four FRA Technical Bulletins (G-05-08, G-05-15, G-05-26, and G-05-27)
currently provide guidance on the requirements of Sec.  214.339. These
technical bulletins are supplanted upon the effective date of this
final rule.\20\
---------------------------------------------------------------------------

    \20\ The NPRM discussed these Technical Bulletins and various
issues the bulletins addressed in detail (audible warnings during
shoving movements, operation of multiple-unit passenger train
equipment no equipped with a bell, audible warnings over a large
work area and duration of those warnings). FRA refers the reader to
the NPRM for more information. 77 FR 50324, 50354, Aug. 20, 2012.
---------------------------------------------------------------------------

    NJT, BMWED/BRS, and 3M commented on the proposed revisions to this
section. 3M did not directly address the specifics of FRA's proposed
revised requirements for audible warnings of trains approaching roadway
workers. Like their comments on proposed Sec.  214.338, 3M recommended
requiring roadway workers to wear high visibility safety apparel to
alert approaching train crews to their presence on or near track.
Referencing the NPRM's preamble discussion of the passage of large
roadway work groups, such as tie and surfacing production crews spaced
out over a long distance, NJT commented the requirement that the
locomotive horn be sounded upon the approach of each unit of a work
crew will create quality of life complaints about noise in many
municipalities. BMWED/BRS supported FRA's proposed revisions to this
section.
    In response to 3M's comment, FRA considered requiring certain
roadway workers to wear highly visible clothing. See section VIII.A.1
of this preamble discussing proposed Sec.  214.338 not

adopted in this final rule. Although in this final rule FRA is not
adopting this specific requirement, FRA obviously encourages using
highly visible reflective clothing and personal protective equipment to
help clearly showed the presence of roadway workers on or near railroad
tracks to locomotive engineers and other on-track equipment operators.
FRA also notes most railroad rules already require roadway workers to
wear highly visible clothing.
    In response to NJT's comment, FRA understands complaints railroads
receive about field noise from train horns, particularly at highway-
rail grade crossings, and where a roadway work group is working at a
particular point in time. FRA understands the potential sensitivity to
noise of residents who live in close proximity to railroad tracks.
However, providing an audible warning to roadway workers of an
approaching train is a longstanding safety-critical component of the
RWP regulation and any railroad's on-track safety program--even within
highway-rail grade crossing quiet zones. FRA notes the amendments to
this section in this final rule are not a substantive change to the
particular issue raised by NJT, and FRA's discussion in the NPRM
preamble merely restated FRA's longstanding expectation that trains
must provide audible warning to roadway workers on or near the track
upon the approach of each unit of a work crew. As explained in
Technical Bulletin G-05-08 issued in 2005, existing Sec.  214.339
requires trains to provide an audible warning when approaching each
roadway worker or roadway work group located within a large scale
maintenance project.
Sec.  214.343 Training and Qualification, General
    Existing Sec.  214.343 sets forth the general training and
qualification requirements for roadway workers. Paragraph (c) of
existing Sec.  214.343 requires railroad employees other than roadway
workers associated with on-track safety procedures, and whose primary
duties involve the movement and protection of trains, to 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.''
    In the NPRM, FRA proposed to amend paragraph (c) to account for
proposed new Sec.  214.353 addressing training employees other than
roadway workers (typically transportation employees such as conductors)
who act as RWICs. MTA commented on this proposal, supporting the
training and qualification of transportation employees under the
procedures the railroad prescribes for the primary position of the
employee. Thus, FRA is adopting revision to paragraph (c) of this
section as proposed. However, FRA did receive comments in response to
the NPRM proposal for Sec.  214.353 that implicate this section and
addresses those comments in the Section-by-Section analysis for Sec.
214.353 below.
Sec.  214.345 Training for All Roadway Workers
    Existing Sec.  214.345 has the minimum training contents for
roadway workers required by existing subpart C. FRA proposed to amend
this section to incorporate two Working Group consensus
recommendations. First, to clarify and reinforce the requirements of
the existing RWP regulation, FRA proposed adding ``[c]onsistent with
Sec.  214.343(b)'' to the beginning of the first sentence of the
existing introductory paragraph of the section. Section 214.343(b)
requires employers to provide all roadway workers initial or recurrent
training once every calendar year on the on-track safety rules and
procedures they are required to follow. In this final rule, FRA is
adopting this revision as proposed. As noted in the NPRM, Technical
Bulletin G-05-16 provides guidance on existing Sec.  214.345 and is
supplanted upon the effective date of this final rule.
    In the NPRM, FRA also proposed adding a new paragraph (f) to this
section reflecting the Working Group's consensus recommendation
requiring all roadway workers' training to include instruction on an
employer's procedures governing how roadway workers should determine if
it is safe to walk across railroad tracks. FRA removed that consensus
item from Sec.  214.317(b), and proposed to include it as new paragraph
(f) of this section. In this final rule, FRA is adopting this
requirement as proposed.
    In preparing this final rule, FRA noticed in the NPRM preamble
discussion, it incorrectly intermingled discussion of the periodic
``qualification'' of roadway workers with the existing roadway worker
annual training requirement. See 77 FR 50330. Since the original RWP
rule first took effect in 1997, it has required roadway workers to
receive annual training on the on-track safety procedures they must
follow. See 49 CFR 214.343(b). As exemplified by the inclusion of costs
for annual training for all roadway workers (including lone workers,
watchmen/lookouts, flagmen, and RWICs), in the RIA for the 1996 final
rule, and the assessment of the paperwork burden for annual training in
the Paperwork Reduction Act information collection estimates provided
by FRA in the 1996 final rule, this annual training requirement
includes training for all roadway worker qualifications. Further, in
2005, FRA issued Technical Bulletin G-05-16, clarifying that the
required time frame for the unspecified ``periodic'' qualification for
additional roadway worker qualifications is separate from the annual
training requirement of Sec.  214.345 and applies across all the
additional roadway worker qualifications. The existing definition of
the term ``watchmen/lookout'' also states it means an employee who has
been annually trained and qualified to provide warning to roadway
workers of approaching trains or on-track equipment. Technical Bulletin
G-05-16 further explained that because subpart C does not specify a
timeframe for the required ``periodic qualification'' of roadway
workers, determining an appropriate timeframe is at the discretion of
individual railroads and should be specified in each railroad's on-
track safety program. Therefore, the annual training requirement
existing since the RWP regulations were promulgated is unchanged by
this final rule.
Sec.  214.347 Training and Qualification for Lone Workers
    Section 214.347 sets forth the training and qualification
requirements applicable to lone workers and requires the initial and
``periodic'' qualification of lone workers to be ``evidenced by
demonstrated proficiency.'' In the NPRM, FRA proposed to amend this
section by incorporating the Working Group's consensus recommendation
to require the training of lone workers on alternative means to access
the information in a railroad's on-track safety manual when his or her
duties make it impractical to carry the manual. In this final rule, FRA
is adopting this provision substantially as proposed. FRA is making
minor adjustments to the language in response to BMWED/BRS's comment on
Sec.  214.309 noting that lone workers are not literally required to
``carry'' the on-track safety manual at all times, but rather that the
manual must be readily available to them at all times. FRA is also
correcting a typographical error in the rule text of this proposed
revision by removing the extra word ``to'' in proposed paragraph
(a)(5).
    In the NPRM, FRA also asked for comment on two additional issues on
the training and qualification of lone workers. First, FRA noted the
Working Group's consensus recommendation to

require requalification of roadway workers every 24 months, and
recurrent lone worker training every calendar year, did not parallel
the separate RSAC recommendation resulting from the mandate of Section
401 of the Rail Safety Improvement Act of 2008 (Section 401) for FRA to
set minimum training standards for ``each class and craft of safety-
related railroad employee.'' \21\ Thus, FRA asked for comment on how to
proceed regarding an appropriate time interval for ``periodic''
qualification in a final rule. Second, FRA asked if it should require a
physical characteristics qualification for lone workers.
---------------------------------------------------------------------------

    \21\ Public Law 110-432, Division A, 122 Stat. 4848 (codified at
49 U.S.C. 20162).
---------------------------------------------------------------------------

