[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Proposed Rules]
[Pages 50323-50370]
[FR Doc No: 2012-20065]

Vol. 77

Monday,

No. 161

August 20, 2012

Part V

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 214

Railroad Workplace Safety; Roadway Worker Protection Miscellaneous
Revisions (RRR); Proposed Rule

Federal Register / Vol. 77 , No. 161 / Monday, August 20, 2012 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0086]
RIN 2130-AB89

Railroad Workplace Safety; Roadway Worker Protection
Miscellaneous Revisions (RRR)

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its regulations on railroad
workplace safety to resolve interpretative issues that have arisen
since the 1996 promulgation of the original Roadway Worker Protection
(RWP) regulation. In particular, this NPRM proposes to define certain
terms, establish new procedures for snow removal and cleaning on
passenger station platforms, resolve miscellaneous interpretive issues,
codify certain FRA Technical Bulletins, and requests comment on certain
training requirements for roadway workers. FRA is also proposing to
update three incorporations by reference of industry standards in
existing sections of FRA's Bridge Worker Safety Standards.

DATES: (1) Written comments must be received by October 19, 2012.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
    (2) FRA anticipates being able to resolve this rulemaking without a
public hearing. However, if prior to September 19, 2012, FRA receives a
specific request for a public hearing accompanied by a showing that the
party is unable to adequately present his or her position by written
statement, a hearing will be scheduled and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2008-0086 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal:
http://www.regulations.gov. Follow the online instructions for
submitting comments.
    Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AB89). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track
Division, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590
(telephone<PHONE_NUMBER>); or Joseph St. Peter, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-10, Mail Stop
10, Washington, DC 20590 (telephone<PHONE_NUMBER> or<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rulemaking Authority and Background of the Existing RWP Rule
III. Railroad Safety Advisory Committee (RSAC) Overview
IV. RWP RSAC Working Group and Proceedings in This Rulemaking to
Date
V. Proceedings concerning On-Track Safety Procedures for Adjacent
Tracks
VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items
VII. Request for Comment on NTSB Recommendation R-08-06
VIII. Additional Items for Comment
    A. RWP and Blue Signal Protections in Shop Areas
    B. Frequency of Training and Qualification for Additional
Roadway Worker Qualifications
    C. Physical Characteristics Qualification for Lone Workers and
Watchmen/Lookouts
    D. Use of Tunnel Niches as a Place of Safety
    E. Highly Visible Protective Equipment for Roadway Workers on
Station Platforms
    F. Splitting of Roadway Worker in Charge Qualifications
    G. Effective Date of Final Rule
IX. Executive Order 13563 Retrospective Review
X. Section-by-Section Analysis
XI. Regulatory Impact and Notices
    A. Executive Order 12866, Executive Order 13563 and DOT
Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act

I. Executive Summary

    In 2005, the Railroad Safety Advisory Committee (RSAC) accepted a
task to review the existing RWP regulation at subpart C of part 214.
The RSAC established the RWP Working Group (the ``Working Group'') to
recommend consideration of specific actions to advance the on-track
safety of railroad employees and contractors engaged in maintenance-of-
way activities throughout the general system of railroad
transportation, including clarification of existing regulatory
requirements.
    The Working Group reached consensus on 32 separate items, which the
full RSAC recommended to FRA. FRA drafted this NPRM to address the RSAC
consensus recommendations, the issue of electronic display of track
authorities, several other items on which the Working Group was unable
to reach consensus, and miscellaneous other revisions. FRA is also
proposing to update certain incorporations by reference of personal
protective equipment standards in FRA's Bridge Worker Safety Standards
at subpart B of part 214 by cross referencing the Occupational Safety
and Health Administration's (OSHA) regulations on the same point.
    Noteworthy consensus recommendations that FRA is addressing in this
NPRM include: a job briefing requirement regarding the accessibility of
the roadway worker in charge; the adoption of procedures for how
roadway workers walk across railroad track; a new allowance for
railroad's conducting snow removal and weed spraying operations; a
clarification of the existing ``foul time'' provision; a new ``verbal
protection'' provision; three new permissible methods of

establishing working limits on non-controlled track; the expanded use
of individual train detection at controlled points; an amended
provision governing audible warnings by trains for roadway workers;
and, a request for further comment on certain training requirements for
roadway workers.
    As mentioned above, FRA is also addressing other items on which the
Working Group was unable to reach consensus and certain miscellaneous
other revisions. Noteworthy among these items are: A new provision
regarding the removal of objects from railroad track when train
approach warning is used as the method of on-track safety; the
electronic display of working limits authorities; amendments to the
existing provision governing the qualification of roadway workers in
charge; a new section addressing passenger station platform snow
removal; a new provision governing the use of ``occupancy behind'' or
``conditional'' working limit authorities; the phase-out of the use of
definite train location and informational train line-ups, potential
amendments to the existing roadway worker protection and blue signal
protection requirements for work performed within shop areas, and, the
use of other railroad track as a place of safety when train approach
warning is used as the method of on-track safety; and, a request for
further comment on the use of certain tunnel niches as a place of
safety for roadway workers.
    FRA has estimated the costs of this proposed rule, evaluated over a
20-year period and using discount rates of 3 and 7 percent. For the 20-
year period analyzed, the estimated quantified cost that would be
imposed on industry totals $5,840,921 with a present value of
$3,103,980 (PV, 7 percent) and $4,350,537 (PV, 3 percent). FRA also
estimates that for the 20-year period analyzed, the estimated
quantified benefits total $119,507,405 with a present value of
$63,310,902 (PV, 7 percent) and $88,902,763 (PV, 3 percent). This
analysis demonstrates that the benefits for this proposed rule would
exceed the costs.

                                 Table--Costs and Benefits of the Proposed Rule
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                                      Year 1           2-20        Total 20 year       7% PV           3% PV
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Costs:
    214.315 Job Briefings.......        $143,055        $143,055      $2,861,100      $1,515,527      $2,128.297
    214.339 Audible Warning from          24,796               0          24,796          23,174          24,074
     Trains.....................
    214.345 Training on Safe              72,250          72,250       1,445,000         765,418       1,074,898
     Crossing of Track..........
    214.347 Training on Access            10,838          10,838         216,750         114,813         161,235
     to Manual..................
    214.352 Training Platform             22,759          22,759         455,175         241,107         338,593
     Work Coordinate............
    214.353 Training RWIC.......          41,905          41,905         838,100         443,942         623,441
                                 -------------------------------------------------------------------------------
        Total...................         315,602         290,806       5,940,921       3,103,980       4,350,537
 Benefits:
    214.307 Plans No Longer               19,553             426          27,653          22,392          24,912
     Reviewed...................
    214.317 Track Snow Removal..         292,613         292,613       5,852,250       3,099,941       4,353,335
    214.324 Use of Verbal              5,386,021       5,386,021     107,720,415      57,059,581      80,150,388
     Protection.................
    214.327 Inaccessible Track..         204,016         204,016       4,080,319       2,161,348       3,035,242
    214.337 ITD.................           4,335           4,335          86,700          45,925          64,494
    214.338 Platform Snow                 87,003          87,003       1,740,069         921,716       1,294,392
     Removal....................
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        Total...................       5,993,541       5,974,414     119,507,405      63,310,902      88,902,764
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        NET BENEFITS............       5,677,938       5,683,608     113,666,484      60,206,922     84,552,226
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* Dollars are discounted over a 20-year period.

II. Rulemaking Authority and Background of the Existing RWP Rule

    The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C.
20103, provides that, ``[t]he Secretary of Transportation, as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970''. The Secretary's responsibility under this provision
and the balance of the railroad safety laws have been delegated to the
Federal Railroad Administrator. 49 CFR 1.49(m). In the field of
railroad workplace safety, FRA has traditionally pursued a very
conservative course of regulation, relying upon the industry to
implement suitable railroad safety rules and mandating in the broadest
of ways that employees be ``instructed'' in the requirements of those
rules and that railroads create and administer programs of operational
tests and inspections to verify rules compliance. This approach is
based on several factors, including recognition of the strong interest
of railroads in avoiding costly accidents and personal injuries, the
limited resources available to FRA to directly enforce railroad safety
rules, and the apparent success of management and employees in
accomplishing most work in a safe manner.
    Over the years, however, it became necessary to codify certain
requirements, either to remedy perceived shortcomings in the railroads'
rules to emphasize the importance of compliance, or to provide FRA a
more direct means of promoting compliance. These actions, which in many
cases were preceded or followed by statutory mandates, included
adoption of rules governing:
     Bridge Worker Safety Standards (49 CFR part 214 subpart
B);
     Roadway Worker Protection (49 CFR part 214 subpart C); and
     On-Track Roadway Maintenance Machines and Hi-Rail Vehicles
(49 CFR part 214 subpart D).
    In 1990, FRA received a petition to amend its track safety
standards from the Brotherhood of Maintenance of Way Employes Division
(BMWED), which included issues pertaining to the hazards faced by
roadway workers. Subsequently, in response to the Rail Safety
Enforcement and Review Act, Public Law 102-365, 106 Stat. 972, enacted
September 3, 1992. FRA issued an Advanced Notice of Proposed Rulemaking
(ANPRM) on November 16, 1992, announcing the opening of a proceeding to
amend the Federal Track Safety Standards to, in part, address hazards
faced by roadway workers. 57 FR 54038.

