[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Proposed Rules]
[Pages 50324-50370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20065]
[[Page 50323]]
Vol. 77
Monday,
No. 161
August 20, 2012
Part V
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 214
Railroad Workplace Safety; Roadway Worker Protection Miscellaneous
Revisions (RRR); Proposed Rule
Federal Register / Vol. 77 , No. 161 / Monday, August 20, 2012 /
Proposed Rules
[[Page 50324]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 214
[Docket No. FRA-2008-0086]
RIN 2130-AB89
Railroad Workplace Safety; Roadway Worker Protection
Miscellaneous Revisions (RRR)
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to amend its regulations on railroad
workplace safety to resolve interpretative issues that have arisen
since the 1996 promulgation of the original Roadway Worker Protection
(RWP) regulation. In particular, this NPRM proposes to define certain
terms, establish new procedures for snow removal and cleaning on
passenger station platforms, resolve miscellaneous interpretive issues,
codify certain FRA Technical Bulletins, and requests comment on certain
training requirements for roadway workers. FRA is also proposing to
update three incorporations by reference of industry standards in
existing sections of FRA's Bridge Worker Safety Standards.
DATES: (1) Written comments must be received by October 19, 2012.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
(2) FRA anticipates being able to resolve this rulemaking without a
public hearing. However, if prior to September 19, 2012, FRA receives a
specific request for a public hearing accompanied by a showing that the
party is unable to adequately present his or her position by written
statement, a hearing will be scheduled and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.
ADDRESSES: You may submit comments identified by the docket number FRA-
2008-0086 by any one of the following methods:
Fax: 1-202-493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Electronically through the Federal eRulemaking Portal:
http://www.regulations.gov. Follow the online instructions for
submitting comments.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AB89). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
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 Joseph St. Peter, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-10, Mail Stop
10, Washington, DC 20590 (telephone (202) 493-6047 or 202-493-6052).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Rulemaking Authority and Background of the Existing RWP Rule
III. Railroad Safety Advisory Committee (RSAC) Overview
IV. RWP RSAC Working Group and Proceedings in This Rulemaking to
Date
V. Proceedings concerning On-Track Safety Procedures for Adjacent
Tracks
VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items
VII. Request for Comment on NTSB Recommendation R-08-06
VIII. Additional Items for Comment
A. RWP and Blue Signal Protections in Shop Areas
B. Frequency of Training and Qualification for Additional
Roadway Worker Qualifications
C. Physical Characteristics Qualification for Lone Workers and
Watchmen/Lookouts
D. Use of Tunnel Niches as a Place of Safety
E. Highly Visible Protective Equipment for Roadway Workers on
Station Platforms
F. Splitting of Roadway Worker in Charge Qualifications
G. Effective Date of Final Rule
IX. Executive Order 13563 Retrospective Review
X. Section-by-Section Analysis
XI. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563 and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
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
In 2005, the Railroad Safety Advisory Committee (RSAC) accepted a
task to review the existing RWP regulation at subpart C of part 214.
The RSAC established the RWP Working Group (the ``Working Group'') to
recommend consideration of specific actions to advance the on-track
safety of railroad employees and contractors engaged in maintenance-of-
way activities throughout the general system of railroad
transportation, including clarification of existing regulatory
requirements.
The Working Group reached consensus on 32 separate items, which the
full RSAC recommended to FRA. FRA drafted this NPRM to address the RSAC
consensus recommendations, the issue of electronic display of track
authorities, several other items on which the Working Group was unable
to reach consensus, and miscellaneous other revisions. FRA is also
proposing to update certain incorporations by reference of personal
protective equipment standards in FRA's Bridge Worker Safety Standards
at subpart B of part 214 by cross referencing the Occupational Safety
and Health Administration's (OSHA) regulations on the same point.
Noteworthy consensus recommendations that FRA is addressing in this
NPRM include: a job briefing requirement regarding the accessibility of
the roadway worker in charge; the adoption of procedures for how
roadway workers walk across railroad track; a new allowance for
railroad's conducting snow removal and weed spraying operations; a
clarification of the existing ``foul time'' provision; a new ``verbal
protection'' provision; three new permissible methods of
[[Page 50325]]
establishing working limits on non-controlled track; the expanded use
of individual train detection at controlled points; an amended
provision governing audible warnings by trains for roadway workers;
and, a request for further comment on certain training requirements for
roadway workers.
As mentioned above, FRA is also addressing other items on which the
Working Group was unable to reach consensus and certain miscellaneous
other revisions. Noteworthy among these items are: A new provision
regarding the removal of objects from railroad track when train
approach warning is used as the method of on-track safety; the
electronic display of working limits authorities; amendments to the
existing provision governing the qualification of roadway workers in
charge; a new section addressing passenger station platform snow
removal; a new provision governing the use of ``occupancy behind'' or
``conditional'' working limit authorities; the phase-out of the use of
definite train location and informational train line-ups, potential
amendments to the existing roadway worker protection and blue signal
protection requirements for work performed within shop areas, and, the
use of other railroad track as a place of safety when train approach
warning is used as the method of on-track safety; and, a request for
further comment on the use of certain tunnel niches as a place of
safety for roadway workers.
FRA has estimated the costs of this proposed rule, evaluated over a
20-year period and using discount rates of 3 and 7 percent. For the 20-
year period analyzed, the estimated quantified cost that would be
imposed on industry totals $5,840,921 with a present value of
$3,103,980 (PV, 7 percent) and $4,350,537 (PV, 3 percent). FRA also
estimates that for the 20-year period analyzed, the estimated
quantified benefits total $119,507,405 with a present value of
$63,310,902 (PV, 7 percent) and $88,902,763 (PV, 3 percent). This
analysis demonstrates that the benefits for this proposed rule would
exceed the costs.
Table--Costs and Benefits of the Proposed Rule
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Year 1 2-20 Total 20 year 7% PV 3% PV
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Costs:
214.315 Job Briefings....... $143,055 $143,055 $2,861,100 $1,515,527 $2,128.297
214.339 Audible Warning from 24,796 0 24,796 23,174 24,074
Trains.....................
214.345 Training on Safe 72,250 72,250 1,445,000 765,418 1,074,898
Crossing of Track..........
214.347 Training on Access 10,838 10,838 216,750 114,813 161,235
to Manual..................
214.352 Training Platform 22,759 22,759 455,175 241,107 338,593
Work Coordinate............
214.353 Training RWIC....... 41,905 41,905 838,100 443,942 623,441
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Total................... 315,602 290,806 5,940,921 3,103,980 4,350,537
Benefits:
214.307 Plans No Longer 19,553 426 27,653 22,392 24,912
Reviewed...................
214.317 Track Snow Removal.. 292,613 292,613 5,852,250 3,099,941 4,353,335
214.324 Use of Verbal 5,386,021 5,386,021 107,720,415 57,059,581 80,150,388
Protection.................
214.327 Inaccessible Track.. 204,016 204,016 4,080,319 2,161,348 3,035,242
214.337 ITD................. 4,335 4,335 86,700 45,925 64,494
214.338 Platform Snow 87,003 87,003 1,740,069 921,716 1,294,392
Removal....................
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Total................... 5,993,541 5,974,414 119,507,405 63,310,902 88,902,764
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NET BENEFITS............ 5,677,938 5,683,608 113,666,484 60,206,922 84,552,226
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* Dollars are discounted over a 20-year period.
II. Rulemaking Authority and Background of the Existing RWP Rule
The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C.
20103, provides that, ``[t]he Secretary of Transportation, as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970''. The Secretary's responsibility under this provision
and the balance of the railroad safety laws have been delegated to the
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of
railroad workplace safety, FRA has traditionally pursued a very
conservative course of regulation, relying upon the industry to
implement suitable railroad safety rules and mandating in the broadest
of ways that employees be ``instructed'' in the requirements of those
rules and that railroads create and administer programs of operational
tests and inspections to verify rules compliance. This approach is
based on several factors, including recognition of the strong interest
of railroads in avoiding costly accidents and personal injuries, the
limited resources available to FRA to directly enforce railroad safety
rules, and the apparent success of management and employees in
accomplishing most work in a safe manner.
Over the years, however, it became necessary to codify certain
requirements, either to remedy perceived shortcomings in the railroads'
rules to emphasize the importance of compliance, or to provide FRA a
more direct means of promoting compliance. These actions, which in many
cases were preceded or followed by statutory mandates, included
adoption of rules governing:
Bridge Worker Safety Standards (49 CFR part 214 subpart
B);
Roadway Worker Protection (49 CFR part 214 subpart C); and
On-Track Roadway Maintenance Machines and Hi-Rail Vehicles
(49 CFR part 214 subpart D).
In 1990, FRA received a petition to amend its track safety
standards from the Brotherhood of Maintenance of Way Employes Division
(BMWED), which included issues pertaining to the hazards faced by
roadway workers. Subsequently, in response to the Rail Safety
Enforcement and Review Act, Public Law 102-365, 106 Stat. 972, enacted
September 3, 1992. FRA issued an Advanced Notice of Proposed Rulemaking
(ANPRM) on November 16, 1992, announcing the opening of a proceeding to
amend the Federal Track Safety Standards to, in part, address hazards
faced by roadway workers. 57 FR 54038.
[[Page 50326]]
FRA held workshops to solicit the views of the railroad industry
and representatives of railroad employees on the need for substantive
change in the track regulations. The subject of injury and death to
roadway workers was of such great concern that FRA received petitions
for emergency orders and requests for rulemaking from both the BMWED
and the Brotherhood of Railroad Signalmen (BRS). Finding that no
imminent hazards existed that would justify issuance of emergency
orders at the time, FRA did not issue any emergency orders in response
to those petitions, but instead initiated a separate proceeding to
consider regulations to eliminate hazards faced by roadway workers.
On August 17, 1994, FRA published its notice of intent to establish
a Federal Advisory Committee (FAC) for regulatory negotiation. 59 FR
42200. The FAC was tasked with submitting a report, including proposed
regulatory language, containing the FAC's consensus recommendations. On
December 27, 1994, the Office of Management and Budget approved the
Charter to establish a Roadway Worker Safety Advisory Committee
(Advisory Committee) comprised of twenty-five members. The Advisory
Committee held seven multiple-day negotiating sessions. An independent
task force, comprised of representatives of several railroads and labor
organizations, had met during the preceding year and independently
analyzed on-track safety practices. This task force presented
information at the first Advisory Committee meeting. The Advisory
Committee reached consensus on eleven specific recommendations and nine
general recommendations. These recommendations served as the basis for
FRA's first RWP NPRM, which was published on March 14, 1996. 61 FR
10528. FRA published a final rule establishing the original RWP
regulation on December 16, 1996, which became effective on January 15,
1997 (61 FR 65959). The final rule largely incorporated the Advisory
Committee's recommendations.
III. RSAC Overview
In March 1996, FRA established the RSAC, which provides a forum for
collaborative rulemaking and program development. The RSAC includes
representatives from all of the railroad industry's major stakeholder
groups, including railroads, labor organizations, suppliers and
manufacturers, and other interested parties. A list of RSAC members
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);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division
(BMWED);
Brotherhood of Railroad Signalmen (BRS);
The Chlorine Institute, Inc.;
Federal Transit Administration (FTA);*
The 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;*
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 the RSAC, and after
consideration and debate, the RSAC may accept or reject the task. If
the task is accepted, the 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 the RSAC, the proposal is
formally recommended to FRA. FRA then determines what action to take on
the recommendation. Because FRA staff plays 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 are noted and explained in
the rulemaking document issued by FRA. If the working group or the RSAC
is unable to reach consensus on a recommendation for action, FRA may
move ahead to resolve the issue through traditional rulemaking
proceedings.
IV. RWP RSAC Working Group and Proceedings in This Rulemaking to Date
As discussed above, on January 26, 2005, the RSAC formed the RWP
Working Group to consider specific actions to advance the on-track
safety of employees of covered railroads and their contractors who are
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 RWP
regulation, technical bulletins, and a safety advisory dealing with on-
track safety for roadway workers, and, as appropriate, consider
enhancements to the existing rule which would further reduce the risk
of serious injury or death to roadway workers. The Working Group was
directed to report
[[Page 50327]]
specific actions identified as appropriate, including planned
milestones for completion of projects and progress towards completion,
to the full RSAC at each scheduled RSAC meeting.
The Working Group was 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 Working Group
worked diligently and was able to reach consensus on 32 separate items.
The Working Group attained consensus to recommend that part 214 \1\ be
amended to: add two new definitions; revise an existing definition;
and, incorporate three other existing definitions from 49 CFR part 236.
The Working Group also came to consensus to add or amend various
provisions in the following sections in subpart C of part 214:
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\1\ All references to the CFR in this document reference Title
49.
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Sec. 214.309--revision to address on-track safety manual
for lone workers and changes to the manual.
Sec. 214.315--requirement that information concerning
adjacent tracks be included in on-track safety job briefings;
accessibility of the roadway worker in charge.
Sec. 214.317--new paragraph to formalize procedures for
roadway workers to walk across tracks; new paragraph for on-track weed
spray and snow blowing operations on non-controlled track.
Sec. 214.321--new paragraph to address the use of work
crew numbers.
Sec. 214.323--clarification of foul time provision
whereby roadway worker in charge or train dispatcher may not permit
movements into such working limits.
Sec. 214.324--new section called ``verbal protection''
for abbreviated working limits within manual interlocking and
controlled points.
Sec. 214.327--three new paragraphs to formalize the
following instruments to make non-controlled track inaccessible:
occupied locomotive as a point of inaccessibility; block register
territory; and, the use of track bulletins to make track inaccessible
within yard limits.
Sec. 214.335--complete revision of paragraph (c)
concerning on-track safety for tracks adjacent to occupied tracks. Key
elements are the elimination of ``large-scale'' and the addition of a
new requirement for on-track safety for tracks adjacent to occupied
tracks for specific work activities (addressed in separate rulemaking
proceeding as discussed further below).
Sec. 214.337--allowance for the use of individual train
detection at controlled points consisting only of signals and a new
paragraph limiting equipment/materials that can only be moved by hand
by a lone worker.
Sec. 214.339--complete revision of this section
concerning audible warning by trains to address operational
considerations.
Sec. 214.343--new paragraph to ensure contractors receive
requisite training/and or qualification before engaged by a railroad.
Sec. 214.345--lead-in phrase requiring all training to be
consistent with initial or recurrent training, as specified in Sec.
214.343(b).
Sec. Sec. 214.347, .349, .351, .353, and .355--consistent
requirements for various roadway worker qualifications and a maximum
24-month time period between qualifications.
On June 26, 2007, the full RSAC voted to accept the above
recommendations presented by the Working Group. In addition to the
above, the Working Group worked on a proposal for use of electronic
display of authorities as a provision under exclusive track occupancy.
The Working Group developed lead-in regulatory text and agreed to some
conceptual items. When circulated back to the Working Group prior to
the full RSAC vote, however, technical issues were raised that could
not be resolved in the time available. Accordingly, in this NPRM, FRA
is addressing the electronic display issue, and certain of the other
issues that the Working Group was unable to reach consensus on. The
other items that the Working Group was unable to reach consensus on
were:
Sec. 214.7--new term and definition for a ``remotely
controlled hump yard facility.''
Sec. 214.7--revision to the definition for the term
``roadway worker.''
Sec. 214.317--use of tunnel clearing bays.
Sec. 214.321--track occupancy after passage of a train.
Sec. 214.329--removal of objects from the track under
train approach warning.
Sec. 214.336--passenger station platform snow removal and
cleaning.
Sec. 214.337--consideration of allowance for the use of
individual train detection at certain types of manual interlockings or
controlled points.
Sec. 214.353--qualification of employees other than
roadway workers who directly provide for the on-track safety of a
roadway work group.
V. Proceedings Concerning On-Track Safety Procedures for Adjacent
Tracks
As mentioned above, the Working Group was able to reach consensus
on items that dealt specifically with the adjacent-track on-track
safety issues. In light of roadway worker fatality trends involving
adjacent track protections, and to expedite the lowering of the safety
risk associated with roadway workers fouling adjacent tracks, FRA
decided to undertake a rulemaking proceeding separately, and in advance
of this NPRM, to specifically address adjacent-track safety issues
contemplated by the Working Group. As such, FRA published an NPRM
addressing adjacent-track on-track safety on July 17, 2008 (73 FR
41214), but formally withdrew the NPRM on August 13, 2008 (73 FR
47124). FRA then issued a revised NPRM, which was published on November
25, 2009 (74 FR 61633), and a final rule was published on November 30,
2011 (76 FR 74586). The provisions contained in that final rule are
currently scheduled to become effective on July 1, 2013. Accordingly,
as the adjacent track rulemaking was undertaken separately, the subpart
C section numbering for the consensus items as agreed upon by the
Working Group has changed slightly from that recommended. This NPRM
will note any relevant numbering changes in the section-by-section
analysis below. FRA acknowledges that it has received petitions for
reconsideration of the adjacent track final rule. See Docket No. FRA-
2008-0059; available online at
[[Page 50328]]
www.regulations.gov. There is limited interaction between the
provisions of this NPRM and those contained in the final rule in the
adjacent track rulemaking. FRA will note any potential changes
(specifically with regard to section numbering) in a final rule which
result from any FRA response to petitions for reconsideration in the
adjacent track rulemaking.
VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items
The section-by-section analysis below includes explanations of the
proposed revisions to the RWP regulation, including certain consensus
items recommended by the Working Group, certain of the non-consensus
items listed above, and certain other miscellaneous items being
proposed by FRA. FRA notes that the Working Group meetings discussed
above took place between 2005 and 2007. In the interim, during FRA's
efforts to publish the adjacent track rulemaking discussed above, there
have been changes in the railroad industry. Notably, Congress' passage
of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Division
A, 122 Stat. 4848) (RSIA), has required significant new FRA regulatory
efforts.
These new efforts include FRA's recently published NPRM addressing
minimum training standards and plans. Section 401 of RSIA (codified at
49 U.S.C. 20162) mandates that FRA promulgate a regulation that sets
minimum training standards for ``each class and craft of safety-related
railroad employee.'' FRA has undertaken this mandated rulemaking via
the RSAC process (Task No. 10-01, Training Standards Working Group).
The training standards NPRM was published on February 7, 2012 (77 FR
6412), and includes proposed minimum training standards for roadway
workers as defined by existing Sec. 214.7
As a result, although in 2007 the full RSAC recommended that FRA
adopt the RWP Working Group's proposed consensus training requirements
for roadway workers, FRA's training standards NPRM proposes to address
training issues pertaining to roadway workers.\2\ As such, FRA is not
proposing certain of the RWP Working Group's consensus training
recommendations in this rulemaking (e.g., the proposed proficiency
demonstration for additional roadway worker qualifications required
every 24 months), but rather seeks comment below on whether to adopt
the training and qualification frequencies prescribed by the minimum
training standards NPRM, or those previously recommended by the RWP
Working Group. FRA notes that it is not proposing to amend the existing
mandatory annual roadway worker training requirements contained in
subpart C of part 214.
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\2\ These consensus recommendations were meant, in part, to
eliminate confusion in the railroad industry regarding the
requirements of the roadway worker protection training provisions
and also to provide uniformity, particularly with regard to
additional roadway worker qualifications (e.g., lone worker and
roadway worker in charge qualifications, which currently only
require ``periodic'' requalification with no specified interval).
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The Working Group also came to consensus to add a new paragraph (e)
to existing Sec. 214.343, which pertains to the training of roadway
workers. That recommended paragraph would have required that each
railroad require that contractor employees receive the requisite
roadway worker training and qualification prior to performing any
roadway worker duties. FRA is not including that consensus
recommendation in this NPRM. Under the existing RWP regulation,
contractor employees are already required to receive roadway worker
training prior to performing roadway worker duties. See 49 CFR 214.5,
214.7, 214.343 and 214.345; FRA Technical Bulletin G-05-19. Therefore,
this recommended paragraph would not actually amend or enhance any
existing training requirements, but could require additional costs to
be incurred by railroads. Further, the training standards NPRM contains
proposed requirements regarding coordination between contractors and
railroads pertaining to the training of contractor employees at
Sec. Sec. 243.1(b), 243.101(e)-(f), and 243.209. 77 FR 6453. These
proposed requirements are actually more extensive than the ones
recommended by the RWP Working Group. For these reasons, FRA is not
proposing this consensus recommendation.
The RSAC also recommended that FRA adopt the Working Group
consensus language for the definition of the term ``interlocking,
automatic'', with that definition mirroring the existing definition of
the same term found at 49 CFR 236.750. However, that term is not
actually used anywhere in the existing text of part 214, nor is it used
in any of the text proposed in this NPRM. The minutes to the Working
Group meetings indicate that potentially this definition was
recommended in an effort to help the regulated community differentiate
between an automatic interlocking and a manual interlocking (within the
limits of which individual train detection is not permitted via
existing Sec. 214.337). Because the term is not used in the regulation
as it exists currently or as proposed in this NPRM, FRA is not
proposing to adopt the Working Group's recommended definition. The
recommended consensus definition of ``interlocking, manual'', and the
accompanying discussion in the section-by-section analysis, should
enable differentiation of those terms. Further, FRA and the regulated
community can always look to the existing definition of ``interlocking,
automatic'' contained in part 236 for additional guidance, if
necessary.
There were several items addressed during the Working Group
meetings for which no consensus was reached. For most of those items,
FRA is proposing rule text in this NPRM and is requesting comment on
those proposals. However, for certain of these non-consensus items, FRA
is not proposing rule text. For example, the Working Group discussed
various potential amendments to the definition of ``roadway worker''
found at 49 CFR 214.7. After consideration, FRA is not proposing an
amendment to that definition. FRA believes the meaning of the existing
definition is clear. One of the potential recommendations discussed by
the Working Group was to specifically add the words ``who fouls a track
in connection with'' to the first sentence of the existing definition.
FRA, in contemplating such an addition, revisited the preamble to the
1996 final rule promulgating the RWP regulation. In that preamble FRA
explained that a proposal for a similar addition of language to the
definition of the term ``roadway worker'' was unnecessary and would
``severely limit the application of the rule due to the difficulty in
determining when a worker becomes engaged in a task.'' (61 FR 65962).
FRA maintains that same position today. The definition for the term
``roadway worker'' describes employees who are covered by this
regulation, and not when that coverage begins or ends. As is explained
in FRA Technical Bulletin G-05-13, the existing provisions of Sec.
214.313 already require that when a roadway worker fouls a track,
including when performing preparatory activities to make such track
inaccessible to establish working limits, that on-track safety is
required. FRA disagrees that an amendment to the definition of the term
``roadway worker'', as discussed during the Working Group meetings,
would make the established RWP on-track safety requirements any more
clear.
The Working Group also discussed the potential addition of a
definition to existing Sec. 214.7 for the term ``remotely controlled
hump yard facility.'' That term is used in existing Sec.
214.337(c)(3), which prohibits the use of individual
[[Page 50329]]
train detection inside the limits of a remotely controlled hump yard
facility. There was agreement among the Working Group that a remotely
controlled hump yard facility began at the crest of a hump. The segment
of a hump yard from the crest, through the retarders, and to the end of
classification tracks would clearly be within the limits of a remotely
controlled hump yard facility. However, there was no consensus in the
Working Group as to the limit of such a facility at the far pull-out
end, in part due the myriad of physical layouts in existing hump yards.
Unlike the voluminous number of manual interlockings and controlled
points that exist (the other two locations in which the use of
individual train detection is prohibited by Sec. 214.337), there are a
limited number of remotely controlled hump yard facilities in the
United States, and enforcement problems for FRA have not been
noteworthy to date. Also, the varying physical layouts for these
facilities would make it difficult to attempt to propose language
defining the limits of the pull-out ends of such facilities which could
reasonably apply to all existing layouts. Finally, if a lone worker is
unsure whether the track he or she needs to foul is within the limits
of a remotely controlled hump yard facility, or if there is any
question regarding the safety of fouling any track, the existing
individual train detection regulation already contains an absolute
right for a lone worker to utilize an on-track safety procedure other
than individual train detection.
For these reasons, FRA is not proposing a definition for the term
``remotely controlled hump yard facility'' in this NPRM. If a dispute
regarding the limits of a remotely controlled hump yard facility
arises, FRA will, on a case-by-case basis, provide assistance in
identifying that facility's limits based on the particular physical
layout of the facility.
The Working Group also addressed the use of tunnel niches or
clearing bays as a place of safety for roadway workers when such niches
are outside the clearance envelope but, by design, may be less than
four feet from the field side of the rail. The Working Group discussed
this issue at length, but no consensus was reached. FRA is not
proposing regulatory text regarding this issue in this NPRM. Instead,
FRA is requesting further comment below on how to best address the use
of such tunnel niches in a final rule.
For the remaining non-consensus items listed in Section IV above,
FRA is proposing regulatory text in this NPRM. FRA is also proposing
other miscellaneous revisions to the existing RWP rule that were not
addressed by the Working Group; some of which codify existing guidance
and interpretations and some of which are intended to merely clean-up
or clarify existing requirements. FRA's rationale for these proposed
revisions is contained in the relevant section-by-section analysis
below. Upon issuance of a final rule in this proceeding, FRA intends to
supplant, as appropriate, technical bulletins concerning the existing
RWP regulation.
VII. Request for Comment on NTSB Recommendation R-08-06
On January 9, 2007, two Massachusetts Bay Transportation Authority
(MBTA) maintenance-of way employees were killed in an accident that
occurred near Woburn, Massachusetts. The incident occurred when a
passenger train struck a roadway maintenance machine that was on the
track. The NTSB found the probable cause of that accident was ``the
failure of the train dispatcher to maintain blocking that provided
signal protection for the track segment occupied by the maintenance-of-
way work crew, and the failure of the work crew to apply a shunting
device that would have provided redundant signal protection for their
track segment.'' (See NTSB Accident Report NTSB/RAR-0801, Collision of
Massachusetts Bay Transportation Authority Train 322 and Track
Maintenance Equipment near Woburn, Massachusetts, January 9, 2007;
available online at http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf).
The MBTA had a rule in effect at the time of the accident which
required that roadway workers shunt track circuits in order to provide
additional signal protections to prevent trains or other rolling
equipment from entering working limits. The NTSB found that the roadway
work group involved in the incident did not comply with that rule. The
NTSB made several recommendations in response to that accident,
including Recommendation R-08-06. That recommendation states FRA should
``[r]equire redundant signal protection, such as shunting, for
maintenance of way work crews who depend on the train dispatcher to
provide signal protection.''
This incident occurred near the end of the Working Group's work in
2007, and the Working Group did not consider the use of shunting
devices in conjunction with the applicable controlled track ``working
limits'' requirements of the RWP regulation (exclusive track occupancy
(Sec. 214.321), foul time (Sec. 214.323), or verbal protection (Sec.
214.324)). While the mandatory use of shunts as an additional measure
of safety when establishing working limits had not previously been
considered, FRA wishes to analyze available options for redundant forms
of working limits protection. FRA understands that shunting procedures
can be disruptive to signal systems, and, in some circumstances, might
not be permissible under FRA's signal system regulations at 49 CFR part
236. However, if safe and cost-effective procedures can be implemented,
FRA may add a provision in the final rule or proceed with an additional
rulemaking in the future to require the use of redundant forms of
protection. FRA specifically invites comment on this issue from the
railroad industry and other interested parties, to include potential
costs of implementing various redundant measures. The RWP regulation
does not currently prescribe the use of every device or procedure that
may be used by a railroad to supplement the establishment of working
limits. However, FRA notes that roadway workers are already required by
existing Sec. 214.313(a) to follow all on-track safety rules and
procedures of a railroad, including those such as the MBTA redundant
protection requirement discussed above, even if such rules are not
enumerated in Federal regulation.
VIII. Additional Items for Comment
FRA is requesting comment on several requirements or amendments for
which regulatory text is not being proposed in this NPRM, but which FRA
is considering adopting in a final rule in this proceeding. FRA
specifically requests comment on these additional items, and also
discusses some of them further in the section-by-section analysis
below.
A. RWP and Blue Signal Protections in Shop Areas
Under the existing roadway worker and blue signal protection
requirements, any roadway workers performing work that involves fouling
track within locomotive servicing track areas or car shop repair track
areas (or performing work on structures within those areas that
involves fouling a track) are required to utilize on-track safety
procedures via the requirements of part 214. Any ``workers'', as
defined by Sec. 218.5, performing work on, under, or between rolling
equipment within such facilities are required to do so via the blue
signal protection requirements of subpart B of part 218. Since the
promulgation of the RWP regulation, there has been confusion in the
railroad
[[Page 50330]]
industry over what protections are appropriate within such shop
facilities for certain types of work activities (e.g., performing work
on the overhead doors of a locomotive maintenance building when such
work involves fouling a track). FRA issued Technical Bulletin G-08-03
to help clarify the issue, and explained that whether or not employees
are working in a shop area, it is always the type of work being
performed that dictates which type of protection is required, roadway
worker protection or blue signal protection. Technical Bulletin G-08-03
also explained that FRA would not take exception to any work being
performed that appeared to be more akin to roadway worker duties, but
that was of an ``incidental'' nature to the larger job of mechanical
personnel performing work on rolling equipment, e.g., sweeping a shop
floor or changing a light bulb in an inspection pit.
Railroads have argued that FRA should exempt certain maintenance of
way work within shop areas from the on-track safety requirements of
part 214, as the employees within the limits of the shop areas may
perform such work safely while utilizing the blue signal protections
that they have been trained on the requirements of and are familiar
with. Railroads have also argued that training shop personnel on two
different protection regimes is costly, and is also confusing for
employees that actually have to apply those two different types of
protection, and, thus, detrimental to safety.
FRA is not proposing any specific rule text regarding this issue in
this NPRM, but is contemplating amending the existing blue signal
protection and/or roadway worker protection regulations in a final rule
to make additional allowances for certain maintenance work performed
within the limits of locomotive and car shops. FRA would only make such
amendments if they provided for at least an equivalent level of
employee safety to that which exists via the existing Federal
regulations governing this issue. FRA is requesting comment on this
issue, and specifically requests comment on how the issue of contractor
employees would best be addressed, as contractor employees are subject
to the requirements of part 214, but are not considered ``workers'' via
existing part 218's blue signal protection requirements. As throughout
the history of the blue signal regulation it has only governed work
being performed on, under, or between rolling equipment, FRA also
specifically requests comment on how an amendment to the existing
regulations could best accommodate the protection of additional work
activities within shop areas. Among other amendments, FRA anticipates
existing Sec. 218.29(a)(7) would be required to be amended to require
that workers clear any shop track on which a locomotive is to be
repositioned on. If in a final rule FRA decides to forego making any
amendments to the current roadway worker and blue signal protection
regulations within shop areas, FRA may utilize the comments received on
this issue in a future rulemaking proceeding.