    Since publication of the NPRM, based on the recommendations of the
RSAC Training Standards Working Group, FRA published a final rule
addressing the mandate of Section 401. 79 FR 66460, Nov. 7, 2014
(Training Standards Rule; part 243). The rule includes minimum training
standards for roadway workers and extensive refresher qualification
requirements for roadway workers.
    In response to this request for comment, SEPTA, BMWED/BRS, AAR, and
two individuals submitted comments. SEPTA suggested that in this final
rule, FRA should defer to the three-year interval for training and
qualification in the Training Standards Rule. SEPTA asked why, when
under the Training Standards Rule, training and re-certification for
safety-critical positions such as conductors, engineers, and train
dispatchers only has to occur every three years, roadway workers would
be treated differently and trained annually. SEPTA asserted existing
Sec.  217.9 (requiring operational testing of employees) and Sec.
243.205 (Training Standards Rule training and qualification interval)
are adequate to ensure employees know how to perform their work
properly.
    Noting that at the time of its comment 44 roadway worker fatalities
had occurred since 1997, BMWED/BRS supported an annual training and
qualification requirement for all roadway workers, and opposed FRA not
adopting the Working Group's consensus recommendation for a 24-month
periodic qualification interval.
    Consistent with SEPTA's comment, AAR asserted no basis exists for
determining more frequent refresher training or qualification should be
required for roadway workers than for other safety-related employees
under the Training Standards Rule. Pointing to FRA's RIA for the
Training Standards NPRM, AAR also expressed the view that the Working
Group's consensus recommendation could not be justified from a cost-
benefit perspective due to lack of a safety benefit from more frequent
training.
    Individual commenters supported the Working Group's consensus
recommendation to require annual training and periodic qualification
every 24 months, stating generally that more frequent refresher
training will have better results. These commenters believe the
benefits of more frequent refresher programs would outweigh the cost of
the programs' development and implementation. The individual commenters
pointed to OSHA's training standards as a model, and urged FRA to adopt
a uniform standard of appropriate time intervals for refresher
training. The comment did note that implementing programs similar to
OSHA's would be burdensome.
    As stated in the discussion of Sec.  214.343 above, in this final
rule FRA is not amending the existing annual training requirements of
subpart C. FRA did not intend this rulemaking to decrease the training
roadway workers receive via existing requirements, and believes it
reasonable to continue the existing annual training requirement.
Because subpart C already requires annual training for roadway workers,
this approach will not result in any additional costs.
    In this final rule, FRA is, however, adding a new paragraph Sec.
214.347(b) requiring lone workers to be qualified under part 243 and to
be based on evidence of a lone worker's demonstrated proficiency. Part
243 requires covered employees to be qualified at least every three
calendar years. The costs for this qualification requirement are
already accounted for in the Training Standards Rule. Although FRA
encourages railroads to conduct refresher qualifications more often
than the minimum of once every three calendar years under part 243, FRA
agrees with AAR that from a cost-benefit basis, the evidence does not
support a more frequent qualification requirement for roadway workers
than other safety-critical employees subject to part 243 (e.g.,
locomotive engineers). FRA also agrees with SEPTA that existing Sec.
217.9's requirements for operational testing already provide a much
more frequent opportunity for observations by railroad officials to
determine employee proficiency with rules' compliance than does either
a two- or three-year required interval for determining qualification
via demonstrated proficiency.
    A lone worker's ``demonstrated proficiency'' under this new
paragraph (b) refers to the longstanding requirement FRA explained in
the original 1996 RWP rule. In that rule, FRA stated a roadway worker
must show

sufficient understanding of the subject that the employee can
perform the duties for which qualification is conferred in a safe
manner. Proficiency may be demonstrated by successful completion of
a written or oral examination, an interactive training program using
a computer, a practical demonstration of understanding and ability,
or an appropriate combination of these.

61 FR 65972.
    Many of part 243's requirements will not take effect for a number
of years, depending on a railroad's total employee work hours. See 49
CFR 243.101(a). In the interim, FRA encourages railroads to comply with
part 243's requirements as soon as possible, and, consistent with
Technical Bulletin G-05-16, continue to specify in their on-track
safety programs the interval at which ``periodic'' roadway work
qualifications will take place. Upon the relevant applicability date of
part 243's requirements for a particular railroad, that railroad must
comply with part 243's qualification requirements (and the
requalification of roadway workers must be at least every three
calendar years).
    Last, as discussed in section VIII.A above, in the NPRM, FRA asked
if it should require physical characteristics qualification for lone
workers. For the reasons explained in section VIII.A, FRA is not
adopting this requirement in this final rule.
Sec.  214.349 Training and Qualification for Watchmen/Lookouts
    Section 214.349 sets forth the training and qualification
requirements applicable to watchmen/lookouts and, consistent with
existing Sec.  214.347 applicable to lone workers, requires the initial
and ``periodic'' qualification of lone workers to be ``evidenced by
demonstrated proficiency.'' In the NPRM, FRA requested comment on how
to address the Working Group's consensus recommendation to require
requalification of roadway workers, including watchmen/lookouts, every
24 months. For the reasons discussed in the Section-by-Section analysis
of Sec.  214.347 above, FRA is not adopting this consensus
recommendation in this final rule. Instead, this final rule requires
periodic qualification for watchmen/lookouts to be performed consistent
with the Training Standards Rule (every three calendar years) and be