    FRA held workshops to solicit the views of the railroad industry
and representatives of railroad employees on the need for substantive
change in the track regulations. The subject of injury and death to
roadway workers was of such great concern that FRA received petitions
for emergency orders and requests for rulemaking from both the BMWED
and the Brotherhood of Railroad Signalmen (BRS). Finding that no
imminent hazards existed that would justify issuance of emergency
orders at the time, FRA did not issue any emergency orders in response
to those petitions, but instead initiated a separate proceeding to
consider regulations to eliminate hazards faced by roadway workers.
    On August 17, 1994, FRA published its notice of intent to establish
a Federal Advisory Committee (FAC) for regulatory negotiation. 59 FR
42200. The FAC was tasked with submitting a report, including proposed
regulatory language, containing the FAC's consensus recommendations. On
December 27, 1994, the Office of Management and Budget approved the
Charter to establish a Roadway Worker Safety Advisory Committee
(Advisory Committee) comprised of twenty-five members. The Advisory
Committee held seven multiple-day negotiating sessions. An independent
task force, comprised of representatives of several railroads and labor
organizations, had met during the preceding year and independently
analyzed on-track safety practices. This task force presented
information at the first Advisory Committee meeting. The Advisory
Committee reached consensus on eleven specific recommendations and nine
general recommendations. These recommendations served as the basis for
FRA's first RWP NPRM, which was published on March 14, 1996. 61 FR
10528. FRA published a final rule establishing the original RWP
regulation on December 16, 1996, which became effective on January 15,
1997 (61 FR 65959). The final rule largely incorporated the Advisory
Committee's recommendations.

III. RSAC Overview

    In March 1996, FRA established the RSAC, which provides a forum for
collaborative rulemaking and program development. The RSAC includes
representatives from all of the railroad industry's major stakeholder
groups, including railroads, labor organizations, suppliers and
manufacturers, and other interested parties. A list of RSAC members
follows:
     American Association of Private Railroad Car Owners
(AARPCO);
     American Association of State Highway and Transportation
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums (ARM);
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employes Division
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     The Chlorine Institute, Inc.;
     Federal Transit Administration (FTA);*
     The Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace
Workers;
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC
(TCIU/BRC);
     Transportation Security Administration (TSA);* and
     United Transportation Union (UTU).
    *Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to the RSAC, and after
consideration and debate, the RSAC may accept or reject the task. If
the task is accepted, the RSAC establishes a working group that
possesses the appropriate expertise and representation of interests to
develop recommendations to FRA for action on the task. These
recommendations are developed by consensus. A working group may
establish one or more task forces to develop facts and options on a
particular aspect of a given task. The individual task force then
provides that information to the working group for consideration. If a
working group comes to unanimous consensus on recommendations for
action, the package is presented to the full RSAC for a vote. If the
proposal is accepted by a simple majority of the RSAC, the proposal is
formally recommended to FRA. FRA then determines what action to take on
the recommendation. Because FRA staff plays an active role at the
working group level in discussing the issues and options and in
drafting the language of the consensus proposal, FRA is often favorably
inclined toward the RSAC recommendation. However, FRA is in no way
bound to follow the recommendation, and the agency exercises its
independent judgment on whether the recommended rule achieves the
agency's regulatory goal, is soundly supported, and is in accordance
with policy and legal requirements. Often, FRA varies in some respects
from the RSAC recommendation in developing the actual regulatory
proposal or final rule. Any such variations are noted and explained in
the rulemaking document issued by FRA. If the working group or the RSAC
is unable to reach consensus on a recommendation for action, FRA may
move ahead to resolve the issue through traditional rulemaking
proceedings.

IV. RWP RSAC Working Group and Proceedings in This Rulemaking to Date

    As discussed above, on January 26, 2005, the RSAC formed the RWP
Working Group to consider specific actions to advance the on-track
safety of employees of covered railroads and their contractors who are
engaged in maintenance-of-way activities throughout the general system
of railroad transportation, including clarification of existing
requirements. The assigned task was to review the existing RWP
regulation, technical bulletins, and a safety advisory dealing with on-
track safety for roadway workers, and, as appropriate, consider
enhancements to the existing rule which would further reduce the risk
of serious injury or death to roadway workers. The Working Group was
directed to report

specific actions identified as appropriate, including planned
milestones for completion of projects and progress towards completion,
to the full RSAC at each scheduled RSAC meeting.
    The Working Group was comprised of members from the following
organizations:
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway Company (CN), Canadian Pacific Railway,
Limited (CP), Consolidated Rail Corporation (Conrail), CSX
Transportation, Inc. (CSXT), The Kansas City Southern Railway Company
(KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific
Railroad Company (UP);
     Belt Railroad of Chicago;
     BLET;
     BMWED;
     BRS;
     FRA;
     Indiana Harbor Belt Railroad (IHB);
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     Montana Rail Link;
     NRC;
     Northeast Illinois Regional Commuter Railroad Corporation
(Metra);
     RailAmerica, Inc.;
     Southeastern Pennsylvania Transportation Authority
(SEPTA);
     UTU; and
     Western New York and Pennsylvania Railroad (WNY&P).
    The Working Group held 12 multi-day meetings. The Working Group
worked diligently and was able to reach consensus on 32 separate items.
The Working Group attained consensus to recommend that part 214 \1\ be
amended to: add two new definitions; revise an existing definition;
and, incorporate three other existing definitions from 49 CFR part 236.
The Working Group also came to consensus to add or amend various
provisions in the following sections in subpart C of part 214:
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    \1\ All references to the CFR in this document reference Title
49.
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     Sec.  214.309--revision to address on-track safety manual
for lone workers and changes to the manual.
     Sec.  214.315--requirement that information concerning
adjacent tracks be included in on-track safety job briefings;
accessibility of the roadway worker in charge.
     Sec.  214.317--new paragraph to formalize procedures for
roadway workers to walk across tracks; new paragraph for on-track weed
spray and snow blowing operations on non-controlled track.
     Sec.  214.321--new paragraph to address the use of work
crew numbers.
     Sec.  214.323--clarification of foul time provision
whereby roadway worker in charge or train dispatcher may not permit
movements into such working limits.
     Sec.  214.324--new section called ``verbal protection''
for abbreviated working limits within manual interlocking and
controlled points.
     Sec.  214.327--three new paragraphs to formalize the
following instruments to make non-controlled track inaccessible:
occupied locomotive as a point of inaccessibility; block register
territory; and, the use of track bulletins to make track inaccessible
within yard limits.
     Sec.  214.335--complete revision of paragraph (c)
concerning on-track safety for tracks adjacent to occupied tracks. Key
elements are the elimination of ``large-scale'' and the addition of a
new requirement for on-track safety for tracks adjacent to occupied
tracks for specific work activities (addressed in separate rulemaking
proceeding as discussed further below).
     Sec.  214.337--allowance for the use of individual train
detection at controlled points consisting only of signals and a new
paragraph limiting equipment/materials that can only be moved by hand
by a lone worker.
     Sec.  214.339--complete revision of this section
concerning audible warning by trains to address operational
considerations.
     Sec.  214.343--new paragraph to ensure contractors receive
requisite training/and or qualification before engaged by a railroad.
     Sec.  214.345--lead-in phrase requiring all training to be
consistent with initial or recurrent training, as specified in Sec.
214.343(b).
     Sec. Sec.  214.347, .349, .351, .353, and .355--consistent
requirements for various roadway worker qualifications and a maximum
24-month time period between qualifications.
    On June 26, 2007, the full RSAC voted to accept the above
recommendations presented by the Working Group. In addition to the
above, the Working Group worked on a proposal for use of electronic
display of authorities as a provision under exclusive track occupancy.
The Working Group developed lead-in regulatory text and agreed to some
conceptual items. When circulated back to the Working Group prior to
the full RSAC vote, however, technical issues were raised that could
not be resolved in the time available. Accordingly, in this NPRM, FRA
is addressing the electronic display issue, and certain of the other
issues that the Working Group was unable to reach consensus on. The
other items that the Working Group was unable to reach consensus on
were:
     Sec.  214.7--new term and definition for a ``remotely
controlled hump yard facility.''
     Sec.  214.7--revision to the definition for the term
``roadway worker.''
     Sec.  214.317--use of tunnel clearing bays.
     Sec.  214.321--track occupancy after passage of a train.
     Sec.  214.329--removal of objects from the track under
train approach warning.
     Sec.  214.336--passenger station platform snow removal and
cleaning.
     Sec.  214.337--consideration of allowance for the use of
individual train detection at certain types of manual interlockings or
controlled points.
     Sec.  214.353--qualification of employees other than
roadway workers who directly provide for the on-track safety of a
roadway work group.