B. Frequency of Qualification and Training for Additional Roadway
Worker Qualifications
The existing sections in part 214 that govern the training and
qualification requirements for additional roadway worker qualifications
(Sec. Sec. 214.347 (lone worker), 214.349 (watchman/lookout), 214.351
(flagman), 214.353 (roadway worker in charge), and 214.255 (roadway
maintenance machine operator)) do not expressly specify an interval for
refresher training and qualification. Those existing sections currently
only state that ``[i]nitial and periodic qualification of [additional
roadway worker qualification] shall be evidenced by'' either
demonstrated proficiency or a recorded examination, depending on
section. The Working Group made the consensus recommendation that FRA
propose regulatory text expressly requiring initial training and
qualification before a roadway worker is assigned to perform duties
involving that qualification, and also recommended requiring refresher
training annually and qualification every 24-months. The requirement
that initial training and qualification must be provided before
assigning a roadway worker duties involving an additional qualification
is required by the current regulation. The consensus recommendation
would only more clearly state such if adopted in a final rule.
With regard to the refresher training and qualification consensus
recommendations, however, in the time period that has passed since the
Working Group proposed consensus text for this section, RSIA 2008
mandated that FRA undertake a rulemaking to set minimum training
standards for ``each class and craft of safety-related employee,'' to
include training standards for roadway workers. That rulemaking was
undertaken by the RSAC and FRA recently published an NPRM proposing
such minimum training standards. 77 FR 6412. The training standards
NPRM contains an extensive proposal for refresher training and
qualification requirements for roadway workers, and would require such
refresher training and qualification every three years, to include for
the additional roadway worker qualifications in part 214.
As the consensus recommendation made by the RWP Working Group and
those proposed by the minimum training standards rulemaking do not
parallel one another with regard to frequency of refresher
qualification and training, FRA is requesting comment on the best
manner to proceed in setting refresher qualification and training
intervals for the additional roadway worker qualifications in a final
rule. FRA specifically requests comment on the costs and/or potential
benefits of the two different approaches.
FRA notes that the existing RWP regulation requires that each
roadway worker be trained each calendar year on the items listed in
Sec. 214.345, and on the on-track safety rules and procedures they are
required to follow via Sec. 214.343. FRA is not proposing to amend
those existing annual basic roadway worker training requirements.
Rather, FRA is only seeking comment on the appropriate interval of
refresher qualification and training requirements for additional
roadway worker qualifications found in existing Sec. Sec. 214.347,
214.349, 214.351, 214.353, and 214.255. FRA would also apply the
interval adopted in a final rule to proposed Sec. 214.352.
C. Physical Characteristics Qualification for Lone Workers and
Watchmen/Lookouts
Existing Sec. 214.353 governs qualification and training for
roadway workers in charge that provide for on-track safety, and
paragraph (a)(4) of that section requires that such training include
the ``relevant physical characteristics of the territory of the
railroad upon which the roadway worker is qualified.'' However, such a
qualification is absent from existing Sec. 214.347, which governs
training for lone workers, and also from existing Sec. 214.349, which
governs training for watchmen/lookouts. FRA is currently considering
amending Sec. Sec. 214.347 and 214.349 to include a requirement for
such training.
Existing Sec. 214.349(a)(3) requires that watchmen/lookouts
receive training and qualification on the ``[d]etermination of the
distance along the track at which trains must be visible in order to
provide the prescribed warning time.'' FRA believes that requiring
qualification on the physical characteristics could potentially aid a
watchman/lookout in making the safe distance determination to identify
an appropriate location to give train
[[Page 50331]]
approach warning. Such a qualification could be important in areas
where curves, the possible presence of trains on adjacent tracks, and
other unique physical layouts or situations exist. In addition, lone
workers often essentially act as roadway workers in charge when
performing work on their own. FRA believes that a requirement to be
qualified on the physical characteristics at a location where a lone
worker fouls track to perform work could similarly improve safety.
Qualification on the physical characteristics at a particular location
could aid in a lone worker's ability to be able to safely detect
approaching trains and similarly make the appropriate distance
determination as required by existing Sec. 214.337(a). A discussion of
the level of qualification required by a lone worker, to include
qualification on physical characteristics, was undertaken in FRA
Technical Bulletin G-05-03 (January 10, 2005).\3\ This proposed
requirement, if adopted in a final rule, would codify the substance of
that technical bulletin discussion.
---------------------------------------------------------------------------
\3\ Effective January 10, 2005, RWP technical bulletins WPS-99-
01 through 99-09 were reissued and designated as technical bulletins
G-05-02 through G-05-10. New RWP bulletins G-05-11 through G-05-30,
most of which are discussed below, were also issued on that date.
These technical bulletins are all available on FRA's internet site
at: http://www.fra.dot.gov/rrs/pages/fp_1532.shtml. FRA plans, as
appropriate, to supplant the majority of these technical bulletins
based on changes made to the RWP regulation in any final rule in
this proceeding.
---------------------------------------------------------------------------
To clarify, FRA does not believe that a watchman/lookout or a lone
worker would need to be versed in the physical characteristics of an
entire territory in the same manner as a roadway worker in charge, and
is aware of the challenges such a broad requirement could present to
system-wide roadway work gangs on larger railroads. However, FRA seeks
comment on its potential inclusion of a provision in a final rule that
would require an abbreviated physical characteristics qualification at
a particular location where train approach warning is to be given by a
watchman/lookout, or at a particular location where a lone worker is to
perform work. FRA is considering the inclusion of such a requirement in
the final rule issued in this rulemaking. FRA also specifically
requests comment on the potential costs that could be associated with
this requirement, and the factual basis of any such costs.
D. Use of Tunnel Niches as a Place of Safety
Some railroad tunnels have niches or clearing bays built into their
sidewalls that permit roadway workers to occupy a place of safety while
performing work in tunnels (typically inspection work). However, some
of these niches that are outside the clearance envelope may, by design,
be slightly less than four feet from the field side of the rail.
Technically, the use of such niches as a place of safety would be a
violation of the existing RWP regulation, as a roadway worker occupying
such a niche could be ``fouling a track'' per the existing definition
for that term in Sec. 214.7. The Working Group discussed this issue at
length, but no consensus solution was reached. The Working Group did,
however, decide against modifying the definition of ``fouling a track''
to accommodate such niches or bays. Working Group discussions indicated
that such niches that were outside the clearance envelope but less than
four feet from the field side of the rail existed on a small number of
railroads, and were located primarily in the Eastern United States.
Amtrak indicated that its tunnel niches have been used for 100 years,
and are essential to protecting roadway workers in high traffic areas.
The BMWED indicated during Working Group discussions that its
membership largely did not utilize clearing bays, but rather primarily
obtained working limits while fouling track within tunnels.
FRA is not proposing specific text regarding this issue in the
NPRM, but is contemplating whether to adopt regulatory text in a final
rule that would permit the use of these structures as a place of safety
by roadway workers, provided certain safety requirements are complied
with. FRA requests further comment on this issue.
FRA anticipates that if the use of such tunnel niches and clearing
bays were permitted, that railroads would be required to designate in
their on-track safety programs which niches or clearing bays could be
used as places of safety. In making such designations, railroads would
have to take into account the time it may take an individual to move
into such niches or bays when departing a track upon the approach of a
train (to ensure that a roadway worker could occupy a designated niche
as a place of safety at least 15 seconds before a train would pass the
location of the bay, in accordance with the existing requirements of
Sec. Sec. 214.329(a) or 214.337(c)(4)). Requirements that such niches
be free from any type of debris or supplies and also be of an adequate
size to safely accommodate a roadway worker would also likely be
necessary.
E. Highly Visible Protective Equipment for Roadway Workers on Station
Platforms
FRA is considering adding a requirement in a final rule in this
proceeding to the proposed station platform snow removal and cleaning
section (proposed Sec. 214.338) that would require roadway workers
performing duties under the procedures proposed in that section to wear
highly visible protective equipment (vest or other outer garment) which
would meet a standard of the American National Standards Institute/
International Safety Equipment Association. The request for comment
regarding this item is also discussed further in the section-by-section
analysis below.
F. Splitting of Roadway Worker in Charge Qualifications
FRA is considering adopting a requirement in a final rule in this
proceeding that would only permit the splitting of roadway worker in
charge qualifications to occur in situations where a conductor or other
railroad employee serves as a pilot to a roadway worker in charge who
is not qualified on the physical characteristics of a particular
territory. FRA is considering such, as every roadway work group is
already required to have a roadway worker in charge, and if the
proposed amendment to paragraph (a) of existing Sec. 214.353 is
adopted in a final rule in this proceeding, any employee acting as a
roadway worker in charge would be required to be trained on the
substantive requirements listed in Sec. 214.353. This issue is
detailed further in the section-by-section analysis for Sec. 214.353
below, and FRA specifically requests comment on this issue.
G. Effective Date of Final Rule
FRA currently anticipates that the effective date of a final rule
in this proceeding would be 180 days from the date of publication of
the final rule in the Federal Register. However, FRA is cognizant that
depending on when a final rule is published, the training schedules of
railroads may have to be taken into account when establishing the
implementation schedule. FRA welcomes comment on an appropriate
effective or applicability date for a final rule in this matter.
IX. Executive Order 13563 Retrospective Review
In accordance with the requirements of Executive Order 13563, this
NPRM proposes to modify the existing RWP requirements, in part, based
on what has been learned from FRA's retrospective review of the
existing regulation.
[[Page 50332]]
Executive Order 13563 requires agencies to review existing regulations
``* * * that may be outmoded, ineffective, insufficient, or excessively
burdensome, and to modify, streamline, expand, or repeal them in
accordance with what has been learned.'' \4\ As a result of its
retrospective review, FRA is proposing to reduce burdens on the
industry by no longer requiring that railroads submit their on-track
safety programs to FRA for review and approval before such programs
become effective and when any subsequent changes are made to such
programs (Sec. 214.307). FRA is also proposing to delete several
sections of the existing RWP regulation it believes to be outmoded or
superfluous (Sec. Sec. 214.302, 214.305, 214.331 and 214.333), and has
also proposed to allow for greater industry flexibility in several
other sections (Sec. Sec. 214.317, 214.324, 214.327, 214.337 and
213.338). FRA does not believe that these proposals will reduce safety.
---------------------------------------------------------------------------
\4\ Exec. Order No. 13563, 76 FR 3821 (Jan. 21, 2011); available
online at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------
X. Section-by-Section Analysis
FRA seeks comments on all proposals made in this NPRM. Proposed
Amendments to 49 CFR part 214 (Part 214).
Section 214.7 Definitions
FRA proposes to amend the existing definitions section for Part 214
by both adding new definitions and amending existing definitions. FRA
proposes to add new definitions for the following terms: controlled
point; interlocking, manual; maximum authorized speed; on-track safety
manual; roadway worker in charge; station platform work coordinator;
and verbal protection. FRA also proposes to amend Part 214's existing
definitions for the terms effective securing device and watchman/
lookout.
The proposed definition of the term ``controlled point'' was a
consensus recommendation agreed to by the Working Group. This new
definition is being proposed because existing Sec. 214.337 prohibits
the use of individual train detection by a lone worker inside the
limits of a ``controlled point.'' See Sec. 214.337(c)(3). However,
that term is not defined in the existing RWP regulation and over the
years interpretive issues have arisen. In response, FRA issued
Technical Bulletin G-05-29. The Working Group discussed this topic, and
decided to recommend the incorporation of the existing definition for
the same term found in FRA's signal and train control regulations
(Sec. 236.782), along with the definition of ``interlocking, manual''
(the definition for the term automatic interlocking was also adopted as
consensus language by the Working Group, but as explained above, is not
being proposed by FRA in this NPRM). If definitions for the terms
``controlled point'' and ``interlocking, manual'' are adopted in a
final rule, those definitions will supplant FRA Technical Bulletins G-
05-29 and G-05-11, as discussed further below.
FRA is proposing to amend the definition for existing term
``effective securing device'' as recommended by the Working Group. The
term ``effective securing device'' is intended to describe an
appurtenance preventing the operation of mechanisms that make non-
controlled track inaccessible. Since promulgation of the original RWP
regulation, a number of interpretive questions have arisen about this
definition. In response, FRA issued Technical Bulletin G-05-20 to
provide clarity. This new proposed definition incorporates the contents
of that technical bulletin in order to clarify what constitutes an
``effective securing device.''
The proposed amendment would require that locks used to lock
switches or derails for the purpose of providing on-track safety for
roadway workers must be keyed to allow for removal by only the roadway
workers for whom protection is being provided. In the absence of a
lock, the definition would allow a spike to be driven into a switch tie
to secure a switch, so long as the spike cannot be removed without the
use of railroad track tools. Clamps and metal wedges (solidly driven on
a derail securing it to the rail) without a lock would also be
acceptable if they cannot be removed without the use of railroad track
tools. For example, a clamp that could be removed with an ordinary
adjustable wrench would need to be locked. This is to ensure that other
employees, such as transportation employees who may attempt to access a
track with rolling equipment, could not readily remove such on-track
safety protections applied by roadway workers to establish on-track
safety.
To clearly identify effective securing devices, and thus, to
prevent railroad employees from being injured by attempts to operate a
secured device, the throwing handle, hasp, or keeper of the switch or
derail shall have a unique tag which is clearly displayed. The unique
tag must clearly indicate to other railroad employees, such as
trainmen, who may attempt to operate a switch that such switch is
secured. If there is no throwing handle, this proposed definition would
require that the securing device itself shall be tagged. Regardless of
the type of securing device used, each tag must be clearly marked to
indicate that it is securing an entrance into inaccessible track.
Members of the Working Group had the opportunity to make comments
on a draft of the consensus language after the close of the Working
Group meetings. One of those comments, made by the AAR, requested that
the consensus language be amended to allow a generic tag, rather than a
unique tag, be applied to the throwing handle or hasp of a switch or
derail being secured. FRA acknowledges this comment, but has chosen to
propose the consensus language as agreed to by the Working Group.
However, FRA requests comment by AAR and other interested parties
further explaining their request, and will consider amending the
wording in the final rule, if appropriate.
FRA has made a minor amendment to the language of the Working
Group's consensus recommendation for the definition of this term. FRA
removed the phrase ``when used in relation to on-track safety'' from
the first sentence of the proposed definition. FRA removed the phrase
because it is unnecessary, as anytime that term appears in part 214 the
proposed definition would apply. This change is not substantive in
nature, and is intended to reflect conformance with the structure for
defining regulatory terms.
FRA is also proposing to adopt the Working Group's recommended
definition for the new term ``interlocking, manual'' (as discussed in
Section VI above, FRA is not proposing the consensus definition for the
term ``interlocking, automatic'', as that term is not actually used in
either the proposed or existing regulatory text). As recommended by the
Working Group, this definition mirrors the existing definition for the
same term in FRA's signal and train control regulation (Sec. 236.751).
Existing Sec. 214.337 prohibits the use of individual train detection
at manual interlockings. However, the term ``manual interlocking'' is
not defined. As such, inquiries have arisen regarding what does, or
does not, constitute a manual interlocking. In response, FRA issued
Technical Bulletins G-05-11 and G-05-29. The following table
incorporates the
[[Page 50333]]
substance of those technical bulletins and summarizes the applicability
of individual train detection on various types of track arrangements:
------------------------------------------------------------------------
Individual train detection
Track arrangement permitted
------------------------------------------------------------------------
Controlled point/manual interlocking No.
with switches, crossings
(diamonds), or moveable bridges.
Controlled point with signals only-- Yes.
see proposed text of Sec.
214.337(c)(3).
Manual interlocking................. No.
Automatic interlocking.............. Yes.
Power operated switch installations. See discussion below.
------------------------------------------------------------------------
Power operated switch installations are included in the table above
because FRA has received many questions regarding whether certain power
operated switch installations, which are operated by train crews to
manipulate switch position and have wayside indication devices that
convey the position of a switch, are considered to be manual
interlockings. Typically, they are not. The use of individual train
detection by a lone worker at power operated switch installation
locations is permitted if:
The signals at these installations do not convey train
movement authority.
The switch installation is not controlled by a train
dispatcher or control operator, and is not part of a manual
interlocking or controlled point.
FRA notes again that lone workers performing work at these
installations, or any other locations where the use of individual train
detection is permitted, have the absolute right to use a form of on-
track safety other than individual train detection. See Sec.
214.337(b). Also, regardless of the type of on-track safety being
utilized, FRA notes that all roadway workers should be cognizant of
potential pinching hazards associated with performing work on such
power-operated switches. FRA further notes that switches which can
either be manipulated by hand or by a train dispatcher or control
operator, typically referred to as ``dual control switches'', are
located within manual interlockings or controlled points and the use of
individual train detection within these installations is prohibited.
Existing Sec. 214.329(a) requires that train approach warning be
given in sufficient time for a roadway worker to ``occupy a previously
arranged place of safety not less than 15 seconds before a train moving
at the maximum speed authorized on that track can pass the location of
the roadway worker.'' Existing Sec. 214.337(c) contains a similar
requirement for lone workers. However, no definition for such maximum
speed authorized exists in the current RWP regulation. Accordingly, the
Working Group addressed this issue and reached consensus on a
definition of the term ``maximum authorized speed.'' \5\ FRA proposes
to largely adopt the Working Group's consensus definition, which, for
purposes of part 214, is the permanent speed designated for a track in
a railroad's timetable, special instructions, or bulletin. The Working
Group agreed that using a temporary speed restriction as the basis for
determining the appropriate train approach warning distance could pose
inherent dangers. That danger occurs in situations where a party might
remove a temporary restriction from a particular segment of track
without notifying the roadway work group or lone worker using that
temporary speed restriction to determine the appropriate train approach
warning distance. FRA notes that this new definition would also apply
in the context of certain new RWP requirements promulgated in the
adjacent track final rule discussed above. Similar to the proposed
definition for the term ``effective securing device'' discussed above,
FRA has made a minor amendment to the language of the Working Group's
consensus recommendation for the definition of this term. FRA removed
the phrase ``for on-track safety purposes'' from the proposed
definition. FRA removed that phrase because it is unnecessary, as
anytime this term appears in part 214, the proposed definition would
apply. This change is not substantive in nature, and is only intended
to conform with regulatory drafting practices.
---------------------------------------------------------------------------
\5\ The difference in word order between the proposed definition
and the wording as it appears in existing Sec. 214.329(a) is
addressed in the section-by-section analysis for Sec. 214.329
below.
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FRA is also proposing a definition for the term ``on-track safety
manual.'' Existing Sec. 214.309 requires each roadway worker in charge
and lone worker to have with them a manual containing the rules and
operating procedures governing track occupancy and protection. The
Working Group agreed to recommend consensus amendments to that existing
section, where such manual is referred to as an ``on-track safety
manual.'' As such, the Working Group also came to consensus on a
recommended definition for this new term. This proposed definition is
intended to provide clarity regarding the materials that must be
included in the on-track safety manual, as the manual is a critical
element of any on-track safety program. FRA previously issued Technical
Bulletins G-05-12 and G-05-25, both of which addressed concerns
regarding the requirement regarding such manuals. The following is a
general discussion of on-track safety manual requirements.
First, via existing Sec. Sec. 214.311(b)-(c) and 214.313(d),
roadway workers have the right to challenge in good faith whether the
on-track safety procedures to be applied at a job location comply with
the operating rules of the railroad. Thus, the good faith challenge
procedures must be included in a railroad's on-track safety manual, as
roadway workers at a work site may require access to the procedures for
making such a challenge. FRA has left to a railroad's discretion how to
best fulfill this requirement. The documents fulfilling the requirement
could take many forms, including a simple set of instructions
explaining the good faith challenge procedures, a flow chart that
roadway workers could follow when invoking a challenge, or even a form
for a roadway worker to fill out when making such a challenge that
explains the challenge procedures.
FRA Technical Bulletin G-05-12 explains that the on-track safety
manual could take the form of: (1) One document containing on-track
safety procedures, good faith challenge procedures, and on-track safety
operating rules of a railroad (absent operating rules not pertaining
on-track safety); or (2) a binder system holding together separate
documents such as the on-track safety procedures, on-track safety
operating rules, and all operating rules/procedures, with the on-track
safety procedures and good faith challenge procedures composing tabs or
sections of that binder. The RWP regulation does not specify that a
[[Page 50334]]
roadway worker in charge must have the railroad's timetable and/or
special instructions readily available along with the on-track safety
manual. However, if the timetable and/or special instructions contain
operating rules or instructions that affect the on-track safety
procedures of roadway workers, those documents must also be available
with the on-track safety manual.
If a railroad chooses not to use certain methods of establishing
working limits or on-track safety, it is not necessary to include
procedures for establishing those types of on-track safety in its on-
track safety manual. For example, if a railroad chooses not to use
``foul time'' via Sec. 214.323 as a method of establishing working
limits, ``foul time'' procedures do not need to be included in that
railroad's on-track safety manual. Likewise, a short line railroad that
does not have any controlled track would only utilize Sec. 214.327
(inaccessible track) as a form of working limits, and would not need to
include procedures governing the establishment of other forms of
working limits.
If a railroad uses electronic display of authorities to establish
working limits, as is proposed in new Sec. 214.322 below, the use of
such display would also need to be addressed in the on-track safety
manual. Also, FRA notes that part 214 does not prohibit the use of an
electronic device that can display the contents of an on-track safety
manual as an alternative to a written copy (hard copy) of an on-track
safety manual. So long as the contents of the on-track safety manual
are readily viewable via an electronic device, FRA would not take
exception to the use of such device. However, if a device malfunctions
such that the contents of the on-track safety manual could not be
retrieved and viewed, a printed copy of the on-track safety manual must
be readily available for a roadway work group to continue its work. If
no alternative on-track safety manual is available, the roadway work
group must cease its work and occupy a place of safety.
FRA also notes that the general procedures applicable to all
machines and roadway workers must be included in the on-track safety
manual (e.g., machine-to-machine spacing and space between roadway
workers and machines as established by existing Sec. 214.341).
However, Sec. 214.341 requires that unique instructions for the safe
operation of roadway maintenance machines must be provided and
maintained with each machine if such machine is large enough to carry
the instruction document. If feasible, FRA recommends that these
machine-specific instructions be incorporated into the on-track safety
manual as well.
Finally, FRA has amended the proposed definition for the term ``on-
track safety manual'' slightly from that as recommended by the Working
Group. FRA inserted the words ``designed to'' into the first sentence
of the proposed definition. This change is to reflect that the
instructions in the manual, if followed, are designed to prevent
roadway workers from being struck by trains, rather than the
instructions themselves preventing such collisions. This amendment is
intended to be clarifying in nature, not substantive.
FRA is also proposing a definition for the existing term ``roadway
worker in charge.'' The term is used in existing Sec. 214.321, and is
also described interchangeably throughout the existing regulation as
the ``roadway worker responsible for the on-track safety of others'',
the ``roadway worker designated by the employer to provide for on-track
safety for all members of the group'', the ``roadway workers in charge
of the working limits'', as well as by other similarly descriptive
terms. The Working Group recommended consensus language for this
rulemaking which also uses the term ``roadway worker in charge'' in
several places. However, that term is not defined in the existing
regulation, and the Working Group did not reach agreement on a
recommended definition of the term.
As such, FRA is proposing a definition for the term ``roadway
worker in charge.'' The proposed definition mirrors the existing
definition for the term found in FRA's Railroad Operating Practices
Regulation (see Sec. 218.93). FRA is also proposing amending numerous
sections of part 214 to substitute the term ``roadway worker in
charge'' for the wide variety of different terms listed above which are
currently used to describe the roadway worker who is in charge of a
roadway work group and establishes on-track safety for that group.
Regarding the ``roadway worker in charge'' definition, FRA wishes
to address a related issue. Inquiries are often made regarding whether
a roadway worker in charge is simultaneously allowed to provide train
approach warning under existing Sec. 214.329 as a watchman/lookout. A
roadway worker in charge may only perform watchman/lookout duties so
long as the requirements of Sec. 214.329 are met. Section 214.329(b)
requires that watchmen/lookouts ``shall devote full attention to
detecting the approach of trains and communicating warning thereof, and
shall not be assigned any other duties while functioning as watchmen/
lookouts.'' Thus, a roadway worker in charge could not perform any
other duties, such as providing direction to a roadway work group,
while simultaneously serving as a watchmen/lookout. The limitation on
performing other tasks while simultaneously serving as a watchman/
lookout severely limits the instances in which a roadway worker in
charge may permissibly fill both roles. Also, if a roadway worker in
charge also intends to serve as a watchman/lookout for a roadway work
group, a discussion of such would have to take place during the job
briefing as required by existing Sec. 214.315(a), and would be subject
to the good faith challenge provisions of part 214. FRA stresses that
it is extremely safety-critical that a watchman/lookout devote full
attention to detecting trains and not perform any other tasks while
providing on-track safety for a roadway work group.
FRA is also proposing a definition for the new term ``station
platform work coordinator'' in this NPRM, because FRA is also proposing
new procedures for ``station platform work coordinators'' to oversee
snow removal and light cleaning on passenger station platforms. See
discussion of proposed Sec. 214.338 below. This topic was discussed at
length during the Working Group meetings, but no consensus was reached.
A ``station platform work coordinator'' refers to a roadway worker who
coordinates the on-track safety for a roadway work group performing
snow removal or cleaning activities on a passenger station platform,
and who is qualified in accordance with new proposed training Sec.
214.352.
FRA is also proposing a definition for the new term ``verbal
protection'' in this NPRM. Similar to ``foul time'', ``verbal
protection'' is a proposed method of establishing working limits within
an interlocking or controlled point via new proposed Sec. 214.324.
This new proposed Sec. 214.324 is a Working Group consensus item, and
is meant to accommodate the method of establishing working limits
utilized by railroads in the western portion of the United States. This
new Sec. 214.324 is discussed at length further below in the section-
by-section analysis. The Working Group did not contemplate a definition
for this new term, but FRA has proposed one that is similar to the
existing definition of ``foul time'', except that it refers to
establishing working limits within an interlocking or a controlled
point, rather than on controlled track outside the limits of those
configurations.
Finally, FRA is proposing to amend the existing definition for the
term ``watchman/lookout''. The only
[[Page 50335]]
proposed change to the definition is to account for the proposed new
Sec. 214.338 regarding the use of station platform work coordinators,
as discussed further below. Section 214.338(a)(2) of the proposed
station platform work coordinator provision requires train approach
warning be given that would require roadway workers to withdraw hand-
held, non-powered tools from the edge of a passenger station platform
upon the approach of a train. However, that section states such warning
may be based on available sight distance at the platform and may give
less than the 15 seconds notice prescribed by existing Sec.
214.329(a). The proposed amendment to the definition of ``watchman/
lookout'' acknowledges this difference.
FRA is also requesting comment on whether the existing definition
of the term ``watchman/lookout'' should be further amended in a final
rule in this proceeding. The existing definition states, in part, that
a watchman/lookout ``means an employee who has been annually trained
and qualified to provide train approach warning to roadway workers of
approaching trains or equipment.* * * '' However, as discussed below,
the frequency of refresher training and qualification requirements for
additional roadway worker qualifications (e.g., for a lone worker,
watchman/lookout, flagman, or roadway worker in charge qualification)
is not currently specified. Existing Sec. 214.349(b) only currently
states that ``[i]nitial and periodic qualification of a watchman/
lookout shall be evidence by demonstrated proficiency,'' mirroring the
other existing additional roadway worker qualification sections. As
discussed both above and below, FRA is requesting comment on the
refresher training and qualification requirements for the additional
roadway worker qualifications. Thus, FRA requests comment on whether
the word ``annually'' should be removed from existing definition of
``watchman/lookout'' in order that the definition more accurately
reflect both the current and any future RWP refresher qualification and
training requirements, and also for purposes of consistency with the
other existing additional roadway worker qualification definitions.
Subpart B--Bridge Worker Safety Standards
Section 214.113 Head Protection
FRA proposes to amend three existing sections in subpart B (Bridge
Worker Protection) to delete the existing incorporations by reference
to certain outdated industry standards for personal protective
equipment (PPE). Specifically, Sec. Sec. 214.113, 214.115, and
214.117, contain incorporations by reference to certain standards
governing head, foot, eye, and face protection, respectively. Those
sections were originally promulgated in 1992 when an FRA final rule
establishing subpart B was published and reference standards dating
back to 1986. 57 FR 28116 (June 24, 1992). Although the regulatory
requirements have not been substantively updated in some time, the
standards themselves have been updated. Employers and employees may
currently have difficulty obtaining PPE manufactured in accordance with
the standards currently incorporated by reference. As such, FRA is
proposing to amend these existing sections to reflect that the
standards incorporated by reference have been updated. In doing so, FRA
wishes to allow for the continued use of any existing equipment which
meets the standards currently incorporated by reference, as well as for
the use of equipment meeting updated versions of those standards.
FRA's incorporations by reference of PPE standards in subpart B
were initially patterned after certain OSHA general industry PPE
standards located in Title 29 of the Code of Federal regulations. OSHA
faced a situation similar to that FRA currently faces with regard to
updating its PPE incorporations by reference. As such, OSHA updated
those standards in a 2009 final rule. 74 FR 46350 (Sept. 9, 2009).
OSHA's updates to the PPE regulations that correspond to FRA's subpart
B PPE regulations (29 CFR 1910.133(b), 1910.135(b), and 1910.136(b))
allow for the continued use of PPE meeting older standards which had
previously been incorporated by reference, as well as the use of PPE
meeting updated versions of those same standards. OSHA's corresponding
regulation also permits ``employers to use subsequent national
consensus standards that they can demonstrate provide the requisite
level of employee protection.'' 74 FR 46353. OSHA has indicated that
that agency will update the standards referenced in its PPE regulations
via direct final rulemaking as new editions of those standards become
available. Id.
As such, FRA has decided to propose deleting its existing subpart B
incorporations by reference. FRA proposes to replace those
incorporations by reference by requiring that PPE comply with OSHA's
corresponding general industry regulations. FRA has also decided to
propose such because the setting of PPE standards falls more
appropriately within OSHA's area of expertise, and that agency is
better suited to update these standards as appropriate. As explained in
the preamble to the 1992 FRA final rule promulgating the subpart B PPE
regulations, ``[m]any federal agencies and manufacturers rely on OSHA's
research abilities and expertise in formulating procedural guidelines
and performance criteria that reduce exposure to the risk of injury.
FRA is relying on OSHA's greater expertise in occupational health and
safety.'' 57 FR 28116.