based on evidence of demonstrated proficiency.
    Consistent with its request for comment on Sec.  214.347 discussed
above, FRA asked if it should require a physical characteristics
qualification for watchmen/lookouts. For the reasons explained in
section VIII.A above, FRA is not adopting such a requirement in this
final rule.
Sec.  214.351 Training and Qualification for Flagmen
    Section 214.351 sets forth the training and qualification
requirements applicable to flagmen and, consistent with existing Sec.
214.347 applicable to lone workers and Sec.  214.349 applicable to
watchmen/lookouts, requires the initial and ``periodic'' qualification
of flagmen to be ``evidenced by demonstrated proficiency.'' In the
NPRM, FRA requested comment on how to address the Working Group's
consensus recommendation to require requalification of roadway workers,
including flagmen, every 24 months. For the reasons discussed in the
Section-by-Section analysis of Sec.  214.347 above, FRA is not adopting
this consensus recommendation in this final rule. Instead, this final
rule is requiring that periodic qualification for watchmen/lookouts be
performed consistent with the Training Standards Rule (every three
calendar years) and be based on evidence of demonstrated proficiency.
Section 214.353 Training and Qualification of Each Roadway Worker in
Charge
    Existing Sec.  214.353 is titled ``Training and qualification of
roadway workers who provide on-track safety for roadway work groups.''
Paragraph (a) of existing Sec.  214.353 lists the minimal contents of
RWIC training and paragraph (b) specifies that a RWICs initial and
periodic qualification must be evidenced by a ``recorded examination.''
In the NPRM, FRA proposed several changes to this section. BMWED/BRS
and AAR submitted comments responding to some of the proposed changes.
    First, to reflect the new term ``roadway worker in charge,'' FRA
proposed to change the title of this section to ``[t]raining and
qualification of each roadway worker in charge.'' FRA received no
comments on proposals and in this final rule is amending the title as
proposed.
    Second, consistent with the Working Group's recommendation, FRA
proposed to add a new paragraph (a)(5) to this section. Proposed
paragraph (a)(5) would require RWICs to be trained on procedures
ensuring they remain immediately accessible to the roadway workers
working within the working limits they establish. This paragraph
parallels new Sec.  214.315(a)(5) requiring on-track safety job
briefings conducted by RWICs to include information on the
accessibility of the RWIC, and on alternate procedures if the RWIC is
no longer accessible to members of the roadway work group. FRA received
no comments on this NPRM proposal, and in this final rule is adopting
new paragraph (a)(5) as proposed.
    In its comment, BMWED/BRS recommended adding a new paragraph to
this section requiring RWICs to be trained on the content and
application of the railroad rules governing the resolution of good
faith challenges. BMWED/BRS noted that regardless of class or craft of
a RWIC, RWICs must understand the good faith challenge procedures and
their responsibility to promptly and equitably resolve the challenges.
FRA concurs with BMWED/BRS's statement that RWICs must understand the
good faith challenge procedures and their responsibility to resolve
such challenges, but believes the existing regulations already require
RWICs to be trained on a railroad's good faith challenge procedures.
Under existing Sec. Sec.  213.311-214.313, good faith challenges may be
raised by roadway workers and must be promptly and equitably resolved.
Indeed, under those sections, railroads must adopt procedures to
address such good faith challenges. Existing Sec.  214.343(b) requires
recurrent training every calendar year for the on-track safety rules
and procedures each roadway worker is required to follow, and this
includes a railroad's rules and procedures on good faith challenges for
a RWIC. See also Sec.  214.353(b) (RWIC training requirements).
    Nonetheless, FRA believes BMWED/BRS's comment has merit because the
RWIC is typically involved in resolving roadway workers' good faith
challenges. As noted in the NPRM, Technical Bulletin G-05-04 specifies
that persons acting as RWICs must be qualified on good faith challenge
procedures, but the text of part 214 does not expressly state such.
Given the importance of ensuring RWICs are trained in a railroad's good
faith challenge procedures, FRA believes good faith challenge
procedures should be included as a required training and qualification
topic in paragraph (a) of Sec.  214.353. Thus, in this final rule FRA
is adding the words ``including the railroad's procedures governing
good faith challenges in Sec. Sec.  214.311(b) and (c) and 214.313(d)''
to existing paragraph (a)(1). While another railroad employee or
supervisor other than a RWIC may ultimately resolve a roadway worker's
good faith challenge to the on-track safety provided, an a RWIC is
typically involved in that resolution and must at least know the
railroad's procedures governing the handling of such a challenge.
    BMWED/BRS's comment also suggested FRA amend paragraph (b) of this
section to require all RWICs, regardless of craft, to be annually
trained and qualified. As discussed further below, FRA believes the
amendments already made to paragraph (a) of this section, and to Sec.
214.343 as discussed above, address this issue. As amended by this
final rule, Sec.  214.353 clarifies that all RWICs, regardless of
craft, must be trained annually on the items in Sec.  214.353. As
discussed in the Section-by-Section analysis for Sec. Sec.  214.343,
214.345, 214.347, and 214.351 above, FRA is deferring to the training
standards rulemaking's three-year qualification interval for all
roadway worker qualifications.
    In the NPRM, FRA proposed an additional amendment to existing
paragraph (a) of this section to address situations where employees
other than roadway workers act as RWICs. FRA proposed to expressly
require in paragraph (a) that any employee acting as a RWIC (e.g., a
conductor or a brakemen), who provides for the on-track safety of
roadway workers through the establishment of working limits or the
assignment and supervision of watchmen/lookouts or flagmen be trained
and qualified consistent with Sec.  214.353. BMWED/BRS submitted a
comment supporting this proposal and FRA is adopting it, as proposed,
in this final rule. For a detailed discussion of this change, see the
preamble to the NPRM. 77 FR 50356-50357.
    Regarding the training and qualification requirements of paragraph
(b) of this section, for the reasons explained in the Section-by-
Section analysis of Sec.  214.347 above, FRA is addressing the
frequency of training and qualification requirements for RWICs the same
way as the requirements applicable to lone workers, flagmen, and
watchmen/lookouts (Sec. Sec.  214.347, 214.349, and 214.351). While
annual training for RWICs is still required under the existing
regulation, the periodic qualification of RWICs will be controlled by
the Training Standards Rule, which requires recurrent qualification
every three calendar years.
    Also related to the training and qualification requirements
applicable to RWICs, in the NPRM, FRA requested comment on the practice
of bifurcating certain RWIC duties (i.e., splitting of RWIC duties
between two individuals).

Specifically, in the NPRM FRA indicated it was contemplating whether it
should continue to be allow bifurcation of RWIC duties, such as when
one employee obtains a track permit for another employee who is acting
as the RWIC. FRA was considering adopting a requirement that would only
permit the splitting of qualifications in situations where a conductor
or other railroad employee serves as a pilot to a RWIC (or employee
acting as a RWIC) who was not qualified on the physical characteristics
of a particular territory where work was being performed. FRA
considered such because every roadway work group already must have a
RWIC, and under the amendment to paragraph (a) in this final rule
discussed above, any employee acting as a roadway worker in charge must
be trained on the substantive requirements listed in Sec.  214.353.
    AAR commented on this proposal suggesting another situation where
the bifurcating of RWIC duties should be acceptable. AAR suggested that
in situations where one employee obtains a working limits authority for
a roadway work group, but is not responsible for any other aspect of
the group's on-track safety, requiring the employee to be trained and
tested on all the responsibilities of a RWIC would not serve any
purpose. Consistent with AAR's comment, FRA notes existing Technical
Bulletin G-05-04 allows one employee to obtain a track permit for
another employee who is acting as the RWIC. FRA can also envision other
operating situations where one employee's ability to obtain authority
on behalf of an RWIC is desirable and necessary. For example, in the
case of a large system gang, a local track inspector may obtain
authority from the dispatcher for the system gang's RWIC. The BMWED/BRS
comment also addressed this topic, indicating that since each roadway
work group must have a RWIC qualified on physical characteristics under
Sec.  214.353, bifurcation was unnecessary and could cause confusion.
    After further evaluating this issue and considering the comments,
FRA concludes bifurcation of RWIC duties can be safely done in the two
limited scenarios discussed above involving physical characteristics
qualifications (pilot) and when obtaining track authority for an RWIC.
FRA will continue to allow the practice of splitting RWIC duties in
these scenarios. For gangs working across a large system, FRA
recognizes it may not always be possible for an RWIC to be qualified on
the physical characteristics, and using a pilot who is qualified on the
physical characteristics can help safely facilitate compliance with
this section. As discussed more fully in the NPRM and Technical
Bulletin G-05-04, FRA also does not take exception to providing a
``limited'' qualification for a RWIC who would only perform certain
RWIC duties in certain situations. For example, a RWIC who was
performing such duties on a railroad consisting entirely of non-
controlled track could have a limited qualification only involving the
RWIC 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).
Sec.  214.355 Training and Qualification in On-Track Safety for
Operators of Roadway Maintenance Machines
    Section 214.355 sets forth the on-track safety training and
qualification requirements for roadway maintenance machine operators.
In the NPRM, FRA requested comment on one potential change to this
existing section in the final rule on how best to proceed regarding the
appropriate time interval for ``periodic'' qualification under existing
paragraph (b). The Working Group recommended consensus amendments that
would have expressly required recurrent qualification every 24 months
for roadway maintenance machine operators. As discussed in the preamble
above for Sec.  214.347, however, the RSAC consensus recommendation
does not parallel the refresher qualification requirements in the
statutorily mandated Training Standards Rule (minimum three calendar
year interval).
    FRA received comments in response to this request from SEPTA,
BMWED/BRS, AAR, and two individuals. Those comments are summarized
above in the preamble discussion for Sec.  214.347. For the reasons
also explained above, in this final rule, the Training Standards Rule
requiring recurrent qualification at a minimum of every three calendar
years will control.
    FRA notes the Training Standards Rule included a provision
addressing the training and qualification for operators of roadway
maintenance machines equipped with a crane. 79 FR 66501. Those
requirements are in a new Sec.  214.357. FRA directs the public to the
Training Standards Rule preamble's Section-by-Section analysis for an
explanation of new Sec.  214.357's requirements. Id. at 66474-66476.
Appendix A to Part 214--Schedule of Civil Penalties
    FRA is amending appendix A of this part to add guidance on
penalties for violations of new and amended sections of subpart C in
this final rule. Appendix A specifies the civil penalty FRA will
ordinarily assess for the violation of a particular provision of this
rule. However, consistent with 49 CFR part 209, appendix A, FRA's
Statement of Agency Policy Concerning Enforcement of the Federal
Railroad Safety Laws, FRA reserves the right to assess a penalty up to
the statutory maximum. Further, a penalty may be assessed against an
individual only for a willful violation. FRA did not solicit public
comment on appendix A as it is a statement of FRA policy.

X. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563 and DOT Regulatory
Policies and Procedures

    This final rule has been evaluated consistent with existing
policies and procedures and determined to be a non-significant
regulatory action under Executive Orders 12866 and 13563 and DOT
policies and procedures. See 44 FR 11034, Feb. 26, 1979. FRA prepared
and placed a RIA addressing the economic impact of this final 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 assessed quantitative measurements of the
cost and benefit streams expected to result from the implementation of
the final rule. Overall, the final rule would result in safety benefits
and expected business benefits for the railroad industry. It would
also, however, generate an additional burden on railroads mainly due to
the additional requirements for job briefings under certain
circumstances and 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, the identification and implementation of redundant
protections under Sec.  214.319 Working Limits, Generally, railroad
policy change under Sec.  214.339 Audible Warning from Trains, and
training of various types of employees under Sec. Sec.  214.318,
214.345, 214.347, 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 the new exception for on-track snow
blowing and weed spraying operations under Sec.  214.317, new methods
of using inaccessible track under Sec.  214.327, and using individual
train detection under Sec.  214.337. Savings will also accrue due to
the additional flexibility provided by new Sec.  214.318 allowing
mechanical employees to utilize blue signal protection in some
instances. All other 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 costs to
the railroad industry total $20,965,962, discounted to $11,491,330
(present value (PV), 7 percent) and $15,832,099 (PV, 3 percent). For
the same 20-year period, the estimated quantified benefits total
$53,109,702, discounted to $28,132,247 (PV, 7 percent) and $39,506,913
(PV, 3 percent). Net benefits total $32,143,740, discounted to
$16,640,917 (PV, 7 percent) and $23,674,814 (PV, 3 percent). This
analysis demonstrates that the benefits for this final rule would
exceed the costs.
[GRAPHIC] [TIFF OMITTED] TR10JN16.001

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, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. FRA developed the final rule consistent 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 a rule
is not expected to have a SEISNOSE.
    As discussed earlier, FRA is amending its regulations on railroad
workplace safety to resolve interpretative issues that have arisen
since the 1996 promulgation of the original RWP regulation. In
particular, this final rule adopts certain terms, resolves
miscellaneous interpretive issues, codifies certain FRA Technical
Bulletins, adopts new requirements governing redundant signal
protections and the movement of roadway maintenance machinery over
signalized non-controlled track, amends certain qualification
requirements for roadway workers, and codifies FAST Act mandates. FRA
is also deleting three incorporations by reference of industry

standards in existing sections of part 214, subpart B that address
Bridge Worker Safety Standards and instead is referencing existing OSHA
regulations.
    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
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
(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 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 section 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 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. Under that authority, FRA 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 (STB) 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. The same dollar
limit on revenues is established to determine whether a railroad
shipper or contractor is a small entity. FRA is using this definition
for this rulemaking. FRA received no comments pertinent to its use in
response to the NPRM.
    Included in the entities impacted by this final rule are
governmental jurisdictions or transit authorities--most of which are
not small for purposes of this certification. There are two privately
owned commuter railroads that would be considered small entities.
However, both entities are owned by Class III freight railroads and,
therefore, are already considered small entities for purposes of this
certification.
Railroads
    There are approximately 729 small railroads.\22\ 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 regulation.
However, because of certain characteristics 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 final rule's requirements. Finally, other small
railroads, if they do have more than a single track, typically have
operations 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 is conducted during hours that the
track is not used.
---------------------------------------------------------------------------

    \22\ FRA data for 2014 shows there are 779 Railroads. Thus, 779
Total Railroads--7 Class I Railroads--12 Class II Railroads
(includes Alaska RR)--31 Commuter/Amtrak (non-small) = 729 Small
Railroads.
---------------------------------------------------------------------------

    Almost all commuter railroads do not qualify as small entities.
This is likely because almost all 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 they are owned by a Class III freight railroad. FRA is
uncertain 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 requirements of this
final rule 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) will be impacted by this
final rule.
    The process used to develop most of this final rule provided
outreach to small entities in two ways. First, the RSAC Working Group
had at least one representative from a small railroad association,
namely, ASLRRA. Second, members of the RSAC itself include the ASLRRA
and other organizations that represent small entities. Thus, FRA
concludes 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
requirements for certain changes to the existing roadway worker
protection regulations, particularly regarding job briefings and
training of roadway workers.
    The RIA for this rulemaking estimates that for the 20-year period
analyzed, the estimated quantified costs to the railroad industry total
$20,965,962, discounted to $11,491,330 (present value (PV), 7 percent)
and $15,832,099 (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.
Also, several parts of the new regulation do not apply to Class III
railroads. 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 $1,677,277 (an average annual cost
of $115 per small railroad).\23\ Although the rule may impact a
substantial number of small entities, FRA is confident that this final
rule does not impose a significant burden.
---------------------------------------------------------------------------

    \23\ $20,965,962 * .08 = $1,677,277/20 years/729 small railroads
= $115 per year per small railroad.
---------------------------------------------------------------------------

2. Certification
    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies this final rule will not have a significant economic impact
on a substantial number of small entities. FRA invited all interested
parties to submit data and information regarding the potential economic
impact that will result from the proposals in the NPRM. FRA did not
receive any comments concerning this certification in the public
comment process.

C. Paperwork Reduction Act

    The information collection requirements in this final rule are
being submitted upon publication in the Federal Register for Office of
Management and Budget (OMB) approval under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new and
current information collection requirements and the estimated time to
fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual      Average time  per    Total annual
           CFR section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214      350 Safety           120 forms..........  4 hours............             480
 Railroad Workplace Safety          Inspectors.
 Violation Report.
214.307--Railroad On-Track Safety  722 Railroads......  722 programs + 851   2 hours + 2 minutes           1,472
 Programs (Revised Requirements)--                       copies.
 RR Programs that comply with
 this Part + copies at System/
 Division Headquarters.
    --RR Notification to FRA not   722 Railroads......  825 notices........  20 minutes.........             275
     less than one month before
     on-track safety program
     takes effect.
    --RR Amended On-Track Safety   722 Railroads......  34 programs........  4 hours............             136
     Programs after FRA
     Disapproval.
    --RR Written Response in       722 Railroads......  2 written responses  40 hours...........              80
     Support of Disapproved
     Program.
214.309--New Requirements--On-     722 Railroads......  722 provisions.....  60 minutes.........             722
 Track Safety Manual.
    --RR Provisions for            60 Railroads.......  100 bulletins/       60 minutes.........             100
     Alternative Access to                               notices.
     Information in On-Track
     Safety Manual.
    --RR Publication of Bulletins/
     Notices reflecting changes
     in on-track safety manual.
214.311--RR Written Procedure to   50 New Railroads...  25 generic           30 minutes + 24                 613
 achieve prompt and equitable                            procedures + 25      hours.
 resolution of Good Faith                                developed
 Employee Challenges.                                    procedures.
214.313--Good Faith Challenges to  20 Railroads.......  80 challenges......  8 hours per                     640
 On-Track Safety Rules.                                                       challenge.
214.315/335--Supervision           50,000 Rdwy Workers  16,350,000 brf.....  2 minutes..........         545,000
 +communication.
    --Job Briefings..............
    --Adjacent-Track Safety        24,500 Rdwy Workers  2,403,450 brf......  30 seconds.........          20,029
     Briefings.
    --Information on               300 Roadway Work     594,000 briefings..  20 seconds.........           3,300
     Accessibility of Roadway       Gangs (10
     Worker in Charge (RWIC) and    Employees in each
     Alternative Procedures in      gang x 59,400
     Event RWIC is No Longer        briefings).
     Accessible to Work Gang (New
     Requirement).
214.317--On-Track Procedures for   20 Railroads.......  20 operating.......  60 minutes.........              20
 Snow Removal (New Requirements).
    --On-Track Procedures for      722 Railroads......  722 operating        60 minutes.........             722
     Weed Spray Equipment.                               procedures.
    --Roadway Worker in Charge     722 Railroads......  25 designation.....  5 minutes..........               2
     (RWIC) Designation of
     alternative place of safety
     other than tunnel niche or
     clearing bay.