V. Proceedings Concerning On-Track Safety Procedures for Adjacent
Tracks

    As mentioned above, the Working Group was able to reach consensus
on items that dealt specifically with the adjacent-track on-track
safety issues. In light of roadway worker fatality trends involving
adjacent track protections, and to expedite the lowering of the safety
risk associated with roadway workers fouling adjacent tracks, FRA
decided to undertake a rulemaking proceeding separately, and in advance
of this NPRM, to specifically address adjacent-track safety issues
contemplated by the Working Group. As such, FRA published an NPRM
addressing adjacent-track on-track safety on July 17, 2008 (73 FR
41214), but formally withdrew the NPRM on August 13, 2008 (73 FR
47124). FRA then issued a revised NPRM, which was published on November
25, 2009 (74 FR 61633), and a final rule was published on November 30,
2011 (76 FR 74586). The provisions contained in that final rule are
currently scheduled to become effective on July 1, 2013. Accordingly,
as the adjacent track rulemaking was undertaken separately, the subpart
C section numbering for the consensus items as agreed upon by the
Working Group has changed slightly from that recommended. This NPRM
will note any relevant numbering changes in the section-by-section
analysis below. FRA acknowledges that it has received petitions for
reconsideration of the adjacent track final rule. See Docket No. FRA-
2008-0059; available online at

www.regulations.gov. There is limited interaction between the
provisions of this NPRM and those contained in the final rule in the
adjacent track rulemaking. FRA will note any potential changes
(specifically with regard to section numbering) in a final rule which
result from any FRA response to petitions for reconsideration in the
adjacent track rulemaking.

VI. Inclusion and Exclusion of RSAC and Non-RSAC RWP Items

    The section-by-section analysis below includes explanations of the
proposed revisions to the RWP regulation, including certain consensus
items recommended by the Working Group, certain of the non-consensus
items listed above, and certain other miscellaneous items being
proposed by FRA. FRA notes that the Working Group meetings discussed
above took place between 2005 and 2007. In the interim, during FRA's
efforts to publish the adjacent track rulemaking discussed above, there
have been changes in the railroad industry. Notably, Congress' passage
of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Division
A, 122 Stat. 4848) (RSIA), has required significant new FRA regulatory
efforts.
    These new efforts include FRA's recently published NPRM addressing
minimum training standards and plans. Section 401 of RSIA (codified at
49 U.S.C. 20162) mandates that FRA promulgate a regulation that sets
minimum training standards for ``each class and craft of safety-related
railroad employee.'' FRA has undertaken this mandated rulemaking via
the RSAC process (Task No. 10-01, Training Standards Working Group).
The training standards NPRM was published on February 7, 2012 (77 FR
6412), and includes proposed minimum training standards for roadway
workers as defined by existing Sec.  214.7
    As a result, although in 2007 the full RSAC recommended that FRA
adopt the RWP Working Group's proposed consensus training requirements
for roadway workers, FRA's training standards NPRM proposes to address
training issues pertaining to roadway workers.\2\ As such, FRA is not
proposing certain of the RWP Working Group's consensus training
recommendations in this rulemaking (e.g., the proposed proficiency
demonstration for additional roadway worker qualifications required
every 24 months), but rather seeks comment below on whether to adopt
the training and qualification frequencies prescribed by the minimum
training standards NPRM, or those previously recommended by the RWP
Working Group. FRA notes that it is not proposing to amend the existing
mandatory annual roadway worker training requirements contained in
subpart C of part 214.
---------------------------------------------------------------------------

    \2\ These consensus recommendations were meant, in part, to
eliminate confusion in the railroad industry regarding the
requirements of the roadway worker protection training provisions
and also to provide uniformity, particularly with regard to
additional roadway worker qualifications (e.g., lone worker and
roadway worker in charge qualifications, which currently only
require ``periodic'' requalification with no specified interval).
---------------------------------------------------------------------------

    The Working Group also came to consensus to add a new paragraph (e)
to existing Sec.  214.343, which pertains to the training of roadway
workers. That recommended paragraph would have required that each
railroad require that contractor employees receive the requisite
roadway worker training and qualification prior to performing any
roadway worker duties. FRA is not including that consensus
recommendation in this NPRM. Under the existing RWP regulation,
contractor employees are already required to receive roadway worker
training prior to performing roadway worker duties. See 49 CFR 214.5,
214.7, 214.343 and 214.345; FRA Technical Bulletin G-05-19. Therefore,
this recommended paragraph would not actually amend or enhance any
existing training requirements, but could require additional costs to
be incurred by railroads. Further, the training standards NPRM contains
proposed requirements regarding coordination between contractors and
railroads pertaining to the training of contractor employees at
Sec. Sec.  243.1(b), 243.101(e)-(f), and 243.209. 77 FR 6453. These
proposed requirements are actually more extensive than the ones
recommended by the RWP Working Group. For these reasons, FRA is not
proposing this consensus recommendation.
    The RSAC also recommended that FRA adopt the Working Group
consensus language for the definition of the term ``interlocking,
automatic'', with that definition mirroring the existing definition of
the same term found at 49 CFR 236.750. However, that term is not
actually used anywhere in the existing text of part 214, nor is it used
in any of the text proposed in this NPRM. The minutes to the Working
Group meetings indicate that potentially this definition was
recommended in an effort to help the regulated community differentiate
between an automatic interlocking and a manual interlocking (within the
limits of which individual train detection is not permitted via
existing Sec.  214.337). Because the term is not used in the regulation
as it exists currently or as proposed in this NPRM, FRA is not
proposing to adopt the Working Group's recommended definition. The
recommended consensus definition of ``interlocking, manual'', and the
accompanying discussion in the section-by-section analysis, should
enable differentiation of those terms. Further, FRA and the regulated
community can always look to the existing definition of ``interlocking,
automatic'' contained in part 236 for additional guidance, if
necessary.
    There were several items addressed during the Working Group
meetings for which no consensus was reached. For most of those items,
FRA is proposing rule text in this NPRM and is requesting comment on
those proposals. However, for certain of these non-consensus items, FRA
is not proposing rule text. For example, the Working Group discussed
various potential amendments to the definition of ``roadway worker''
found at 49 CFR 214.7. After consideration, FRA is not proposing an
amendment to that definition. FRA believes the meaning of the existing
definition is clear. One of the potential recommendations discussed by
the Working Group was to specifically add the words ``who fouls a track
in connection with'' to the first sentence of the existing definition.
FRA, in contemplating such an addition, revisited the preamble to the
1996 final rule promulgating the RWP regulation. In that preamble FRA
explained that a proposal for a similar addition of language to the
definition of the term ``roadway worker'' was unnecessary and would
``severely limit the application of the rule due to the difficulty in
determining when a worker becomes engaged in a task.'' (61 FR 65962).
FRA maintains that same position today. The definition for the term
``roadway worker'' describes employees who are covered by this
regulation, and not when that coverage begins or ends. As is explained
in FRA Technical Bulletin G-05-13, the existing provisions of Sec.
214.313 already require that when a roadway worker fouls a track,
including when performing preparatory activities to make such track
inaccessible to establish working limits, that on-track safety is
required. FRA disagrees that an amendment to the definition of the term
``roadway worker'', as discussed during the Working Group meetings,
would make the established RWP on-track safety requirements any more
clear.
    The Working Group also discussed the potential addition of a
definition to existing Sec.  214.7 for the term ``remotely controlled
hump yard facility.'' That term is used in existing Sec.
214.337(c)(3), which prohibits the use of individual