FRA's proposal is illustrated as follows. Section 214.113 governs
head protection for railroad bridge workers. FRA proposes to update
this section by deleting the existing incorporation by reference to
American National Standards Institute (ANSI), Z89.1-1986, Protective
Headwear for Industrial Workers. In its place, FRA proposes to
reference the requirements of 29 CFR 1910.135(b), OSHA's general
industry head protection PPE regulation. Section 1910.135(b) not only
permits the use of head protection meeting ANSI standard Z89.1-1986
(FRA's current standard incorporated by reference), but also
incorporates two updated versions of that standard as well. Under this
proposal, equipment meeting the standard currently incorporated by
reference in existing Sec. 214.113 would be permitted to be used
indefinitely, and equipment meeting more updated versions of that
standard would also be permitted to be used. Adoption of this proposal
would help facilitate compliance with Federal regulation, and would
also eliminate any economic concerns associated with updating PPE
standards, as equipment currently in use which conforms to the
requirements of existing 49 CFR 214.113(b) would be permitted to
continue in use indefinitely. FRA acknowledges that the most recent
ANSI standard listed in OSHA's updated Section 1910.135(b) is the 2003
standard. FRA has learned that, in the interim, between the time of
publication of OSHA's 2009 final rulemaking to present, that another
updated ANSI head protection standard has been released. However, as
mentioned above, 29 CFR 1910.135(b)(2) provides that head protection
that an employer demonstrates is ``at least as effective as head
protection devices that are constructed in accordance with '' the
consensus standards ``will be deemed to be in compliance with the
requirements of [1910.135(b)].'' Therefore, in interim time periods
between when updated versions of the standards incorporated by
reference are introduced and OSHA decides to adopt those standards in a
[[Page 50336]]
direct final rulemaking, PPE acquired by railroads or employers that
conforms to an updated version of the standards incorporated by
reference may still comply with the requirements of OSHA's regulation.
However, FRA requests comment on this particular point, both with
regard to this section and to the parallel proposed amendments to
Sec. Sec. 214.115 and 214.117 below.
Section 214.115 Foot Protection
Section 214.115, governs foot protection for bridge workers.
Similar to the proposed amendments to Sec. 214.113 discussed above,
FRA proposes to update this section by deleting the existing
incorporation by reference to ANSI American National Standard Z41-1991,
Standard for Personal Protective Equipment Footwear. In its place, FRA
proposes to reference OSHA's general industry foot protection
regulation at 29 CFR 1910.136(b). Section 1910.136(b) permits the use
of foot protection meeting ANSI standard Z41-1991, and also permits the
use of PPE meeting updated versions of that standard. Section
1910.136(b) also reflects that ANSI Z41 was withdrawn and replaced by
two ASTM standards in 2005. Adoption of this approach would help
eliminate any potential costs associated with the continual updating of
PPE standards, while also facilitating compliance with Federal
regulation.
Section 214.117 Eye and Face Protection
Finally, Sec. 214.117, governs eye and face protection for bridge
workers. Similar to the proposed amendments to Sec. Sec. 214.113 and
214.115 discussed above, FRA proposes to update this section by
deleting the existing incorporation by reference to ANSI Standard
Z87.1-1989, Practice for Occupational and Educational Eye and Face
Protection. In its place, FRA proposes to cross reference OSHA's
general industry foot protection regulation at 29 CFR 1910.133(b).
Section 1910.133(b) permits the continued use of eye and face
protection meeting ANSI standard Z87.1-1989, and also permits the use
of PPE meeting two updated versions of that standard. Adoption of this
approach would help eliminate any potential costs associated with the
continual updating of PPE standards, while also facilitating compliance
with Federal regulation.
Subpart C--Roadway Worker Protection
Section 214.301 Purpose and Scope
Section 214.301 sets forth the purpose and scope of subpart C of
part 214. FRA is proposing to amend only paragraph (c) of this section.
FRA is proposing regulatory text to clarify existing paragraph (c)'s
meaning and also to address a certain situation that has arisen since
the 1996 promulgation of the RWP regulation. Specifically, the second
sentence of existing paragraph (c) permits the movement of roadway
maintenance machines to be conducted under the authority of a train
dispatcher, a control operator, or the operating rules of a railroad.
As such, FRA Technical Bulletin G-05-14 explained that under existing
paragraph (c) ``[r]oadway maintenance machines operating/traveling over
non-controlled track do so under the operating rules of the railroad.''
When these machines are actually conducting work, however, on-track
safety must first be established (e.g., if working on non-controlled
track, working limits must be established via the inaccessible track
working limits procedures of Sec. 214.327). FRA is proposing
regulatory text that explicitly states that while roadway maintenance
machines are traveling under the authority of a train dispatcher, a
control operator, or the operating rules of the railroad, on-track
safety in accordance with part 214 is not required to be established
for such movements. This amendment is not substantive in nature and is
only intended to clarify the existing meaning of this paragraph. An
example of a roadway maintenance machine movement permitted to be
conducted under this section would be the movement of a roadway
maintenance machine between two separate work locations. Another
example would be when traveling to or from a work location, or
traveling between a worksite and a repair or storage facility.\6\
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\6\ FRA is also proposing an RSAC consensus recommendation at
Sec. 214.317 below, whereby roadway workers conducting snow blowing
and weed spraying operations on non-controlled track would be
permitted to conduct such operations under this existing section
rather than being required to establish working limits in all
circumstances.
---------------------------------------------------------------------------
FRA wishes to discuss another situation that often occurs with
regard to this topic. Railroad officials (such as transportation
superintendents) often travel their territories in hi-rail vehicles for
a variety of purposes. Because a railroad official such as a
transportation superintendent would not typically be a ``roadway
worker'' under that term's definition at Sec. 214.7, such movements
are not subject to the requirements of subpart C. However, most roadway
maintenance machine operators are roadway workers as their duties
include the inspection, construction, maintenance, or repair of
railroad track, bridges, roadway, signal and communication systems,
electric tractions systems, roadway facilities or roadway maintenance
machinery on or near track or with the potential of fouling a track.
Any roadway maintenance machine movements made by roadway workers are
required to comply with the requirements of subpart C, and part 214
generally (i.e., if a roadway maintenance machine is merely
``traveling'' it may be moved in accordance with paragraph (c) of this
section without the establishment of working limits, but if a roadway
maintenance machine is actually conducting work, working limits must be
established, unless part 214 contains an exception for a particular
type of operation).
FRA is also proposing an amendment to paragraph (c) to address a
potential safety issue that has arisen when roadway maintenance machine
movements are made on non-controlled track under this section.
Movements on non-controlled track may be made without authorization
from a train dispatcher or control operator, per the definition of the
term ``non-controlled track'' at Sec. 214.7. Thus, such movements have
traditionally been made under railroad operating rules requiring that
they be made at speeds not exceeding restricted speed. Restricted speed
rules require that trains or other on-track equipment be able to stop
within one-half the operator's range of vision. The requirement to stop
within one-half the range of vision prevents collisions between any
equipment that may be operating on the same non-controlled track. As
such, under existing Sec. 214.301(c), operations at restricted speed
allow for roadway maintenance machines to safely travel over non-
controlled track without having to establish working limits. FRA is
aware, however, that some stretches of non-controlled track have been
equipped with automatic block signal (ABS) systems. ABS systems are
designed to prevent collisions while allowing for trains to operate at
speeds greater than restricted speed. This scenario is problematic for
purposes of the movement of roadway maintenance machines on non-
controlled track under existing paragraph (c) because roadway
maintenance machines do not all shunt ABS signal systems. Absent the
establishment of inaccessible track working limits or other
protections, nothing prevents a train operating on non-controlled ABS-
signaled track at a speed greater than restricted speed from colliding
with roadway maintenance machines traveling on the same track
[[Page 50337]]
that do not shunt the signal system (no authority is needed to occupy
such track and trains are not required to stop within one-half their
operator's range of vision).
Based on the above-described situation, FRA is proposing that
roadway maintenance machine movements on non-controlled track may only
be made under paragraph (c) (e.g., without establishing working limits)
if train and locomotive speeds on such track are required to be made at
restricted speed. Because such situations have arisen in the past, FRA
is proposing regulatory text to prevent future occurrences.\7\ As
explained above, FRA believes that most non-controlled track is already
limited to restricted speed operations (with one exception being block
register territories, which are addressed further in proposed Sec.
214.327(a)(7) below). Thus, this proposed requirement should not
represent a cost burden to the industry. However, in order to provide
additional flexibility on this point, FRA is proposing that railroads
may also utilize other operating rules that provide a level of
protection equivalent to that provided by the provisions of restricted
speed rules on non-controlled track. As proposed, such other operating
rules must first be approved by FRA in writing if they are intended to
be used to satisfy this requirement.
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\7\ One Class I railroad had a significant stretch of ABS non-
controlled track (within yard limits) where such a situation did
exist, and an incident occurred where a hi-rail machine was struck
by a train. FRA is aware that this railroad has since required
movements over this track to be made at restricted speed. Another
Class I railroad has such a situation involving non-controlled
signaled track, but while moving roadway maintenance machines over
such track, FRA understands that the railroad creates working limits
via a dispatcher controlling the signals at either end of the non-
controlled limits to make such limits inaccessible.
---------------------------------------------------------------------------
FRA notes that this proposed provision only refers to train and
locomotive speeds on non-controlled track. This provision would not
affect the speeds that roadway maintenance machines are authorized to
travel over non-controlled track. Existing Sec. 214.341 already
requires each railroad's on-track safety program address the spacing
between machines and the maximum working and travel speeds for machines
depending on weather, visibility, and stopping capabilities. Roadway
maintenance machines typically have stopping capabilities far in excess
of that of trains. The intent of this provision is to address
situations where trains and locomotives are not required to stop within
one-half the range of vision on non-controlled track, and could collide
with roadway maintenance machines that do not shunt signal systems.
Section 214.302 Information Collection Requirements
FRA is proposing to remove this existing section from part 214.
This section is both outdated and superfluous, as the Paperwork
Reduction Act section below lists all of the information collection
requirements pertaining to each section of part 214 as proposed in this
NPRM. The Paperwork Reduction Act discussion that will be published in
a final rule in this proceeding will also list all final information
collection requirements. For a detailed summary of the information
collection requirements, please see the Paperwork Reduction Act
discussion in Section XI of the preamble below.
Section 214.305 Compliance Dates
FRA is proposing to delete existing Sec. 214.305, as that section
is now obsolete. Section 214.305 only references the phase-in dates by
which a railroad's on-track safety program was required to comply with
the original 1996 RWP rulemaking. Those dates are no longer applicable,
and existing railroads' programs have been required to comply with the
RWP regulation since those dates in 1997. Further, if a new railroad
that is subject to part 214 is formed, that railroad's program is
required to comply with the requirements of the existing RWP regulation
upon commencing operations, as already established by existing
Sec. Sec. 214.301, 214.303, 214.317, and 214.335. Currently, the
relevant date by which a railroad's on-track safety program will be
required to comply with any changes or additions to the RWP regulation
that are adopted by FRA in this rulemaking will be the effective date
of any final rule issued.
Section 214.307 Review of Individual On-Track Safety Programs by FRA
Existing Sec. 214.307 requires railroads to notify FRA in writing
at least one month in advance of its on-track safety program becoming
effective and sets forth FRA's formal review and approval process for
such plans. FRA is proposing to amend this section to modify the
existing on-track safety program approval process. This proposed
revision was not contemplated by the Working Group, but parallels
similar updated requirements in recent FRA rulemakings and is intended
to ease burdens imposed under the existing section.
First, the proposed text would rescind the current requirement in
this section that railroads notify FRA not less than one month before
the effective date of their on-track safety programs. The proposed text
also modifies the existing requirement that FRA review and approve
every railroad's program. The proposed text would instead only require
that FRA be permitted to review a railroad's on-track safety program
upon request. This proposed change reflects that, generally, the
railroad industry now has much experience with this regulation, as the
regulation has been in effect for approximately 15 years. As such, the
wholesale review of every aspect of a railroad's program that took
place when the original rule was promulgated is not warranted. The
approach as proposed in this section recognizes that typically FRA
would review a railroad's program during audits or investigations. Upon
review of a program, the proposed text would provide FRA's Associate
Administrator for Railroad Safety/Chief Safety Officer with the
authority to disapprove a program if it does not meet the requirements
of part 214.
If the FRA Associate Administrator for Railroad Safety/Chief Safety
Officer disapproves a program, proposed paragraph (b)(1) provides that
a railroad would be required to respond within 35 days by either
amending its program and submitting those proposed amendments for
approval, or by providing a written response in support of its program.
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer
would subsequently render a decision in writing either approving or
disapproving the program. Paragraph (b)(2) provides that FRA would
consider a failure to submit an amended program or provide a written
response as required by the section to be a failure to implement a
program under this part.
The proposed amendments to this section also ease the burden on
both railroads and FRA as railroads would no longer be required to
notify FRA of changes to their on-track safety programs, and FRA would
be able to better utilize its limited resources to address legitimate
safety concerns brought to its attention, rather than conducting
mandatory reviews of on-track safety programs, the bulk of whose
contents have already been established and approved by FRA for many
years. Finally, the proposed text would also eliminate reference to the
compliance dates in Sec. 214.305, because as explained above, those
dates are obsolete.
[[Page 50338]]
Section 214.309 On-Track Safety Manual
Existing Sec. 214.309, titled ``On-track safety program
documents,'' mandates, in part, that rules and operating procedures
governing track occupancy and protection be maintained together in one
manual and be readily available to all roadway workers. With minor
exceptions (discussed below), FRA is proposing amendments to this
section consisting of consensus language recommended by the Working
Group. As explained above in the section-by-section analysis for the
definitions section, the proposed revisions to this section incorporate
the definition for the new term ``on-track safety manual.'' That
definition and the discussion above establish the minimum contents such
manual should include. FRA is also proposing to amend the title of this
section, to more accurately reflect the proposals to update this
section.
Proposed paragraph (a) of this section incorporates the new
proposed term ``on-track safety manual.'' Other than that change, the
Working Group's consensus recommendation language for the first
sentence of this paragraph then only repeated the text of the section
as it currently exists. However, that existing language describes the
``[r]ules and operating procedures governing track occupancy and
protection,'' which is the language that described what is now being
proposed to be expressly defined as the ``on-track safety manual.'' As
there is now a proposed definition for that term which describes what
must be included in the on-track safety manual, the description of
those items as it exists in the current regulation text is no longer
necessary. Thus, FRA has proposed to amend the first sentence of the
Working Group's recommended paragraph (a) to state ``[t]he applicable
on-track safety manual (as defined by Sec. 214.7) shall be readily
available to roadway workers.''
Proposed paragraph (b) addresses the difficulty that a lone worker,
such as a signal maintainer or a walking track inspector, might
experience in carrying a large on-track safety manual. Paragraph (b)
proposes that a railroad must provide for an alternate process for such
a lone worker to obtain on-track safety information. The alternate
process may include the use of a phone or radio for the lone worker to
contact an employee who has the contents of the on-track safety manual
readily accessible. FRA has added the words ``on-track safety'' before
the word ``manual,'' which appears twice in this proposed paragraph.
This amendment to the consensus recommendation is to consistently and
accurately refer to the newly proposed term ``on-track safety manual''
throughout this section.
Although FRA is adopting the Working Group's consensus language
recommended to be included in the last sentence of proposed paragraph
(b) (which read ``[s]uch provisions for alternative access shall be
addressed and included in the training provisions of Sec. 214.347''),
FRA is moving that language to Sec. 214.347, which is discussed
further below. FRA decided to make this change in the interests of
simplicity and ease of use of the regulations. By putting the consensus
language recommended by the Working Group setting forth this
substantive training requirement in the lone worker training section
itself (Sec. 214.347), FRA eliminates an unnecessary cross reference
to another section of the RWP regulation, and thus keeps the applicable
training requirements in the actual training sections.
Proposed paragraph (c) recognizes that in practice changes often
occur to on-track safety rules and procedures. Often, it is necessary
for a railroad to publish and distribute new or revised on-track safety
measures or protection rules on an as-needed basis before those
documents can be permanently incorporated into a revised manual, or to
sometimes publish temporary changes to a program via bulletin or
notice. While these amendments to an on-track safety program must be
incorporated into an on-track safety manual, existing Sec. 214.309
does not include any allowance for the temporary nature of some
documents or the practical difficulties with incorporating such changes
immediately after issuance. This proposed text would account for
updates or changes to the on-track safety manual.
Section 214.315 Supervision and Communication
Existing Sec. 214.315 mandates that job briefings be provided to
roadway workers assigned duties that require the fouling of track and
sets forth certain communication requirements between members of a
roadway work group, and, in the case of a lone worker, between that
lone worker and his or her supervisor or other designated employee. The
Working Group recommended that FRA add new requirements to existing
Sec. 214.315. Those items largely govern the substance of job
briefings performed prior to roadway workers fouling track, and also
change reference to these job briefings to ``on track safety job
briefing[s].'' Most of those consensus recommendations were addressed
in FRA's adjacent track rulemaking. 74 FR 74614. However, one item that
was not included in the adjacent track rulemaking involves information
during the on-track safety job briefing regarding the accessibility of
the roadway worker in charge and alternative procedures in the event
the roadway worker in charge is not accessible to the members of the
roadway work group. FRA is now proposing the recommended consensus
language addressing this issue.
As a roadway worker in charge is the person who establishes and
directs the on-track safety for a roadway work group, it is critical
that each roadway worker in a roadway work group have access to the
roadway worker in charge. Access is necessary where a member of the
group invokes a good faith challenge, or where he or she has other
questions concerning the established on-track safety protection. Thus,
a roadway worker in charge must be located in the immediate vicinity of
the work activity. As discussed in FRA Technical Bulletin G-05-07,
sometimes it may be necessary for a roadway worker in charge to depart
a work location for a short period to travel to another area
encompassing the same work activity (e.g., to conduct on-track safety
checks throughout a large mechanized production activity). During such
periods where the roadway worker in charge may be away from a work site
for a short period, it is imperative the roadway work group have a
readily available means to communicate with this employee. When a
roadway worker in charge departs a work site for an extended period, a
substitute employee with the relevant qualifications must be
designated. If any exclusive track occupancy authorities are involved,
the change in the roadway worker in charge designation must be formally
addressed in the railroad operating rule. To eliminate confusion, FRA
notes that this recommended consensus item regarding the accessibility
of the roadway worker in charge was initially listed by the Working
Group as new paragraph (a)(3) of Sec. 214.315. However, after
numbering and other minor changes as promulgated in the adjacent track
rulemaking, FRA is proposing to include this provision as new Sec.
214.315(a)(5). In the regulation text as proposed below, new paragraphs
(a)(3) and (a)(4) of this section, as promulgated in the adjacent track
rulemaking, also appear again. This is to reflect that FRA has to
remove the ``and'' from the end of paragraph (a)(3) and move it to the
end of paragraph (a)(4). This change is necessary as the
[[Page 50339]]
newly proposed (a)(5) would be the new last paragraph under (a).
FRA is also proposing a minor change to existing Sec. 214.315(b).
FRA is proposing to replace the word ``worker'' in the first sentence
of that paragraph with the word ``worker(s)'', merely to reflect that
roadway work groups often include multiple roadway workers. In
addition, FRA is proposing to slightly amend existing paragraphs (c)
and (d) of this section, by adding the new term ``roadway worker in
charge'' to the first sentence of each of those paragraphs. The new
term replaces the existing language in those paragraphs that
generically refers to the person or roadway worker designated to
provide on-track safety for a roadway work group. It is generally
understood by the industry that this person is the ``roadway worker in
charge.'' This change, along with the new definition for that term,
only acknowledge this understanding and provide uniformity of reference
to ``roadway worker[s] in charge'' in the regulation text. Finally, FRA
is proposing to amend the first sentence of paragraph (e) of this
section to replace the words ``job briefing'' with ``on-track safety
job briefing'', merely for uniformity to reflect the Working Group's
consensus recommendation regarding job briefings as referred to in
paragraph (a) of this section.
Section 214.317 On-Track Safety Procedures, Generally
Currently, Sec. 214.317 generally requires employers to provide
on-track safety for roadway workers by adopting on-track safety
programs compliant with Sec. Sec. 214.319 through 214.337. FRA is
proposing two substantive amendments to this existing section. These
two proposed amendments are consensus recommendations of the Working
Group and would impose requirements for roadway workers who walk across
railroad track and provide for new allowances when snow removal or weed
spraying operations are conducted on non-controlled tracks.
FRA is proposing to redesignate the existing text of Sec. 214.317
as paragraph (a) of this section in order to account for the additional
proposed amendments. In that existing text, FRA is proposing to amend
the reference to Sec. 214.337 to instead refer to proposed Sec.
214.338. This change is to acknowledge that if proposed Sec. 214.338
is adopted in a final rule, Sec. 214.337 would no longer
chronologically be the last section in this part governing on-track
safety procedures, but rather the last section would be Sec. 214.338.
Consistent with the consensus recommendation of the Working Group,
FRA is proposing a new paragraph (b) regarding procedures for roadway
workers to walk across railroad track. This section addresses the
practical reality that roadway workers often have to walk across tracks
while not directly engaged in activities covered by the existing RWP
regulation. For example, a roadway worker might incidentally walk from
a work site on a track in which working limits are in effect to a
vehicle adjacent to the right of way. While walking to a vehicle, a
roadway worker may have to cross over other ``live'' tracks where
working limits or another form of on-track safety is not in effect.
This proposed section, a consensus recommendation of the Working Group,
is intended to prevent roadway workers from being struck by trains
while incidentally crossing track, while at the same time recognizing
the need for procedures enabling roadway workers to cross tracks safely
without the need for formal on-track safety to be in place.
Proposed paragraph (b) would require that if roadway workers walk
across track they must first stop and look in all directions from which
a train or other on-track equipment could approach before starting
across, in order to ensure they may safely clear the track before the
arrival of any train or other on-track equipment. The proposal to
require roadway workers to stop and look before crossing a track would
provide an opportunity for roadway workers to physically stop what they
are doing and consider the on-track circumstances before proceeding
across live track. Although the Working Group recommended that roadway
workers ``look in both directions'' before crossing any track, FRA has
amended that consensus language to require roadway workers look in
``all directions from which a train or other on-track equipment could
approach.'' FRA understands the Working Group's recommendation, but to
require roadway workers to look in ``both directions'' without
providing further context is ambiguous. FRA believes it is more precise
to require roadway workers to first look in all directions from which a
train could approach before crossing track. This proposed amendment
also acknowledges that varying physical layouts could allow for trains
to approach from more than two directions (a diamond, certain turnouts,
etc.).
Next, asserting that depending on the sight distances groups of
tracks may be safely crossed without stopping between each track, in
post-Working Group comments on the consensus recommendations, AAR
requested that FRA amend the language to permit roadway workers to walk
across more than one track at a time without stopping and looking
before crossing each track. FRA agrees that in certain instances, where
sight distance allows, multiple tracks may be crossed safely without
stopping and looking between each track. FRA is concerned, however,
that incorporating such a change into the regulatory text with no
limiting language could potentially be unsafe in certain circumstances
(e.g., walking across tracks in a hump yard where there may be limited
sight distance and the constant potential for rolling equipment to
simultaneously be moving on many tracks exists). Accordingly, FRA is
not proposing to deviate from the recommended consensus language in
this regard, but requests additional comment on whether a roadway
worker should be required to look in all directions before crossing
each track.
Paragraph (b)(1) proposes to require that railroads adopt rules
governing how roadway workers determine that it is safe to cross track,
and that employees comply with those rules. FRA is modifying the
language recommended by the Working Group by inserting the words
``governing how to'' into the lone sentence in this paragraph, as the
rules themselves do not determine that it is safe to cross the track,
but they govern the conduct of the person making that determination.
This change is not substantive, and is intended for clarity only.
Paragraph (b)(2) proposes to require that roadway workers move directly
and promptly across tracks. Again, FRA modified the Working Group's
recommended language by adding the word ``shall'' into the consensus
language of that paragraph. FRA added ``shall'' in order to clearly
indicate that this would be a mandatory requirement. Proposed paragraph
(b)(3) would establish that Sec. 214.317(b) would not substitute for
the on-track safety that is required when roadway workers are required
to foul a track while actually engaged in roadway worker duties.
FRA notes, as discussed in relation to the definition of the term
``roadway worker'' above, that when a roadway worker fouls track to
install a device such as a portable derail or temporary sign to
delineate working limits, on-track safety is required to be
established. This proposed paragraph would not amend that existing
requirement. FRA is also removing the words ``as defined in the rule''
from the language recommended by the Working Group, as neither the
existing RWP regulation nor this NPRM define on-track equipment. In the
context of this section, FRA would interpret roadway maintenance
[[Page 50340]]
machines, hi-rail vehicles, or any other on-track equipment with the
capability to strike a roadway worker as on-track equipment.
FRA does not intend for this new paragraph (b) to apply to what is
commonly referred to as ``casual fouling.'' For example, if a track
inspector is conducting a track inspection on No. 1 track from a hi-
rail vehicle and on-track safety is provided for on No. 1 track (e.g.,
by exclusive track occupancy), typically no occupancy authority exists
on the adjacent No. 2 track. If the track inspector departs the hi-rail
vehicle on the same side as the adjacent track, and the centerline
distance is insufficient to enable the employee to remain clear of the
adjacent track as the inspector walks along the hi-rail vehicle to
reach the front or rear of the vehicle, such fouling of the adjacent
track would not be considered a ``track crossing'' under paragraph (b).
As a related matter, proposed paragraph (b) is not intended to
affect how roadway workers move over highway-rail grade crossings. The
movement of workers or equipment over designated public or private
highway-rail grade crossings should occur in accordance with traffic
laws and railroad safety rules (e.g., adherence to active and passive
warning devices). Trains always have the right-of-way at highway-rail
grade crossings. FRA notes that if any type of work activity as
regulated under existing part 214 occurs at a highway-rail grade
crossing, such an activity would require that an appropriate form of
on-track safety be established.
The Working Group also recommended language for a new paragraph
(b)(4) of this section, which would require that a railroad's safety
rules governing walking across railroad tracks be included in all
roadway worker training. FRA is proposing this recommended training
requirement, but in order to eliminate unnecessary cross references and
for the regulation's ease of use, FRA is proposing to include it in
proposed Sec. 214.345. Section 214.345 contains the mandatory items on
which roadway workers must be annually trained and, as discussed in the
section-by-section analysis for proposed Sec. 214.309 above, FRA
believes that all training requirements should be contained in the
actual training sections.
The Working Group also provided recommended consensus language
pertaining to on-track snow removal and weed spraying on non-controlled
track. FRA proposes to include this recommended language in Sec.
214.317(c). The proposed language would permit on-track snow removal
and weed spraying operations on non-controlled track without requiring
that such track first be made inaccessible. This proposed provision was
crafted due to the difficulty of establishing working limits on non-
controlled track for the operation of equipment that moves over long
distances, and where there are limited to no on-ground work activities
being conducted by roadway workers. FRA notes that this proposed
language is specific to weed spraying and snow removal operations being
conducted with on-track roadway maintenance machines, including on-
track snow removal equipment, such as jet snow blowers. This provision
is not intended to apply to situations where equipment, such as a
front-end-loader, fouls track when being used to plow or scoop snow off
of track or railroad right-of-way. This provision would also not apply
to controlled track, where some form of working limits would still be
required to be established. In addition, this provision would only
apply where on-track snow removal and weed spraying operations are
actually being conducted. Roadway maintenance machines not engaged in
that work, but rather just traveling over non-controlled track, would
still do so under the operating rules of the railroad as established in
existing Sec. 214.301(c) of the RWP regulation.
This proposed provision contains many requirements. First, before
machines could operate under this provision in remotely controlled hump
yard facilities, the recommended consensus introductory text of
paragraph (c) would require that remotely controlled hump yard
operations be suspended. FRA has proposed this requirement regarding
the suspension of hump operations, but has moved it to proposed
paragraph (c)(1)(iv) of this section. FRA made this amendment to the
recommended consensus language only for purposes of organizing the
regulatory text. The introductory text of paragraph (c) contains the
permissive language which would allow weed spraying and snow removal
operations to proceed under the provisions of Sec. 214.301, with the
limitations and/or conditions for utilizing that permissive provision
listed in paragraphs (c)(1)-(c)(4). As the requirement to suspend hump
operations is also a limitation on when the permissive provision may be
utilized, FRA believed that requirement would be more appropriately
listed with all of the other requirements in paragraphs (c)(1)-(c)(4).
In a post-Working Group consensus language draft that was
circulated for comment, the BMWED noted that the language regarding the
status of hump operations in the first sentence of proposed paragraph
(c) initially read ``in effect'', rather than ``in progress''. AAR's
post-RSAC recommendation indicated that it favored the words ``in
progress'', but did not explain the reason for favoring such. The
BMWED's post-RSAC comment indicated it favored ``in effect'', as that
term is more inclusive as hump operations might be ``in effect'' but
not actually ``in progress'' (e.g., cars not literally being humped
right at the moment that weed spraying operations begin). FRA agrees
with the BMWED's position and is proposing the initial Working Group's
consensus wording of ``in effect'', but also requests further comment
on this issue from all interested parties.
Proposed paragraph (c)(1) would require that each railroad adopt
and comply with a procedure for on-track snow removal and weed spraying
operations. Proposed paragraph (c)(1)(i) would require the procedure to
ensure that all other persons conducting on-track movements in the
affected area are informed of the snow removal or weed spraying
operations. FRA has slightly amended the RSAC's recommended consensus
language for proposed paragraph (c)(1)(i) by adding the words ``in the
affected area''. This change is only intended to clarify that on-track
movements in the affected area must be informed of the snow removal or
weed spraying operations, as otherwise there would be no limiting
descriptor as to which operations must be notified. For consistency
purposes, FRA has also amended all references to ``movements''
throughout paragraph (c)(1) to instead refer to ``on-track movements'',
because the consensus text for paragraph (c)(1)(i) (and for paragraph
(c) in its entirety) specifically refers only to on-track movements.
Proposed paragraph (c)(1)(ii) would require that the adopted procedure
ensure that all such weed spraying and snow removal operations operate
at a speed not greater than restricted speed as currently defined in
Sec. 214.7, except on other than yard tracks and yard switching leads,
where movements may operate at no more than 25 miles-per-hour (mph) and
be prepared to stop within one-half the range of vision. In its post-
Working Group comments on the consensus language recommended by the
Working Group, AAR suggested minor changes to the wording of this
paragraph, including removal of the reference to the existing Sec.
214.7 definition of ``restricted speed.''
