications 15 seconds.......... 42
Lookout Warnings.
--Roadway Worker Communication 100 Railroads........ 3,000 communications 1 minute............ 50
with Train Engineers or
Equipment Operators.
--Procedures for Adjacent-
Controlled-Track Movements 25 mph
or less:
--Notifications/Watchmen/ 100 Railroads........ 3,000 notifications. 15 seconds.......... 13
Lookout Warnings.
--Roadway Worker Communication 100 Railroads........ 1,500 communications 1 minute............ 25
with Train Engineers or
Equipment Operators.
--Exceptions to the Requirements
in Paragraphs (a), (b), and (c)
for Adjacent-Controlled-Track On-
Track Safety: Work Activities
Involving Certain Equipment and
Purposes:
--On-Track Job Safety 100 Railroads........ 1,030,050 briefings. 15 seconds.......... 4,292
Briefings.
214.337--On-Track Safety 718 Railroads........ 2,080,000 statements 30 seconds.......... 17,333
Procedures for Lone Workers:
Statements by Lone Workers.
214.343/345/347/349/351/353/355-- 50,000 Rdwy. Workers. 50,000 tr. Rdwy. 4.5 hours........... 225,000
Training Requirements. Workers.
--Additional On-Track Safety 35,000 Rdwy. Workers. 35,000 tr. Rdwy. 5 minutes........... 2,917
Training (New Requirement). Workers.
--Records of Training......... 50,000 Rdwy. Workers. 50,000 records...... 2 minutes........... 1,667
214.503--Good Faith Challenges;
Procedures for Notification and
Resolution:
--Notifications for Non- 50,000 Rdwy. Workers. 125 notifications... 10 minutes.......... 21
Compliant Roadway Maintenance
Machines or Unsafe Condition.
--Development of Resolution 644 Railroads........ 10 procedures....... 2 hours............. 20
Procedures.
214.505--Required Environmental 644 Railroads/200 500 lists........... 1 hour.............. 500
Control and Protection Systems Contractors.
for New On-Track Roadway
Maintenance Machines with
Enclosed Cabs:
--Designations/Additions to 644 Railroads/200 150 additions/ 5 minutes........... 13
List. Contractors. designations.
[[Page 74613]]
214.507--As-Built Light Weight on 644 Railroads........ 1,000 stickers...... 5 minutes........... 83
New On-Track Roadway Maintenance
Machines.
214.511--Required Audible Warning 644 Railroads........ 3,700 identified 5 minutes........... 308
Devices for New On-Track Roadway mechanisms.
Maintenance Machines.
214.513--Retrofitting of Existing
On-Track Roadway Maintenance
Machines:
--Identification of Triggering 703 Railroads........ 200 mechanisms...... 5 minutes........... 17
Mechanism--Horns.
214.515--Overhead Covers for 644 Railroads........ 500 requests + 500 10 minutes; 20 250
Existing On-Track Roadway responses. minutes.
Maintenance Machines.
214.517--Retrofitting of Existing 644 Railroads........ 500 stencils........ 5 minutes........... 42
On-Track Roadway Maintenance
Machines Manufactured on or after
Jan. 1, 1991.
214.518--Safe and Secure Position
for Riders:
--Positions Identified by 644 Railroads........ 1,000 stencils...... 5 minutes........... 83
Stencils/Markings/Notices.
214.523--Hi-Rail Vehicles......... 644 Railroads........ 2,000 records....... 60 minutes.......... 2,000
--Non-Complying Conditions.... 644 Railroads........ 500 tags + 500 10 min.; 15 min..... 208
reports.
214.527--Inspection for 644 Railroads........ 550 tags + 550 5 min.; 15 min...... 184
Compliance; Repair Schedules. reports.
214.533--Schedule of Repairs; 644 Railroads........ 250 records......... 15 minutes.......... 63
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. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan at (202)
493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the
following addresses: [email protected] and [email protected].
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be
sent via email to OMB at the following address: [email protected].
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 is not authorized to 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 this final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
D. 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. This final rule will not have a substantial direct effect on the
States, on the relationship between the National government and the
States, or on the distribution of power and responsibilities among
various levels of government.