train detection inside the limits of a remotely controlled hump yard
facility. There was agreement among the Working Group that a remotely
controlled hump yard facility began at the crest of a hump. The segment
of a hump yard from the crest, through the retarders, and to the end of
classification tracks would clearly be within the limits of a remotely
controlled hump yard facility. However, there was no consensus in the
Working Group as to the limit of such a facility at the far pull-out
end, in part due the myriad of physical layouts in existing hump yards.
Unlike the voluminous number of manual interlockings and controlled
points that exist (the other two locations in which the use of
individual train detection is prohibited by Sec.  214.337), there are a
limited number of remotely controlled hump yard facilities in the
United States, and enforcement problems for FRA have not been
noteworthy to date. Also, the varying physical layouts for these
facilities would make it difficult to attempt to propose language
defining the limits of the pull-out ends of such facilities which could
reasonably apply to all existing layouts. Finally, if a lone worker is
unsure whether the track he or she needs to foul is within the limits
of a remotely controlled hump yard facility, or if there is any
question regarding the safety of fouling any track, the existing
individual train detection regulation already contains an absolute
right for a lone worker to utilize an on-track safety procedure other
than individual train detection.
    For these reasons, FRA is not proposing a definition for the term
``remotely controlled hump yard facility'' in this NPRM. If a dispute
regarding the limits of a remotely controlled hump yard facility
arises, FRA will, on a case-by-case basis, provide assistance in
identifying that facility's limits based on the particular physical
layout of the facility.
    The Working Group also addressed the use of tunnel niches or
clearing bays as a place of safety for roadway workers when such niches
are outside the clearance envelope but, by design, may be less than
four feet from the field side of the rail. The Working Group discussed
this issue at length, but no consensus was reached. FRA is not
proposing regulatory text regarding this issue in this NPRM. Instead,
FRA is requesting further comment below on how to best address the use
of such tunnel niches in a final rule.
    For the remaining non-consensus items listed in Section IV above,
FRA is proposing regulatory text in this NPRM. FRA is also proposing
other miscellaneous revisions to the existing RWP rule that were not
addressed by the Working Group; some of which codify existing guidance
and interpretations and some of which are intended to merely clean-up
or clarify existing requirements. FRA's rationale for these proposed
revisions is contained in the relevant section-by-section analysis
below. Upon issuance of a final rule in this proceeding, FRA intends to
supplant, as appropriate, technical bulletins concerning the existing
RWP regulation.

VII. Request for Comment on NTSB Recommendation R-08-06

    On January 9, 2007, two Massachusetts Bay Transportation Authority
(MBTA) maintenance-of way employees were killed in an accident that
occurred near Woburn, Massachusetts. The incident occurred when a
passenger train struck a roadway maintenance machine that was on the
track. The NTSB found the probable cause of that accident was ``the
failure of the train dispatcher to maintain blocking that provided
signal protection for the track segment occupied by the maintenance-of-
way work crew, and the failure of the work crew to apply a shunting
device that would have provided redundant signal protection for their
track segment.'' (See NTSB Accident Report NTSB/RAR-0801, Collision of
Massachusetts Bay Transportation Authority Train 322 and Track
Maintenance Equipment near Woburn, Massachusetts, January 9, 2007;
available online at http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf).
    The MBTA had a rule in effect at the time of the accident which
required that roadway workers shunt track circuits in order to provide
additional signal protections to prevent trains or other rolling
equipment from entering working limits. The NTSB found that the roadway
work group involved in the incident did not comply with that rule. The
NTSB made several recommendations in response to that accident,
including Recommendation R-08-06. That recommendation states FRA should
``[r]equire redundant signal protection, such as shunting, for
maintenance of way work crews who depend on the train dispatcher to
provide signal protection.''
    This incident occurred near the end of the Working Group's work in
2007, and the Working Group did not consider the use of shunting
devices in conjunction with the applicable controlled track ``working
limits'' requirements of the RWP regulation (exclusive track occupancy
(Sec.  214.321), foul time (Sec.  214.323), or verbal protection (Sec.
214.324)). While the mandatory use of shunts as an additional measure
of safety when establishing working limits had not previously been
considered, FRA wishes to analyze available options for redundant forms
of working limits protection. FRA understands that shunting procedures
can be disruptive to signal systems, and, in some circumstances, might
not be permissible under FRA's signal system regulations at 49 CFR part
236. However, if safe and cost-effective procedures can be implemented,
FRA may add a provision in the final rule or proceed with an additional
rulemaking in the future to require the use of redundant forms of
protection. FRA specifically invites comment on this issue from the
railroad industry and other interested parties, to include potential
costs of implementing various redundant measures. The RWP regulation
does not currently prescribe the use of every device or procedure that
may be used by a railroad to supplement the establishment of working
limits. However, FRA notes that roadway workers are already required by
existing Sec.  214.313(a) to follow all on-track safety rules and
procedures of a railroad, including those such as the MBTA redundant
protection requirement discussed above, even if such rules are not
enumerated in Federal regulation.

VIII. Additional Items for Comment

    FRA is requesting comment on several requirements or amendments for
which regulatory text is not being proposed in this NPRM, but which FRA
is considering adopting in a final rule in this proceeding. FRA
specifically requests comment on these additional items, and also
discusses some of them further in the section-by-section analysis
below.

A. RWP and Blue Signal Protections in Shop Areas

    Under the existing roadway worker and blue signal protection
requirements, any roadway workers performing work that involves fouling
track within locomotive servicing track areas or car shop repair track
areas (or performing work on structures within those areas that
involves fouling a track) are required to utilize on-track safety
procedures via the requirements of part 214. Any ``workers'', as
defined by Sec.  218.5, performing work on, under, or between rolling
equipment within such facilities are required to do so via the blue
signal protection requirements of subpart B of part 218. Since the
promulgation of the RWP regulation, there has been confusion in the
railroad

industry over what protections are appropriate within such shop
facilities for certain types of work activities (e.g., performing work
on the overhead doors of a locomotive maintenance building when such
work involves fouling a track). FRA issued Technical Bulletin G-08-03
to help clarify the issue, and explained that whether or not employees
are working in a shop area, it is always the type of work being
performed that dictates which type of protection is required, roadway
worker protection or blue signal protection. Technical Bulletin G-08-03
also explained that FRA would not take exception to any work being
performed that appeared to be more akin to roadway worker duties, but
that was of an ``incidental'' nature to the larger job of mechanical
personnel performing work on rolling equipment, e.g., sweeping a shop
floor or changing a light bulb in an inspection pit.
    Railroads have argued that FRA should exempt certain maintenance of
way work within shop areas from the on-track safety requirements of
part 214, as the employees within the limits of the shop areas may
perform such work safely while utilizing the blue signal protections
that they have been trained on the requirements of and are familiar
with. Railroads have also argued that training shop personnel on two
different protection regimes is costly, and is also confusing for
employees that actually have to apply those two different types of
protection, and, thus, detrimental to safety.
    FRA is not proposing any specific rule text regarding this issue in
this NPRM, but is contemplating amending the existing blue signal
protection and/or roadway worker protection regulations in a final rule
to make additional allowances for certain maintenance work performed
within the limits of locomotive and car shops. FRA would only make such
amendments if they provided for at least an equivalent level of
employee safety to that which exists via the existing Federal
regulations governing this issue. FRA is requesting comment on this
issue, and specifically requests comment on how the issue of contractor
employees would best be addressed, as contractor employees are subject
to the requirements of part 214, but are not considered ``workers'' via
existing part 218's blue signal protection requirements. As throughout
the history of the blue signal regulation it has only governed work
being performed on, under, or between rolling equipment, FRA also
specifically requests comment on how an amendment to the existing
regulations could best accommodate the protection of additional work
activities within shop areas. Among other amendments, FRA anticipates
existing Sec.  218.29(a)(7) would be required to be amended to require
that workers clear any shop track on which a locomotive is to be
repositioned on. If in a final rule FRA decides to forego making any
amendments to the current roadway worker and blue signal protection
regulations within shop areas, FRA may utilize the comments received on
this issue in a future rulemaking proceeding.