214.318--Procedures established    722 Railroads......  722 rules/           3 hours............           2,166
 by Railroads for workers to                             procedures.
 perform duties incidental to
 those of inspecting, testing,
 servicing, or repairing rolling
 equipment (New Requirement).
214.319(b)(1)--New Requirements--  47 Railroads.......  47 On-track program  40 hours + 16 hours           1,568
 Class I & II Railroads                                  evaluations.
 evaluation of its on-track
 safety program and
 identification of appropriate
 method to provide redundant
 protections for roadway work
 groups.
    (b)(2)--Implementing           47 Railroads.......  77,394 safety        4 minutes..........           5,160
     redundant protections--                             briefings.
     safety briefings.
    (c) Railroad written request   47 Railroads.......  5 written requests.  60 minutes.........               5
     to FRA requesting exemption
     from requirements of section
     214.319(b) for each segment
     of track governed by
     Positive Train Control.
214.320--Roadway Maintenance       722 Railroads......  5 requests.........  4 hours............              20
 Machines Movement over
 Signalized Non-controlled Track--
 RR request to FRA for equivalent
 level of protection to that of
 Working Limits(New Requirement).
214.322--New Requirements)         3 Class I Railroads  500 written          10 minutes.........              83
 Exclusive Track Occupancy,                              authorities.
 Electronic Display--Written
 Authorities/Printed Authority
 Copy If Electronic Display Fails
 or Malfunctions.
    --On-Track Safety Briefings    722 Railroads......  100 briefings......  6 minutes..........              10
     in Event Written Authority/
     Printed Authority Copy
     Cannot Be Obtained.
    --Data File Records Relating   3 Class I Railroads  25 data file         2 hours............              50
     to Electronic Display Device                        records.
     Involved in Part 225
     Reportable Accident/Incident.
    --Request to FRA for NIST      722 Railroads......  3 requests + 3       30 minutes + 2                    2
     Publication 800-63-2,                               copies.              minutes.
     ``Electronic Authentication
     Guideline''.
214.325--Train Coordination        50,000 Roadway       36,500 verbal        15 seconds.........             152
 (Revised Requirement)--Working     Workers.             messages.
 Limits Established on Controlled
 Track through Train
 Coordination: Verbal
 communication by roadway worker
 establishing working limits.
214.327--Inaccessible Track--      10 Railroads.......  9,125 talks/         10 minutes.........           1,521
 Working Limits Established by                           messages.
 Locomotive With/Without Cars to
 Prevent Access--Communication by
 RWIC with Locomotive Crew Member
 (New Requirement).
    --Notification to Train or     10 Railroads.......  1,750 notices......  60 minutes.........           1,750
     Engine Crew on Any Working
     Limits in Effect That
     Prohibit Train Movement
     until RWIC gives permission
     to enter Working Limits (New
     Requirement).
    --Working Limits on Non-       722 Railroads......  50,000               10 minutes.........           8,333
     controlled Track:                                   notifications.
     Notifications.
214.329--Train Approach Warning    722 Railroads......  795,000 non- yard    30 seconds + 10               6,846
 Provided by Watchmen/Lookouts--                         messages + 79,500    seconds.
 Communications.                                         yard messages.
    --Written Designation of       722 Railroads......  26,250 designations  30 seconds.........             219
     Watchmen/Lookouts.
214.336--Procedures for Adjacent-  100 Railroads......  10,000 notices.....  15 seconds.........              42
 Track Movements Over 25 mph--
 Notifications/Watchmen/Lookout
 Warnings.
    --Roadway Worker               100 Railroads......  3,000 talks........  1 minute...........              50
     Communication with Train
     Engineers or Equipment
     Operators.
    --Procedures for Adjacent-     100 Railroads......  3,000 notices......  15 seconds.........              13
     Track Movements 25 mph or
     less--Notifications/Watchmen/
     Lookout Warnings.
    --Roadway Worker               100 Railroads......  1,500 talks........  1 minute...........              25
     Communication with Train
     Engineers or Equipment
     Operators.
    --Exceptions to the            100 Railroads......  2,403,450 briefings  15 seconds.........          10,014
     requirements in paragraphs
     (a), (b), and (c) for
     adjacent--controlled-track
     on-track safety: Work
     activities involving certain
     equipment and purposes--On-
     Track Job Safety Briefings.
214.337--On-Track Safety           722 Railroads......  2,080,000            30 seconds.........          17,333
 Procedures for Lone Workers:                            statements.
 Statements by Lone Workers.

    --Statement of On-Track        722 Railroads......  200 statements.....  30 seconds.........               2
     Safety Using Individual
     Train Detection on Track
     Outside Manual Interlocking,
     a Controlled Point, or a
     Remotely Controlled Hump
     Yard Facility.
214.339--Audible Warning from      44 Railroads.......  44 written           13 hours...........             572
 Trains (Revised Requirement)--                          procedures.
 Written Procedures That
 Prescribe Effective Requirements
 for Audible Warning by Horn and/
 or Bell for Trains.
214.343/345/347/349/351/353/355--  50,000 Rdwy Workers  50,000 tr. RW......  4.5 hours..........         225,000
 Annual Training for All Roadway
 Workers (RWs) (New/Revised
 Requirements).
    --Training of Trainmen         810 RR Workers.....  810 trained workers  2 hours............           1,620
     (Conductors & Brakemen) to
     Act as RWIC and Training of
     Station Platform Work
     Coordinators (New
     Requirement).
    --Additional adjacent on-      35,000 Rdwy Workers  35,000 tr. RW......  5 minutes..........           2,917
     track safety training for
     Roadway Workers.
    --Records of Training........  50,000 Roadway       50,000 records.....  2 minutes..........           1,667
                                    Workers.
214.503--Good Faith Challenges;    50,000 Rdwy Workers  125 notices........  10 minutes.........              21
 Procedures for Notification and
 Resolution--Notifications for
 Non-Compliant Roadway
 Maintenance Machines or Unsafe
 Condition.
    --Resolution Procedures......  644 Railroads/200    10 procedures......  2 hours............              20
                                    contractors.
214.505--Required Environmental    644 Railroads/200    500 lists..........  1 hour.............             500
 Control and Protection Systems     contractors.
 For New On-Track Roadway
 Maintenance Machines with
 Enclosed Cabs.
    --Designations/Additions to    644 Railroads/200    150 additions/       5 minutes..........              13
     List.                          contractors.         designations.
214.507--A-Built Light Weight on   644 Railroads/200    1,000 stickers/      5 minutes..........              83
 New Roadway Maintenance Machines.  contractors.         stencils.
214.511--Required Audible Warning  644 Railroads/200    3,700 identified     5 minutes..........             308
 Devices For New On-Track Roadway   contractors.         mechanisms.
 Maintenance Machines.
214.513--Retrofitting of Existing
 On-Track Roadway Maintenance
 Machines.
    --Identification of            703 Railroads/200    200 I.D. mechanisms  5 minutes..........              17
     Triggering Mechanism--Horns.   contractors.
214.515--Overhead Covers For       644 Railroads/200    500 requests + 500   10 minutes; 20                  250
 Existing On-Track Roadway          contractors.         responses.           minutes.
 Maintenance Machines.
214.517--Retrofitting of Existing  644 Railroads/200    500 stencils/        5 minutes..........              42
 On-Track Roadway Maintenance       contractors.         displays.
 Machines Manufactured On or
 After Jan. 1, 1991.
214.518--Safe and Secure Position  644 Railroads/200    1,000 stencils.....  5 minutes..........              83
 for riders.                        contractors.
    --Positions identified by
     stencilings/markings/notices.
214.523--Hi-Rail Vehicles........  644 Railroads/200    2,000 records......  60 minutes.........           2,000
                                    contractors.
    --Non-Complying Conditions...  644 Railroads/200    500 tags + 500       10 minutes + 15                 208
                                    contractors.         reports.             minutes.
214.527--Inspection for            644 Railroads/200    550 tags + 550       5 minutes + 15                  184
 Compliance; Repair Schedules.      contractors.         reports.             minutes.
214.533--Schedule of Repairs;      644 Railroads/200    250 records........  15 minutes.........              63
 Subject to Availability of Parts.  contractors.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time to review instructions; search
existing data sources; gather or maintain the needed data; and review
the information. For information or a copy of the paperwork package
submitted to OMB, contact Mr. Robert Brogan, FRA Office of Safety,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Kim Toone, FRA
Office of Information Technology, Information Clearance Officer, at
202-493-6132.
    OMB must make a decision concerning the collection of information
requirements this final rule between 30 and 60 days after publication
of this document in the Federal Register. Therefore, a comment to OMB
is best assured of having its full effect if OMB receives it within 30
days of publication.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number. If required, FRA will obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action before 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 final rule has been analyzed consistent with the principles
and criteria in Executive Order 13132. This final 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 final 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 final rule consistent with the
principles and criteria in Executive Order 13132. As explained above,
FRA has determined that this final 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 preparation of a federalism summary impact statement for
this final rule is not required.