One of the fundamental federalism principles, as stated in Section
2(a) of Executive Order 13132, is that ``Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government closest to the
people.'' Congress expressed its intent that there be national
uniformity of regulation concerning railroad safety matters when it
enacted 49 U.S.C. 20106. As amended to date, that section provides that
all regulations prescribed by the Secretary of Transportation with
respect to railroad safety matters and the Secretary of Homeland
Security with respect to railroad security matters preempt any State
law, regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
or security hazard that is not incompatible with a Federal law,
regulation, or order and that does not unreasonably burden interstate
commerce. Nothing in this final rule alters the preemptive effect of
the RWP Rule so these provisions have the same preemptive effect as the
1996 RWP Rule in accordance with the statute.
FRA notes that the above factors have been considered throughout
the development of this final rule both internally and through
discussions within the RSAC forum, as described in Sections VI and VII
of this preamble. The full RSAC, which, prior to the publication of
this final rule, reached consensus on proposed rule text and
recommended the proposal to FRA, has as permanent voting members two
organizations representing State and local interests: AASHTO and ASRSM.
As such, these State organizations concurred with the proposed
requirements, which differ in only limited respects from the
requirements contained in this final rule. The RSAC regularly provides
recommendations to the FRA Administrator for solutions to regulatory
issues that reflect significant input from its State members. To date,
FRA has received no indication of concerns about the Federalism
implications of this rulemaking from these representatives or from any
other representative.
For the foregoing reasons, FRA believes that this final rule is in
accordance with the principles and
[[Page 74614]]
criteria contained in Executive Order 13132.
E. Environmental Impact
FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(see 64 FR 28545, May 26, 1999) as required by the National
Environmental Policy Act (see 42 U.S.C. 4321 et seq.), other
environmental statutes, Executive Orders, and related regulatory
requirements. FRA has determined that this final rule is not a major
FRA action (requiring the preparation of an environmental impact
statement or environmental assessment) because it is categorically
excluded from detailed environmental review pursuant to section
4(c)(20) of FRA's Procedures. See 64 FR 28547. In accordance with
section 4(c) and (e) of FRA's Procedures, the agency has further
concluded that no extraordinary circumstances exist with respect to
this regulation that might trigger the need for a more detailed
environmental review. As a result, FRA finds that this final rule is
not a major Federal action significantly affecting the quality of the
human environment.
F. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), 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).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``[b]efore promulgating any
general notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (annually
adjusted for inflation) in any 1 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.
For the year 2010, this monetary amount of $100,000,000 has been
adjusted to $140,800,000 to account for inflation. This final rule will
not result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of $140,800,000 or more in
any one year, and thus preparation of such a statement is not required.
G. 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 (normally
published in the Federal Register) 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 Executive
Order 13211.
H. Trade Impact
The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards setting
or related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
FRA has assessed the potential effect of this final rule on foreign
commerce and believes that its requirements are consistent with the
Trade Agreements Act of 1979. The requirements imposed are safety
standards, which, as noted, are not considered unnecessary obstacles to
trade.
I. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of FRA's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted 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 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
List of Subjects in 49 CFR Part 214
Occupational safety and health, Penalties, Railroad safety.
The Final Rule
In consideration of the foregoing, FRA amends part 214 of chapter
II, subtitle B of title 49, Code of Federal Regulations, as follows:
PART 214--[AMENDED]
0
1. The authority citation for part 214 is revised to read as follows:
Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304; 28
U.S.C. 2461, note; and 49 CFR 1.49.
Subpart A--General
Sec. 214.4 [Removed]
0
2. Section 214.4 is removed.
0
3. Section 214.7 is amended by adding introductory text to read as
follows:
Sec. 214.7 Definitions.
Unless otherwise provided, as used in this part--
* * * * *
Subpart C--Roadway Worker Protection
0
4. Section 214.315 is amended by revising paragraph (a) to read as
follows:
Sec. 214.315 Supervision and communication.
(a) When an employer assigns a duty to a roadway worker that calls
for that employee to foul a track, the employer shall provide the
employee with an on-track safety job briefing that, at a minimum,
includes the following:
(1) Information on the means by which on-track safety is to be
provided for each track identified to be fouled;
(2) Instruction on each on-track safety procedure to be followed;
(3) Information about any adjacent tracks, on-track safety for such
tracks, if required by this subpart or deemed necessary by the roadway
worker in charge, and identification of any roadway maintenance
machines that will foul such tracks; and
(4) A discussion of the nature of the work to be performed and the
characteristics of the work location to ensure compliance with this
subpart.