B. Frequency of Qualification and Training for Additional Roadway
Worker Qualifications

    The existing sections in part 214 that govern the training and
qualification requirements for additional roadway worker qualifications
(Sec. Sec.  214.347 (lone worker), 214.349 (watchman/lookout), 214.351
(flagman), 214.353 (roadway worker in charge), and 214.255 (roadway
maintenance machine operator)) do not expressly specify an interval for
refresher training and qualification. Those existing sections currently
only state that ``[i]nitial and periodic qualification of [additional
roadway worker qualification] shall be evidenced by'' either
demonstrated proficiency or a recorded examination, depending on
section. The Working Group made the consensus recommendation that FRA
propose regulatory text expressly requiring initial training and
qualification before a roadway worker is assigned to perform duties
involving that qualification, and also recommended requiring refresher
training annually and qualification every 24-months. The requirement
that initial training and qualification must be provided before
assigning a roadway worker duties involving an additional qualification
is required by the current regulation. The consensus recommendation
would only more clearly state such if adopted in a final rule.
    With regard to the refresher training and qualification consensus
recommendations, however, in the time period that has passed since the
Working Group proposed consensus text for this section, RSIA 2008
mandated that FRA undertake a rulemaking to set minimum training
standards for ``each class and craft of safety-related employee,'' to
include training standards for roadway workers. That rulemaking was
undertaken by the RSAC and FRA recently published an NPRM proposing
such minimum training standards. 77 FR 6412. The training standards
NPRM contains an extensive proposal for refresher training and
qualification requirements for roadway workers, and would require such
refresher training and qualification every three years, to include for
the additional roadway worker qualifications in part 214.
    As the consensus recommendation made by the RWP Working Group and
those proposed by the minimum training standards rulemaking do not
parallel one another with regard to frequency of refresher
qualification and training, FRA is requesting comment on the best
manner to proceed in setting refresher qualification and training
intervals for the additional roadway worker qualifications in a final
rule. FRA specifically requests comment on the costs and/or potential
benefits of the two different approaches.
    FRA notes that the existing RWP regulation requires that each
roadway worker be trained each calendar year on the items listed in
Sec.  214.345, and on the on-track safety rules and procedures they are
required to follow via Sec.  214.343. FRA is not proposing to amend
those existing annual basic roadway worker training requirements.
Rather, FRA is only seeking comment on the appropriate interval of
refresher qualification and training requirements for additional
roadway worker qualifications found in existing Sec. Sec.  214.347,
214.349, 214.351, 214.353, and 214.255. FRA would also apply the
interval adopted in a final rule to proposed Sec.  214.352.

C. Physical Characteristics Qualification for Lone Workers and
Watchmen/Lookouts

    Existing Sec.  214.353 governs qualification and training for
roadway workers in charge that provide for on-track safety, and
paragraph (a)(4) of that section requires that such training include
the ``relevant physical characteristics of the territory of the
railroad upon which the roadway worker is qualified.'' However, such a
qualification is absent from existing Sec.  214.347, which governs
training for lone workers, and also from existing Sec.  214.349, which
governs training for watchmen/lookouts. FRA is currently considering
amending Sec. Sec.  214.347 and 214.349 to include a requirement for
such training.
    Existing Sec.  214.349(a)(3) requires that watchmen/lookouts
receive training and qualification on the ``[d]etermination of the
distance along the track at which trains must be visible in order to
provide the prescribed warning time.'' FRA believes that requiring
qualification on the physical characteristics could potentially aid a
watchman/lookout in making the safe distance determination to identify
an appropriate location to give train

approach warning. Such a qualification could be important in areas
where curves, the possible presence of trains on adjacent tracks, and
other unique physical layouts or situations exist. In addition, lone
workers often essentially act as roadway workers in charge when
performing work on their own. FRA believes that a requirement to be
qualified on the physical characteristics at a location where a lone
worker fouls track to perform work could similarly improve safety.
Qualification on the physical characteristics at a particular location
could aid in a lone worker's ability to be able to safely detect
approaching trains and similarly make the appropriate distance
determination as required by existing Sec.  214.337(a). A discussion of
the level of qualification required by a lone worker, to include
qualification on physical characteristics, was undertaken in FRA
Technical Bulletin G-05-03 (January 10, 2005).\3\ This proposed
requirement, if adopted in a final rule, would codify the substance of
that technical bulletin discussion.
---------------------------------------------------------------------------

    \3\ Effective January 10, 2005, RWP technical bulletins WPS-99-
01 through 99-09 were reissued and designated as technical bulletins
G-05-02 through G-05-10. New RWP bulletins G-05-11 through G-05-30,
most of which are discussed below, were also issued on that date.
These technical bulletins are all available on FRA's internet site
at: http://www.fra.dot.gov/rrs/pages/fp_1532.shtml. FRA plans, as
appropriate, to supplant the majority of these technical bulletins
based on changes made to the RWP regulation in any final rule in
this proceeding.
---------------------------------------------------------------------------

    To clarify, FRA does not believe that a watchman/lookout or a lone
worker would need to be versed in the physical characteristics of an
entire territory in the same manner as a roadway worker in charge, and
is aware of the challenges such a broad requirement could present to
system-wide roadway work gangs on larger railroads. However, FRA seeks
comment on its potential inclusion of a provision in a final rule that
would require an abbreviated physical characteristics qualification at
a particular location where train approach warning is to be given by a
watchman/lookout, or at a particular location where a lone worker is to
perform work. FRA is considering the inclusion of such a requirement in
the final rule issued in this rulemaking. FRA also specifically
requests comment on the potential costs that could be associated with
this requirement, and the factual basis of any such costs.

D. Use of Tunnel Niches as a Place of Safety

    Some railroad tunnels have niches or clearing bays built into their
sidewalls that permit roadway workers to occupy a place of safety while
performing work in tunnels (typically inspection work). However, some
of these niches that are outside the clearance envelope may, by design,
be slightly less than four feet from the field side of the rail.
Technically, the use of such niches as a place of safety would be a
violation of the existing RWP regulation, as a roadway worker occupying
such a niche could be ``fouling a track'' per the existing definition
for that term in Sec.  214.7. The Working Group discussed this issue at
length, but no consensus solution was reached. The Working Group did,
however, decide against modifying the definition of ``fouling a track''
to accommodate such niches or bays. Working Group discussions indicated
that such niches that were outside the clearance envelope but less than
four feet from the field side of the rail existed on a small number of
railroads, and were located primarily in the Eastern United States.
Amtrak indicated that its tunnel niches have been used for 100 years,
and are essential to protecting roadway workers in high traffic areas.
The BMWED indicated during Working Group discussions that its
membership largely did not utilize clearing bays, but rather primarily
obtained working limits while fouling track within tunnels.
    FRA is not proposing specific text regarding this issue in the
NPRM, but is contemplating whether to adopt regulatory text in a final
rule that would permit the use of these structures as a place of safety
by roadway workers, provided certain safety requirements are complied
with. FRA requests further comment on this issue.
    FRA anticipates that if the use of such tunnel niches and clearing
bays were permitted, that railroads would be required to designate in
their on-track safety programs which niches or clearing bays could be
used as places of safety. In making such designations, railroads would
have to take into account the time it may take an individual to move
into such niches or bays when departing a track upon the approach of a
train (to ensure that a roadway worker could occupy a designated niche
as a place of safety at least 15 seconds before a train would pass the
location of the bay, in accordance with the existing requirements of
Sec. Sec.  214.329(a) or 214.337(c)(4)). Requirements that such niches
be free from any type of debris or supplies and also be of an adequate
size to safely accommodate a roadway worker would also likely be
necessary.

E. Highly Visible Protective Equipment for Roadway Workers on Station
Platforms

    FRA is considering adding a requirement in a final rule in this
proceeding to the proposed station platform snow removal and cleaning
section (proposed Sec.  214.338) that would require roadway workers
performing duties under the procedures proposed in that section to wear
highly visible protective equipment (vest or other outer garment) which
would meet a standard of the American National Standards Institute/
International Safety Equipment Association. The request for comment
regarding this item is also discussed further in the section-by-section
analysis below.

F. Splitting of Roadway Worker in Charge Qualifications

    FRA is considering adopting a requirement in a final rule in this
proceeding that would only permit the splitting of roadway worker in
charge qualifications to occur in situations where a conductor or other
railroad employee serves as a pilot to a roadway worker in charge who
is not qualified on the physical characteristics of a particular
territory. FRA is considering such, as every roadway work group is
already required to have a roadway worker in charge, and if the
proposed amendment to paragraph (a) of existing Sec.  214.353 is
adopted in a final rule in this proceeding, any employee acting as a
roadway worker in charge would be required to be trained on the
substantive requirements listed in Sec.  214.353. This issue is
detailed further in the section-by-section analysis for Sec.  214.353
below, and FRA specifically requests comment on this issue.