[[Page 50341]]
Because FRA believes that the reference to the Sec. 214.7 definition
of ``restricted speed'' is necessary, as that term defines restricted
speed for the purposes of part 214 (a railroad's ``restricted speed''
for purposes of weed spraying could be more permissible than that of
the existing Sec. 214.7 definition and of that proposed in the
consensus language, which for safety reasons FRA would seek to avoid).
The other minor AAR-suggested changes do not alter the substance of the
consensus language, but also do not seem to clearly enhance its utility
or clarity. Therefore, FRA is proposing the consensus language
contained in the Working Group's recommendation in this paragraph.
Proposed paragraph (c)(1)(iii) would require that the procedure
adopted by a railroad ensures there is a means of communication between
on-track equipment conducting snow removal and weed spraying operations
and any other on-track movements in the area (which FRA anticipates
would be via radio communication). Proposed paragraph (c)(1)(iv)
prohibits remotely controlled hump yard facility operations from being
in effect while snow removal or weed spraying operations are in
progress, and also prohibits the kicking of cars unless agreed to by
the roadway worker in charge of the snow removal or weed spraying
operation. This last requirement is intended to help ensure that there
is no free rolling equipment in the vicinity of on-track snow removal
or weed spraying operations. As discussed above, FRA has amended the
consensus language to list the proposed requirement that hump
operations be suspended to this paragraph (c)(1)(iv). As such, the text
as recommended by the RSAC has been slightly modified for organization
purposes, and is not substantive in nature.
Proposed paragraph (c)(2) would provide that roadway workers
engaged in snow removal or weed spraying operations retain an absolute
right to utilize the provisions of Sec. 214.327 (inaccessible track).
This proposal parallels existing Sec. 214.337(b), which governs on-
track safety procedures for lone workers, and would permit a roadway
worker to establish on-track safety by making the track inaccessible in
accordance with Sec. 214.327. FRA has slightly amended this proposed
paragraph as recommended by the RSAC. FRA added the words ``subject to
this section'' to the proposed language. This amendment is only
intended for clarity purposes. This amendment would make clear that if
snow removal operations not subject to this section were taking place
that on-track safety would obviously be required to be established,
regardless of the absolute right to make track inaccessible under this
provision.
Proposed paragraph (c)(3) would provide that roadway workers
engaged in snow removal or weed spraying operations subject to Sec.
214.317, are permitted to line switches for the machine's movement
without establishing a form of on-track safety in accordance with
Sec. Sec. 214.319 through 214.337, but may not engage in any roadway
work activity. For example, if a roadway worker needs to clean the snow
from a switch with tools, or adjust a switch, a method of on-track
safety compliant with Sec. Sec. 214.319 through 214.337 would be
required prior to conducting such activities. Notwithstanding the
above, FRA notes that existing Sec. 214.313(b) requires that roadway
workers shall not foul any track unless necessary for the performance
of their duties. FRA notes this proposed provision would extend to
roadway workers other than the actual operator of a roadway maintenance
machine, as roadway workers other than the machine operator may be
assigned to throw switches in order to facilitate a machine's movement.
Finally, proposed paragraph (c)(4) contains the consensus
recommendation of the Working Group for the roadway equipment utilized
under this provision. Proposed paragraph (c)(4) would require that each
machine engaged in snow removal or weed spraying operations under
proposed Sec. 214.317(c) be equipped with: (1) An operative 360-degree
intermittent warning light or beacon; (2) an illumination device, such
as a headlight, capable of illuminating obstructions on the track ahead
in the direction of travel for a distance of 300 feet under normal
weather and atmospheric conditions; (3) a brake light activated by the
application of the machine braking system, and designed to be visible
for a distance of 300 feet under normal weather and atmospheric
conditions; and, (4) a rearward viewing device, such as a rearview
mirror. If a machine is utilized in snow removal or weed spraying
operations conducted during the period between one-half hour after
sunset and one-half hour before sunrise, or in dark areas such as
tunnels, that machine would also be required to be equipped with work
lights, unless equivalent lighting is otherwise provided. Equivalent
lighting refers to situations where a rail facility might already be
equipped with appropriate lighting or where lighting is installed in a
tunnel. These proposed requirements which would apply to snow blowing
or weed spraying operations conducted pursuant to the operating rules
of a railroad, would be in addition to any applicable existing
requirements for such machines found in subpart D of part 214, which
governs roadway maintenance machine requirements. These proposed
requirements would help ensure that persons operating such machines
during snow removal and weed spraying operations and relying on
railroad operating rules and procedures for safety have appropriate
lighting and sight distance to perform their duties, while also
ensuring that such machines are clearly visible to others in the
vicinity of such operations in all lighting conditions.
Section 214.319 Working Limits, Generally
Section 214.319 sets forth the requirements for establishing
working limits in accordance with part 214. FRA is proposing a minor
amendment to this section. The existing first sentence in the
introductory paragraph of that section states, in part, that
``[w]orking limits established on controlled track shall conform to the
provisions of'' Sec. Sec. 214.321 Exclusive track occupany, or
214.323, Foul time, or 214.325, Train coordination.'' Each of these
sections explain the requirements for establishing working limits
through the various methods recognized by part 214. As discussed in the
section-by-section analysis of proposed Sec. 214.324 below, however,
FRA is proposing to add a new section setting forth a new method of
establishing working limits on controlled track (verbal protection).
Thus, FRA is simply proposing to revise the introductory paragraph of
Sec. 214.319 to reference proposed Sec. 214.324.
FRA is also proposing to replace the words ``roadway worker'' in
existing paragraphs (a) and (b) with the words ``roadway worker in
charge.'' As discussed above, this proposed change is to provide
uniformity of reference throughout the RWP regulation to the roadway
worker who establishes and controls working limits. This proposed
change is also to reflect that under existing paragraph (a) of this
section only a ``roadway worker who is qualified in accordance with
Sec. 214.353 of this part shall establish or have control over working
limits for the purpose of establishing on-track safety.'' As previously
discussed, FRA is proposing to refer to a roadway worker qualified in
accordance with Sec. 214.353 as a ``roadway worker in charge.''
[[Page 50342]]
Section 214.321 Exclusive Track Occupancy
Section 214.321 generally sets forth the requirements for
establishing working limits on controlled track through the use of
exclusive track occupancy procedures. FRA is proposing several
amendments to this section, including both Working Group consensus
items and non-consensus items. First, FRA is proposing to replace the
words ``roadway worker'' in existing paragraph (a) with ``roadway
worker in charge.'' This proposed change is to consistently refer to
the ``roadway worker in charge'' as appropriate throughout the RWP
regulation, in order to clarify the existing variety of generic
references to that position. Also, this change is appropriate because
only a ``roadway worker in charge'' (or a lone worker who is also a
roadway worker in charge) can establish working limits via Sec.
214.321. FRA is also proposing to make this same change to the latter
half of existing paragraph (b), which would be amended to specify that
an authority for exclusive track occupancy must be communicated to the
``roadway worker in charge,'' as opposed to the existing reference to
``roadway worker''.
Existing paragraph (b) states that a ``data transmission'' may be
used to transmit an exclusive track occupancy authority to a roadway
worker (i.e., a roadway worker in charge). However, existing paragraph
(b)(2) states only that the roadway worker in charge must maintain
possession of a ``written or printed authority'' while the authority
for working limits is in effect, and does not currently account for
authorities conveyed via data transmission that may be displayed on the
screen of an electronic device. Thus, FRA is proposing to amend
paragraph (b)(2) to state that an authority displayed on an electronic
screen may be used in place of the ``written or printed'' authority
required by existing Sec. 214.321(b)(2). Electronic authorities would
also be required to comply with the requirements of proposed Sec.
214.322, which is discussed in the section-by-section analysis for that
section below. As electronic devices are already currently used to
display authorities in the railroad industry, this proposed paragraph
is intended to help clarify that such use is permissible.
Existing Sec. 214.321(b)(3) requires that the train dispatcher or
control operator in charge of track make a ``written or electronic''
record of all authorities issued to establish exclusive track
occupancy. In post-Working Group comments on the recommended consensus
items, AAR commented that in addition to proposing consensus paragraph
(b)(4) of Sec. 214.321, FRA should also amend existing paragraph
(b)(3) by removing the words ``written or electronic record'', and just
generically refer to ``records,'' in order to accommodate the display
of an authority via the use of an electronic device. However, as
explained above and below, FRA is proposing a new Sec. 214.322, which
would govern the use of authorities transmitted via electronic display.
Accordingly, FRA believes that differentiating between written or
electronic records is appropriate.
The Working Group recommended consensus language that would require
that an exclusive track occupancy authority specify a unique roadway
work group number, an employee name, or other unique identifier. The
Working Group recommended that this language be included as a new
paragraph (b)(4) to Sec. 214.321. FRA agrees with this recommendation
and has incorporated language consistent with the Working Group's
recommendation into proposed paragraph (b)(4) of this section. This
requirement would simply codify what is already common practice in the
railroad industry; a practice that helps ensure the ability of trains,
dispatchers, and other employees to differentiate between roadway
workers in charge/roadway work groups who may be performing work at
various locations along the right-of-way. The use of a unique
identifier or roadway work group number should reduce the chance for
potential confusion if a railroad has multiple employees with the same
or similar names. This proposed paragraph would also require that a
railroad's procedures establish guidelines for communication between
trains or other on-track equipment and the roadway worker in charge (or
lone worker), in accordance with existing Sec. 214.319(c). This
requirement refers to effective procedures for trains or other on-track
equipment to contact the roadway worker in charge to receive permission
through working limits when appropriate. In post-RSAC comments, AAR
requested that FRA remove the reference to lone workers in this
recommended consensus section as per existing Sec. 214.337, lone
workers are traditionally only used in conjunction with individual
train detection. However, lone workers who are qualified to act as
roadway workers in charge may establish working limits in order to
perform their work. As such, FRA has decided to retain the recommended
reference to lone workers in this proposed paragraph.
For clarity purposes FRA amended the language from that contained
in the recommended consensus language for this paragraph. The second
sentence of the recommend language read that ``[t]he railroad's
procedures shall include precise communication to ensure trains and
other on-track equipment communicate, either directly or through the
dispatcher, with the roadway worker in charge or lone worker
controlling the working limits in accordance with Sec. 214.319.'' FRA
is proposing that the second sentence of this paragraph instead read,
``[a] railroad shall adopt procedures that require precise
communication between trains and other on-track equipment and the
roadway worker in charge or lone worker controlling the working limits
in accordance with Sec. 214.319. The procedures may permit
communications to be made directly between a train or other on-track
equipment and a roadway worker in charge or lone worker, or through a
train dispatcher or control operator.'' This proposed change to the
recommendation is not intended to be substantive in nature, but is
being made because a railroad's procedures obviously cannot contain the
precise ``communication'' between a train and a roadway worker in
charge, but instead, would include the guidance or instructions on the
requirements of such communications. Thus, FRA is proposing this
language to clarify that a railroad's procedures under this section
would have to govern the necessary communications between trains and
roadway workers in charge when exclusive track occupancy working limits
are in effect. FRA is also adding the words ``train'' and ``or control
operator'' directly before and after reference to the ``dispatcher''
that was contained in the RSAC recommendation because throughout the
controlled track working limits sections, the words ``train dispatcher
or control operator'' are used interchangeably.
Existing paragraph (d) of this section requires that the movement
of trains and other on-track equipment within exclusive track occupancy
working limits may only be made under the direction of the ``roadway
worker having control over the working limits.'' Although FRA is
proposing no substantive revision to this paragraph, FRA is proposing
to amend the paragraph to refer to the ``roadway worker in charge.'' As
noted previously, this change is being proposed in multiple locations
in this NPRM in order to replace the varying existing language that
generically refers to the ``roadway worker in charge'' throughout the
regulation text. FRA previously issued Technical Bulletin G-05-22 that
[[Page 50343]]
addresses existing paragraph (d). That technical bulletin recognized
that there may be times, such as during an emergency, when a roadway
worker in charge cannot be contacted by a train or other on-track
equipment wishing to make a movement. The bulletin explained that ``in
extraordinary circumstances trains must be authorized to move despite
lack of permission from the RWIC. The present regulation does not
address this irregular situation and thus, FRA's enforcement action
under these circumstances will be determined on a case-by-case basis.''
FRA is not proposing language in this NPRM which would address such
extraordinary circumstances, and FRA's enforcement action in such
instances will still be determined on a case-by-case basis. However,
FRA intends proposed paragraph (b)(4) to work in conjunction with the
requirements of existing paragraph (d). Proposed paragraph (b)(4) would
require procedures governing communications between trains and roadway
workers in charge be adopted by railroads. FRA would expect that
railroads would adopt procedures that would address what actions should
be taken in the event a roadway worker in charge cannot be contacted by
a train crew or the operator of other on-track equipment.
Also, the existing text of the beginning of the second sentence of
paragraph (d) currently reads that ``[s]uch movements shall be
restricted speed * * * .'' FRA has proposed to amend that text to
instead read that ``[s]such movements shall be made at restricted speed
* * * .'' (emphasis added). This minor amendment is only for purposes
of reading clarity and is not intended to be substantive.
FRA is also proposing to add a new paragraph (e) to this section.
This paragraph would establish minimum requirements when an exclusive
track occupancy authority is given to a roadway worker in charge (or
lone worker) ahead of the time working limits are to be occupied, or
when train(s) may be occupying the same limits. These authorities are
sometimes referred to as ``occupancy behind'', ``conditional'', or ``do
not foul the limits ahead of'' authorities.\8\ Occupancy behind
procedures enable a train dispatcher or control operator to issue an
authority which would permit a roadway work group to occupy a track,
provided such occupancy only occurred after the passage of certain
trains or other on-track equipment. When occupancy behind authorities
are issued, trains may still be ahead of the point to be occupied by
the roadway work group, or in some cases may be past the point to be
occupied but still within the working limits. Such occupancy behind
authorities have long been in use in the railroad industry. Due to the
volume of train operations in certain areas, and the corresponding time
demands on train dispatchers, railroads have expressed to FRA that the
use of such authorities is crucial to their ability to be able to
efficiently conduct train operations.
---------------------------------------------------------------------------
\8\ FRA notes that 49 CFR 220.61 contains requirements for the
issuance of ``mandatory directives'' via radio transmission for both
trains and on-track equipment. Exclusive track occupancy authority
to establish working limits granted by a train dispatcher or control
operator to a roadway worker in charge are in some instances also
considered ``mandatory directives'' under that section. The existing
requirements in Sec. 214.321 are considered to be in addition to
the requirements of existing Sec. 220.61.
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For example, a track inspector (a roadway worker in charge/lone
worker) in centralized traffic control territory may be called on to
use a hi-rail vehicle to inspect a track. In order to more efficiently
utilize time and available track, a dispatcher may issue the track
inspector an exclusive track occupancy working limits authority, often
referred to as ``track and time'', to occupy such track while a train
or trains are still within the working limits to be occupied by the
track inspector. This procedure does not first require the dispatcher
to wait until all trains have entirely cleared the working limits
before issuing the authority to the roadway worker in charge, or
require that all trains have passed the point to be occupied. This
procedure also allows the roadway worker in charge/lone worker to
occupy such limits behind a train movement while a train is still
within the working limits (much sooner chronologically than if required
to first wait for all trains to clear the entire working limits track
segment). This procedure enables the hypothetical track inspector to
begin his or her work sooner, and correspondingly, to relinquish such
limits sooner to allow for the passage of trains again.
One of the concerns with the use of such authorities focuses on the
fact that trains that are already within the same limits of an
authority that is being issued to a roadway worker in charge may not
have a copy of such authority or otherwise be aware of it. This
situation differs from those when track maintenance activities are
planned in advance, where all trains would typically have a copy of a
track bulletin denoting the existence of working limits at a particular
location. Another concern involves miscommunications occurring and
roadway workers potentially fouling tracks before the last affected
train passes the point to be occupied.
The Working Group discussed the problems of miscommunication with
the use of ``occupancy behind'' authorities, but did not achieve
consensus on recommended regulatory text. However, FRA believes it
necessary to propose minimum safety requirements regarding the use of
such authorities by roadway workers in charge to establish exclusive
track occupancy working limits. FRA believes this proposal largely
codifies current industry best practices and would help ensure safety,
and also seeks comment on the costs and benefits of this proposal.
Proposed paragraph (e)(1) states that an authority would only be
considered to be in effect after the roadway worker in charge or lone
worker confirmed that the affected train(s) had passed the point to be
occupied or fouled by the roadway work group or lone worker. This
proposed provision is necessary as the train(s) listed in the authority
may still be ahead of (i.e., may have not yet reached and traveled
past) the point to be occupied or fouled. The proposed text would
permit such confirmation to be made in three manners. Confirmation
could be made by visually identifying the affected train(s), via direct
radio contact with a crew member of the affected train(s), or by
receiving information about the affected train(s) from the dispatcher
or control operator.
Proposed paragraph (e)(2) states that when such confirmation is
made by the roadway worker in charge visually identifying the affected
train(s), the railroad's operating rules must include procedures to
prohibit such trains from making a reverse movement into the limits
being fouled or occupied (this provision, in addition to the
requirements of proposed Sec. 214.321(e)(4) below, would provide
protection for roadway worker(s) located ahead of the point to be
occupied who intend to ``piggyback'' on a roadway worker in charge's
exclusive track occupancy authority). FRA believes this provision is
necessary, as this method of making confirmation would not require the
roadway worker in charge to actually talk to the crew of the affected
train(s) (or for the train dispatcher to talk with the crew or verify
that that train is beyond the point to be occupied), such that the crew
might not be cognizant of the working limits or point to be occupied.
Proposed paragraph (e)(3) would require that after confirmation of
the passage of affected train(s) is made, the roadway worker in charge
shall record on the authority document (or display)
[[Page 50344]]
both the time of passage and the engine (locomotive) numbers of the
affected train(s). If passage confirmation is made via radio
communication with the train crew, the time of that communication along
with the engine numbers must be recorded on the authority. When
confirmation of the passage of the affected train(s) is made via the
train dispatcher or control operator, the time of such confirmation and
the engine numbers must be recorded on the authority. If the time and
engine numbers are not recorded on the authority itself, FRA would
consider a separate written document used to record information
regarding passing trains to be a component of the authority, and that
document would be required to be maintained along with the authority
while it is in effect.
Proposed paragraph (e)(4) would require that roadway workers (who
are afforded on-track safety by the roadway worker in charge) who are
located between the rear end of the last affected train and the roadway
worker in charge, or who are still located ahead of the last affected
train, may only foul track after receiving permission to do so from the
roadway worker in charge and after the roadway worker in charge had
fulfilled the provisions of proposed Sec. Sec. 214.321(e)(1) & (e)(3).
In addition, each group of roadway workers being provided on-track
safety by the roadway worker in charge must be accompanied by an
employee qualified to the level of a roadway worker in charge, who
would also be required to have a copy of such authority and fulfill the
requirements of Sec. Sec. 214.321(e)(1) & (e)(3) before working limits
could be occupied or fouled at that particular location. The authority
information may be verbally transmitted by the roadway worker in charge
to the additional person utilizing the working limits. The cumulative
effect of this proposed provision is that roadway workers located
between the rear end of any affected train and the roadway worker in
charge would not be permitted to foul track until all of the same
procedures the roadway worker in charge was initially required to
comply with were also accomplished at the actual location of the
roadway workers. FRA has included this proposed requirement to address
situations where a roadway worker in charge permits another roadway
work group or another roadway worker to foul the track between his or
her occupancy point and the rear end of affected train(s). Because FRA
agrees with the Working Group's concerns and recognizes that in this
context, miscommunication can have serious safety consequences, FRA is
proposing to require these additional measures.
Under proposed paragraph (e)(5), each lone worker subject to this
proposed paragraph would also be required to have a copy of the
authority and to comply with all of the communications requirements of
this section. Proposed paragraph (e)(6) would establish that train
movements within working limits where roadway workers were otherwise
located (not ahead of the last affected train and not between the rear
end of the last affected train and the roadway worker in charge) would
continue to be governed by existing Sec. 214.321(d), or under the
direction of the roadway worker in charge.
Finally, with regard to exclusive track occupancy, FRA often
receives inquiries regarding multiple roadway work groups working
within the limits of one authority. FRA notes that while there may be
multiple roadway work groups performing work within one set of working
limits, existing Sec. 214.319 requires that only one roadway worker in
charge can have control over working limits on any one segment of
track, and that all roadway workers shall be notified before working
limits are released for the operation of trains. Further, existing
Sec. 214.319(c) states that ``[w]orking limits shall not be released
until all affected roadway workers have either left the track or have
been afforded on-track safety through train approach warning in
accordance with Sec. 214.329 of this subpart.'' FRA is not proposing
any change to these existing requirements with regard to multiple
roadway work groups working within the limits of one authority. FRA
believes the current regulation is clear on this point, and FRA does
not believe that considering permitting more than one roadway worker in
charge to have control of working limits would be conducive to safety.
FRA believes doing so would promote confusion among roadway workers and
work groups. If further guidance on situations where multiple roadway
work groups may conduct work within the limits of one authority is
desired, existing FRA Technical Bulletins G-05-02 and G-05-17 address
those issues.
Section 214.322 Exclusive Track Occupancy, Electronic Display
Existing Sec. 214.321(b)(3) permits an exclusive track occupancy
authority to be issued via data transmission from the train dispatcher
or control operator to the roadway worker in charge. Currently, FRA is
aware that some railroads utilize electronic devices to display such
authorities received via data transmission. With the current Positive
Train Control system requirements and other technological developments
in the railroad industry, FRA anticipates that the use of such
electronic devices to display working limits authorities will continue
to grow. As such, the Working Group considered this topic, and
contemplated minimum requirements concerning the use of such electronic
displays. The Working Group agreed in principle to basic concepts
concerning the use of electronic display for working limits. However,
the Working Group did not agree to overall consensus language. As such,
FRA is proposing Sec. 214.322 to address the use of such electronic
displays. This proposed section incorporates those concepts agreed to
in principle by the Working Group, as well as additional minimum
operating and technical attributes of such electronic displays.
Proposed paragraph (a) contains the items agreed to in principle by
the Working Group, and would establish that an electronically displayed
authority must be readily viewable by the roadway worker in charge
while such authority is in effect. Proposed paragraph (a)(1) would
require that when a device malfunction or fails, or cannot otherwise
display an authority in effect (e.g., batteries powering the electronic
device displaying the authority lose charge), the roadway worker in
charge must instruct all roadway workers to stop and occupy a place of
safety until a written or printed copy of the authority can be
obtained, or another form of on-track safety can be established. FRA
requests comment on whether a better approach, if a device fails, is to
first allow the roadway worker in charge the opportunity to immediately
obtain a written copy of an authority before requiring the members of
the roadway work group to stop work and occupy a place of safety (and
if a written authority could not immediately be obtained, then
requiring the work group to occupy a place of safety).
If a copy of the authority cannot be obtained and no other form of
on-track safety can be established, proposed paragraph (a)(2) would
require that the roadway worker in charge conduct an on-track job
safety briefing to determine the safe course of action with the roadway
work group. Proposed paragraph (a)(2) attempts to provide flexibility
in situations where an electronic display fails and the roadway worker
in charge cannot communicate with the train dispatcher via radio, which
might occur in a deep rock cut or a tunnel, and a roadway work group
may have to move within established working limits to a location where
they are able to occupy a place of safety and/
[[Page 50345]]
or re-establish communication with the dispatcher.
Proposed paragraphs (b)-(g) would address the technical attributes
of the electronic display of exclusive track occupancy authorities. FRA
requests comment on this proposal, specifically regarding whether
electronic display systems currently in use comply, or are capable of
complying, with these proposed requirements. The proposed requirements
are safety and security-related. While the contents of an exclusive
track occupancy authority transmitted to a roadway worker in charge are
not typically confidential in nature, the integrity of such information
is vitally important to the safety of roadway workers and trains. FRA
proposes these requirements to take a proactive approach with regard to
the integrity of data transmissions of electronic authorities.
Proposed paragraphs (b) and (c) provide for the identification and
authentication of users. A user would typically refer to the roadway
worker in charge and train dispatcher or control operator, as they are
the persons who are most often involved in an exclusive track occupancy
authority transaction. A user could also be a process or a system that
accesses or attempts to access an electronic display system to perform
tasks or process an authority. Identification is the process through
which a user presents an identifier that is uniquely associated with
that user, in order to gain access to an electronic authority display
system.
Authentication is the process through which an individual user's
identity is validated. Most authentication techniques follow the
``challenge-response'' model by prompting the user (the challenge) to
provide some private information (the response). Basic authentication
factors for individual users could involve information an individual
knows, something an individual possesses, or something an individual is
(e.g., personal characteristics or ``biometrics'', such as a
fingerprint or voice pattern).
Proposed paragraph (c) would require that any authentication scheme
utilized ensures the confidentiality of authentication data and
protects that data from unauthorized access. Such schemes would be
required to utilize algorithms approved by the Federal government's
National Institute of Standards and Technology (NIST), or any similarly
recognized standards body. This requirement parallels a similar
requirement for Positive Train Control systems found at 49 CFR
236.1033(b),\9\ and is proposed to help prevent deliberate ``spoofing''
or ``man in the middle'' attacks on exclusive track occupancy authority
information communicated and displayed via electronic device. NIST is
the agency responsible for defining cryptographic algorithms for non-
Department of Defense entities.
---------------------------------------------------------------------------
\9\ 75 FR 2598, 2676 (Jan. 15, 2010).
---------------------------------------------------------------------------
Proposed paragraph (d) would address the transmission, reception,
processing, and storage of exclusive track occupancy authority data,
and is proposed to help ensure the integrity of such data. Data
integrity is the property of data not being altered since the time data
was created, transmitted, or stored, and generally refers to the
validity of the data. This paragraph proposes that new electronic
authority display systems placed into service after the effective date
of a final rule in this rulemaking would be required to utilize message
authentication codes (MAC) to ensure data integrity. Similar to the
proposed requirements of paragraph (c), MAC's would be required to
utilize algorithms approved by NIST or a similarly recognized standards
body. Unlike cyclical redundancy codes (CRC), MAC's provide protection
against malicious interference. Proposed paragraph (d) would permit the
use of systems implemented prior to the date of a final rule in this
rulemaking to utilize CRC's, but would require that the collision rate
for the CRC checks utilized be less than or equal to 1 in 2\32\. This
proposed collision rate would help provide reasonable protection
against accidental or non-malicious errors on channels that are subject
to transmission errors, and is based on a Department of Defense
standard. Existing systems utilizing CRC's that do not meet this
minimum standard would be required to be retired and replaced with
systems that utilize MAC's not later than one year after the effective
date of a final rule. Proposed paragraph (d)(2) would require that MAC
or CRC checks only be used to verify the accuracy of a message, and
that an authority must fail if the checks do not match.
Proposed paragraph (e) would also require that the actual
electronic device used to display an authority issued via data
transmission retain any authorities issued for a minimum of 72-hours
after expiration of such authority. This minimum proposed requirement
is primarily for investigation purposes, as it would give investigating
bodies such as FRA or the NTSB an opportunity to study authority data
in non-reportable accident/incident situations, and to compare it to a
dispatcher or control operator's corresponding electronic authority
transmission records. This requirement could also be helpful in
compliance audit situations.
Proposed paragraph (f) mirrors the language found in 49 CFR
229.135(e) of FRA's Railroad Locomotive Safety Standards. Section
229.135(e) governs the preservation of data from locomotive event
recorders or other locomotive mounted recorders in the event of an
accident. This proposed paragraph uses the same language as found in
existing Sec. 229.135(e), and would require that railroads preserve
data from any electronic device used to display an authority for one
year from the date of a reportable accident/incident under 49 CFR part
225, unless FRA or the NTSB notifies the railroad in writing that the
data are desired for analysis.
Proposed paragraph (g) would require that new electronic display
systems implemented after the effective date of a final rule, would
provide Level 3 assurance as defined by the December 2011, version of
NIST Special Publication 800-63-1, ``Electronic Authentication
Guideline.'' NIST Special Publication 800-63-1 provides technical
guidelines for widely used methods of electronic authentication, and is
publicly available online at http://csrc.nist.gov/publications/nistpubs/800-63-1/SP-800-63-1.pdf. Systems that were implemented prior
to the effective date of a final rule in this rulemaking would be
required to provide at least Level 2 assurance as described in NIST
Special Publication 800-63-1, and systems that do not provide Level 2
assurance or higher would be required to be retired or updated to
provide such assurance no later than one year after the effective date
of a final rule. These assurance levels govern the elements of the
authentication process. Level 2 assurance requires some identity
proofing, and passwords are accepted (but not PINS). Level 3 assurance
requires more stringent identity proofing and multi-factor
authentication, typically a password or a biometric factor used in
combination with a software or hardware token.
FRA acknowledges that if this proposed paragraph (g) were included
in a final rule in this rulemaking, that FRA must first gain approval
to do so from the Director of the Federal Register in accordance with 5
USC 552(a) and 1 CFR part 51. If interested parties do not have a copy
of this document to be incorporated by reference, FRA can make a copy
available for review upon request. FRA notes that this document is
publicly available online at the web
[[Page 50346]]
site address listed in the discussion above.
FRA has limited information regarding whether existing electronic
display systems in use already comply with the above requirements. FRA
requests comment, to include potential cost information, on this
proposal. As stated above, FRA proposes these requirements in an effort
to be proactive. FRA is coordinating these proposed requirements with
the U.S. Department of Homeland Security.
FRA notes that a portable device used to display an authority can
be a laptop computer or hand held device. Because of continuous
improvement in technology, FRA is not proposing any technical
specifications for the physical attributes of a display device.
Nevertheless, FRA expects railroads to take into account the
environment that such devices will be subject to during use. Finally,
FRA notes that railroads are always allowed to implement more
restrictive security requirements provided the requirements do not
conflict with Federal regulation.
Section 214.323 Foul Time
Section 214.323 generally sets forth the requirements for
establishing working limits on controlled track through the use of foul
time. FRA is proposing to make several amendments to existing Sec.
214.323. FRA is proposing to adopt the Working Group's recommended
consensus language, as well as certain other amendments. First, FRA is
proposing to add the words ``or other on track equipment'' to existing
paragraph (a) which currently provides that foul time may be provided
only after the relevant train dispatcher or control operator has
withheld authority ``of all trains'' to move into or within the working
limits. This change is only for consistency purposes within this
existing section, as existing paragraph (c) prohibits the movement of
both trains and on-track equipment from moving into working limits
while foul time is in effect. This proposed revision also acknowledges
that the incursion of on-track equipment into or within working limits
while foul time is in effect presents the same type of safety concern
to roadway workers as would train movements.