* * * * *
0
5. Section 214.335 is amended by removing paragraph (c) and revising
the section heading to read as follows:
[[Page 74615]]
Sec. 214.335 On-track safety procedures for roadway work groups,
general.
* * * * *
0
6. Section 214.336 is added to read as follows:
Sec. 214.336 On-track safety procedures for certain roadway work
groups and adjacent tracks.
(a) Procedures; general. (1) General rule. Except as provided in
paragraph (e) of this section, on-track safety is required for each
adjacent controlled track when a roadway work group with at least one
of the roadway workers on the ground is engaged in a common task with
on-track, self-propelled equipment or coupled equipment on an occupied
track. The required on-track safety shall be established through Sec.
214.319 (Working limits, generally) or Sec. 214.329 (Train approach
warning provided by watchmen/lookouts) and as more specifically
described in this section.
(2) Special circumstances arising in territories with at least
three tracks, if an occupied track is between two adjacent tracks, at
least one of which is an adjacent controlled track. (i) If an occupied
track has two adjacent controlled tracks, and one of these adjacent
controlled tracks has one or more train or other on-track equipment
movements authorized or permitted at a speed of 25 mph or less, and the
other adjacent controlled track has one or more concurrent train or
other on-track equipment movements authorized or permitted at a speed
over 25 mph, the more restrictive procedures in paragraph (b) of this
section apply.
(ii) If an occupied track has an adjacent controlled track on one
side (Side X), and a non-controlled track whose track center is spaced
19 feet or less from the track center of the occupied track on the
other side (Side Y), the affected roadway workers must treat the non-
controlled track on Side Y as an adjacent controlled track for purposes
of this section.
(3) Definitions. As used in this section--
Adjacent controlled track means a controlled track whose track
center is spaced 19 feet or less from the track center of the occupied
track. Note, however, that under the special circumstances specified in
paragraph (a)(2)(ii) of this section, a non-controlled track whose
track center is spaced 19 feet or less from the track center of the
occupied track must be treated as an adjacent controlled track for
purposes of this section.
Adjacent track means a controlled or non-controlled track whose
track center is spaced less than 25 feet from the track center of the
occupied track.
Inter-track barrier means a continuous barrier of a permanent or
semi-permanent nature that spans the entire work area, that is at least
four feet in height, and that is of sufficient strength to prevent a
roadway worker from fouling the adjacent track.
Minor correction means one or more repairs of a minor nature,
including but not limited to, spiking, anchoring, hand tamping, and
joint bolt replacement that is accomplished with hand tools or handheld
pneumatic tools only. The term does not include welding, machine
spiking, machine tamping, or any similarly distracting repair.
Occupied track means a track on which on-track, self-propelled
equipment or coupled equipment is authorized or permitted to be located
while engaged in a common task with a roadway work group with at least
one of the roadway workers on the ground.
(b) Procedures for adjacent-controlled-track movements over 25 mph.
If a train or other on-track equipment is authorized to move on an
adjacent controlled track at a speed greater than 25 mph, each roadway
worker in the roadway work group that is affected by such movement must
comply with the following procedures:
(1) Ceasing work and occupying a predetermined place of safety.
Except for the work activities as described in paragraph (e) of this
section, each affected roadway worker shall, as described in Table 1 of
this section, cease all on-ground work and equipment movement that is
being performed on or between the rails of the occupied track or on one
or both sides of the occupied track, and occupy a predetermined place
of safety upon receiving either a watchman/lookout warning or,
alternatively, a notification that the roadway worker in charge intends
to permit one or more train or other on-track equipment movements
through the working limits on the adjacent controlled track.
(2) Resuming work. (i) An affected roadway worker may resume on-
ground work and equipment movement (on or between the rails of the
occupied track or on one or both sides of the occupied track as
described in Table 1 of this section) only after the trailing-end of
all trains or other on-track equipment moving on the adjacent
controlled track (for which a warning or notification has been received
in accordance with paragraph (b)(1) of this section) has passed and
remains ahead of that roadway worker.