E. Environmental Impact

    FRA has evaluated this final rule under the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental
statutes, related regulatory requirements, and its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999). FRA has determined this final rule is categorically
excluded from detailed environmental review under section 4(c)(20) of
FRA's Procedures, ``Promulgation of railroad safety rules and policy
statements that do not result in significantly increased emissions of
air or water pollutants or noise or increased traffic congestion in any
mode of transportation.'' See 64 FR 28547. Categorical exclusions (CEs)
are actions identified in an agency's NEPA implementing procedures that
do not normally have a significant impact on the environment and, thus,
do not require either an environmental assessment (EA) or environmental
impact statement (EIS). See 40 CFR 1508.4.
    In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, FRA
has further concluded no extraordinary circumstances exist with respect
to this regulation that might trigger the need for a more detailed
environmental review. The purpose of this rulemaking is to finalize a
number of railroad worker safety practices developed by the RSAC, some
required by the FAST Act, and additional rules to decrease railroad
worker accidents and injuries. FRA does not anticipate any
environmental impacts from these requirements and finds that there are
no extraordinary circumstances present in connection with this final
rule.

F. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA evaluated this final rule under Executive Order 12898
and the DOT Order and has determined it would not cause
disproportionately high and adverse human health and environmental
effects on minority or low-income populations.

G. Executive Order 13175 (Tribal Consultation)

    FRA evaluated this final rule under the principles and criteria in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, dated November 6, 2000. The final rule would not have a
substantial direct effect on one or more Indian tribes, would not
impose substantial direct compliance costs on Indian tribal
governments, and would not preempt tribal laws. Therefore, the funding
and consultation requirements of Executive Order 13175 do not apply,
and a tribal summary impact statement is not required.

H. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995
(Public Law 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. This final rule will not result in the expenditure, in
the aggregate, of $155,000,000 or more (adjusted annually for
inflation) in any one year. Thus, preparation of such a statement is
not required.

I. 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 evaluated this final rule consistent with Executive Order
13211. FRA has determined this final rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and, thus, is not a ``significant energy action'' under
Executive Order 13211.

J. Trade Impact

    The Trade Agreements Act of 1979 19 U.S.C. 2501 et seq.) prohibits
Federal agencies from engaging in any standards setting or related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Legitimate domestic objectives, such as safety, are
not considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. FRA has assessed the potential
effect of this final rule on foreign commerce and believes its
requirements are consistent with the Trade Agreements Act. The
requirements imposed are safety standards, which, as noted, are not
considered unnecessary obstacles to trade.

K. Privacy Act

    Interested parties should be aware that anyone can 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 (65 FR 19477-19478, Apr. 11, 2000) or you may
visit http://www.dot.gov/privacy.html.

L. Analysis Under 1 CFR Part 51

    As 1 CFR 51.5 requires, FRA has summarized the standard
incorporated by reference and shown its reasonable availability in the
Section-by-Section analysis above.

List of Subjects in 49 CFR Part 214

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

The Rule

    For the reasons discussed in the preamble, FRA amends part 214 of
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:

PART 214--[AMENDED]

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

    Authority:  49 U.S.C. 20102-20103, 20107, 21301-21302, 21304, 28
U.S.C. 2461, note; and 49 CFR 1.89.

Subpart A--General

0
2. Amend Sec.  214.7 as follows:
0
a. Add the definitions, in alphabetical order, for ``controlled
point'', ``interlocking, manual'', ``maximum authorized speed'', ``on-
track safety manual'', ``roadway worker in charge'';
0
b. Revise the definitions for ``effective securing device'' and
``watchman/lookout''.
    The additions and revisions read as follows:

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 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 on-track safety
rules and instructions maintained together in one manual 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
under Sec.  214.353 to establish on-track safety for roadway work
groups, and lone workers qualified under Sec.  214.347 to establish on-
track safety for themselves.
* * * * *
    Watchman/lookout means an employee who has been 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, fuse. A watchman/lookout's sole duty is to
look out for approaching trains/on-track equipment and provide at least
fifteen seconds advanced warning to employees before arrival of trains/
on-track equipment.
* * * * *

0
3. Revise Sec.  214.113(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.

0
4. Revise Sec.  214.115(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.

0
5. Revise Sec.  214.117(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

0
6. Revise Sec.  214.301(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. Except as provided for in Sec.  214.320,
this subpart does not otherwise affect movements of roadway maintenance
machines that are conducted under the authority of a train dispatcher,
a control operator, or the operating rules of the railroad.

Sec.  214.302  [Removed and Reserved]

0
7. Remove and reserve Sec.  214.302.

Sec.  214.305  [Removed and Reserved]

0
8. Remove and reserve Sec.  214.305.
0
9. Revise Sec.  214.307 to read as follows:

Sec.  214.307  On-track safety programs.

    (a) 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. New railroads must have an on-track safety program in
effect by the date on which operations commence. 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) Each railroad shall notify, in writing, the Associate
Administrator for Safety and Chief Safety Officer, Federal Railroad
Administration, RRS-15, 1200 New Jersey Avenue SE., Washington, DC
20590, not less than one month before its on-track safety program
becomes effective. The notification shall include the effective date of
the program and the name, title, address and telephone number of the
primary person to be contacted with regard to review of the program.
This notification procedure shall also apply to subsequent changes to a
railroad's on-track safety program.
    (c) Upon review of a railroad's on-track safety program, the FRA
Associate Administrator for Railroad Safety and Chief Safety Officer
may, for cause stated, may 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 and 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 and Chief Safety Officer for approval; or
    (ii) Provide a written response in support of its program to the
Associate Administrator for Railroad Safety and Chief Safety Officer.
    (2) FRA's Associate Administrator for Railroad Safety and Chief
Safety Officer will subsequently issue a written decision either
approving or disapproving the railroad's program.
    (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.

0
10. Revise Sec.  214.309 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 in charge 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 the on-track safety manual to be
readily available to a lone worker, 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 retained
along with the on-track safety manual until fully incorporated into the
manual.

0
11. In Sec.  214.315, revise paragraphs (a)(3), (a)(4), (b), the first
sentence of paragraphs (c) through (e) and add 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. * * *

0
12. Revise Sec.  214.317 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 214.337.
    (b) Roadway workers may walk across any track provided 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 (or derails operated via a switch stand) 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.
    (d) Tunnel niches or clearing bays in existence prior to April 1,
2017 that are designed to permit roadway workers to occupy a place of
safety when trains or other on-track equipment pass the niche or
clearing bay, but are less than four feet from the field side of the
nearest rail, may continue to be used as a place of safety provided:
    (1) Such niches or clearing bays are visually inspected by the
roadway worker in charge or lone worker prior to making the
determination that the niche or clearing bay is suitable for use as a
place of safety;
    (2) There is adequate sight distance to permit a roadway worker or
lone worker to occupy the place of safety in the niche or clearing bay
at least 15 seconds prior to the arrival of a train or other on-track
equipment at the work location in accordance with Sec. Sec.  214.329
and 214.337; and
    (3) The roadway worker in charge or lone worker shall have the
absolute right to designate a place of safety as a location other than
that of a tunnel niche or clearing bay described by this paragraph (d),
or to establish working limits.

0
13. Add Sec.  214.318 to read as follows:

Sec.  214.318  Locomotive servicing and car shop repair track areas.

    (a) In lieu of the requirements of this subpart, workers (as
defined by Sec.  218.5 of this chapter) within the limits of locomotive
servicing and car shop repair track areas (as both are defined by Sec.
218.5 of this chapter) may utilize procedures established by a railroad
in accordance with part 218, subpart B, of this chapter (Blue Signal
Protection) to perform duties incidental to inspecting, testing,
servicing, or repairing rolling equipment when those incidental duties
involve fouling a track that is protected by Blue Signal Protection. A
railroad utilizing Blue Signal Protection in lieu of the requirements
of this subpart must have rules in effect governing the applicability
of those protections to the incidental duties being performed.
    (b) Paragraph (a) of this section applies to employees of a
contractor to a railroad if such incidental duties are performed under
the supervision of a railroad employee qualified (as defined by Sec.
217.4 of this chapter) on the railroad's rules and procedures
implementing the Blue Signal Protection requirements.
    (c) Any work performed within the limits of a locomotive servicing
or car shop repair track area with the potential of fouling a track
which requires a person qualified under Sec.  213.7 of this chapter to
be present to inspect or supervise such work must be performed in
accordance with the requirements of this subpart.