G. Effective Date of Final Rule

    FRA currently anticipates that the effective date of a final rule
in this proceeding would be 180 days from the date of publication of
the final rule in the Federal Register. However, FRA is cognizant that
depending on when a final rule is published, the training schedules of
railroads may have to be taken into account when establishing the
implementation schedule. FRA welcomes comment on an appropriate
effective or applicability date for a final rule in this matter.

IX. Executive Order 13563 Retrospective Review

    In accordance with the requirements of Executive Order 13563, this
NPRM proposes to modify the existing RWP requirements, in part, based
on what has been learned from FRA's retrospective review of the
existing regulation.

Executive Order 13563 requires agencies to review existing regulations
``* * * that may be outmoded, ineffective, insufficient, or excessively
burdensome, and to modify, streamline, expand, or repeal them in
accordance with what has been learned.'' \4\ As a result of its
retrospective review, FRA is proposing to reduce burdens on the
industry by no longer requiring that railroads submit their on-track
safety programs to FRA for review and approval before such programs
become effective and when any subsequent changes are made to such
programs (Sec.  214.307). FRA is also proposing to delete several
sections of the existing RWP regulation it believes to be outmoded or
superfluous (Sec. Sec.  214.302, 214.305, 214.331 and 214.333), and has
also proposed to allow for greater industry flexibility in several
other sections (Sec. Sec.  214.317, 214.324, 214.327, 214.337 and
213.338). FRA does not believe that these proposals will reduce safety.
---------------------------------------------------------------------------

    \4\ Exec. Order No. 13563, 76 FR 3821 (Jan. 21, 2011); available
online at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------

X. Section-by-Section Analysis

    FRA seeks comments on all proposals made in this NPRM. Proposed
Amendments to 49 CFR part 214 (Part 214).

Section 214.7 Definitions

    FRA proposes to amend the existing definitions section for Part 214
by both adding new definitions and amending existing definitions. FRA
proposes to add new definitions for the following terms: controlled
point; interlocking, manual; maximum authorized speed; on-track safety
manual; roadway worker in charge; station platform work coordinator;
and verbal protection. FRA also proposes to amend Part 214's existing
definitions for the terms effective securing device and watchman/
lookout.
    The proposed definition of the term ``controlled point'' was a
consensus recommendation agreed to by the Working Group. This new
definition is being proposed because existing Sec.  214.337 prohibits
the use of individual train detection by a lone worker inside the
limits of a ``controlled point.'' See Sec.  214.337(c)(3). However,
that term is not defined in the existing RWP regulation and over the
years interpretive issues have arisen. In response, FRA issued
Technical Bulletin G-05-29. The Working Group discussed this topic, and
decided to recommend the incorporation of the existing definition for
the same term found in FRA's signal and train control regulations
(Sec.  236.782), along with the definition of ``interlocking, manual''
(the definition for the term automatic interlocking was also adopted as
consensus language by the Working Group, but as explained above, is not
being proposed by FRA in this NPRM). If definitions for the terms
``controlled point'' and ``interlocking, manual'' are adopted in a
final rule, those definitions will supplant FRA Technical Bulletins G-
05-29 and G-05-11, as discussed further below.
    FRA is proposing to amend the definition for existing term
``effective securing device'' as recommended by the Working Group. The
term ``effective securing device'' is intended to describe an
appurtenance preventing the operation of mechanisms that make non-
controlled track inaccessible. Since promulgation of the original RWP
regulation, a number of interpretive questions have arisen about this
definition. In response, FRA issued Technical Bulletin G-05-20 to
provide clarity. This new proposed definition incorporates the contents
of that technical bulletin in order to clarify what constitutes an
``effective securing device.''
    The proposed amendment would require that locks used to lock
switches or derails for the purpose of providing on-track safety for
roadway workers must be keyed to allow for removal by only the roadway
workers for whom protection is being provided. In the absence of a
lock, the definition would allow a spike to be driven into a switch tie
to secure a switch, so long as the spike cannot be removed without the
use of railroad track tools. Clamps and metal wedges (solidly driven on
a derail securing it to the rail) without a lock would also be
acceptable if they cannot be removed without the use of railroad track
tools. For example, a clamp that could be removed with an ordinary
adjustable wrench would need to be locked. This is to ensure that other
employees, such as transportation employees who may attempt to access a
track with rolling equipment, could not readily remove such on-track
safety protections applied by roadway workers to establish on-track
safety.
    To clearly identify effective securing devices, and thus, to
prevent railroad employees from being injured by attempts to operate a
secured device, the throwing handle, hasp, or keeper of the switch or
derail shall have a unique tag which is clearly displayed. The unique
tag must clearly indicate to other railroad employees, such as
trainmen, who may attempt to operate a switch that such switch is
secured. If there is no throwing handle, this proposed definition would
require that the securing device itself shall be tagged. Regardless of
the type of securing device used, each tag must be clearly marked to
indicate that it is securing an entrance into inaccessible track.
    Members of the Working Group had the opportunity to make comments
on a draft of the consensus language after the close of the Working
Group meetings. One of those comments, made by the AAR, requested that
the consensus language be amended to allow a generic tag, rather than a
unique tag, be applied to the throwing handle or hasp of a switch or
derail being secured. FRA acknowledges this comment, but has chosen to
propose the consensus language as agreed to by the Working Group.
However, FRA requests comment by AAR and other interested parties
further explaining their request, and will consider amending the
wording in the final rule, if appropriate.
    FRA has made a minor amendment to the language of the Working
Group's consensus recommendation for the definition of this term. FRA
removed the phrase ``when used in relation to on-track safety'' from
the first sentence of the proposed definition. FRA removed the phrase
because it is unnecessary, as anytime that term appears in part 214 the
proposed definition would apply. This change is not substantive in
nature, and is intended to reflect conformance with the structure for
defining regulatory terms.
    FRA is also proposing to adopt the Working Group's recommended
definition for the new term ``interlocking, manual'' (as discussed in
Section VI above, FRA is not proposing the consensus definition for the
term ``interlocking, automatic'', as that term is not actually used in
either the proposed or existing regulatory text). As recommended by the
Working Group, this definition mirrors the existing definition for the
same term in FRA's signal and train control regulation (Sec.  236.751).
Existing Sec.  214.337 prohibits the use of individual train detection
at manual interlockings. However, the term ``manual interlocking'' is
not defined. As such, inquiries have arisen regarding what does, or
does not, constitute a manual interlocking. In response, FRA issued
Technical Bulletins G-05-11 and G-05-29. The following table
incorporates the

substance of those technical bulletins and summarizes the applicability
of individual train detection on various types of track arrangements:

------------------------------------------------------------------------
                                          Individual train detection
          Track arrangement                        permitted
------------------------------------------------------------------------
Controlled point/manual interlocking  No.
 with switches, crossings
 (diamonds), or moveable bridges.
Controlled point with signals only--  Yes.
 see proposed text of Sec.
 214.337(c)(3).
Manual interlocking.................  No.
Automatic interlocking..............  Yes.
Power operated switch installations.  See discussion below.
------------------------------------------------------------------------