(ii) If the train or other on-track equipment stops before its
trailing-end has passed all of the affected roadway workers in the
roadway work group, the work to be performed (on or between the rails
of the occupied track or on one or both sides of the occupied track as
described in Table 1 of this section) ahead of the trailing-end of the
train or other on-track equipment on the adjacent controlled track may
resume only--
(A) If on-track safety through train approach warning (Sec.
214.329) has been established on the adjacent controlled track; or
(B) After the roadway worker in charge has communicated with a
member of the train crew or the on-track equipment operator and
established that further movements of such train or other on-track
equipment shall be made only as permitted by the roadway worker in
charge.
(c) Procedures for adjacent-controlled-track movements 25 mph or
less. If a train or other on-track equipment is authorized or permitted
to move on an adjacent controlled track at a speed of 25 mph or less,
each roadway worker in the roadway work group that is affected by such
movement must comply with the procedures listed in paragraph (b) of
this section, except that equipment movement on the rails of the
occupied track and on-ground work performed exclusively between the
rails (i.e., not breaking the plane of the rails) of the occupied track
may continue, provided that no on-ground work is performed within the
areas 25 feet in front of and 25 feet behind any on-track, self-
propelled equipment or coupled equipment permitted to move on the
occupied track.
(d) Discretion of roadway worker in charge. Nothing in this subpart
prohibits the roadway worker in charge from establishing on-track
safety on one or more adjacent tracks as he or she deems necessary
consistent with both the purpose and requirements of this subpart.
(e) Exceptions to certain requirements for adjacent-controlled-
track on-track safety. No on-track safety (other than that required by
paragraph (f) of this section or provided under paragraph (d) of this
section) is required by paragraphs (a) through (c) of this section for
an adjacent controlled track during the times that the roadway work
group is exclusively performing one or more of the following work
activities:
(1) On-ground work performed on a side of the occupied track
meeting specified condition(s). A roadway work group with all of its
on-ground roadway workers (other than those performing work in
accordance with another exception in paragraph (e) of this section)
performing work while exclusively positioned on a side of the
[[Page 74616]]
occupied track as follows and as further specified in Table 1 of this
section:
(i) The side with no adjacent track;
(ii) The side with one or more adjacent tracks, the closest of
which has working limits on it and no movements permitted within such
working limits by the roadway worker in charge; or
(iii) The side with one or more adjacent tracks, provided that that
it has an inter-track barrier between the occupied track and the
closest adjacent track on that side.
(2) Maintenance or repairs performed alongside machines or
equipment on the occupied track. One or more roadway workers performing
maintenance or repairs alongside a roadway maintenance machine or
coupled equipment, provided that such machine or equipment would
effectively prevent the worker from fouling the adjacent controlled
track on the other side of such equipment, and that such maintenance or
repairs are performed while positioned on a side of the occupied track
as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this
section.
(3) Work activities involving certain equipment and purposes. One
or more on-ground roadway workers engaged in a common task on an
occupied track with on-track, self-propelled equipment or coupled
equipment consisting exclusively of one or more of the types of
equipment described in paragraphs (e)(3)(i) through (iii) of this
section. If such a roadway work group (``excepted group'') is
authorized or permitted to operate on the same occupied track and
within the working limits of a separate roadway work group performing
work that is subject to the requirements of this section (``non-
excepted group'') or vice versa (i.e., a non-excepted group is
authorized or permitted to operate on the same occupied track and
within the working limits of an excepted group), the groups must
conduct an on-track safety job briefing to determine if adjacent-
controlled-track on-track safety is necessary for the excepted group.
Such determination shall be made by the roadway worker in charge of the
working limits; however, if the groups are in such proximity where the
ability of the roadway workers in the excepted group to hear or see
approaching trains and other on-track equipment is impaired by
background noise, lights, sight obstructions or any other physical
conditions caused by the equipment, then this exception does not apply,
and adjacent-controlled-track on-track safety must be provided to both
groups. This exception otherwise applies to work activities involving
one or more of the following types of equipment:
(i) A hi-rail vehicle (other than a catenary maintenance tower
vehicle) being used for inspection or minor correction purposes,
provided that such hi-rail vehicle is not coupled to one or more
railroad cars. In accordance with Sec. 214.315(a), where multiple hi-
rail vehicles being used for inspection or minor correction are engaged
in a common task, the on-track safety job briefing shall include
discussion of the nature of the work to be performed to determine if
adjacent-controlled-track on-track safety is necessary.