Next, FRA is proposing to amend reference to ``roadway worker'' in
existing paragraph (b) to ``roadway worker in charge.'' This proposed
change is only to reflect that a new definition for that term is being
proposed in this NPRM, and is being proposed to replace the varying
generic references to that roadway worker position that are currently
located throughout the existing RWP regulation. FRA also intends this
change to make it clear that roadway workers in charge are the only
employees who may establish working limits, which the RWP regulation
has always required at Sec. 214.319(a). FRA is also proposing to make
this same change to existing Sec. 214.323(c).
FRA is also proposing to add a new paragraph (d) to this section.
Paragraph (d) would expressly state that the roadway worker in charge
would be prohibited from permitting the movement of trains or other on-
track equipment into or within working limits protected by foul time.
As background, foul time is a more abbreviated form of establishing
working limits than that of exclusive track occupancy, and has its
historical roots in the Northeast United States. Foul time was
typically for short-duration work activities with limited to no
disturbance of the track structure. Foul time is a form of working
limits under the control of a roadway worker in charge, it does not
provide for the same flexibility as does exclusive track occupancy
(i.e., movement into or through the foul time limits under the
direction of the roadway worker in charge). The original RWP regulation
and accompanying section-by-section analysis did not describe what type
of activities could occur under foul time procedures, or expressly
state that the roadway worker in charge was not permitted to allow the
movement of trains or equipment into or within working limits. As such,
foul time in some locations is not being used as was originally
intended. Proposed paragraph (d) is intended to address this issue, and
proposed Sec. 214.324 below would provide for added flexibility in
establishing working limits within manual interlocking and controlled
points.
In post-Working Group comments on a draft of the consensus items,
AAR raised the issue of a railroad's rules referring to a form of on-
track safety as ``foul time'', when in actuality the form of protection
meets the requirements of Sec. 214.321 (exclusive track occupancy). In
response, FRA recognizes that some railroads may refer to a form of on-
track safety as ``foul time'' when they are actually using exclusive
track occupancy procedures. FRA notes that for enforcement purposes,
the agency looks to how a railroad's form of on-track safety protection
actually functions, rather than what name is used for such protection.
Section 214.324 Verbal Protection
The Working Group recommended a new proposed Sec. 214.324, which
would enable the establishment of working limits through the use of
``verbal protection.'' FRA is proposing this recommendation, which
helps to address a discrepancy discussed during the Working Group
process regarding how on-track safety is used in the Western portion of
the United States. Verbal protection is similar to foul time, but would
be a permitted method to establish working limits specifically within
manual interlockings or controlled points. Verbal protection differs
from foul time in that on-track equipment and trains would be permitted
to move into and within working limits after receiving permission to do
so from the roadway worker in charge and after receiving authority from
the train dispatcher or control operator. Since controlled points and
manual interlockings generally encompass a relatively small area,
roadway workers in charge would encounter reduced instances of other
employees, who might be some distance away, requesting to use the
roadway worker in charge's established working limits for a separate
task. Also, such locations typically provide an additional level of
protection because the dispatcher or control operator would be required
to apply blocking devices to govern the signals and/or switches at the
limits of a manual interlocking or controlled point to prevent movement
into working limits (in accordance with the requirement in proposed
paragraph (a) that dispatchers and control operators would be required
to withhold authority for trains to move into working limits). It is
important that when verbal protection is used to establish working
limits, there is a clear understanding of which track(s) are being
protected. For example, if the verbal protection only applies to one
track inside an interlocking containing multiple tracks, the roadway
workers utilizing that verbal protection would be required to establish
an alternate method of on-track safety on any other tracks they may
need to foul while performing their work.
The following table provides a comparative reference between the
use of foul time and verbal protection:
[[Page 50347]]
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Permissible locations On-track occupancy
--------------------------------------------------------------------------------------------------------------------
Type working limits Controlled track outside
manual interlockings and Manual interlocking and Trains On-track equipment
controlled points controlled points
--------------------------------------------------------------------------------------------------------------------------------------------------------
Foul time.......................... Yes........................... Yes........................... No......................... No.
Verbal protection.................. No............................ Yes........................... Yes, movement permitted Yes.
with permission of roadway
worker in charge and
permission by dispatcher/
control operator to pass
stop signal at entrance to
control point/manual
interlocking.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The proposed introductory text of this new section specifically
states that verbal protection may only be used within manual
interlockings or controlled points (as the chart above denotes, foul
time may also still be used within the limits of a manual interlocking
subject to the requirements of Sec. 214.323). Proposed paragraph (a)
mimics the corresponding paragraph in the foul time provision (Sec.
214.323(a)), including the reference to movement of ``other on-track
equipment'' as well as train movements. As explained above, this is to
acknowledge that the unauthorized or inadvertent incursion of on-track
equipment into or within working limits presents the same type of
safety concern to roadway workers as do train movements.
Proposed paragraph (b) mirrors the text of Sec. 214.323(b)
regarding foul time and proposes to require each RWIC to whom verbal
protection is transmitted repeat the track number, track limits and
time limits of the verbal protection to the issuing employee for
verification. In post-RSAC comments on the recommended consensus
language for this paragraph, AAR suggested that the phrase ``track
number'' be amended to refer instead to ``track identifier.'' AAR
suggested such to allow for commonly used descriptions for certain
tracks (such as ``westward main track'' or where tracks may not be
numbered). FRA notes that the phrase ``track number'' is also used in
the existing foul time section. While FRA may consider revising this
term in a final rule, such revision may not be necessary. FRA believes
it is understood, and has been permissible under the existing RWP
regulation, that where applicable, a track identifier may be used to
positively identify the track(s) on which working limits are being
established.
Proposed paragraph (c) differs from its corresponding paragraph
under foul time, in that it would permit movements into and within
working limits if both the roadway worker in charge and train
dispatcher or control operator give permission for such movements. In
post-Working Group comments on the recommended consensus language, AAR
noted that the words ``control operator'' were omitted from the
consensus language at the end of this proposed paragraph. As the words
``train dispatcher'' and ``control operator'' are used in tandem for
purposes of both this section and the foul time section, FRA believes
these words were inadvertently omitted. Therefore, in this proposal,
FRA has included the words ``or control operator'' after the words
``train dispatcher'' in this proposed paragraph.
Like foul time, under verbal protection the roadway worker in
charge would not be required to copy a written authority and maintain
possession of it while working limits were in effect. The roadway
worker in charge would only be required to correctly repeat back the
applicable working limits information to the train dispatcher or
control operator. However, because verbal protection differs from foul
time in that the roadway worker in charge may permit trains or other
on-track equipment to move through the working limits, FRA requests
comment on whether a roadway worker in charge should be required to
make and maintain a copy of the working limits information. This
requirement would ensure that a roadway worker in charge could
reference a written document if questions regarding the working limits
arose, but FRA also recognizes such a requirement could potentially
mitigate the utility of this proposed RSAC consensus recommendation.
Section 214.325 Train Coordination
FRA is proposing a minor amendment to existing Sec. 214.325. As
established by existing Sec. 214.319, Sec. 214.325 governs the
establishment of working limits on controlled track via train
coordination. However, unlike the other controlled track working limits
provision (Sec. Sec. 214.321, 214.323, and proposed Sec. 214.324),
the existing text of Sec. 214.325 does not actually state that is
applies to working limits established on controlled tracks. Therefore,
FRA is proposing to add the words ``on controlled tracks'' to the first
sentence of the introductory paragraph of Sec. 214.325. This amendment
is proposed simply for consistency and clarity purposes. FRA is also
proposing to add the words ``in charge'' after the existing words
``roadway worker'' in the first sentence of the introductory paragraph.
This proposed change would help provide uniformity of reference to
``roadway worker[s] in charge'' at various locations in the RWP
regulation text, and is also to reflect that under existing Sec.
214.319, that only a roadway worker in charge may establish working
limits.
Section 214.327 Inaccessible Track
FRA is proposing to add three new provisions to Sec. 214.327, all
of which are consensus items recommended by the Working Group. Existing
Sec. 214.327 governs the establishment of working limits on non-
controlled track. As explained in the preamble to the final rule which
promulgated the original RWP regulation, trains can operate on non-
controlled track without first having to receive specific authority to
do so. 61 FR 65791. Unlike in an exclusive track occupancy situation on
controlled track governed by Sec. 214.321, a dispatcher or control
operator cannot withhold a train's movement authority to enter a
specified set of working limits on non-controlled track. Thus, in order
to establish working limits on non-controlled track, the track must be
rendered inaccessible. These three new proposed consensus provisions
would expand the number of available methods to make such non-
controlled track inaccessible.
First, proposed paragraph (a)(6) would permit what informally may
be referred to as an ``iron flagman'' to render non-controlled track
inaccessible. This provision would permit the use of a manned
locomotive as a point of inaccessibility. This procedure mimics some of
the provisions of train coordination under existing Sec. 214.325,
which is a method of establishing working limits on controlled track.
However, it is critical that this provision not be confused with train
coordination. When train coordination is used, on-track safety is
derived through the use of a train's occupancy authority. On non-
controlled
[[Page 50348]]
track, no occupancy authority exists and additional trains could move
into the same segment of track at any time.
Proposed paragraph (a)(6) anticipates locations where a locomotive
with or without cars may be used as a physical feature at multiple
points of entry into working limits. For example, if a locomotive with
cars coupled to it is located on a ladder track in a yard, that train
could be used to block the entrance to all the tracks connected to the
switches under the train.
Proposed paragraph (a)(6) would require that to establish a
locomotive as a point of inaccessibility, the roadway worker in charge
would first have to communicate with the train crew in control of the
such locomotive and determine that the locomotive was visible to the
roadway worker in charge. Next, the locomotive would be required to be
stopped, and any further movements of the locomotive would only be made
as permitted by the roadway worker in charge. These requirements all
parallel existing requirements in the train coordination provision at
Sec. 214.325. FRA has amended the recommended consensus language for
this paragraph for purposes of clarity. The introductory text of
existing paragraph (a) of this section states that ``[w]orking limits
on non-controlled track shall be established by rendering the track
within working limits physically inaccessible to trains at each
possible point of entry by one of the following features:'' and then
goes on to list what features may be used to render track inaccessible
in existing paragraphs (a)(1)-(a)(5). The recommended consensus text of
paragraph (a)(6) reads that a ``[t]rain crew directly in control of a
locomotive with or without cars may be considered a physical feature at
one or more points of entry to working limits.'' However, as the train
crew is not the physical feature being used to block access to the
track, but rather the locomotive that the crew is in control of is, FRA
has amended the first sentence to reflect such. FRA has also replaced
the words ``roadway worker'' with ``roadway worker in charge who is
responsible for establishing working limits.'' This change is intended
to reflect that, as discussed throughout this document, only a roadway
worker in charge can establish working limits, and also for uniformity
of reference throughout the regulations. FRA has also proposed this
change as it wishes to emphasize that if this method of establishing
working limits is utilized, that it is important that the roadway
worker in charge of the working limits and the train crew assigned to
the locomotive communicate directly with one another and have a clear
understanding of the procedures to be followed. FRA has also slightly
amended the numbering of the requirements from that as originally
recommended. The amendments to the consensus language are not intended
to be substantive, but only to try to better organize the text into
final regulatory format.
In addition, proposed paragraph (a)(6) of this section would
require that the crew of the locomotive shall not leave the locomotive
unattended or go off duty unless communication occurs with the roadway
worker in charge, and an alternate means of on-track safety protection
is established. The last requirement of this paragraph would address
the concern of movement of any cars that may be coupled to the
locomotive were those cars to be uncoupled. Cars coupled to the end of
the locomotive where roadway workers are being protected (nearest to
the roadway workers) would be required to be connected to the train's
air brake system, and such system would be required to be charged with
compressed air in order to initiate an emergency brake application in
case of unintended uncoupling. Cars coupled to the locomotive on the
same track on the opposite end of the roadway workers would be required
to have sufficient braking capability to control movement.
Proposed paragraph (a)(7) addresses the use of block register
territory rules as a method to render track inaccessible. FRA notes
that while block register territory is generally considered non-
controlled track, where a train dispatcher or other employee must
authorize occupancy or movement on a track in block register territory,
this proposed section would not apply. FRA considers such track
controlled track, and the permissible on-track safety methods for
controlled track under the RWP regulation would apply.
Generally, in block register territory trains can only occupy a
block of track after viewing a log book or register sheet to ensure no
other trains or equipment are occupying that block. After making such
verification, the train crew wishing to occupy that block would then
make an entry into the log book indicating the block was occupied by
their train. Upon exiting a block, the crew would make an entry noting
that the block was cleared. Typically, only one train can occupy a
block of track in block register territory at one time. The
verifications and entries discussed above can be made in a variety of
different manners, to include via radio to an employee who keeps the
log book.
Under the existing RWP regulation, it is necessary to utilize one
of the existing methods of making track inaccessible under Sec.
214.327 in order to establish working limits on non-controlled track.
The rules governing block register territory are not currently
included. Railroads expressed concern to FRA about having to use
portable derails to render a segment of track inaccessible in block
register territory under existing Sec. 214.327, especially because
track in a block register territory can be main track.
The Working Group addressed this issue and recommended consensus
language, which would permit a roadway worker in charge or lone worker
to utilize the procedures governing block register territory to
establish working limits within such territory. Under this proposed
section, working limits will have been permissibly established if a
roadway worker in charge or lone worker complies with the applicable
railroad procedures for occupying a block register territory and makes
the required log entries to indicate the block is occupied. By doing
so, no trains or other on-track equipment would be permitted to enter
such block under a railroad's operating rules. However, under this
provision the lone worker or roadway worker in charge would have the
absolute right to render such track in a block register territory
inaccessible via the existing inaccessible track provisions at
paragraphs (a)(1)-(a)(5) of this section if they chose to do so for any
reason. In order to conform to regulatory text drafting practices, FRA
has varied from the recommended consensus language slightly and is
proposing to the words ``under the provisions of paragraphs (a)(1)
through (a)(6) of this section'' in the last sentence of paragraph
(a)(7). This language is being proposed in place of the recommended
Working Group language that read ``under the provisions of Sec. Sec.
214.327(a)(1) through 214.327(a)(5).'' This change to reference that
newly proposed paragraph (a)(6), rather than existing paragraph (a)(5),
would be the last paragraph in this section that could be used to
physically render track inaccessible. FRA requests comment on whether
newly proposed paragraph (a)(8) should also be included in that list.
FRA notes that roadway workers are already required by existing
Sec. 214.313(a) of the RWP regulation to follow all on-track safety
rules and procedures of a railroad. Thus, in complying with proposed
paragraph (a)(7), roadway workers would be required to comply with all
applicable rules governing the
[[Page 50349]]
occupation of track in a block register territory. FRA also notes that
it has slightly amended the recommended consensus text at the beginning
of the first sentence of proposed paragraph (a)(7), to read ``[a]
railroad's procedures governing block register territory.'' The
recommended consensus text initially contained reference to ``[t]he
provisions of a block register territory * * *.'' FRA has made this
slight change only for purposes of reading clarity. While there can be
no provisions of a block register territory, there can be provisions or
procedures which govern the use of such a territory. This change is not
intended to be substantive in nature.
New proposed paragraph (a)(8) would address the establishment of
working limits on non-controlled main tracks within yard limits via the
use of a bulletin. This provision was a Working Group consensus item
and would permit working limits to be established whereby trains are
issued bulletins in advance of occupying such main track which would
notify them of such working limits.
As background, while FRA believes the definitions of controlled
track and non-controlled track to be clear, FRA has received past
inquiries regarding the differences. This is partly due to a
misconception that the term ``main track'' is synonymous with
``controlled track.'' In fact, a main track is often a non-controlled
track, which typically is the case within yard limits or restricted
limits. Restricted limits generally refer to main track where trains
may only proceed at restricted speed, even if operating on a clear
signal indication. In yard limits, trains or other on-track equipment
can occupy the main track in most instances without obtaining
authorization from a train dispatcher or control operator. Where this
is the case, and trains or other on-track equipment derive their
authority to occupy the main track in yard limits from the railroad's
operating rules, such track is considered non-controlled track. In some
cases, a non-controlled main track through yard limits may even be
equipped with a signal system as discussed in the analysis for Sec.
214.301 above, and when trains are operating on a signal indication
more favorable than ``restricting'' they may be permitted to move at
greater than restricted speed. However, if via railroad operating rules
there is a control operator or dispatcher in control of all occupancy
by trains, engines, and on-track equipment within yard limits, such
track would be considered controlled track. FRA notes that trains may
be required by railroad rules to contact a yardmaster before entering
main track in yard limits. Where this mandatory contact is not
authoritative in nature, and occupancy authority is still gained via
railroad operating rules, such track would still be considered non-
controlled track.
Since main track within yard limits is generally non-controlled
track, the Working Group addressed this issue and came to consensus to
recommend allowing working limits to be established via the use of
track bulletins. Under proposed paragraph (a)(8), railroad operating
rules would be required to prohibit movements on main track within yard
limits unless the train or engine crew or operator of on-track
equipment was first required to receive notification of any working
limits in effect. Before occupying such main track where the
notification denoted that working limits were in effect, the crews or
operators would first be required to receive permission from the
roadway worker in charge to enter the working limits. Working limits
established in this manner would be issued by a railroad for planned
work activities, such that bulletins or other forms of notification
would be prepared ahead of the work to be performed in time to be
issued to train crews or operators (unplanned work that would not allow
notifications to be issued appropriately ahead of time would still
require that another form of working limits or on-track safety be
established).
This provision would also require, where the maximum authorized
speed was restricted speed, that red flags or signs be displayed at the
limits of the authority. This requirement would provide an extra
measure of safety by providing train crews notice that, unless they had
received permission through working limits, they must stop their
movement. Where restricted speed is in effect, train crews or operators
are required to stop their movement within one-half the range of
vision. Therefore, crews who had not received permission into working
limits from the roadway worker in charge, and who came upon such a red
flag, would be required to stop their movement within one-half the
distance to the flag, which would be short of working limits.
Where the maximum authorized speed is in excess of restricted
speed, advance warning flags or signs must be displayed, such that a
crew would have an opportunity to stop their train short of working
limits if they had not received permission to enter the limits from the
roadway worker in charge. The proposed language states that advance
flags must be used ``where physical characteristics permit.'' This
could refer to locations where entrances exist within the working
limits (other than main tracks connected to the main track within the
working limits) and only red flags would be necessary. Otherwise, where
speeds within yard limits are in excess of restricted speed, FRA would
expect every reasonable effort that advance flags be placed far enough
out to provide advance warning such that a train crew could stop an on-
track movement short of entering working limits. Railroad operating
rules in effect would govern the use of such advance flags.
FRA has slightly amended the language of this paragraph as
recommended by the RSAC. The first sentence of the recommended text
read ``[r]ailroad operating rules that require train or engine
movements to be prohibited on a main track within yard limits or
restricted limits until the train or engine receives notification of
any working limits in effect and do not enter working limits until
permission is received by the roadway worker in charge.'' For purposes
of reading clarity only, FRA has instead proposed that the first
sentence read ``[r]ailroad operating rules that prohibit train or
engine movements on a main track within yard limits or restricted
limits until the train or engine receives notification of any working
limits in effect and prohibit the train or engine from entering any
working limits until permission is received by the roadway worker in
charge.'' This amendment is not intended to be substantive in nature.
FRA is proposing this paragraph (a)(8), as it was a Working Group
consensus recommendation and because it has the potential to provide
more flexibility for the industry in yard limits operating situations.
However, requests comment on whether this provision has the potential
to cause confusion over whether track is controlled track or non-
controlled track, as in some respects it mixes aspects of both (train
crews need a bulletin and may be required to contact a dispatcher or
yardmaster to enter yard limits, but at the same time do not
technically need ``permission'' to occupy such track).\10\ Further, FRA
requests comment on the last sentence of the consensus text recommended
by the Working Group. Paragraph (a)(8) would require advance flags to
be placed out to protect working limits when speeds greater than
restricted
[[Page 50350]]
speed are authorized, and where physical characteristics permit such
placement of flags. As mentioned above, FRA is aware it is not possible
(or necessary) to always place advance flags out under this proposed
provision. However, FRA is contemplating whether, if this provision was
adopted in a final rule, more specific rule text is needed to govern
the use of advance flags where speeds greater than restricted speed are
authorized within yard limits. FRA wishes to avoid any situation where,
at the discretion of a roadway worker in charge, advance flags are not
placed out in situations where they necessarily should be and whereby a
risk of train incursion into working limits is created.
---------------------------------------------------------------------------
\10\ As background, the Northeast Operating Rules Advisory
Committee (NORAC, the operating rules adopted by many railroads in
the northeast United States) has treated main track within yard
limits as controlled track, while the General Code of Operating
Rules (GCOR, the operating rules primarily used by many railroads in
the western United States) treats such track as non-controlled
track.
---------------------------------------------------------------------------
Section 214.329 Train Approach Warning Provided by Watchmen/Lookouts
Section 214.329 addresses the use of watchmen/lookouts to provide
warning of approaching trains to roadway workers in a roadway work
group who foul any track outside of working limits. FRA is proposing
four amendments to this section. The first proposed amendment is to
accommodate one item being proposed in the passenger station platform
snow removal section, as discussed at length below. Specifically,
proposed Sec. 214.338(a)(2)(iii) provides that during snow removal
operations being performed under that section, that train approach
warning may be based on available sight distance, which in some
geographical circumstances may provide for less warning time than
prescribed by existing Sec. 214.329(a). In order to account for that
proposed provision, FRA is proposing to amend the first sentence of
Sec. 214.329 by inserting the words ``[e]xcept as provided for in
Sec. 214.338(a)(2)(iii) '' at the beginning of the sentence.
FRA is also proposing to amend paragraph (a) to change reference to
``maximum speed authorized'' to instead read ``maximum authorized
speed.'' During the Working Group meetings, consensus was reached to
define the term ``maximum authorized speed'' for purposes of providing
clarity to existing sections Sec. Sec. 214.329(a) and 214.337(c)(4),
as discussed above in the section-by-section analysis for Sec. 214.7,
the definitions section. However, the Working Group recommended adding
a definition for the term ``maximum authorized speed'' rather than
adopting the wording as it currently exists in Sec. Sec. 214.329 and
214.337. As the term ``maximum authorized speed'' is the more commonly
used word order in the railroad industry, FRA is proposing to amend
those two sections to reflect the new consensus term recommended by the
Working Group. FRA is proposing this for both accuracy and consistency
purposes. FRA is not proposing to amend the substance of these
regulations with this proposal.
FRA is also proposing to amend paragraph (a) of this section by
adding a sentence to the end of the paragraph that reads ``[t]he place
of safety to be occupied upon the approach of a train may not be on a
track, unless working limits are established on that track.'' This
exact language is already included in existing Sec. 214.337(d), which
governs on-track safety procedures for lone workers. This requirement
is also the subject of FRA Technical Bulletin G-05-10. As explained in
that Technical Bulletin, it is expected that roadway workers clear all
tracks upon being given train approach warning, as by clearing onto
another track where only train approach warning (or no form on-track
safety) is being provided presents an extremely dangerous situation
which may potentially trap workers if multiple train movements occur
simultaneously. FRA has long interpreted existing Sec. 214.329 to
already largely prohibit the use of another track as a place of safety,
and this proposed amendment would merely codify that interpretation.
FRA is also proposing to add a new paragraph (h) to this section.
This paragraph would prohibit the use of train approach warning as an
acceptable form of on-track safety for a roadway work group using
equipment or material that cannot be readily removed by hand from the
track to be cleared. The existing RWP regulation is silent on this
point, and FRA wished to establish minimum safety standards governing
this issue. The Working Group discussed this provision and agreed in
concept with the prohibition, but was unable to reach a consensus
recommendation concerning the mobility of equipment on the track and
three variations of its removal. The three variations of removal
discussed were equipment that was readily removable: (1) By hand; (2)
by hand by one employee; or, (3) by hand by two employees. FRA is
proposing that the new paragraph (h) indicate that train approach
warning may be used when the equipment or material used by the workers
fouling the track can be removed ``by hand'' upon the notification of
the approach of a train. By stating only ``by hand,'' and not
specifying the number of persons, the proposed amendment still allows
for flexibility for railroads in various operating situations. Where
only one roadway worker is performing work, and he or she is being
provided train approach warning by another roadway worker, this would
necessitate that the equipment being used is of the nature that it can
be removed from the track by hand by one person. Where additional
roadway workers are present and in the immediate work area, this would
allow for multiple roadway workers to remove a piece of equipment by
hand upon being given train approach warning, so long as all roadway
workers are able to remove the equipment and occupy a place of safety
not less than 15 seconds before a train passes, as required by existing
paragraph (a). An example of an activity that would be prohibited by
proposed paragraph (h) would be the use of train approach warning as
the method of on-track safety to place a crane boom into the foul of a
track. However, on non-controlled track at location where it is
feasible to stop a train, such as yard track, the use of a flagman via
existing Sec. 214.327(a)(1) might be appropriate. In that example, it
may be practical during the on-track safety briefing to reassign a
watchman/lookout to instead serve as a flagman (if so qualified and
equipped) to stop trains short of any equipment fouling the track. On
controlled track it would be appropriate to establish working limits.
During the Working Group discussion on this topic, a representative
of a labor organization stressed that Sec. 214.329 was promulgated in
order to provide protection for roadway workers, and not for equipment.
FRA agrees, but feels this requirement, if complied with appropriately,
will advance railroad safety. Roadway workers who are unable to remove
equipment from a track and occupy a place of safety prior to the
arrival of a train place themselves at risk, amongst other things, of
being struck by objects that are hit by trains. They also may obviously
be at risk if they have to struggle to try to remove heavy equipment
from a track on which a train is approaching and do not occupy a place
of safety before the train's arrival. Train crews and passengers and
the general public are also placed at risk if equipment left on the
tracks is struck and the train derails as a result. Therefore, FRA
feels it is necessary to propose an amendment expressly limiting when
train approach warning may be used based on the type of equipment that
is fouling a track. FRA is also proposing a similar requirement in the
lone worker section, as discussed further in the section-by-section
analysis for Sec. 214.337 below. FRA requests additional comment on
these proposals.
FRA wishes to address a question regarding existing Sec. 214.329
that often arises. FRA is often asked whether the
[[Page 50351]]
use of a portable radio or a cell phone may be used as the sole method
used to provide train approach warning to roadway workers. As explained
in FRA Technical Bulletin G-05-28, portable radios and cell phones
cannot be used as the sole communication to provide train approach
warning. FRA believes this practice to be dangerous; especially should
these devices fail in any manner as a train approaches a roadway work
group. Further, these devices are not among those expressly listed in
the existing watchman/lookout definition in Sec. 214.7. While FRA has
no objection to a radio or a cell phone being used to supplement the
equipment issued to a watchman/lookout to provide train approach
warning, FRA does not consider them to be proper equipment to provide
sole auditory warning in accordance with this section.
Section 214.331 Definite Train Location
FRA is proposing to require that the use of definite train location
as a form of on-track safety be discontinued one year after publication
of a final rule in this rulemaking. Railroads were permitted to use
this form of on-track safety if they already had such procedures in
effect as of January 15, 1997, as established by existing Sec. Sec.
214.331(a) & (c)(1). Class I and commuter railroads that were
grandfathered in by that date were required to schedule a phase-out of
the use of definite train location by a definite date, as more positive
forms of on-track safety are now available. As it has been over 15
years since the scheduled phase-out requirement was promulgated, FRA is
proposing to end the use of this method of providing on-track safety.
The use of this method of providing on-track safety is not common, and
FRA staff is currently unaware of any railroads that are using this
form of on-track safety. However, FRA requests comment on this
proposal.
Section 214.333 Informational Line-Ups of Trains
FRA is proposing to require that the use of informational line-ups
of trains as a form of on-track safety be discontinued one year after
publication of a final rule in this rulemaking. Railroads were
permitted to use this form of on-track safety if they already had such
procedures in effect as of March 14, 1996, as established by existing
Sec. 214.333(a). Railroads that were grandfathered in by that date
were required by paragraph (c) to schedule a phase-out of the use of
information line-ups of trains, as more positive forms of on-track
safety are now available. As it has been over 15 years since the
scheduled phase-out requirement was promulgated, FRA is proposing to
end the use of this form of on-track safety. As discussed in the
preamble to the final rule which promulgated this section, the Advisory
Committee involved in creating the original RWP regulation stated that
the use of train line-ups was not common at that time, and recommended
that such use be further reduced and discontinued. 61 FR 65971. FRA
staff is currently unaware of any railroads that are using this form of
on-track safety. FRA requests comment on this proposal.
Section 214.335 On-Track Safety Procedures for Roadway Work Groups,
General
Section 214.335 sets forth the general on-track safety procedures
for roadway work groups and, in part, requires that before a member of
a roadway work group fouls a track, on-track safety must be established
in accordance with part 214. This NPRM reflects that the adjacent track
rulemaking slightly amended the title of this existing section by
adding the word ``general.'' FRA is proposing four amendments to this
section. First, FRA is proposing to amend existing paragraph (a) of
this section in order to include reference to proposed Sec. 214.324
(verbal protection) and to Sec. 214.336 (adjacent track protections)
in the sections listed. This proposal is simply to update that list
should proposed Sec. 214.324 be adopted in a final rule in this
rulemaking, and should Sec. 214.336 of the adjacent track rulemaking
go into effect as planned on July 1, 2013.
Next, similar to the proposed amendment to Sec. 214.329(a), FRA is
proposing to add the words ``except as provided for in Sec. 214.338''
to the beginning of paragraph (a). This proposed amendment is intended
to acknowledge the new station platform snow removal section, proposed
in Sec. 214.338 below, represents an exception from (or is a hybrid
form of) the typical methods of providing on-track safety. Work
performed under proposed Sec. 214.338 would be governed by the
requirements of that section.
FRA is also proposing to replace the word ``and'' from the existing
text of paragraph (a) between reference to Sec. 214.329 and Sec.
214.331, and to replace it with the word ``or''. The word ``and'' has
appeared in the text of this section since the RWP regulation's
inception in 1996. However, FRA noticed that, as written, the word
``and'' could imply that all of the on-track safety/working limits
sections listed would have to be provided when a roadway worker fouls a
track. This is obviously not what was intended when this section was
promulgated, nor is it how this section has been applied. FRA believes
the use of the word ``or'' is more appropriate when listing the various
sections that may be utilized to provide on-track safety for roadway
workers.
Finally, for consistency purposes, FRA is proposing to incorporate
the new term ``roadway worker in charge'' into existing paragraph (b)
of this section. That new proposed term would replace the existing
language in paragraph (b) that generically refers to the ``roadway
worker responsible for the on-track safety of the roadway work group.''