    Power operated switch installations are included in the table above
because FRA has received many questions regarding whether certain power
operated switch installations, which are operated by train crews to
manipulate switch position and have wayside indication devices that
convey the position of a switch, are considered to be manual
interlockings. Typically, they are not. The use of individual train
detection by a lone worker at power operated switch installation
locations is permitted if:
     The signals at these installations do not convey train
movement authority.
     The switch installation is not controlled by a train
dispatcher or control operator, and is not part of a manual
interlocking or controlled point.
    FRA notes again that lone workers performing work at these
installations, or any other locations where the use of individual train
detection is permitted, have the absolute right to use a form of on-
track safety other than individual train detection. See Sec.
214.337(b). Also, regardless of the type of on-track safety being
utilized, FRA notes that all roadway workers should be cognizant of
potential pinching hazards associated with performing work on such
power-operated switches. FRA further notes that switches which can
either be manipulated by hand or by a train dispatcher or control
operator, typically referred to as ``dual control switches'', are
located within manual interlockings or controlled points and the use of
individual train detection within these installations is prohibited.
    Existing Sec.  214.329(a) requires that train approach warning be
given in sufficient time for a roadway worker to ``occupy a previously
arranged place of safety not less than 15 seconds before a train moving
at the maximum speed authorized on that track can pass the location of
the roadway worker.'' Existing Sec.  214.337(c) contains a similar
requirement for lone workers. However, no definition for such maximum
speed authorized exists in the current RWP regulation. Accordingly, the
Working Group addressed this issue and reached consensus on a
definition of the term ``maximum authorized speed.'' \5\ FRA proposes
to largely adopt the Working Group's consensus definition, which, for
purposes of part 214, is the permanent speed designated for a track in
a railroad's timetable, special instructions, or bulletin. The Working
Group agreed that using a temporary speed restriction as the basis for
determining the appropriate train approach warning distance could pose
inherent dangers. That danger occurs in situations where a party might
remove a temporary restriction from a particular segment of track
without notifying the roadway work group or lone worker using that
temporary speed restriction to determine the appropriate train approach
warning distance. FRA notes that this new definition would also apply
in the context of certain new RWP requirements promulgated in the
adjacent track final rule discussed above. Similar to the proposed
definition for the term ``effective securing device'' discussed above,
FRA has made a minor amendment to the language of the Working Group's
consensus recommendation for the definition of this term. FRA removed
the phrase ``for on-track safety purposes'' from the proposed
definition. FRA removed that phrase because it is unnecessary, as
anytime this term appears in part 214, the proposed definition would
apply. This change is not substantive in nature, and is only intended
to conform with regulatory drafting practices.
---------------------------------------------------------------------------

    \5\ The difference in word order between the proposed definition
and the wording as it appears in existing Sec.  214.329(a) is
addressed in the section-by-section analysis for Sec.  214.329
below.
---------------------------------------------------------------------------

    FRA is also proposing a definition for the term ``on-track safety
manual.'' Existing Sec.  214.309 requires each roadway worker in charge
and lone worker to have with them a manual containing the rules and
operating procedures governing track occupancy and protection. The
Working Group agreed to recommend consensus amendments to that existing
section, where such manual is referred to as an ``on-track safety
manual.'' As such, the Working Group also came to consensus on a
recommended definition for this new term. This proposed definition is
intended to provide clarity regarding the materials that must be
included in the on-track safety manual, as the manual is a critical
element of any on-track safety program. FRA previously issued Technical
Bulletins G-05-12 and G-05-25, both of which addressed concerns
regarding the requirement regarding such manuals. The following is a
general discussion of on-track safety manual requirements.
    First, via existing Sec. Sec.  214.311(b)-(c) and 214.313(d),
roadway workers have the right to challenge in good faith whether the
on-track safety procedures to be applied at a job location comply with
the operating rules of the railroad. Thus, the good faith challenge
procedures must be included in a railroad's on-track safety manual, as
roadway workers at a work site may require access to the procedures for
making such a challenge. FRA has left to a railroad's discretion how to
best fulfill this requirement. The documents fulfilling the requirement
could take many forms, including a simple set of instructions
explaining the good faith challenge procedures, a flow chart that
roadway workers could follow when invoking a challenge, or even a form
for a roadway worker to fill out when making such a challenge that
explains the challenge procedures.
    FRA Technical Bulletin G-05-12 explains that the on-track safety
manual could take the form of: (1) One document containing on-track
safety procedures, good faith challenge procedures, and on-track safety
operating rules of a railroad (absent operating rules not pertaining
on-track safety); or (2) a binder system holding together separate
documents such as the on-track safety procedures, on-track safety
operating rules, and all operating rules/procedures, with the on-track
safety procedures and good faith challenge procedures composing tabs or
sections of that binder. The RWP regulation does not specify that a

roadway worker in charge must have the railroad's timetable and/or
special instructions readily available along with the on-track safety
manual. However, if the timetable and/or special instructions contain
operating rules or instructions that affect the on-track safety
procedures of roadway workers, those documents must also be available
with the on-track safety manual.
    If a railroad chooses not to use certain methods of establishing
working limits or on-track safety, it is not necessary to include
procedures for establishing those types of on-track safety in its on-
track safety manual. For example, if a railroad chooses not to use
``foul time'' via Sec.  214.323 as a method of establishing working
limits, ``foul time'' procedures do not need to be included in that
railroad's on-track safety manual. Likewise, a short line railroad that
does not have any controlled track would only utilize Sec.  214.327
(inaccessible track) as a form of working limits, and would not need to
include procedures governing the establishment of other forms of
working limits.
    If a railroad uses electronic display of authorities to establish
working limits, as is proposed in new Sec.  214.322 below, the use of
such display would also need to be addressed in the on-track safety
manual. Also, FRA notes that part 214 does not prohibit the use of an
electronic device that can display the contents of an on-track safety
manual as an alternative to a written copy (hard copy) of an on-track
safety manual. So long as the contents of the on-track safety manual
are readily viewable via an electronic device, FRA would not take
exception to the use of such device. However, if a device malfunctions
such that the contents of the on-track safety manual could not be
retrieved and viewed, a printed copy of the on-track safety manual must
be readily available for a roadway work group to continue its work. If
no alternative on-track safety manual is available, the roadway work
group must cease its work and occupy a place of safety.
    FRA also notes that the general procedures applicable to all
machines and roadway workers must be included in the on-track safety
manual (e.g., machine-to-machine spacing and space between roadway
workers and machines as established by existing Sec.  214.341).
However, Sec.  214.341 requires that unique instructions for the safe
operation of roadway maintenance machines must be provided and
maintained with each machine if such machine is large enough to carry
the instruction document. If feasible, FRA recommends that these
machine-specific instructions be incorporated into the on-track safety
manual as well.
    Finally, FRA has amended the proposed definition for the term ``on-
track safety manual'' slightly from that as recommended by the Working
Group. FRA inserted the words ``designed to'' into the first sentence
of the proposed definition. This change is to reflect that the
instructions in the manual, if followed, are designed to prevent
roadway workers from being struck by trains, rather than the
instructions themselves preventing such collisions. This amendment is
intended to be clarifying in nature, not substantive.
    FRA is also proposing a definition for the existing term ``roadway
worker in charge.'' The term is used in existing Sec.  214.321, and is
also described interchangeably throughout the existing regulation as
the ``roadway worker responsible for the on-track safety of others'',
the ``roadway worker designated by the employer to provide for on-track
safety for all members of the group'', the ``roadway workers in charge
of the working limits'', as well as by other similarly descriptive
terms. The Working Group recommended consensus language for this
rulemaking which also uses the term ``roadway worker in charge'' in
several places. However, that term is not defined in the existing
regulation, and the Working Group did not reach agreement on a
recommended definition of the term.
    As such, FRA is proposing a definition for the term ``roadway
worker in charge.'' The proposed definition mirrors the existing
definition for the term found in FRA's Railroad Operating Practices
Regulation (see Sec.  218.93). FRA is also proposing amending numerous
sections of part 214 to substitute the term ``roadway worker in
charge'' for the wide variety of different terms listed above which are
currently used to describe the roadway worker who is in charge of a
roadway work group and establishes on-track safety for that group.
    Regarding the ``roadway worker in charge'' definition, FRA wishes
to address a related issue. Inquiries are often made regarding whether
a roadway worker in charge is simultaneously allowed to provide train
approach warning under existing Sec.  214.329 as a watchman/lookout. A
roadway worker in charge may only perform watchman/lookout duties so
long as the requirements of Sec.  214.329 are met. Section 214.329(b)
requires that watchmen/lookouts ``shall devote full attention to
detecting the approach of trains and communicating warning thereof, and
shall not be assigned any other duties while functioning as watchmen/
lookouts.'' Thus, a roadway worker in charge could not perform any
other duties, such as providing direction to a roadway work group,
while simultaneously serving as a watchmen/lookout. The limitation on
performing other tasks while simultaneously serving as a watchman/
lookout severely limits the instances in which a roadway worker in
charge may permissibly fill both roles. Also, if a roadway worker in
charge also intends to serve as a watchman/lookout for a roadway work
group, a discussion of such would have to take place during the job
briefing as required by existing Sec.  214.315(a), and would be subject
to the good faith challenge provisions of part 214. FRA stresses that
it is extremely safety-critical that a watchman/lookout devote full
attention to detecting trains and not perform any other tasks while
providing on-track safety for a roadway work group.
    FRA is also proposing a definition for the new term ``station
platform work coordinator'' in this NPRM, because FRA is also proposing
new procedures for ``station platform work coordinators'' to oversee
snow removal and light cleaning on passenger station platforms. See
discussion of proposed Sec.  214.338 below. This topic was discussed at
length during the Working Group meetings, but no consensus was reached.
A ``station platform work coordinator'' refers to a roadway worker who
coordinates the on-track safety for a roadway work group performing
snow removal or cleaning activities on a passenger station platform,
and who is qualified in accordance with new proposed training Sec.
214.352.
    FRA is also proposing a definition for the new term ``verbal
protection'' in this NPRM. Similar to ``foul time'', ``verbal
protection'' is a proposed method of establishing working limits within
an interlocking or controlled point via new proposed Sec.  214.324.
This new proposed Sec.  214.324 is a Working Group consensus item, and
is meant to accommodate the method of establishing working limits
utilized by railroads in the western portion of the United States. This
new Sec.  214.324 is discussed at length further below in the section-
by-section analysis. The Working Group did not contemplate a definition
for this new term, but FRA has proposed one that is similar to the
existing definition of ``foul time'', except that it refers to
establishing working limits within an interlocking or a controlled
point, rather than on controlled track outside the limits of those
configurations.
    Finally, FRA is proposing to amend the existing definition for the
term ``watchman/lookout''. The only