0
14. Revise Sec.  214.319 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, Sec.  214.323
Foul time, or Sec.  214.325 Train coordination. Working limits
established on non-controlled track shall conform to the provision of
Sec.  214.327 Inaccessible track.
    (a) Working limits established under any procedure shall, in
addition, conform to the following provisions:
    (1) Only a roadway worker in charge who is qualified in accordance
with Sec.  214.353 shall establish or have control over working limits
for the purpose of establishing on-track safety.
    (2) Only one roadway worker in charge who is qualified in
accordance with Sec.  214.353 shall have control over working limits on
any one segment of track.
    (3) All affected roadway workers shall be notified before working
limits are released for the operation of trains. Working limits shall
not be released until all affected roadway workers have either left the
track or have been afforded on-track safety through train approach
warning in accordance with Sec.  214.329.

    (b) Each Class I or Class II railroad or each railroad providing
regularly scheduled intercity or commuter rail passenger transportation
that utilizes controlled track working limits as a form of on-track
safety (under Sec. Sec.  214.321 through 214.323) in signalized
territory shall:
    (1) By July 1, 2017, evaluate its on-track safety program and
identify an appropriate method(s) of providing redundant signal
protections for roadway work groups who depend on a train dispatcher or
control operator to provide signal protection in establishing
controlled track working limits. For purposes of this section,
redundant signal protections means risk mitigation measures or safety
redundancies adopted to ensure the proper establishment and maintenance
of signal protections for controlled track working limits until such
working limits are released by the roadway worker in charge.
Appropriate redundant protections could include the use of various risk
mitigation measures (or a combination of risk mitigation measures) such
as technology, training, supervision, or operating-based procedures; or
could include use of redundant signal protection, such as shunting,
designed to prevent signal system-related incursions into established
controlled track working limits; and
    (2) By January 1, 2018, specifically identify, implement, and
comply with the method(s) of providing redundant protections in its on-
track safety program.
    (c) Upon a railroad's request, FRA will consider an exemption from
the requirements of paragraph (b) of this section for each segment of
track(s) for which operations are governed by a positive train control
system under part 236, subpart I, of this chapter. A request for
approval to exempt a segment of track must be submitted in writing to
the FRA Associate Administrator for Railroad Safety and Chief Safety
Officer. The FRA Associate Administrator for Railroad Safety and Chief
Safety Officer will review a railroad's submission and will notify a
railroad of its approval or disapproval in writing within 90 days of
FRA's receipt of a railroad's written request, and shall specify the
basis for any disapproval decision.

0
15. Add Sec.  214.320 to read as follows:

Sec.  214.320  Roadway maintenance machine movements over signalized
non-controlled track.

    Working limits must be established for roadway maintenance machine
movements on non-controlled track equipped with automatic block signal
systems over which trains are permitted to exceed restricted speed (for
purposes of this section, on-track movements prepared to stop within
on-half the range of vision but not exceeding 25 mph). This section
applies unless 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 and Chief Safety
Officer.

0
16. In Sec.  214.321, revise paragraphs (a) introductory text, (b)
introductory text, (b)(2), and (d) and add 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.
* * * * *
    (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 trains(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
prohibiting the affected train(s) from making a reverse movement into
or within the limits being fouled or occupied.
    (3) After the roadway worker in charge or lone worker has confirmed
that the affected trains(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 trains(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) A separate roadway work group afforded on-track safety by the
roadway worker in charge of authority limits, and that is located away
from the roadway worker in charge of authority limits, 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 (3) of this section.
    (5) 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.

0
17. 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.
    (b) If the electronic display device malfunctions, fails, or cannot
display an authority while it is in effect, the roadway worker in
charge shall either obtain a written or printed copy of the authority
in accordance with Sec.  214.321 (except that on-track roadway
maintenance machine and hi-rail movements must stop) or establish
another form of on-track safety without delay. 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 instruct
all roadway workers to stop work and occupy a place of safety and
conduct an on-track safety job briefing to determine the safe course of
action with the roadway work group.
    (c) 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.
    (d) 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.
    (e) The integrity of all data must be ensured during transmission/
reception, processing, and storage. All new electronic display systems
implemented on or after July 1, 2017 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. Systems implemented prior
to July 1, 2017 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 July 1, 2017
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 July
1, 2018.
    (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.
    (f) Authorities transmitted to each electronic display device shall
be retained in the device's non-volatile memory for not less than 72
hours.
    (g) 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.
    (h) New electronic display systems implemented on or after July 1,
2017 shall provide Level 3 assurance as defined by NIST Special
Publication 800-63-2, Electronic Authentication Guideline, ``Computer
Security,'' August 2013. Systems implemented prior to July 1, 2017
shall provide Level 2 assurance. Systems implemented prior to July 1,
2017 that do not provide Level 2 or higher assurance must be retired,
or updated to provide Level 2 assurance, no later than July 1, 2018.
The incorporation by reference of this NIST Special Publication was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the
incorporated document from the National Institute of Standards and
Technology, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899-8930,
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf. You may inspect a copy of the document at the Federal Railroad
Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington,
DC, or at the National Archives and Records Administration (NARA). 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.

0
18. In Sec.  214.323, revise paragraphs (a), (b), and (c) and add
paragraph (d) to read as follows:

Sec.  214.323  Foul time.

* * * * *
    (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 or identifier, 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.

0
19. In Sec.  214.325, revise the introductory text 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:
* * * * *

0
20. In Sec.  214.327, add paragraphs (a)(6), (7), and (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 system and such system shall be charged with compressed air 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 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 block register territory inaccessible
under the other provisions of paragraph (a) of this section.
    (8) Railroad operating rules that prohibit train or engine or other
on-track equipment movements on a main track within yard limits or
restricted limits until the train or engine or on-track equipment
receives notification of any working limits in effect and prohibit the
train or engine or on-track equipment 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, also with advance signs (flags).
* * * * *

0
21. Amend Sec.  214.329 by revising paragraph (a) to read as follows:

Sec.  214.329  Train approach warning provided by watchmen/lookouts.

* * * * *
    (a) Train approach warning shall be given in sufficient time to
enable each roadway worker to move to and occupy a previously arranged
place of safety not less than 15 seconds before a train moving at the
maximum 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.
* * * * *

0
22. In Sec.  214.331, add 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 June 12, 2017.

0
23. Revise Sec.  214.333(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 June 12, 2017.

0
24. Revise Sec.  214.335 to read as follows:

Sec.  214.335  On-track safety procedures for roadway work groups,
general.

    (a) No employer subject to the provisions of this part shall
require or permit a roadway worker who is a member of a roadway work
group to foul a track unless on-track safety is provided by either
working limits, train approach warning, or definite train location in
accordance with the applicable provisions of Sec.  214.319, Sec.
214.321, Sec.  214.323, Sec.  214.325, Sec.  214.327, Sec.  214.329,
Sec.  214.331, or Sec.  214.336.
    (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.

0
25. In Sec.  214.337, revise paragraph (c)(3) and add 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.

0
26. Revise Sec.  214.339 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.

0
27. Revise Sec.  214.343(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.
* * * * *

0
28. In Sec.  214.345, revise the introductory text and add 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).

0
29. In Sec.  214.347, add paragraph (a)(5) and revise paragraph (b) to
read as follows:

Sec.  214.347  Training and qualification for lone workers.

* * * * *

    (a) * * *
    (5) Alternative means to access the information in a railroad's on-
track safety manual when a lone worker's duties make it impracticable
for the on-track safety manual to be readily available.
    (b) Initial and periodic (as specified by Sec.  243.201 of this
chapter) qualification of a lone worker shall be evidenced by
demonstrated proficiency.

0
30. Revise Sec.  214.349(b) to read as follows:

Sec.  214.349  Training and qualification of watchmen/lookouts.