This proposed change would help provide uniformity of reference to
``roadway worker[s] in charge'' at various locations in the RWP
regulation text.
Section 214.337 On-Track Safety Procedures for Lone Workers
Section 214.337 governs the on-track safety procedures for lone
workers. FRA is proposing two changes to this section, both of which
are Working Group consensus recommendations. First, existing Sec.
214.337 prohibits lone workers from using individual train detection
(ITD) as the method of establishing on-track safety in certain
locations. Specifically, existing paragraph (c)(3) prohibits the use of
ITD within the limits of a manual interlocking, a controlled point, or
a remotely controlled hump yard facility. In a hump yard, equipment can
simultaneously move in either direction on a multitude of tracks.
Similarly, within the limits of a manual interlocking or a controlled
point, a particular physical layout may contain multiple switches,
tracks, diamonds, or a movable bridge(s). As such, the prohibition on
using ITD in those locations recognized that it would be difficult for
a lone worker to perform work while safely detecting trains that could
be approaching from multiple directions on multiple tracks.
The Working Group did address expanding the use of ITD in certain
instances in those prohibited locations where the safety concerns
discussed above are not implicated. Specifically, the Working Group
came to consensus to recommend the allowance of ITD at controlled
points that consist of signals only. The use of ITD at a controlled
point consisting of signals only presents no more danger than using ITD
for on-track safety on any track within a traffic control system. There
is no additional risk to lone worker safety because if a controlled
point consists of signals only, there are no switches, diamonds, or
movable bridges that the lone worker
[[Page 50352]]
needs to monitor for purposes of train detection on multiple tracks.
Based on the above, FRA is proposing to amend existing paragraph
(c)(3) to incorporate this consensus recommendation which states that
ITD can only be used ``outside the limits of a manual interlocking, a
controlled point (except those consisting of signals only), or a
remotely controlled hump yard facility.'' The Working Group discussed
potentially recommending expansion of this exception by adding
additional manual interlockings and controlled point locations where
ITD could be used by lone workers. However, no consensus recommendation
on those additional locations was reached. FRA recognizes that
expanding the number of locations where ITD is permitted to be used
could represent a cost-savings to the railroad industry. For example,
if the use of ITD were expanded to encompass more physical layouts,
there would then be additional locations where lone workers would not
have to establish working limits or a roadway worker would not have to
utilize an additional employee in the form of a watchman/lookout to
perform his or her work.
However, the nature of the work performed in interlockings and
controlled points is often complicated, and the simultaneous detection
of trains via ITD might not be safe. For example, signal maintainers
often perform intricate work inside the limits of a manual interlocking
or controlled point that requires great attention to detail. A failure
to properly perform such work could result in signal or switch
malfunctions, and resultant train accidents. While engaged in such
intricate work at locations where the physical layout potentially
permits the approach of trains from a multitude of tracks or
directions, a lone worker may not be able to devote the vigilant
attention necessary to detect approaching trains. Therefore, due to
safety concerns, FRA is not proposing to expand the use of ITD beyond
that of the Working Group consensus recommendation.
Next, FRA is proposing to add a new paragraph (g) to this section.
This new paragraph would prohibit the use of ITD as an acceptable form
of on-track safety for a lone worker using equipment or material that
cannot be readily removed from a track by hand. This new consensus
paragraph was recommended by the Working Group in part to address
concerns that a lone worker might not be able to remove a piece of
equipment he or she is using before the arrival of an approaching
train, making a track unsafe for the passage of the train. This
proposed paragraph is also intended to help ensure a lone worker does
not have to struggle to remove a piece of equipment located on a track
such that the lone worker is not able to remove the equipment from the
track and occupy a place of safety in the time specified by existing
paragraph (c)(4) of this section. This requirement parallels a similar
requirement discussed above that is being proposed in Sec. 214.329.
However, the requirement being proposed in Sec. 214.329 permits the
use of equipment that might have to be removed by hand by more than one
roadway worker. Because Sec. 214.337 is specific to lone workers, the
proposal in this section obviously requires a lone worker to be able to
remove such equipment by hand by his or herself, as lone workers work
independently from other roadway workers.
Section 214.338 Passenger Station Platform Snow Removal and Cleaning
The proposal contained in this new section was discussed
extensively by the Working Group, but no consensus recommendation was
made to FRA. FRA recognizes that certain activities, such as janitorial
work in a passenger station away from the edge of a passenger platform,
under limited circumstances, can occur safely without on-track safety
being established in accordance with part 214. However, work at the
edge of a station platform, including snow removal with hand tools
within the four-foot fouling zone, requires that a form of on-track
safety be established in order to ensure the worker's safety. While
such work may not be of the same intensity as maintenance or
construction of track or structures that is typically associated with
roadway worker activities, such activities are governed by the existing
RWP regulation.
Regarding work such as passenger station platform snow removal,
railroads have traditionally expressed concern about their inability to
provide roadway workers in charge for each work group (often consisting
of contractors) at a large number of locations to remove snow from
passenger station platforms when snowstorms occur. It can be extremely
difficult to provide on-track safety for platform snow removal due to
the transitory nature of such work. Railroads' concerns on this issue
are heightened because such work might not typically involve fouling a
track, except for the use of hand tools in the same area where
passengers typically stand to wait for, and to enter and exit, trains.
Also, accident data does not point to a significant number of incidents
or any pattern of problems at passenger platforms. However, FRA
recognizes that roadway workers performing snow removal duties on
passenger station platforms are exposed to the risks associated with
moving trains. FRA also recognizes that while roadway workers
performing snow removal duties might occupy the same place on a
platform as rail passengers do, they would actually be conducting work,
which increases risk exposure.
In order to address this issue, FRA is proposing a new Sec.
214.338, which would permit, under certain enumerated circumstances, a
single roadway worker in charge to oversee several station platform
work coordinators. Such station platform work coordinators could
supervise roadway workers using hand tools to remove snow from
passenger platforms or performing light duty cleaning, such as picking
up trash or mopping. A station platform work coordinator would not
replace, but would supplement the duties of a roadway worker in charge.
Either a railroad employee or a contractor employee may be trained and
qualified to hold this position. A station platform work coordinator
would be required to be trained and qualified in accordance with the
specific requirements of proposed Sec. 214.352, which is discussed
further below. In proposing this section, FRA has attempted to balance
the necessity for railroads to timely provide a safe environment for
their passengers while also providing for the safety of roadway workers
who perform snow removal or cleaning work.
Proposed paragraph (a) of this section states that snow removal or
cleaning activities on passenger station platforms may be performed
without establishing working limits in accordance with part 214
provided that numerous conditions are met. Paragraph (a)(1) would
require that the railroad designate a station platform work coordinator
responsible for directing the on-track safety of the roadway worker or
roadway work group performing the snow removal or cleaning. Paragraph
(a)(2) would require that the railroad ensure that the fouling areas in
which only non-powered hand tools may be used are clearly delineated,
and are no less than four feet from the field side of the nearest rail.
Such delineations could be made via a tactile strip, via temporary
safety cones, or even by printed diagrams being provided to affected
roadway workers. Proposed paragraph (a)(3) would require that a station
platform work coordinator must also have access to either a landline or
wireless communication device (cell phone, railroad radio, or other
radio) that would permit him or
[[Page 50353]]
her to communicate with the roadway worker in charge, and, in
emergencies, to communicate with the train dispatcher or control
operator in charge of train and on-track equipment movements on the
track(s) at the station. The railroad must provide to the work
coordinator the contact information and instructions for reaching both
the designated roadway worker in charge and the train dispatcher or
control operator.
In accordance with proposed paragraph (a)(4), prior to beginning
work, the station platform work coordinator must inform the designated
roadway worker in charge of the work to be performed, and the work
coordinator must also remain at the station platform the entire time
the work is being performed. The station platform work coordinator must
also conduct an on-track job safety briefing with the roadway worker or
roadway work group performing such work in accordance with the
requirements of existing Sec. 214.315. The station platform work
coordinator must also establish train approach warning that requires a
watchman/lookout to warn of the approach of any train or on-track
equipment. When such train approach warning is given, affected roadway
workers would be required to withdraw hand-held non-powered tools from
the delineated fouling area. Due to the myriad of physical layouts that
may exist and the unobtrusive nature of the work being performed, FRA
proposes that this warning may be based on available sight distance and
may give less timely notice than that prescribed by Sec. 214.329(a).
To require the full regime of sight and clearing time under train
approach warning could require advance watchmen be placed along the
right-of-way during inclement weather, creating an unnecessary
dangerous situation. Also, the establishment of a significant number of
simultaneous working limits in inclement weather could potentially
affect the safe movement of trains. The station platform work
coordinator may provide the train approach warning as long as he or she
is not engaged in or distracted by any other activities. As such, the
station platform work coordinator must inform workers to cease work at
the edge of a station platform whenever he is unable to devote full
attention to his or her train approach warning task. In any case, each
employee providing train approach warning services must be trained in
accordance with the requirements of Sec. 214.349.
Proposed paragraph (a)(5) would establish that roadway workers
conducting snow removal or cleaning in accordance with Sec. 214.338
must position themselves on the station platform outside the delineated
fouling area, and may only use hand-held, non-powered tools to perform
such duties. FRA has not proposed rule text requiring workers to wear
highly visible garments while performing work subject to this section.
FRA is, however, considering adopting a provision in a final rule
requiring workers performing work subject to this section to wear
highly visible garments that would meet existing American National
Standards Institute/International Safety Equipment Association 107-
2010, American National Standard for High-Visibility Safety Apparel and
Headwear. FRA requests comment on this issue, and is specifically
interested in comment on whether this requirement would enhance safety
by helping to clearly identify which persons on a passenger station
platform were engaged in such snow removal or cleaning work. FRA also
requests comment regarding whether such a requirement would be cost
effective, and the basis for the content of comments on that point.
Proposed paragraph (a)(6) would only permit this section to be
utilized if the maximum authorized speed on the track adjacent to the
platform does not exceed 79 mph. Finally proposed paragraph (b)
requires that if any of the conditions in paragraph (a) are no longer
be met during the course of the work (e.g., if the provided wireless
communication device or landline is no longer functioning, or if the
designated roadway worker in charge is no longer accessible), all work
that would require a roadway worker to encroach the delineated fouling
area shall cease. Work in the delineated fouling area may resume only
after all the requirements of this proposed section are met, or if a
roadway worker in charge arrives at the work site to provide on-track
safety consistent with the requirements of this proposed section, or
consistent with other part 214 on-track safety procedures.
FRA notes that the following activities would not be governed by
this proposed section, but would continue to be governed by the
existing on-track safety requirements subpart C: (1) When a roadway
worker actually positions him or herself within the delineated fouling
space; (2) when a roadway worker places a power tool of any type (e.g.,
a snow blower) in the delineated fouling space; or, (3) when a roadway
worker performs work of any nature in a crosswalk spanning the track(s)
at station platforms.
In proposing this section, FRA recognizes that there are
differences in the work environment on high versus low-level station
platforms. In addition, railroads vary with respect to their
established clearance dimensions. Therefore, FRA is proposing that each
railroad specifically delineate the fouling point on such platforms at
which roadway workers must position themselves clear of while
performing work under this section. With respect to enforcement
activities associated with this section, FRA intends to use the
railroad's designated delineation to identify the fouling area,
provided the area delinated is at least four feet from the field side
of the rail nearest the station platform.
Finally, this proposed section does not contemplate the use of ITD.
As such, if a lone worker is performing work at the edge of a station
platform, regardless of the nature of the work being performed, all of
the requirements of Sec. 214.337 would apply.
Section 214.339 Audible Warning From Trains
The Working Group recommended language that would replace the
existing text of Sec. 214.339. Since promulgation of the original RWP
regulation, enforcement issues have arisen regarding whether an audible
warning must be sounded in accordance with existing Sec. 214.339 when
roadway workers are not fouling track but are in the vicinity, and also
regarding the required frequency of such warning while trains pass
large roadway work groups. There are currently four FRA Technical
Bulletins, G-05-08, G-05-15, G-05-26, and G-05-27, which provide
guidance to the railroad industry on the requirements of Sec. 214.339.
As discussed further below, those technical bulletins would be
supplanted upon adoption of any revision to the audible warning
requirement in a final rule in this rulemaking. The proposed consensus
text significantly modifies existing Sec. 214.339 in order to provide
more clarity, and also provides discretion for railroads to develop
audible warning procedures to address various operating situations.
Proposed paragraph (a) states that each railroad shall have in
effect and comply with written procedures which govern the audible
warning to be given by trains or locomotives. Such procedures must
require an audible warning be given when approaching roadway workers or
roadway maintenance machines that are either on the track on which the
movement is occurring, or are about the track if at the risk of
fouling. For example, if roadway workers are engaged in work on a track
adjacent to a track upon which a train
[[Page 50354]]
is approaching, such procedures must require that an audible warning be
given. The same would apply to roadway maintenance machines that are
moving or are in use on a track adjacent to an approaching locomotive.
Roadway machines might obscure the locomotive engineer's view of
roadway workers on the ground in the vicinity of a machine. While these
two examples focus on roadway workers and roadway maintenance machines
located on a track adjacent to the track occupied by an approaching
train, it is not FRA's intent to limit the adoption of procedures which
require an audible warning be given for workers or equipment located
further than the adjacent track.
FRA has slightly amended the introductory text of proposed
paragraph (a) as recommended by the RSAC. The recommended consensus
text of the first sentence read that ``[e]ach railroad shall have in
effect and comply with written procedures that prescribe effective
requirements for audible warning by horn and/or bell for trains and
locomotives approaching any roadway workers or roadway maintenance
machines that are either on the track on which the movement is
occurring, or about the track if at risk of fouling.'' FRA has proposed
replacing the recommended words ``or about the track at risk of
fouling'' with the words ``or about the track if the roadway workers or
roadway maintenance machines are at risk of fouling the track.'' This
proposed amendment is not substantive in nature, but is only intended
for clarity.
Proposed paragraph (a) would also specifically require the
procedures adopted by a railroad address both the initial horn warning
to be given, and subsequent warnings. FRA notes that an audible warning
consisting only of the locomotive horn being blown for one sequence by
a train or locomotive upon the approach and passage of a large roadway
work group, such as a tie and surfacing production crew that is spaced
out over a long distance, would violate this proposed regulation. At a
minimum in such situations, the governing procedures must require that
the locomotive horn be sounded and bell be rung upon the approach of
each unit of such a work crew. However, FRA is cognizant of the
sensitivity of residents who live in close proximity to railroad
tracks. As such, when maintenance equipment is obviously just being
stored on siding tracks adjacent to a main track, FRA would generally
not take exception to a train that does not sound its horn for
equipment that is clearly not in use.
Proposed paragraph (a) would also require that the procedures
adopted by a railroad address alternative warnings in areas where
sounding the horn adversely affects roadway workers. Such alternative
warnings may be provided for in locations such as tunnels or passenger
terminals, where a train horn could create a hearing hazard for roadway
workers and other people. Alternative warning procedures could also be
implemented in yards, where a locomotive might frequently pass roadway
workers due to the back and forth movement cycles that are common in
switching and classification operations. The frequent sounding of horns
in such situations can defeat the effectiveness of the warning.
If proposed paragraph (a) is adopted in a final rule in this
rulemaking, FRA Technical Bulletins G-05-08, G-05-15 and G-05-27 would
be supplanted. Technical Bulletins G-05-08 and G-05-15 addressed
audible warnings over a large work area and duration of warnings,
respectively, while G-05-27 addressed when an audible warning was
required. These technical bulletins would be supplanted as this section
would require that a railroad's procedures prescribe when an audible
warning is required when roadway workers or roadway maintenance
machines are on or about tracks, and also requires that such procedures
address both initial and subsequent warnings.
Proposed paragraph (b) reiterates an existing requirement of Sec.
214.339, and states that required audible warnings cannot substitute
for on-track safety procedures prescribed in part 214. The on-track
safety must be one of the forms of protection prescribed by the RWP
regulation. The audible warning requirement is only intended to provide
an additional measure of safety in the event that roadway workers might
be fouling the track upon which a train or locomotive is approaching.
Next, FRA has received inquiries regarding audible warnings during
shoving movements, and also regarding multiple-unit (MU) passenger
train equipment not equipped with a bell. With regard to MU equipment
not equipped with a bell, FRA Technical Bulletin G-05-26 stated that
such equipment would still be in compliance with existing Sec. 214.339
so long as the horn was sounded to provide an audible warning when
necessary. The proposed amendments to Sec. 214.339 are still
consistent with the guidance in Technical Bulletin G-05-26, and if such
amendments are adopted in a final rule, the technical bulletin would be
supplanted. With regard to audible warnings during shoving movements,
the requirement to provide an audible warning is predicated on the
locomotive engineer or train operator being able to see roadway workers
ahead of his or her movement. Therefore, if a locomotive engineer does
not have the capability to see roadway workers ahead of his or her
movement (e.g., a significant number of cars ahead of the locomotive),
and does not sound the horn, the engineer would not be considered to be
in violation of this section. However, with increased remote control
operations in the railroad industry, in which a large percentage of
moves are considered shoving movements, FRA would encourage railroads'
to address remote control operations with respect to this proposed
section in their adopted procedures.
FRA notes that it encourages the use of highly visible reflective
clothing and personal protective equipment to help provide clear
indication to locomotive engineers and train operators that roadway
workers are present in the vicinity of railroad tracks. The current RWP
regulation does not require such equipment, but as discussed in the
analysis of Sec. 214.338 above, FRA is requesting comment on such a
requirement for roadway workers who perform certain duties. Finally,
FRA notes that railroads would be required to comply with the
requirements of this section even within highway-rail grade crossing
quiet zones.
Sec. 214.343 Training and Qualification, General
Existing Sec. 214.343 sets forth the general training and
qualification requirements for roadway workers. Specifically,
paragraphs (a), (b), and (d) of this section prohibit an employer from
assigning an employee the duties of a roadway worker (and prohibits an
employee from accepting such an assignment), until that employee has
received training in the on-track safety procedures associated with the
assignment, and also require that roadway workers receive initial and
recurrent training once every calendar year on the on-track safety
rules and procedures they are required to follow, and requires
employers of roadway workers to maintain records of each roadway worker
qualification in effect.
Paragraph (c) of existing Sec. 214.343 requires that railroad
employees other than roadway workers who are associated with on-track
safety procedures, and whose primary duties involve the movement and
protection of trains, be trained ``to perform their functions related
to on-track safety through the training and qualification procedures
prescribed by the operating
[[Page 50355]]
railroad for the primary position of the employee.
FRA is proposing one amendment to this existing section. That
proposed amendment is to add the words ``[e]xcept as provided for in
Sec. 214.353 * * *'' to the beginning of paragraph (c). This change is
to reflect that FRA is proposing to amend the existing rule text of
Sec. 214.353 to also expressly govern the training of employees other
than ``roadway workers'' (typically transportation employees such as
conductors) who act as roadway workers in charge. FRA's explanation of
this change is contained in the section-by-section analysis for Sec.
214.353 below.
Sec. 214.345 Training for All Roadway Workers
Existing Sec. 214.345 sets forth the minimum content of training
provided to roadway workers in accordance with part 214. As recommended
by the Working Group, FRA is proposing to amend this section by adding
the words ``[c]onsistent with Sec. 214.343(b)'' to the beginning of
the first sentence of the existing introductory paragraph of that
section. This amendment is proposed for clarity, and reinforces that
the existing RWP regulation requires that each roadway worker must be
trained, at a minimum, on the items listed in this section both
initially and once every calendar year. FRA also notes that per
existing Sec. 214.343(b), roadway workers must also be trained once
every calendar year on the on-track safety rules and procedures they
are required to follow. Existing FRA Technical Bulletin G-05-16
previously provided guidance on these existing requirements.
FRA is also proposing to amend this section by adding a new
paragraph (f). As discussed above in the section-by-section analysis
for proposed Sec. 214.317(b), the Working Group recommended a
consensus requirement that all roadway worker training include
instruction on an employer's procedures governing the determination of
whether it is safe to walk across railroad tracks. FRA removed that
consensus item from Sec. 214.317(b), and has proposed to insert it
into this section with the other existing roadway worker training
requirements, where it is more appropriately located. This proposed
requirement is intended to help enable roadway workers safely traverse
tracks they may need to cross while not directly engaged in their
roadway worker duties when no formal on-track safety is in place on the
tracks to be crossed (e.g., when crossing tracks to retrieve a tool or
to reach a work area). Fatalities have occurred when roadway workers
walked across tracks and were struck by rolling equipment, and this
proposal is intended to help prevent similar incidents from occurring
in the future.
Sec. 214.347 Training and Qualification for Lone Workers
Section 214.347 sets forth the training and qualification
requirements applicable to lone workers. FRA is proposing one change to
this existing section, and is requesting further comment on whether to
make additional amendments in a final rule. First, as discussed above,
the Working Group's consensus recommendation for the proposed
amendments to Sec. 214.309 contained a requirement that lone workers
receive instruction on the alternative means to access the information
in a railroad's on-track safety manual when his or her duties make it
impracticable to carry the manual. FRA removed that consensus
recommendation from Sec. 214.309, and has proposed to insert it here
with the other existing lone worker training requirements, where FRA
believes it is more appropriately located. The alternate means to
access the information by a lone worker could include the use of a
phone or radio for the lone worker to contact an employee who has the
contents of the on-track safety manual readily accessible. This
provision would require an employer to train lone workers on the
alternative means of access that the employer adopts.
Next, as discussed in the preamble above, the Working Group
recommended consensus amendments that would have expressly required
recurrent qualification every 24 months and recurrent lone worker
training every calendar year (for all of the additional roadway worker
qualifications in part 214, e.g., lone worker, watchman/lookout,
flagman, roadway worker in charge, and roadway maintenance machine
operator). However, in the time period that has passed since the
Working Group proposed consensus text for this section, RSIA 2008
mandated that FRA undertake a rulemaking to set minimum training
standards for ``each class and craft of safety-related railroad
employee,'' to include training standards for roadway workers. That
rulemaking was undertaken by the RSAC, and FRA recently published an
NPRM proposing such minimum training standards. 77 FR 6412. The
training standards NPRM contains an extensive proposal for refresher
training and qualification requirements for roadway workers. Because
the consensus recommendation of the RSAC do not parallel the proposed
refresher training and qualification requirements in the statutorily
mandated training standards rulemaking, FRA is not proposing specific
rule text pertaining to additional roadway worker recurrent training
and qualification requirements, but rather is requesting further
comment on how to proceed in a final rule.
Finally, as also discussed in the preamble above, FRA is
contemplating adding a requirement to a final rule in this rulemaking
that lone workers be qualified on the physical characteristics at
locations where the lone worker fouls track to perform work. FRA
believes that such qualification on the physical characteristics at a
particular location could aid in a lone worker's ability to be able to
safely detect approaching trains and make the appropriate distance
determination as required by existing Sec. 214.337(a). FRA is not,
however, proposing rule text for this potential requirement, and
requests further comment.
Section 214.352 Training and Qualification of Station Platform Work
Coordinators
FRA is proposing a new Sec. 214.352 that would address training
requirements for station platform work coordinators. As new proposed
Sec. 214.338 would establish procedures allowing multiple station
platform work coordinators to oversee snow removal or light cleaning
work under the direction of one roadway worker in charge, minimum
training and qualification requirements need to be established for such
coordinators.
As a station platform snow removal coordinator would for practical
purposes be an ``assistant'' roadway worker in charge, FRA is proposing
training requirements that closely mirror the existing training
requirements for a roadway worker in charge, with two exceptions.
First, a station platform work coordinator would not be required to be
trained on the application of the operating rules pertaining to the
establishment of working limits, but only on their content. FRA
believes that with training on the rules governing working limits, the
coordinator could ensure work remained within the limited scope of that
proposed in Sec. 214.338, and be cognizant of when it may be necessary
to contact the roadway worker in charge to establish working limits. As
the station platform work coordinator would never actually be
establishing working limits, training on how to do so would be
unnecessary. Second, FRA is not proposing to require that station
platform work coordinators be trained on the relevant physical
characteristics
[[Page 50356]]
of the territory upon which work was being performed. As work could
only be performed on a station platform under limited circumstances,
such training would not be necessary. This training is also not
necessary because if working limits or another form of on-track safety
needed to be established, a roadway worker in charge who is qualified
on the physical characteristics would first be required to be present.
Instead, FRA is proposing that station platform work coordinators would
have to receive training on the procedures to access the roadway worker
in charge, or the train dispatcher or control operator in an emergency,
per the requirements of proposed Sec. 214.338.
Such training would be required to be given initially before an
employee may perform work as a station platform work coordinator.
Refresher training and qualification for each station platform work
coordinator would be required to be evidenced by a recorded
examination, at the frequency dictated by the existing additional
roadway worker qualification sections. This proposed requirement is in
addition to the once each calendar year roadway worker training
requirements established by existing Sec. Sec. 214.343 and 214.345.
The approach that FRA ultimately adopts in a final rule with regard to
qualification and training frequencies for additional roadway worker
qualifications will also be adopted here.
FRA notes that under this proposed section, station platform work
coordinators would necessarily be required to understand the procedures
for, and be able to address, a good faith challenge. They would also
necessarily be required to provide a safety briefing as prescribed by
the roadway worker in charge and be qualified to provide train approach
warning.
Section 214.353 Training and Qualification of Each Roadway Worker in
Charge
Existing Sec. 214.353 is titled ``[t]raining and qualification of
roadway workers who provide on-track safety for roadway work groups''
and sets forth the general training and qualification requirements for
roadway workers who are responsible for the on-track safety of groups
of roadway workers through the establishment of working limits. FRA is
proposing several changes to this existing section, including both
recommended consensus items and non-consensus amendments. First, FRA is
proposing to change the title of this section to ``[t]raining and
qualification of each roadway worker in charge.'' This change is to
reflect FRA's proposal to adopt this new term, and is in accordance
with the proposals to use that new term to replace the varying generic
references to that position that appear throughout the existing RWP
regulation.
FRA is also proposing to add a new paragraph (a)(5) to this
section. Proposed paragraph (a)(5) is a Working Group consensus
recommendation that would require roadway workers in charge to be
trained on procedures ensuring they remain immediately accessible to
the roadway workers being protected by the on-track safety they are
responsible for establishing. This new proposed paragraph would
parallel the proposed requirement in Sec. 214.315(a)(5) that the on-
track safety job briefing given by a roadway worker in charge to a
roadway worker include information on the accessibility of the roadway
worker in charge, and on alternate procedures in the event the roadway
worker in charge is no longer accessible to members of the roadway work
group.
FRA is also proposing an additional amendment to existing paragraph
(a) of this section. This proposed amendment to the existing rule text
addresses situations where employees other than roadway workers act as
roadway workers in charge. There was much discussion by the Working
Group regarding conductors providing for the protection of roadway work
groups, but no consensus recommendation regarding this issue was
proposed for this NPRM.
As background, existing Sec. 214.343(c) states that railroad
employees other than roadway workers (often conductors or brakemen)
``who are associated with on-track safety procedures, and whose primary
duties are concerned with the movement and protection of trains, shall
be trained to perform their functions related to on-track safety
through the training and qualification procedures prescribed by the
operating rules for the primary position of the employee.'' This means
that when a non-roadway worker employee (such as a conductor) is
involved in providing for the on-track safety of a roadway work group
(such as by serving as a flagmen for a roadway work group), that the
non-roadway worker employee does not necessarily have to receive
training to perform such task in accordance with the existing RWP
regulation training section, but rather may receive the relevant
training to be able to proficiently perform such function via his or
her railroad's conductor training procedures.\11\ FRA Technical
Bulletin G-05-18 discussed Sec. 214.343(c), and explained that the
interval of such training may be permitted to occur on an alternate
basis from that required for a roadway worker in the RWP regulation
(according to a railroad's training frequency procedures prescribed for
a conductor in the above example, rather than for a roadway worker).
Regardless of the employee's traditional craft, it is essential that
any employee associated with on-track safety have sufficient knowledge
to assure that protection is properly applied.
---------------------------------------------------------------------------
\11\ FRA notes that employees of some smaller railroads may
perform work in a variety of crafts. An employee may perform track
maintenance work as a ``roadway worker'' one day, while then working
as a certified locomotive engineer the next day. FRA is not
attempting to describe such a situation in this section, but rather
is referring to situations where dedicated transportation employees
do not actually perform ``roadway worker'' duties, but are called on
to provide on-track safety for a roadway work group.
---------------------------------------------------------------------------
Next, existing Sec. 214.315(c) provides that one roadway worker in
charge must be designated to provide on-track safety for a roadway work
group. Sometimes, non-roadway worker employees may be called upon to
act as roadway workers in charge for roadway work groups. FRA Technical
Bulletin G-05-04 provides guidance regarding the use of employees other
than roadway workers who act as roadway workers in charge. That
bulletin explains that when transportation employees, such as
conductors, are assigned to provide on-track safety for roadway
workers, that those employees must have received the relevant training
to assume those responsibilities. The role of a roadway worker in
charge is a critical one, as a roadway worker in charge is responsible
for establishing and maintaining the appropriate form of on-track
safety upon which the safety of an entire roadway work group often
depends. Roadway workers in charge must also be capable of conducting
the on-track safety job briefings required by the RWP regulation, of
handling a good faith challenge that may arise at a work site, and of
locating relevant guidance in an on-track safety manual. Because the
role of the roadway worker in charge is so important, it is imperative
that any employee, whether considered a roadway worker or not, acting
in the role of the roadway worker in charge have the required training
and the capability to fulfill those functions safely. Simply, Technical
Bulletin G-05-04 explained that any employee acting in the role of a
roadway worker in charge must be trained as such. That technical
bulletin also provided a table which, in part, helped illustrate the
items that a conductor acting as a roadway worker in charge must be
[[Page 50357]]
trained and qualified on. Those items are the same items that a roadway
worker in charge is required to be trained and qualified on. That chart
is reproduced here, with new proposed Sec. 214.324 included:
------------------------------------------------------------------------
Train and engine (T&E) service
Section Description employees (1)
------------------------------------------------------------------------
309................. On-track safety A
manual at work
site.
311................. Good faith A
challenge and
written
procedures.
315................. On-track safety A
job briefing.
321................. Exclusive track D
occupancy.
323................. Foul time...... A
324................. Verbal A
protection.
325................. Train R
coordination.
327................. Inaccessible A (2)
track.
329................. Train approach A
warning.
335................. Adjacent track A
on-track
safety.
339................. Train audible R
warning.
341................. Roadway A (3)
maintenance
machine
procedures.
351................. Flagmen........ D
353................. Physical D
characteristic
s.