(ii) An automated inspection car being used for inspection or minor
correction purposes.
(iii) A catenary maintenance tower car or vehicle, provided that
all of the on-ground workers engaged in the common task (other than
those performing work in accordance with another exception in paragraph
(e) of this section) are positioned within the gage of the occupied
track for the sole purpose of applying or removing grounds.
(f) Procedures for components of roadway maintenance machines
fouling an adjacent controlled track. Except as provided for in Sec.
214.341(c), a component of a roadway maintenance machine shall not foul
an adjacent controlled track unless working limits have been
established on the adjacent-controlled-track and there are no movements
permitted within the working limits by the roadway worker in charge
that would affect any of the roadway workers engaged in a common task
with such machine.
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0
7. Appendix A to part 214 is amended by revising the entry under
subpart C for Sec. 214.315, by removing the entry under subpart C for
Sec. 214.335(c), by adding an entry under subpart C for Sec. 214.336,
and by revising footnote 1 and adding footnote 2 to read as follows:
[[Page 74620]]
Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
* * * * * * *
Subpart C--Roadway Worker Protection Rule
* * * * * * *
214.315 Supervision and communication:
(a)(1) Complete failure of employer to 5,000 10,000
provide on-track safety job briefing.....
(a)(2) Partial failure of employer to 2,000 4,000
provide on-track safety job briefing.....
* * * * * * *
214.336 On-track safety procedures for certain
roadway work groups and adjacent tracks:
(a)(1) Failure to establish on-track 5,000 10,000
safety for each adjacent controlled track
as required under this section...........
(2)(i) Failure to implement the more 1,500 3,000
restrictive procedures required by
paragraph (b) during special
circumstance of concurrent
movement(s) on two adjacent
controlled tracks where one movement
is authorized or permitted at a speed
over 25 mph..........................
(ii) Failure to establish on-track 2,000 4,000
safety on an adjacent track that is
non-controlled and spaced 19 feet or
less from the occupied track for
special circumstance where there is a
controlled track on the opposite side
of an occupied track.................
(b)(1) Failure of roadway worker to cease 5,000 10,000
work and occupy a predetermined place of
safety upon receiving a warning or
notification of train or other on-track
equipment movement(s) on an adjacent
controlled track.........................
(2) Resumption of work before trailing- 5,000 10,000
end of all applicable movements has
passed the roadway worker................
(c) Failure to maintain 25-foot spacing 2,000 4,000
between on-track, self-propelled
equipment or coupled equipment and
roadway worker(s) on the occupied track
during an adjacent-controlled-track
movement at 25 mph or less...............
(d) Failure to implement on-track safety 2,000 4,000
procedures on an adjacent track when
deemed necessary by the roadway worker in
charge of providing on-track safety for a
roadway work group.......................
(e)....................................... (1) (1)
(f) Roadway maintenance machine component 5,000 10,000
fouling an adjacent controlled track
without working limits or with movements
permitted within working limits..........
* * * * * * *
------------------------------------------------------------------------
\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 $100,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. Failure to observe any condition(s) of an
exception set forth in paragraph (e) of Sec. 214.336 will deprive
the railroad or contractor of the benefit of the exception and make
the railroad or contractor, and any responsible individuals, liable
for penalty under the particular regulatory section(s) from which the
exception would otherwise have granted relief.
\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
more than one item is listed as a type of violation of a given
section, each item is also designated by a ``penalty code,'' which is
used to facilitate assessment of civil penalties, and which may or may
not correspond to any subsection designation(s). For convenience,
penalty citations will cite the CFR section and the penalty code, if
any. FRA reserves the right, should litigation become necessary, to
substitute in its complaint the CFR citation in place of the combined
CFR and penalty code citation, should they differ.
Issued in Washington, DC, on November 17, 2011.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2011-30250 Filed 11-29-11; 8:45 am]
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