* * * * *
    (b) Initial and periodic (as specified by Sec.  243.201 of this
chapter) qualification of a watchman/lookout shall be evidenced by
demonstrated proficiency.

0
31. Revise Sec.  214.351(b) to read as follows:

Sec.  214.351  Training and qualification of flagmen.

* * * * *
    (b) Initial and periodic (as specified by Sec.  243.201 of this
chapter) qualification of a flagman shall be evidenced by demonstrated
proficiency.

0
32. In Sec.  214.353, revise the section heading and paragraphs (a)
introductory text, (a)(1), and (b) and add 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:
    (1) All the on-track safety training and qualification required of
the roadway workers to be supervised and protected, including the
railroad's procedures governing good faith challenges in Sec. Sec.
214.311(b) and (c) and 214.313(d).
* * * * *
    (5) The procedures required to ensure that the roadway worker in
charge of the on-track safety of 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.
    (b) Initial and periodic (as specified by Sec.  243.201 of this
chapter) qualification of a roadway worker in charge shall be evidenced
by demonstrated proficiency.

0
33. In Sec.  214.355, revise the section heading and paragraph (b) to
read as follows:

Sec.  214.355  Training and qualification of each roadway worker in on-
track safety for operators of roadway maintenance machines.

* * * * *
    (b) Initial and periodic (as specified by Sec.  243.201 of this
chapter) qualification of a roadway worker to operate roadway
maintenance machines shall be evidenced by demonstrated proficiency.

0
34. In appendix A to part 214, add footnote number 2 to the table
heading ``Section'' and, under subpart C, revise the entries for
Sec. Sec.  214.303(b), 214.307, 214.309, 214.315(a), 214.317, 214.319,
214.329(a), 214,339, and 214.353 and add entries for Sec. Sec.
214.318, 214.320, 214.321(b)(4) and (e), 214.322, 214.323(c) and (d),
214.331(e), and 214.337(g) to read as follows:

         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                               Willful
                  Section \2\                    Violation    violation
------------------------------------------------------------------------

                              * * * * * * *
------------------------------------------------------------------------
                Subpart C--Roadway Worker Protection Rule
------------------------------------------------------------------------
214.303 Railroad on-track safety programs,
 generally:

                              * * * * * * *
    (b) Failure of a railroad to include and          5,000       10,000
     use internal monitoring procedure........

                              * * * * * * *
214.307 On-track safety programs:
    (a)(i) Failure to adopt On-Track Safety          10,000       13,000
     Program..................................
    (ii) Failure to provide On-track Safety           1,000        5,000
     Program to FRA upon request..............
    (b) Failure to notify FRA of adoption or          1,000        5,000
     change to On-Track Safety Program........
    (c) Failure to amend or provide written          10,000       20,000
     response after disapproval of On-track
     Safety Program...........................
214.309 On-track safety manual:
    (a) On-track Safety Manual not provided to        2,000        5,000
     prescribed employees.....................
(b) Failure to establish provision for lone           5,000       10,000
 worker to have alternative access to On-track
 Safety Manual................................
(c) Failure to maintain entire set of on-track        2,000        5,000
 safety rules and instructions, including
 updates temporarily published in bulletins or
 notices, in one On-Track Safety Manual.......

                              * * * * * * *
214.315 Supervision and communication:
    (a)(1)Complete failure of employer to             5,000       10,000
     provide on-track safety job briefing.....
    (2)-(5) Partial failure of employer to            2,000        4,000
     provide on-track safety job briefing.....

                              * * * * * * *
214.317 On-track safety procedures, generally:
    (a) On-track safety rules conflict with           5,000       10,000
     this part................................
    (b) Failure to adopt or comply with rules         2,000        5,000
     governing safe crossing of track.........
        (3) Failure to establish on-track             2,000        5,000
         safety if required...................
    (c)(1) Failure to adopt or comply with            3,000        5,000
     operating procedure if this section is
     utilized in lieu of establishing working
     limits...................................
    (2) Failure to grant absolute right to            3,000        5,000
     establish working limits if requested by
     RWIC or lone worker......................

    (3) Except as permitted, roadway worker           3,000        5,000
     fouling track without on-track safety....
    (4) Roadway maintenance machine not               3,000        5,000
     properly equipped or utilized............
    (d)(1) Failure to inspect tunnel niche or         3,000        5,000
     clearing bay.............................
    (2) Lack of adequate sight distance.......        3,000        5,000
    (3) Failure to grant absolute right to            5,000       10,000
     establish other place of safety or to
     establish working limits if requested by
     RWIC or lone worker......................
214.318 Locomotive servicing and car shop
 repair track areas:
    (a)-(c)...................................        3,000        5,000
214.319 Working limits, generally:
    (a)(1)Non-qualified RWIC of working limits        5,000       10,000
    (a)(2) More than one RWIC of working              2,000        5,000
     limits on the same track segment.........
    (a)(3)(i) Working limits released without         5,000       10,000
     notifying all affected roadway workers...
    (a)(3)(ii) Working limits released before         5,000       10,000
     all affected roadway workers are
     otherwise protected......................
    (b)(1) Failure to adopt redundant                 5,000       10,000
     protections in on-track safety program...
    (b)(2) Failure to comply with redundant           5,000       10,000
     protections identified in on-track safety
     program when controlled track working
     limits are established...................
214.320 Roadway maintenance machine movements         5,000        7,500
 over signalized non-controlled track.........
214.321 Exclusive track occupancy:

                              * * * * * * *
    (b) * * *.................................
    (4) (i) Failure to specify unique roadway         3,000        5,000
     work group number, employee name, or
     unique identifier........................
    (ii) Failure to adopt procedure requiring         3,000        5,000
     precise communication between RWIC or
     lone worker and trains or other on-track
     equipment................................

                              * * * * * * *
    (e)(1)-(4) Failure to comply with                 5,000       10,000
     occupancy behind requirements............
214.322 Exclusive track occupancy, electronic
 display:
    (a) Contents of authority electronically          3,000        5,000
     displayed not readily viewable...........
    (b) Failure to timely obtain written/             3,000        5,000
     printed authority or occupy place of
     safety if electronic display fails while
     authority is in effect...................
    (c)-(h)...................................        2,000        4,000
214.323 Foul time:

                              * * * * * * *
    (c) Train dispatcher or control operator          5,000       10,000
     permitting movement of trains or other on-
     track equipment into working limits prior
     to RWIC reporting clear of track.........
    (d) RWIC permitting movement of trains or         5,000       10,000
     on-track equipment into or within working
     limits...................................

                              * * * * * * *
214.329 Train approach warning provided by
 watchmen/lookouts:
    (a)(i) Failure to give timely warning of          5,000       10,000
     approaching train........................
    (ii) Failure to use maximum authorized            3,000        5,000
     speed in formulating sight distance......
    (iii) Use of another track as a place of          3,000        5,000
     safety without establishing working
     limits on that track.....................

                              * * * * * * *
214.331 Definite train location:

                              * * * * * * *
    (e) Failure to discontinue use of definite        9,500       13,000
     train location by required date..........

                              * * * * * * *
214.337 On-track safety procedures for lone
 workers:

                              * * * * * * *
    (g) Use of individual train detection             2,000        4,000
     while using machine, equipment, or
     material that cannot be readily removed
     by hand..................................
214.339 Audible warning from trains:
    (a)-(b) Failure to adopt or comply with           2,000        4,000
     audible warning procedures...............

                              * * * * * * *
214.353 Training and qualification of roadway         2,000        4,000
 workers in charge............................

                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $105,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Failure to observe any condition(s) of an
  exception set forth in paragraph (e) of Sec.   214.336 deprives the
  railroad or contractor of the benefit of the exception and makes the
  railroad or contractor, and any responsible individuals, liable for
  penalty under the particular regulatory provision(s) from which the
  exception would otherwise have granted relief.

\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR and the penalty code, if any. FRA
  reserves the right, should litigation become necessary, to substitute
  in its complaint the CFR citation in place of the combined CFR and
  penalty code citation, should they differ.

    Issued in Washington, DC, on May 26, 2016.
Sarah E. Feinberg,
Administrator.
[FR Doc. 2016-13057 Filed 6-6-16; 8:45 am]
 BILLING CODE 4910-06-P