------------------------------------------------------------------------
D Default training received through craft training.
R On-track training received in addition to craft qualification as
required by Sec. 214.343.
A Additional qualification of employee providing on-track safety for
roadway workers. Qualifications may be limited to those required for a
specific situation. For example, a T&E employee providing on-track
safety for a railroad contractor working on a single controlled main
track with exclusive track occupancy without roadway maintenance
machines. The employee in such scenario will not need to be qualified
on roadway maintenance machine on-track safety procedures, train
approach warning, or inaccessible track (only the elements that are
utilized are applicable). Regardless of the frequency of general T&E
training of such an employee, the applicable elements must comply with
Sec. 214.353. In addition, it is important to note that if trains
operate while the work disturbs the track, a person qualified under
Sec. 213.7(a) must be present.
(1) A T&E employee who is qualified to obtain a track permit (exclusive
track occupancy), but not otherwise qualified/trained in the necessary
roadway worker protection elements, may be directed by another person
so qualified. In such a case, the T&E employee is in ``pilot service''
for another person who must fulfill the roadway worker in charge role
(and trained/qualified as appropriate under Sec. 214.353). A common
example would be where a T&E employee pilots a roadway maintenance
machine over the track that the roadway worker in charge may not have
the physical characteristic qualification but otherwise has the
requisite qualifications.
(2) Railroad operating rule that would prohibit conductor from pulling
spike in a switch used to make the track inaccessible.
(3) An employee providing on-track safety is not required to be fully
qualified to operate every roadway maintenance machine but must have
knowledge of the general and specific on-track safety procedures for
each machine.
Per the above discussion, under the existing RWP regulation, a
conductor (or other employee) acting as a roadway worker in charge is
currently required to be trained on the same items as a traditional
roadway worker in charge. However, existing Sec. 213.353 only
currently governs training and qualification requirements for ``roadway
workers'' who provide for the establishment of on-track safety for
roadway work groups. Conductors and other transportation employees have
not been considered to be ``roadway workers''. While by its terms
existing Sec. 214.343(c) requires such other employees to still be
trained and qualified to perform their functions related to on-track
safety, FRA is proposing to expressly state such with regard to roadway
worker in charge duties by amending Sec. 214.353. FRA's proposed
amendment would expressly state that roadway workers, or any other
employee acting in the role of a roadway worker in charge, would have
to be trained and qualified in accordance with Sec. 213.353. While FRA
does not believe this to be a substantive amendment, this proposal is
to reflect that the role of a roadway worker in charge is different
than that implicated by other levels of roadway worker qualification,
due to both the many responsibilities involved and safety critical role
such employees play.
This proposed amendment, for example, would still permit a
conductor to receive training relevant to fulfilling the requirements
to act as a roadway worker in charge ``through the training and
qualification procedures prescribed by the operating railroad for the
primary position of the employee.'' See Sec. 214.343(c). The only
differences between FRA's proposed amendment to paragraph (a) and
existing Sec. 214.343(c) relate to the requirement for a recorded
examination for a roadway worker in charge and to the frequency of
training required. By expressly proposing to include employees other
than roadway workers who act as roadway workers in charge under Sec.
214.353, a recorded examination would be required to evidence such
employee's qualification. Under existing Sec. 213.343, while many
railroads may already give a recorded examination under their
procedures for qualifying non-roadway workers on the functions related
to on-track safety, some may not. If this proposed requirement were
included in a final rule in this rulemaking, a recorded examination
would be required for qualification of any employee acting in the
capacity of a roadway worker in charge.
With regard to the frequency of training and qualification, FRA has
chosen to proceed in the same manner as discussed above for the
proposed amendments to Sec. Sec. 214.347 through 214.352. FRA is
requesting comment on whether to adopt the consensus recommendation of
the Working Group as discussed above (qualification every 24 months and
annual refresher training) or the proposals in the training standards
rulemaking (refresher training and qualification be performed every
three calendar years). Existing Sec. 214.343(c) currently controls on
this point for non-roadway workers who serve as roadway workers in
charge, and only specifies that training and qualification may be
performed according to the frequency of training ``prescribed by the
operating railroad for the primary position of the employee.'' The
proposed training standards rulemaking would also apply to these other
``safety related employees,'' and proposed Sec. 243.201 of that rule
would already require that those employees be trained and qualified
every three calendar years. If FRA adopted the training and
qualification interval as proposed by the training standards rulemaking
in a final rule, conductors or other employees who act as roadway
workers in charge would be required to be trained and qualified at the
same
[[Page 50358]]
interval as would a roadway worker. If FRA adopts an approach requiring
a more frequent training and qualification interval for roadway workers
in charge, there could be additional costs with regard to training
conductors or other non-roadway worker employees who serve in such
positions.
Next, FRA wishes to address what has been referred to as the
bifurcation, or the splitting, of roadway worker in charge duties. FRA
refers to scenarios where a roadway worker in charge may not be
qualified on the physical characteristics of a territory, and a
conductor who is qualified on the physical characteristics is assigned
to serve as a pilot for the roadway worker in charge (analogous to a
locomotive engineer being unfamiliar with the physical characteristics
who is provided a pilot in accordance with Sec. 240.231). While this
situation is not currently addressed by the RWP regulation, Technical
Bulletin G-05-04 notes that FRA does not currently object to the
splitting of on-track safety qualification elements, and provided the
example of a conductor obtaining an exclusive track occupancy work
permit (authority) for a roadway work group while a roadway worker
fulfilled the other duties of a roadway worker in charge, such as
performing the on-track safety job briefing. However, in a final rule
in this rulemaking, FRA is considering adopting a requirement that
would only permit the splitting of qualifications to occur in
situations where a conductor or other railroad employee serves as a
pilot to a roadway worker in charge (or employee acting as a roadway
worker in charge) who was not qualified on the physical characteristics
of a particular territory where work was being performed. FRA is
considering such, as every roadway work group is already required to
have a roadway worker in charge, and if the proposed amendment to
paragraph (a) is adopted in a final rule in this rulemaking, any
employee acting as a roadway worker in charge would be required to be
trained on the substantive requirements listed in Sec. 214.353. FRA
believes this would alleviate most instances where there would be any
need for the splitting of qualifications, except with regard to
qualification on the physical characteristics of a territory. FRA
recognizes that when roadway work groups perform system-wide work on a
large railroad, that it may not be possible for each roadway worker who
is qualified as a roadway worker in charge to be qualified on the
physical characteristics of each territory on which the group performs
work. Thus, as similarly recognized by FRA in parts 240 and 242 (FRA's
new Conductor Certification regulation, promulgated via a final rule
published on November 9, 2011 (76 FR 69802)), the use of pilots is
often necessary in order to efficiently conduct railroad operations,
and the use of such pilots is recognized to be an acceptably safe
practice in the industry (the use of pilots in the industry pre-dates
the Federal regulations on the subject). FRA requests additional
comment on this issue.
As also noted in Technical Bulletin G-05-04, FRA would not take
exception to providing a ``limited'' qualification for a roadway worker
in charge who would only perform such duties in certain situations. For
example, a roadway worker in charge who was performing such duties on a
railroad consisting entirely of non-controlled track would be permitted
to have a limited qualification which would only involve the roadway
worker in charge's being trained and qualified to establish working
limits via the inaccessible track procedures (in addition to being
trained on all other Sec. Sec. 214.343, 214.345, and 214.353
requirements). However, FRA would take exception to a limited roadway
worker in charge qualification where work was being performed on
controlled track and where such limited qualification did not include
the ability to use all of a railroad's controlled track working limits
procedures. For example, limiting qualification to use of foul time
only, when exclusive track occupancy is also an integral part of a
railroads' on-track safety program, would not be permissible. FRA
requests comment on this point, and whether additional forms of
bifurcation of roadway worker in charge duties should continue to be
permitted, such as where one employee obtains a track permit for
another employee who is acting as the roadway worker in charge.
XI. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563 and DOT Regulatory
Policies and Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under
Executive Orders 12866 and 13563, and DOT policies and procedures. See
44 FR 11034, Feb. 26, 1979. FRA has prepared and placed a regulatory
impact analysis (RIA) addressing the economic impact of this proposed
rule in the Docket (No. FRA-2008-0086). Document inspection and copying
facilities are available at Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590.
As part of the RIA, FRA has assessed quantitative measurements of
the cost and benefit streams expected to result from the implementation
of the proposed rule. Overall, the proposed rule would result in safety
benefits and potential business benefits for the railroad industry. It
would also, however, generate an additional burden on railroads mainly
due to the additional requirements for job briefing under certain
circumstances, as well as various training requirements.
Table 1 summarizes the quantified costs and benefits expected to
accrue over a 20-year period. It presents costs associated with
expanded job briefing requirements under Sec. 214.315 Supervision and
Communication, railroad policy change under Sec. 214.339 Audible
Warning from Trains, and training of various types of employees under
Sec. Sec. 214.345, 214.347, 214.352 and 214.353.
The RIA also presents the quantified benefits expected to accrue
over a 20-year period. These benefits are primarily cost savings or
business benefits. They largely accrue due to time savings because of
the proposed amendments, including no longer having to submit plans to
FRA for review under Sec. 214.307, being able to more expeditiously
remove snow from track and platforms under Sec. Sec. 214.317 and
214.338, using inaccessible track under Sec. 214.327, and using
individual train detection under Sec. 214.337. The largest benefit
from this proposed rule is the new provision for using verbal
protection under Sec. 214.324. The use of verbal protection would
provide greater flexibility and would create a time savings because the
cycle of getting foul time and having to release it in between trains
is very time consuming. All other proposed amendments result in no cost
or benefits because they represent current industry practice and/or the
adoption of current FRA Technical Bulletins.
For the 20-year period analyzed, the estimated quantified cost that
would be imposed on industry totals $5,840,921 with a present value of
$3,103,980 (PV, 7 percent) and $4,350,537 (PV, 3 percent). FRA also
estimates that for the 20-year period analyzed, the estimated
quantified benefits total $119,507,405 with a present value of
$63,310,902 (PV, 7 percent) and $88,902,763 (PV, 3 percent). This
analysis demonstrates that the benefits for this proposed rule would
exceed the costs.
[[Page 50359]]
Table 1--Costs and Benefits of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Year 1 2-20 Total 20 year 7% PV 3% PV
----------------------------------------------------------------------------------------------------------------
Costs:
214.315 Job Briefings....... $143,055 $143,055 $2,861,100 $1,515,527 $2,128,297
214.339 Audible Warning from 24,976 0 24,796 23,174 24,074
Trains.....................
214.345 Training on Safe 72,250 72,250 1,445,000 765,418 1,074,898
Crossing of Track..........
214.347 Training on Access 10,838 10,838 216,750 114,813 161,235
to Manual..................
214.352 Training Platform 22,759 22,759 455,175 241,107 338,593
Work Coordinate............
214.353 Training RWIC....... 41,905 41,905 838,100 443,942 623,441
-------------------------------------------------------------------------------
Total................... 315,602 290,806 5,840,921 3,103,980 4,350,537
Benefits:
214.307 Plans No Longer $19,553 $426 $27,653 $22,392 $24,912
Reviewed...................
214.317 Track Snow Removal.. 292,613 292,613 5,852,250 3,099,941 4,353,335
214.324 Use of Verbal 5,386,021 5,386,021 107,720,415 57,059,581 80,130,388
Protection.................
214.327 Inaccessible Track.. 204,016 204,016 4,080,319 2,161,348 3,035,242
214.337 ITD................. 4,335 4,335 86,700 45,925 64,494
214.338 Platform Snow 87,003 87,003 1,740,069 921,716 1,294,392
Removal....................
-------------------------------------------------------------------------------
Total................... 5,993,541 5,974,414 119,507,405 63,310,902 88,902,763
-------------------------------------------------------------------------------
NET BENEFITS............ 5,677,938 5,683,608 113,666,484 60,206,922 84,552,226
----------------------------------------------------------------------------------------------------------------
*Dollars are discounted over a 20-year period.
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. FRA developed the proposed rule in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure
potential impacts of rules on small entities are properly considered.
The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a threshold analysis to determine if the proposed rule will or
may have a significant economic impact on a substantial number of small
entities (SEISNOSE) or not. Then it must prepare an initial regulatory
flexibility analysis (IRFA) unless it determines and certifies that a
rule is not expected to have a SEISNOSE.
As discussed earlier, FRA proposes to amend its regulations on
railroad workplace safety to resolve interpretative issues that have
arisen since the 1996 promulgation of the original Roadway Worker
Protection (RWP) regulation. Specifically, this Notice of Proposed
Rulemaking (NPRM) proposes to define certain terms, establish new
procedures for the removal of snow from passenger station platforms,
amend certain training requirements for roadway workers, resolve
interpretive issues, and codify certain of FRA's Technical Bulletins.
FRA is also proposing to update three incorporations by reference of
industry standards in existing sections of Subpart B of Part 214 that
address Bridge Worker Safety Standards
The small entity segment of the railroad industry faces little in
the way of intramodal competition. Small railroads generally serve as
``feeders'' to the larger railroads, collecting carloads in smaller
numbers and at lower densities than would be economical for the larger
railroads. They transport those cars over relatively short distances
and then turn them over to the larger systems which transport them
relatively long distances to their ultimate destination, or for handoff
back to a smaller railroad for final delivery. Although the relative
interests of various railroads may not always coincide, the
relationship between the large and small entity segments of the
railroad industry are more supportive and co-dependent than
competitive.
It is also extremely rare for small railroads to compete with each
other. Small railroads generally serve smaller, lower-density markets
and customers. They exist, and often thrive, doing business in markets
where there is not enough traffic to attract the larger carriers that
are designed to handle large volumes over distance at a profit. As
there is usually not enough traffic to attract service by a large
carrier, there is also not enough traffic to sustain more than one
smaller carrier. In combination with the huge barriers to entry in the
railroad industry (e.g., due to the need to own the right-of-way, build
track, purchase a fleet, etc.), small railroads rarely find themselves
in competition with each other. Thus, even to the extent that the
proposed rule may have an economic impact, it should have no impact on
the intramodal competitive position of small railroads.
1. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. For the rule there is only one
type of small entity that is affected: small railroads.
``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under Sec. 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operations.
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
[[Page 50360]]
and Standards,'' 13 CFR part 121 subpart A.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, 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 part 1201-1. The same dollar limit on
revenues is established to determine whether a railroad shipper or
contractor is a small entity. FRA is proposing to use this definition
for this rulemaking. Any comments received pertinent to its use will be
addressed in the final rule.
Included in the entities impacted by the proposed rule are
governmental jurisdictions or transit authorities--most of which are
not small for purposes of this certification. There are two commuter
railroads that are privately owned and would be considered small
entities. However, both of these entities are owned by Class III
freight railroads and therefore are already considered to be small
entities for purposes of this certification.
Railroads
There are approximately 708 small railroads.\12\ Class III
railroads do not report to the STB, and the precise number of Class III
railroads is difficult to ascertain due to conflicting definitions,
conglomerates, and even seasonal operations. Potentially all small
railroads (a substantial number) could be impacted by this proposed
regulation. However, because of certain characteristics that these
railroads typically have, there should be very little impact on most,
if not all of them. A large number of these small railroads only have
single-track operations. Some small railroads, such as the tourist and
historic railroads, operate on the lines of other railroads that would
bear the burden or impact of the proposed rules requirements. Finally,
other small railroads, if they do have more than a single track,
typically have operations that are infrequent 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
during hours that the track is not used.
---------------------------------------------------------------------------
\12\ FRA data for 2010 indicates that there are 754 railroads.
Thus, 754 Total Railroads--7 Class I Railroads--12 Class II
Railroads (Includes Alaska RR)--27 Commuter/Amtrak (non-small) = 708
Small Railroads.
---------------------------------------------------------------------------
Almost all commuter railroads do not qualify as small entities.
This is likely because almost passenger/commuter railroad operations in
the United States are part of larger governmental entities whose
jurisdictions exceed 50,000 in population. As noted above two of these
commuter railroads are privately owned and would be considered small.
However, they are already considered to be small because of being owned
by a Class III freight railroad. FRA is uncertain as to how many
contractor companies would be involved with this issue. FRA is aware
that some railroads hire contractors to conduct some of the functions
of roadway workers on their properties. However, the costs for the
burdens associated with the proposed requirements of this rulemaking
would get passed on to the pertinent railroad. Most likely the
contracts would be written to reflect that, and the contractor would
bear no additional burden for the proposed requirements. Since
contractors would not be the entities directly impacted by any burdens,
it is not necessary to assess them in the certification.
No other small businesses (non-railroads) are expected to be
impacted by this proposed rulemaking.
The process used to develop most of this proposed rule provided
outreach to small entities in two ways. First, the RSAC Working Group
had at least one representative from a small railroad association, the
American Short Line and Regional Railroad Association (ASLRRA). Second,
members of the RSAC itself include the ASLRRA and other organizations
that represent small entities. Thus, it is possible to conclude that
small entities had an opportunity for input as part of the process to
develop a consensus-based RSAC recommendation made to the FRA
Administrator.
Impacts
The impacts from this regulation are primarily a result of the
proposed requirements for certain changes to the existing roadway
worker protection regulations, particularly regarding job briefings and
training of roadway workers.
The Regulatory Impact Analysis for this rulemaking estimates that
for the 20-year period analyzed, the estimated quantified cost that
would be imposed on industry totals $5,840,921, discounted to
$3,103,980 (PV, 7 percent) and $4,350, 537 (PV, 3 percent). FRA
believes nearly all of this cost will fall to railroads other than
small railroads. Short line railroads, the vast majority of which are
Class III railroads, represent an estimated 8 percent of the railroad
industry. Since small railroads generally collect carloads in such
small numbers and low densities, at low speeds, they require much less
track maintenance. Furthermore, generally small railroads have single
tracks that are not active around the clock. As such, road work can be
done when the track is not active, greatly reducing the burden of
having to provide roadway worker protection. As such, the cost of this
rulemaking is very minimal to the small railroad segment of the
industry. Eight percent of the total 20-year cost is $467,274. That is
an average annual cost of $33 per small railroad.\13\ Although the rule
may impact a substantial number of small entities, FRA is confident
that this proposed rulemaking does not impose a significant burden.
---------------------------------------------------------------------------
\13\ $5,840,921 * .08 = $467,274/20 years/708 small railroads =
$33 per year per small railroad.
---------------------------------------------------------------------------
This proposed rule would produce very large benefits (or cost
savings) for railroads with the addition of Section 214.324 and the
provision of verbal protection. However, most small railroads would not
be impacted by these cost savings because of the size of these
railroads and the nature of their operations. Most small railroads
would already be able to utilize other forms of protection, such and
individual train detection, which are in the current regulation.
2. Certification
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies that this proposed rule would not have a significant economic
impact on a substantial number of small entities. Furthermore, FRA
expects that any impact on small entities would be favorable by
providing time savings. FRA invites all interested parties to submit
data and information regarding this certification. FRA will consider
all comments received in the public comment process when making a final
determination for certification of the final rule.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule are
[[Page 50361]]
being submitted upon publication in the Federal Register for approval
to the Office of Management and Budget (OMB) under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain
the new and current information collection requirements, and the
estimated time to fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Respondent Total annual Total annual
CFR Section universe responses Average time per response burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214 350 Safety 150 forms........ 4 hours.................... 600
Railroad Workplace Safety Inspectors.
Violation Report.
214.301--Purpose and Scope... 60 Railroads..... 60 operating rule 8 hours.................... 480
documents.
--Written Approval by FRA of
Equivalent Level of
Protection in RR Operating
Rules for Roadway
Maintenance Machines on Non-
Controlled Track (New
Requirement).
214.303--Railroad On-Track 15 New Railroads. 15 programs...... 30 minutes................. 8
Safety Programs--(Current
Requirement) (New
Requirements).
--Provisions by RR for Lone 754 Railroads.... 754 provisions... 60 minutes................. 754
Worker to Have Alternative
Access to Information in On-
Track Safety Manual.
--Publication of Bulletins by 754 Railroads.... 100 bulletins.... 60 minutes................. 100
RRs Reflecting Changes in On-
Track Safety Manual.
214.313--Good Faith 20 Railroads..... 80 challenges.... 8 hours per challenge...... 640
Challenges to On-Track
Safety Rules.
214.315/335--Supervision 50,000 Rdwy 16,350,000 brf... 2 minutes.................. 545,000
+communication. Workers.
--Job Briefings..............
--Adjacent-Track Safety 24,500 Rdwy 2,403,450 brf.... 30 seconds................. 20,029
Briefings. Workers.
--Information on 300 Roadway Work 59,400 briefings. 20 seconds................. 3,267
Accessibility of Roadway Gangs (10
Worker in Charge (RWIC) and Employees in
Alternative Procedures in Each Gang).
Event RWIC is No Longer
Accessible to Work Gang (New
Requirement).
214.317--On-Track Procedures 20 Railroads..... 20 operating 60 minutes................. 20
(New Requirements)--For Snow procedures.
Removal.
On-Track Procedures for Weed 754 Railroads.... 754 operating 60 minutes................. 754
Spray Equipment. procedures.
214.322--Exclusive Track 754 Railroads.... 100 written 10 minutes................. 17
Occupancy, Electronic Authorities.
Display (New Requirements).
--Written Authorities/Printed
Authority Copy If Electronic
Display Fails or
Malfunctions.
On-Track Safety Briefings in 754 Railroads.... 100 briefings.... 2 minutes.................. 3
Event Written Authority/
Printed Authority Copy
Cannot Be Obtained.
--Data File Records Relating 25 Railroads..... 380 data file 2 hours.................... 760
to Electronic Display Device records.
Involved in Part 225
Reportable Accident/Incident.
214.324--Verbal Protection 150 Railroads.... 2,623,500 verbal 5 minutes.................. 218,625
(New Requirement)--Working protection
Limits Established Through messages.
Verbal Protection Within
Manual Interlockings/
Controlled Points.
214.325--Train Coordination.. 50,00 Roadway 36,500 comm...... 15 seconds................. 152
Workers.
--Establishing Working Limits
through Communication.
214.327--Inaccessible Track.. 10 Railroads..... 9,125 talks/ 10 minutes................. 1,521
communications.
--Working Limits Established
by Locomotive With/Without
Cars to Prevent Access--
Communication by RWIC with
Locomotive Crew Member (New
Requirement).
--Notification to Train or 10 Railroads..... 1,750 10 minutes................. 292
Engine on Any Working Limits notifications.
in Effect That Prohibit
Train Movement Until RWIC
Gives Permission to Enter
Working Limits (New
Requirement).
--Working Limits on Non- 754 Railroads.... 50,000 10 minutes................. 8,333
controlled Track: notifications.
Notifications.
214.329--Train Approach 754 Railroads.... 795,000 messages/ 30 seconds................. 6,625
Warning Provided by Watchmen/ communic.
Lookouts--Communications.
--Written Designation of 754 Railroads.... 26,250 30 seconds................. 219
Watchmen/Lookouts. designations.
[[Page 50362]]
214.336--Procedures for 100 Railroads.... 10,000 notific... 15 seconds................. 42
Adjacent-Track Movements
Over 25 mph--Notifications/
Watchmen/Lookout Warnings.
--Roadway Worker 100 Railroads.... 3,000 comm....... 1 minute................... 50
Communication with Train
Engineers or Equipment
Operators.
--Procedures for Adjacent- 100 Railroads.... 3,000 notific.... 15 seconds................. 13
Track Movements 25 mph or
less--Notifications/Watchmen/
Lookout Warnings.
--Roadway Worker 100 Railroads.... 1,500 comm....... 1 minutes.................. 25
Communication with Train
Engineers or Equipment
Operators.
--Exceptions to the 100 Railroads.... 1,030,050 15 seconds................. 4,292
requirements in paragraphs briefings.
(a), (b), and (c) for
adjacent-controlled-track on-
track safety: Work
activities involving certain
equipment and purposes--On-
Track Job Safety Briefings.
214.337--On-Track Safety 754 Railroads.... 2,080,000 30 seconds................. 17,333
Procedures for Lone Workers: statements.
Statements by Lone Workers.
--Statement of On-Track 754 Railroads.... 200 statements... 30 seconds................. 21
Safety Using Individual
Train Detection on Track
Outside Manual Interlocking,
a Controlled Point, or a
Remotely Controlled Hump
Yard Facility (New
Requirement).
214.338--Passenger Station 15 Railroads..... 1,115 1 minute................... 19
Platform Snow Removal and designations.
Cleaning (New Requirements)--
Designation of a Station
Work Platform Coordinator.
--Communication of Contact 15 Railroads..... 223 messages/ 5 minutes.................. 19
Information/Instructions to communications.
Station Platform Work
Coordinator for Reaching
Both RWIC and Train
Dispatcher or Control
Operator.
--Communication by Station 15 Railroads..... 223 messages/ 5 minutes.................. 19
Platform Work Coordinator to communications.
RWIC of Work to Be Performed.
--Station Platform Work 15 Railroads..... 1,115 briefings.. 2 minutes.................. 37
Coordinator Conduct of an
Initial On-Track Safety
Briefing.
--Briefing by Station 15 Railroads..... 16,725 briefings. 30 minutes................. 139
Platform Work Coordinator to
Establish Train Approach
Warning.
214.339--Audible Warning from 25 Railroads..... 25 written 12 hours + 2 hours......... 120
Trains (Revised procedures.
Requirement)--Written
Procedures That Prescribe
Effective Requirements for
Audible Warning by Horn and/
or Bell for Trains.
214.343/345/347/349/351/353/ 50,000 Rdwy 50,000 tr. RW.... 4.5 hours.................. 225,000
355--Annual Training for All Workers.
Roadway Workers (RWs).
--Additional Training for All 50,000 Rdwy 50,000 tr. RW.... 30 minutes................. 25,000
RWs Resulting from Proposed Workers.
Rule (New/Revised
Requirements).
--Training of Trainmen 22,150 RR Workers 22,150 tr Workers 5 minutes + 10 minutes..... 2,108
(Conductors & Brakemen) to
Act as RWIC and Training of
Station Platform Work
Coordinators (New
Requirement).
--Additional adjacent on- 35,000 Rdwy 35,000 tr. RW.... 5 min...................... 2,917
track safety training for Workers.
Roadway Workers.
--Records of Training........ 50,000 Roadway 50,000 records... 2 min...................... 1,667
Workers.
214.503--Good Faith 50,000 Rdwy 125 notific...... 10 minutes................. 21
Challenges; Procedures for Workers.
Notification and Resolution.
--Notifications for Non-
Compliant Roadway
Maintenance Machines or
Unsafe Condition.
--Resolution Procedures...... 644 Railroads.... 10 procedures.... 2 hours.................... 20
214.505--Required 644 Railroads/200 500 lists........ 1 hour..................... 500
Environmental Control and contractors.
Protection Systems For New
On-Track Roadway Maintenance
Machines with Enclosed Cabs.
--Designations/Additions to 644 Railroads/200 150 additions/ 5 mintues.................. 13
List. contractors. designations.
214.507--A-Built Light Weight 644 Railroads.... 1,000 stickers... 5 minutes.................. 83
on New Roadway Maintenance
Machines.
214.511--Required Audible 644 Railroads.... 3,700 identified 5 minutes.................. 308
Warning Devices For New On- mechanisms.
Track Roadway Maintenance
Machines.
[[Page 50363]]
214.513--Retrofitting of 703 Railroads.... 200 mechanisms... 5 minutes.................. 17
Existing On-Track Roadway
Maintenance Machines--
Identification of Triggering
Mechanism--Horns.
214.515--Overhead Covers For 644 Railroads.... 500 requests + 100 minutes; 20 minutes.... 250
Existing On-Track Roadway 500 responses.
Maintenance Machines.
214.517--Retrofitting of 644 Railroads.... 500 stencils..... 5 minutes.................. 42
Existing On-Track Roadway
Maintenance Machines
Manufactured On or After
Jan. 1, 1991.
214.518--Safe and Secure 644 Railroads.... 1,000 stencils... 5 minutes.................. 83
Position for riders.
--Positions idenified by
stencilings/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. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone
at 202-493-6132.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via email to Mr. Brogan or Ms. Toone at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
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 the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
D. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained
[[Page 50364]]
above, FRA has determined that this proposed rule has no federalism
implications, other than the possible preemption of State laws under
Federal railroad safety statutes, specifically 49 U.S.C. 20106.
Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.
E. Environmental Impact
FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
proposed 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 (May
26, 1999).
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
proposed 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 ``before 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 (adjusted
annually 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.
The proposed rule will not result in the expenditure, in the aggregate,
of $140,800,000 or more (as adjusted annually for inflation) 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.'' 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 NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM 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 NPRM 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
Interested parties should be aware that anyone is able to search
the electronic form of all written comments received into any agency
docket by the name of the individual submitting the document (or
signing the document, 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://www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 214
Occupational safety and health, Penalties, Railroad safety.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
Part 214 of Chapter II, Subtitle B of Title 49, Code of Federal
Regulations, as follows:
PART 214--[AMENDED]
1. The authority citation for part 214 continues 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.
2. Amend Sec. 214.7 by adding definitions for controlled point;
interlocking, manual; maximum authorized speed; on-track safety manual;
roadway worker in charge; station platform work coordinator; verbal
protection; and revising the definitions for effective securing device
and watchman/lookout to read as follows:
Subpart A--General
Sec. 214.7 Definitions.
* * * * *
Controlled point means a location where signals and/or other
functions of a traffic control system are controlled from the control
machine.
* * * * *
Effective securing device means a vandal and tamper resistant lock,
keyed for application and removal only by the roadway worker(s) for
whom the protection is provided. In the absence of a lock, it is
acceptable to use a spike driven firmly into a switch tie or a switch
point clamp to prevent the use of a manually operated switch. It is
also acceptable to use portable derails secured with specifically
designed metal wedges. Securing devices without a specially keyed lock
shall be designed in such a manner that they require railroad track
tools for installation and removal and the operating rules of the
railroad must prohibit removal by employees other than the class,
craft, or group of employees for whom the protection is being provided.
Regardless of the type of securing device, the throwing handle or hasp
of the switch or derail shall be uniquely tagged. If
[[Page 50365]]
there is no throwing handle, the securing device shall be tagged.
* * * * *
Interlocking, manual means an arrangement of signals and signal
appliances operated from an interlocking machine and so interconnected
by means of mechanical and/or electric locking that their movements
must succeed each other in proper sequence, train movements over all
routes being governed by signal indication.
* * * * *
Maximum authorized speed means the highest speed permitted for the
movement of trains permanently established by timetable/special
instructions, general order, or track bulletin.
* * * * *
On-track safety manual means the entire set of instructions
designed to prevent roadway workers from being struck by trains or
other on-track equipment. These instructions include operating rules
and other procedures concerning on-track safety protection and on-track
safety measures.
* * * * *
Roadway worker in charge means a roadway worker who is qualified in
accordance with Sec. 214.353 of this part for the purposes of
establishing on-track safety for roadway work groups.
* * * * *
Station platform work coordinator means a roadway worker who is
qualified in accordance with Sec. 214.352 of this part for the purpose
of coordinating, with a designated roadway worker in charge, the on-
track safety of a roadway worker or roadway work group performing snow
removal or general cleaning on a passenger station platform.
* * * * *
Verbal protection means the method of establishing working limits
within an interlocking or controlled point whereby upon request by the
roadway worker in charge the train dispatcher or control operator
withholds authority for movements into the working limits. Operating
rules shall prohibit further movements into the working limits except
as permitted by the roadway worker in charge as prescribed in Sec.
214.324 of this part.
Watchman/lookout means an employee who has been annually trained
and qualified to provide warning to roadway workers of approaching
trains or on-track equipment. Watchmen/lookouts shall be properly
equipped to provide visual and auditory warning such as whistle, air
horn, white disk, red flag, lantern, or fusee. A watchman/lookout's
sole duty is to look out for approaching trains/on-track equipment and
provide at least fifteen seconds advanced warning, except as provided
for in Sec. 214.338(a)(2)(iii), to employees before arrival of trains/
on-track equipment.
* * * * *
3. Amend Sec. 214.113 by revising paragraph (b) to read as
follows:
Sec. 214.113 Head protection.
* * * * *
(b) Helmets required by this section shall conform to the
requirements of 29 CFR 1910.135(b), as established by the U.S.
Department of Labor, Occupational Safety and Health Administration.
4. Amend Sec. 214.115 by revising paragraph (b) to read as
follows:
Sec. 214.115 Foot protection.
* * * * *
(b) Foot protection equipment required by this section shall
conform to the requirements of 29 CFR 1910.136(b), as established by
the U.S. Department of Labor, Occupational Safety and Health
Administration.
5. Amend Sec. 214.117 by revising paragraph (b) to read as
follows:
Sec. 214.117 Eye and face protection.
* * * * *
(b) Eye and face protection equipment required by this section
shall conform to the requirements of 29 CFR 1910.133(b), as established
by the U.S. Department of Labor, Occupational Safety and Health
Administration.
* * * * *
Subpart C--Roadway Worker Protection
6. Amend Sec. 214.301 by revising paragraph (c) to read as
follows:
Sec. 214.301 Purpose and scope.
* * * * *
(c) This subpart prescribes safety standards related to the
movement of roadway maintenance machines where such movements affect
the safety of roadway workers. Movements of roadway maintenance
machines between work locations or to or from work locations that are
conducted under the authority of a train dispatcher or a control
operator are not required to be made in accordance with the on-track
safety procedures described in Sec. Sec. 214.319 through 214.338 of
this subpart. Movements of roadway maintenance machines between work
locations or to or from work locations on non-controlled track must
comply with the on-track safety procedures described in Sec. Sec.
214.319 through 214.327 of this subpart, unless:
(1) All train and locomotive movements on such non-controlled track
are required to be made at speeds not exceeding restricted speed; or
(2) the railroad's operating rules protect the movements of roadway
maintenance machines in a manner equivalent to that provided for by
limiting all train and locomotive movements to restricted speed, and
such equivalent level of protection is first approved in writing by
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer.
Sec. 214.302 [Removed and reserved]
7. Remove and reserve Sec. 214.302.
Sec. 214.305 [Removed and reserved]
8. Remove and reserve Sec. 214.305.
9. Amend Sec. 214.307 by revising to read as follows:
Sec. 214.307 Review of individual on-track safety programs by FRA.
(a) Program. Each railroad subject to this part shall maintain and
have in effect an on-track safety program which complies with the
requirements of this subpart. The on-track safety program shall be
retained at a railroad's system headquarters and division headquarters,
and shall be made available to representatives of the FRA for
inspection and copying during normal business hours. Each railroad to
which this part applies is authorized to retain its program by
electronic recordkeeping in accordance with Sec. Sec. 217.9(g) and
217.11(c) of this chapter.
(b) Approval process. Upon review of a railroad's on-track safety
program, the FRA Associate Administrator for Railroad Safety/Chief
Safety Officer may, for cause stated, disapprove the program.
Notification of such disapproval shall be made in writing and specify
the basis for the disapproval decision. If the Associate Administrator
for Railroad Safety/Chief Safety Officer disapproves the program,
(1) The railroad has 35 days from the date of the written
notification of such disapproval to:
(i) Amend its program and submit it to the Associate Administrator
for Railroad Safety/Chief Safety Officer for approval; or
(ii) Provide a written response in support of its program to the
Associate Administrator for Railroad Safety/Chief Safety Officer.
(2) FRA's Associate Administrator for Railroad Safety/Chief Safety
Officer will subsequently issue a written decision either approving or
disapproving the railroad's program.
[[Page 50366]]
(3) Failure to submit to FRA an amended program or provide a
written response in accordance with this paragraph will be considered a
failure to implement an on-track safety program under this subpart.
10. Amend Sec. 214.309 by revising to read as follows:
Sec. 214.309 On-track safety manual.
(a) The applicable on track safety manual (as defined by Sec.
214.7) shall be readily available to all roadway workers. Each roadway
worker responsible for the on-track safety of others, and each lone
worker, shall be provided with and shall maintain a copy of the on-
track safety manual.
(b) When it is impracticable for a lone worker to carry the on-
track safety manual, the employer shall establish provisions for such
worker to have alternative access to the information in the manual.
(c) Changes to the on-track safety manual may be temporarily
published in bulletins or notices. Such publications shall be carried
along with the on-track safety manual until fully incorporated into the
manual.
11. Amend Sec. 214.315 by revising paragraphs (a)(3), (a)(4), (b),
the first sentence of paragraphs (c)-(e) and adding paragraph (a)(5) to
read as follows:
Sec. 214.315 Supervision and communication.
(a) * * *
(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;
(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; and
(5) Information on the accessibility of the roadway worker in
charge and alternative procedures in the event the roadway worker in
charge is no longer accessible to the members of the roadway work
group.
(b) A job briefing for on-track safety shall be deemed complete
only after the roadway worker(s) has acknowledged understanding of the
on-track safety procedures and instructions presented.
(c) Every roadway work group whose duties require fouling a track
shall have one roadway worker in charge designated by the employer to
provide on-track safety for all members of the group. * * *
(d) Before any member of a roadway work group fouls a track, the
roadway worker in charge designated under paragraph (c) of this section
shall inform each roadway worker of the on-track safety procedures to
be used and followed during the performance of the work at that time
and location. * * *
(e) Each lone worker shall communicate at the beginning of each
duty period with a supervisor or another designated employee to receive
an on-track safety job briefing and to advise of his or her planned
itinerary and the procedures that he or she intends to use for on-track
safety. * * *
12. Amend Sec. 214.317 by revising it to read as follows:
Sec. 214.317 On-track safety procedures, generally.
(a) Each employer subject to the provisions of this part shall
provide on-track safety for roadway workers by adopting a program that
contains specific rules for protecting roadway workers that comply with
the provisions of Sec. Sec. 214.319 through 214.338 of this part.
(b) Roadway workers may walk across any track provided each roadway
worker shall stop and look in all directions from which a train or
other on-track equipment could approach before starting across the
track to ensure that they can safely be across and clear of the track
before a train or other on-track equipment would arrive at the crossing
point under the following circumstances:
(1) Employers shall adopt and roadway workers shall comply with
applicable railroad safety rules governing how to determine that it is
safe to cross the track before starting across;
(2) Roadway workers shall move directly and promptly across the
track; and
(3) On-track safety protection is in place for all roadway workers
who are actually engaged in work, including inspection, construction,
maintenance or repair, and extending to carrying tools or material that
restricts motion, impairs sight or hearing, or prevents an employee
from detecting and moving rapidly away from an approaching train or
other on-track equipment.
(c) On non-controlled track, on-track roadway maintenance machines
engaged in weed spraying or snow removal may proceed under the
provisions of Sec. 214.301(c), under the following conditions:
(1) Each railroad shall establish and comply with an operating
procedure for on-track snow removal and weed spray equipment to ensure
that:
(i) All on-track movements in the affected area are informed of
such operations;
(ii) All on-track movements shall operate at restricted speed as
defined in Sec. 214.7, except on other than yard tracks and yard
switching leads, where all on-track movements shall operate prepared to
stop within one-half the range of vision but not exceeding 25 mph;
(iii) A means for communication between the on-track equipment and
other on-track movements is provided; and
(iv) Remotely controlled hump yard facility operations are not in
effect, and kicking of cars is prohibited unless agreed to by the
roadway worker in charge.
(2) Roadway workers engaged in such snow removal or weed spraying
operations subject to this section shall retain an absolute right to
use the provisions of Sec. 214.327 (inaccessible track).
(3) Roadway workers assigned to work with this equipment may line
switches for the machine's movement but shall not engage in any roadway
work activity unless protected by another form of on-track safety.
(4) Each roadway maintenance machine engaged in snow removal or
weed spraying under this provision shall be equipped with and utilize:
(i) An operative 360-degree intermittent warning light or beacon;
(ii) Work lights, if the machine is operated during the period
between one-half hour after sunset and one-half hour before sunrise or
in dark areas such as tunnels, unless equivalent lighting is otherwise
provided;
(iii) An illumination device, such as a headlight, capable of
illuminating obstructions on the track ahead in the direction of travel
for a distance of 300 feet under normal weather and atmospheric
conditions;
(iv) A brake light activated by the application of the machine
braking system, and designed to be visible for a distance of 300 feet
under normal weather and atmospheric conditions; and
(v) A rearward viewing device, such as a rearview mirror.
13. Amend Sec. 214.319 the first sentence of the introductory
paragraph, and paragraphs (a) and (b) by revising to read as follows:
Sec. 214.319 Working limits, generally.
Working limits established on controlled track shall conform to the
provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323
Foul time, or Sec. 214.324 Verbal protection, or Sec. 214.325 Train
coordination. * * *
[[Page 50367]]
(a) Only a roadway worker in charge who is qualified in accordance
with Sec. 214.353 of this part shall establish or have control over
working limits for the purpose of establishing on-track safety.
(b) Only one roadway worker in charge shall have control over
working limits on any one segment of track.
* * * * *
14. Amend Sec. 214.321 by revising paragraphs (a), (b), (b)(2),
and (d), and adding paragraphs (b)(4) and (e), to read as follows:
Sec. 214.321 Exclusive track occupancy.
* * * * *
(a) The track within working limits shall be placed under the
control of one roadway worker in charge by either: * * *
(b) An authority for exclusive track occupancy given to the roadway
worker in charge of the working limits shall be transmitted on a
written or printed document directly, by relay through a designated
employee, in a data transmission, or by oral communication, to the
roadway worker in charge by the train dispatcher or control operator in
charge of the track.
(1) * * *
(2) The roadway worker in charge of the working limits shall
maintain possession of the written or printed authority for exclusive
track occupancy while the authority for the working limits is in
effect. A data transmission of an authority displayed on an electronic
screen may be used as a substitute for a written or printed document
required under this paragraph. Electronic displays of authority shall
comply with the requirements of Sec. 214.322.
* * * * *
(4) An authority shall specify a unique roadway work group number,
an employee name, or a unique identifier. A railroad shall adopt
procedures that require precise communication between trains and other
on-track equipment and the roadway worker in charge or lone worker
controlling the working limits in accordance with Sec. 214.319. The
procedures may permit communications to be made directly between a
train or other on-track equipment and a roadway worker in charge or
lone worker, or through a train dispatcher or control operator.
* * * * *
(d) Movements of trains and roadway maintenance machines within
working limits established through exclusive track occupancy shall be
made only under the direction of the roadway worker in charge of the
working limits. Such movements shall be at restricted speed unless a
higher authorized speed has been specifically authorized by the roadway
worker in charge of the working limits.
(e) Working limits established by exclusive track occupancy
authority may occur behind designated trains moving through the same
limits in accordance with the following provisions:
(1) The authority establishing working limits will only be
considered to be in effect after it is confirmed by the roadway worker
in charge or lone worker that the affected train(s) have passed the
point to be occupied or fouled by:
(i) Visually identifying the affected train(s); or
(ii) Direct radio contact with a crew member of the affected
train(s); or
(iii) Receiving information about the affected train from the train
dispatcher or control operator.
(2) When utilizing the provisions of paragraph (e)(1)(i) of this
section, a railroad's operating rules shall include procedures to
prohibit the affected train(s) from making a reverse movement into the
limits being fouled or occupied.
(3) After the roadway worker in charge or lone worker has confirmed
that the affected train(s) have passed the point to be occupied or
fouled, the roadway worker in charge shall record on the authority the
time of passage and engine number(s) of the affected train(s). If the
confirmation is by direct communication with the train(s), or through
confirmation by the train dispatcher or control operator, the roadway
worker in charge shall record the time of such confirmation and the
engine number(s) of the affected trains on the authority.
(4) Roadway workers afforded on-track safety by the roadway worker
in charge and located between the rear end of affected train(s) and the
roadway worker in charge, or ahead of the rear end of any affected
train, shall:
(i) Occupy or foul the track only after receiving permission from
the roadway worker in charge to occupy the working limits after the
roadway worker charge has fulfilled the provisions of paragraph (e)(1)
of this section; and
(ii) Be accompanied by an employee qualified to the level of a
roadway worker in charge who shall also have a copy of the authority
and who shall independently execute the required communication
requirements of paragraphs (e)(1) and (e)(3) of this section.
(5) Each lone worker subject to this paragraph shall have a copy of
the authority and shall comply with the communication requirements of
paragraphs (e)(1) and (e)(3) of this section.
(6) Any subsequent train or on-track equipment movements within
working limits after the passage of the affected train(s) shall be
governed by paragraph (d) of this section.
15. Add Sec. 214.322 to read as follows:
Sec. 214.322 Exclusive track occupancy, electronic display.
(a) While it is in effect, all the contents of an authority
electronically displayed shall be readily viewable by the roadway
worker in charge that is using the authority to provide on-track safety
for a roadway work group.
(1) If the electronic display device malfunctions, fails, or cannot
display an authority while it is in effect, the roadway worker in
charge shall instruct all roadway workers to stop work and occupy a
place of safety until either a written or printed copy of the authority
can be obtained in accordance with Sec. 214.321(b)(1), or another form
of on-track safety can be established.
(2) In the event that a written or printed copy of the authority
cannot be obtained, or another form of on-track safety cannot be
established after failure of an electronic display device, the roadway
worker in charge shall conduct an on-track safety job briefing to
determine the safe course of action with the roadway work group.
(b) All authorized users of an electronic display system shall be
uniquely identified to support individual accountability. A user may be
a person, a process, or some other system that accesses or attempts to
access an electronic display system to perform tasks or process an
authority.
(c) All authorized users of an electronic display system must be
authenticated prior to being granted access to such system. The system
shall ensure the confidentiality and integrity of all internally stored
authentication data and protect it from access by unauthorized users.
The authentication scheme shall utilize algorithms approved by the
National Institute of Standards and Technology (NIST), or any similarly
recognized and FRA approved standards body.
(d) The integrity of all data must be ensured during transmission/
reception, processing, and storage. All new electronic display systems
implemented after (EFFECTIVE DATE OF THE FINAL RULE TO BE INSERTED)
shall utilize a Message Authentication Code (MAC) to ensure that all
data is error free. The MAC shall utilize algorithms approved by NIST,
or any similarly recognized and FRA approved standards body.
[[Page 50368]]
Systems implemented prior to (EFFECTIVE DATE OF THE FINAL RULE TO BE
INSERTED) may utilize a Cyclical Redundancy Code (CRC) to ensure that
all data is error free provided:
(1) The collision rate for the CRC check utilized shall be less
than or equal to 1 in 2\32\. Systems implemented prior to (EFFECTIVE
DATE OF THE FINAL RULE TO BE INSERTED) that do not utilize a CRC with a
collision rate less than or equal to 1 in 2\32\ must be retired or
updated to utilize a MAC no later than (A DATE ONE YEAR FROM
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER TO BE INSERTED).
(2) MAC and CRC checks shall only be used to verify the accuracy of
an electronic authority data message and shall not be used in an error
correction reconstruction of the data. An authority must fail if the
MAC or CRC checks do not match.
(e) Authorities transmitted to each electronic display device shall
be retained in the device's non-volatile memory for not less than 72
hours.
(f) If any electronic display device used to obtain an authority is
involved in an accident/incident that is required to be reported to FRA
under part 225 of this chapter, the railroad or employer that was using
the device at the time of the accident shall, to the extent possible,
and to the extent consistent with the safety of life and property,
preserve the data recorded by each such device for analysis by FRA.
This preservation requirement permits the railroad or employer to
extract and analyze such data, provided the original downloaded data
file, or an unanalyzed exact copy of it, shall be retained in secure
custody and shall not be utilized for analysis or any other purpose
except by direction of FRA or the National Transportation Safety Board.
This preservation requirement shall expire one (1) year after the date
of the accident unless FRA or the National Transportation Safety Board
notifies the railroad in writing that the data are desired for
analysis.
(g) New electronic display systems implemented after (EFFECTIVE
DATE OF THE FINAL RULE TO BE INSERTED) shall provide Level 3 assurance
as defined by NIST Special Publication 800-63-1, ``Electronic
Authentication Guideline.'' Systems implemented prior to (EFFECTIVE
DATE OF THE FINAL RULE TO BE INSERTED) shall provide Level 2 assurance.
Systems implemented prior to (EFFECTIVE DATE OF THE FINAL RULE TO BE
INSERTED) that do not provide Level 2 or higher assurance must be
retired, or updated to provide Level 2 assurance, no later than (A DATE
ONE YEAR FROM PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER TO
BE INSERTED). This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Copies may be obtained from the National Institute of
Standards and Technology, 100 Bureau Drive, Stop 2300, Gaithersburg, MD
20899-2300. Copies may be inspected at the Federal Railroad
Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington,
DC, or at the National Archives and Records Administration (NARA). A
copy is also publicly available online at: http://csrc.nist.gov/publicat ions/nistpubs/800-63-1/SP-800-63-1.pdf. For information on the
availability of this material at NARA, call (202) 741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
16. Amend Sec. 214.323 by revising to read as follows:
Sec. 214.323 Foul time.
Working limits established on controlled track through the use of
foul time procedures shall comply with the following requirements:
(a) Foul time may be given orally or in writing by the train
dispatcher or control operator only after that employee has withheld
the authority of all trains or other on-track equipment to move into or
within the working limits during the foul time period.
(b) Each roadway worker in charge to whom foul time is transmitted
orally shall repeat the track number, track limits and time limits of
the foul time to the issuing employee for verification before the foul
time becomes effective.
(c) The train dispatcher or control operator shall not permit the
movement of trains or other on-track equipment into working limits
protected by foul time until the roadway worker in charge who obtained
the foul time has reported clear of the track.
(d) The roadway worker in charge shall not permit the movement of
trains or other on-track equipment into or within working limits
protected by foul time.
17. Add Sec. 214.324 to read as follows:
Sec. 214.324 Verbal Protection.
Working limits established through verbal protection may only occur
within manual interlockings or within controlled points and shall
comply with the following requirements:
(a) Verbal protection shall be communicated to the roadway worker
in charge by the train dispatcher or control operator only after that
employee has withheld the authority of all trains or other on-track
equipment to move into or within the limits to be protected.
(b) Each roadway worker in charge to whom verbal protection is
transmitted shall repeat the track number, track limits and time limits
of the verbal protection to the issuing employee for verification
before the verbal protection becomes effective.
(c) No train or on-track equipment may move into working limits
protected by verbal protection until permission has been received from
the roadway worker in charge and authority has been given by the train
dispatcher or control operator.
18. Amend Sec. 214.325 by revising the introductory sentence to
read as follows:
Sec. 214.325 Train coordination.
Working limits established on controlled track by a roadway worker
in charge through the use of train coordination shall comply with the
following requirements:
* * * * *
19. Amend Sec. 214.327 by adding paragraphs (a)(6), (a)(7), and
(a)(8) to read as follows:
Sec. 214.327 Inaccessible track.
(a) * * *
(6) A locomotive with or without cars placed to prevent access to
the working limits at one or more points of entry to the working
limits, provided the following conditions are met:
(i) The roadway worker in charge who is responsible for
establishing working limits communicates with a member of the crew
assigned to the locomotive and determines that:
(A) The locomotive is visible to the roadway worker in charge that
is establishing the working limits; and
(B) The locomotive is stopped.
(ii) Further movements of the locomotive shall be made only as
permitted by the roadway worker in charge controlling the working
limits;
(iii) The crew of the locomotive shall not leave the locomotive
unattended or go off-duty unless communication occurs with the roadway
worker in charge and an alternate means of on-track safety protection
has been established by the roadway worker in charge; and
(iv) Cars coupled to the locomotive on the same end and on the same
track as the roadway workers shall be connected to the train line air
brake and such system shall be charged with compressed air to initiate
an emergency
[[Page 50369]]
brake application in case of unintended uncoupling. Cars coupled to the
locomotive on the same track on the opposite end of the roadway workers
shall have sufficient braking capability to control their movement.
(7) A railroad's procedure governing block register territory that
prevents trains and other on-track equipment from occupying the track
when the territory is under the control of a lone worker or roadway
worker in charge. The roadway worker in charge or lone worker shall
have the absolute right to render such block register territory
inaccessible under the provisions of paragraphs (a)(1) through (a)(6)
of this section.
(8) Railroad operating rules that prohibit train or engine
movements on a main track within yard limits or restricted limits until
the train or engine receives notification of any working limits in
effect and prohibit the train or engine from entering working limits
until permission is received by the roadway worker in charge. Such
working limits shall be delineated with stop signs (flags), and where
speeds are in excess of restricted speed and physical characteristics
permit, advance signs (flags).
* * * * *
20. Amend Sec. 214.329 by revising paragraph (a), and adding
paragraph (h) to read as follows:
Sec. 214.329 Train approach warning provided by watchmen/lookouts.
* * * * *
(a) Except as provided for in Sec. 214.338(a)(2)(iii), train
approach warning shall be given in sufficient time to enable each
roadway worker to move to and occupy a previously arranged place of
safety not less than 15 seconds before a train moving at the maximum
authorized speed on that track can pass the location of the roadway
worker. The place of safety to be occupied upon the approach of a train
may not be on a track, unless working limits are established on that
track.
* * * * *
(h) Train approach warning shall not be used to provide on-track
safety for a roadway work group using a roadway maintenance machine,
equipment, or material that cannot be readily removed by hand.
21. Amend Sec. 214.331 by adding paragraph (e) to read as follows:
Sec. 214.331 Definite train location.
* * * * *
(e) Each on track safety program that provides for the use of
definite train location shall discontinue such use by (A DATE 1 YEAR
FROM THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER
TO BE INSERTED).
22. Amend Sec. 214.333 by revising paragraph (c) to read as
follows:
Sec. 214.333 Informational line-ups of trains.
* * * * *
(c) Each on track safety program that provides for the use of
informational line-ups shall discontinue such use by (A DATE 1 YEAR
FROM THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER
TO BE INSERTED).
23. Amend Sec. 214.335 by revising to read as follows:
Sec. 214.335 On-track safety procedures for roadway work groups,
general.
(a) Except as provided for in Sec. 214.338 of this part, no
employer subject to the provisions of this part shall require or permit
a roadway worker who is a member of a roadway work group to foul a
track unless on-track safety is provided by either working limits,
train approach warning, or definite train location in accordance with
the applicable provisions of Sec. Sec. 214.319, 214.321, 213.323,
214.324, 214.325, 214.327, 214.329, 214.331 or 214.336 of this part.
(b) No roadway worker who is a member of a roadway work group shall
foul a track without having been informed by the roadway worker in
charge of the roadway work group that on-track safety is provided.
24. Amend Sec. 214.337 by revising paragraph (c)(3) and adding
paragraph (g) to read as follows:
Sec. 214.337 On-track safety procedures for lone workers.
* * * * *
(c) * * *
(3) On track outside the limits of a manual interlocking, a
controlled point (except those consisting of signals only), or a
remotely controlled hump yard facility.
* * * * *
(g) Individual train detection shall not be used to provide on-
track safety for a lone worker using a roadway maintenance machine,
equipment, or material that cannot be readily removed by hand.
25. Add Sec. 214.338 to read as follows:
Sec. 214.338 Passenger station platform snow removal and cleaning.
(a) A roadway worker or roadway work group assigned to perform snow
removal or cleaning on a passenger station platform, whose duties would
require a roadway worker to foul a track with a hand-held, non-powered
tool, may conduct such activities without establishing working limits,
provided the following conditions are met:
(1) The railroad has designated a station platform work coordinator
who is responsible for directing the on-track safety of the roadway
worker or roadway work group performing the snow removal or cleaning.
(2) The fouling area in which only hand-held, non-powered tools may
be used has been clearly delineated and is no less than four feet from
the field side of the near rail of the track. For purposes of this
section, delineation may consist of permanent markings (e.g., tactile
strips or signs), a temporary marking system (e.g., safety cones), or a
printed diagram showing measurements from the edge of the platform that
has been provided to the affected roadway workers.
(3) The station platform work coordinator has ready access to a
landline or wireless communication device that would permit immediate
access to the designated roadway worker in charge and, in case of an
emergency, the train dispatcher or control operator controlling on-
track movements. The contact information and instructions for reaching
both the designated roadway worker in charge and the train dispatcher
or control operator shall also be provided to the station platform work
coordinator prior to the commencement of any work pursuant to this
section.
(4) The station platform work coordinator must be present at the
station platform at all times work is being performed pursuant to this
section and take the following actions:
(i) Inform the designated roadway worker in charge of the work to
be performed;
(ii) Conduct an initial on-track safety briefing with the roadway
worker or roadway work group pursuant to Sec. 214.315 of this part;
and
(iii) Establish train approach warning that requires a watchman/
lookout to warn of the approach of any train or on-track equipment and
requires roadway worker(s) to withdraw hand-held, non-powered tools
from the delineated fouling area upon receiving such warning. Such
warning may be based on available sight distance and may give less
timely notice than that prescribed by Sec. 214.329(a) of this part.
(5) Each roadway worker conducting such work under train approach
warning shall:
(i) Position himself or herself on the station platform with his or
her body entirely outside of the delineated fouling area as described
in paragraph (a)(2) of this section; and
[[Page 50370]]
(ii) Only use hand-held, non-powered tools to perform such duties.
(6) The maximum authorized speed of the track immediately adjacent
to the platform does not exceed 79 mph.
(b) If any of the conditions in paragraphs (a)(1) through (6) of
this section are no longer met during the course of the work (e.g., if
the available communication device(s) is no longer functioning, or if
the designated roadway worker in charge is no longer accessible), all
work that would require a roadway worker to encroach the delineated
fouling area with a tool shall cease. Work in the delineated fouling
area may resume only after the requirements of this section are met or
a roadway worker in charge arrives at the work site to provide on-track
safety consistent with this part.
26. Amend Sec. 214.339 by revising to read as follows:
Sec. 214.339 Audible warning from trains.
(a) Each railroad shall have in effect and comply with written
procedures that prescribe effective requirements for audible warning by
horn and/or bell for trains and locomotives approaching any roadway
workers or roadway maintenance machines that are either on the track on
which the movement is occurring, or about the track if the roadway
workers or roadway maintenance machines are at risk of fouling the
track. At a minimum, such written procedures shall address:
(1) Initial horn warning;
(2) Subsequent warning(s); and
(3) Alternative warnings in areas where sounding the horn adversely
affects roadway workers (e.g., in tunnels and terminals).
(b) Such audible warning shall not substitute for on-track safety
procedures prescribed in this part.
27. Amend Sec. 214.343 by revising the first sentence of paragraph
(c) to read as follows:
Sec. 214.343 Training and qualification, general.
* * * * *
(c) Except as provided for in Sec. 214.353, railroad employees
other than roadway workers, who are associated with on-track safety
procedures, and whose primary duties are concerned with the movement
and protection of trains, shall be trained to perform their functions
related to on-track safety through the training and qualification
procedures prescribed by the operating railroad for the primary
position of the employee, including maintenance of records and
frequency of training.
* * * * *
28. Amend Sec. 214.345 by revising the introductory text and
adding paragraph (f) to read as follows:
Sec. 214.345 Training for all roadway workers.
Consistent with Sec. 214.343(b), the training of all roadway
workers shall include, as a minimum, the following:
* * * * *
(f) Instruction on railroad safety rules adopted to comply with
Sec. 214.317(b) of this subpart.
29. Amend Sec. 214.347 by adding paragraph (a)(5) to read as
follows:
Sec. 214.347 Training and qualification for lone workers.
* * * * *
(a) * * *
(5) Alternative means to access to the information in a railroad's
on-track safety manual when a lone worker's duties make it
impracticable to carry the manual.
* * * * *
30. Add Sec. 214.352 to read as follows:
Sec. 214.352 Training and qualification of station platform work
coordinator.
(a) The training and qualification of each station platform work
coordinator shall include, as a minimum:
(1) All the on-track safety training and qualification required of
the roadway workers to be supervised and protected;
(2) The content of the operating rules of the railroad pertaining
to the establishment of working limits;
(3) The content and application of the rules of the railroad
pertaining to the establishment of train approach warning; and
(4) The procedures required to ensure that the station platform
work coordinator has immediate access to contact the roadway worker in
charge, and in case of an emergency, the procedures to contact the
train dispatcher or control operator.
(b) Initial and periodic qualification of a station platform work
coordinator shall be evidenced by a recorded examination.
31. Amend 214.353 by revising the section heading and paragraph (a)
and adding paragraph (a)(5) to read as follows:
Sec. 214.353 Training and qualification of each roadway worker in
charge.
(a) The training and qualification of each roadway worker in
charge, or any other employee acting as a roadway worker in charge
(e.g., a conductor or a brakeman), who provides for the on-track safety
of roadway workers through establishment of working limits or the
assignment and supervision of watchmen/lookouts or flagmen shall
include, at a minimum:
* * * * *
(5) The procedures required to ensure that the roadway worker in
charge of the on-track safety a group(s) of roadway workers remains
immediately accessible and available to all roadway workers being
protected under the working limits or other provisions of on-track
safety established by the roadway worker in charge.
* * * * *
Issued in Washington, DC, on August 10, 2012.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2012-20065 Filed 8-17-12; 8:45 am]
BILLING CODE 4910-06-P