proposed change to the definition is to account for the proposed new
Sec.  214.338 regarding the use of station platform work coordinators,
as discussed further below. Section 214.338(a)(2) of the proposed
station platform work coordinator provision requires train approach
warning be given that would require roadway workers to withdraw hand-
held, non-powered tools from the edge of a passenger station platform
upon the approach of a train. However, that section states such warning
may be based on available sight distance at the platform and may give
less than the 15 seconds notice prescribed by existing Sec.
214.329(a). The proposed amendment to the definition of ``watchman/
lookout'' acknowledges this difference.
    FRA is also requesting comment on whether the existing definition
of the term ``watchman/lookout'' should be further amended in a final
rule in this proceeding. The existing definition states, in part, that
a watchman/lookout ``means an employee who has been annually trained
and qualified to provide train approach warning to roadway workers of
approaching trains or equipment.* * * '' However, as discussed below,
the frequency of refresher training and qualification requirements for
additional roadway worker qualifications (e.g., for a lone worker,
watchman/lookout, flagman, or roadway worker in charge qualification)
is not currently specified. Existing Sec.  214.349(b) only currently
states that ``[i]nitial and periodic qualification of a watchman/
lookout shall be evidence by demonstrated proficiency,'' mirroring the
other existing additional roadway worker qualification sections. As
discussed both above and below, FRA is requesting comment on the
refresher training and qualification requirements for the additional
roadway worker qualifications. Thus, FRA requests comment on whether
the word ``annually'' should be removed from existing definition of
``watchman/lookout'' in order that the definition more accurately
reflect both the current and any future RWP refresher qualification and
training requirements, and also for purposes of consistency with the
other existing additional roadway worker qualification definitions.

Subpart B--Bridge Worker Safety Standards

Section 214.113 Head Protection

    FRA proposes to amend three existing sections in subpart B (Bridge
Worker Protection) to delete the existing incorporations by reference
to certain outdated industry standards for personal protective
equipment (PPE). Specifically, Sec. Sec.  214.113, 214.115, and
214.117, contain incorporations by reference to certain standards
governing head, foot, eye, and face protection, respectively. Those
sections were originally promulgated in 1992 when an FRA final rule
establishing subpart B was published and reference standards dating
back to 1986. 57 FR 28116 (June 24, 1992). Although the regulatory
requirements have not been substantively updated in some time, the
standards themselves have been updated. Employers and employees may
currently have difficulty obtaining PPE manufactured in accordance with
the standards currently incorporated by reference. As such, FRA is
proposing to amend these existing sections to reflect that the
standards incorporated by reference have been updated. In doing so, FRA
wishes to allow for the continued use of any existing equipment which
meets the standards currently incorporated by reference, as well as for
the use of equipment meeting updated versions of those standards.
    FRA's incorporations by reference of PPE standards in subpart B
were initially patterned after certain OSHA general industry PPE
standards located in Title 29 of the Code of Federal regulations. OSHA
faced a situation similar to that FRA currently faces with regard to
updating its PPE incorporations by reference. As such, OSHA updated
those standards in a 2009 final rule. 74 FR 46350 (Sept. 9, 2009).
OSHA's updates to the PPE regulations that correspond to FRA's subpart
B PPE regulations (29 CFR 1910.133(b), 1910.135(b), and 1910.136(b))
allow for the continued use of PPE meeting older standards which had
previously been incorporated by reference, as well as the use of PPE
meeting updated versions of those same standards. OSHA's corresponding
regulation also permits ``employers to use subsequent national
consensus standards that they can demonstrate provide the requisite
level of employee protection.'' 74 FR 46353. OSHA has indicated that
that agency will update the standards referenced in its PPE regulations
via direct final rulemaking as new editions of those standards become
available. Id.
    As such, FRA has decided to propose deleting its existing subpart B
incorporations by reference. FRA proposes to replace those
incorporations by reference by requiring that PPE comply with OSHA's
corresponding general industry regulations. FRA has also decided to
propose such because the setting of PPE standards falls more
appropriately within OSHA's area of expertise, and that agency is
better suited to update these standards as appropriate. As explained in
the preamble to the 1992 FRA final rule promulgating the subpart B PPE
regulations, ``[m]any federal agencies and manufacturers rely on OSHA's
research abilities and expertise in formulating procedural guidelines
and performance criteria that reduce exposure to the risk of injury.
FRA is relying on OSHA's greater expertise in occupational health and
safety.'' 57 FR 28116.
    FRA's proposal is illustrated as follows. Section 214.113 governs
head protection for railroad bridge workers. FRA proposes to update
this section by deleting the existing incorporation by reference to
American National Standards Institute (ANSI), Z89.1-1986, Protective
Headwear for Industrial Workers. In its place, FRA proposes to
reference the requirements of 29 CFR 1910.135(b), OSHA's general
industry head protection PPE regulation. Section 1910.135(b) not only
permits the use of head protection meeting ANSI standard Z89.1-1986
(FRA's current standard incorporated by reference), but also
incorporates two updated versions of that standard as well. Under this
proposal, equipment meeting the standard currently incorporated by
reference in existing Sec.  214.113 would be permitted to be used
indefinitely, and equipment meeting more updated versions of that
standard would also be permitted to be used. Adoption of this proposal
would help facilitate compliance with Federal regulation, and would
also eliminate any economic concerns associated with updating PPE
standards, as equipment currently in use which conforms to the
requirements of existing 49 CFR 214.113(b) would be permitted to
continue in use indefinitely. FRA acknowledges that the most recent
ANSI standard listed in OSHA's updated Section 1910.135(b) is the 2003
standard. FRA has learned that, in the interim, between the time of
publication of OSHA's 2009 final rulemaking to present, that another
updated ANSI head protection standard has been released. However, as
mentioned above, 29 CFR 1910.135(b)(2) provides that head protection
that an employer demonstrates is ``at least as effective as head
protection devices that are constructed in accordance with '' the
consensus standards ``will be deemed to be in compliance with the
requirements of [1910.135(b)].'' Therefore, in interim time periods
between when updated versions of the standards incorporated by
reference are introduced and OSHA decides to adopt those standards in a

direct final rulemaking, PPE acquired by railroads or employers that
conforms to an updated version of the standards incorporated by
reference may still comply with the requirements of OSHA's regulation.
However, FRA requests comment on this particular point, both with
regard to this section and to the parallel proposed amendments to
Sec. Sec.  214.115 and 214.117 below.

Section 214.115 Foot Protection

    Section 214.115, governs foot protection for bridge workers.
Similar to the proposed amendments to Sec.  214.113 discussed above,
FRA proposes to update this section by deleting the existing
incorporation by reference to ANSI American National Standard Z41-1991,
Standard for Personal Protective Equipment Footwear. In its place, FRA
proposes to reference OSHA's general industry foot protection
regulation at 29 CFR 1910.136(b). Section 1910.136(b) permits the use
of foot protection meeting ANSI standard Z41-1991, and also permits the
use of PPE meeting updated versions of that standard. Section
1910.136(b) also reflects that ANSI Z41 was withdrawn and replaced by
two ASTM standards in 2005. Adoption of this approach would help
eliminate any potential costs associated with the continual updating of
PPE standards, while also facilitating compliance with Federal
regulation.

Section 214.117 Eye and Face Protection

    Finally, Sec.  214.117, governs eye and face protection for bridge
workers. Similar to the proposed amendments to Sec. Sec.  214.113 and
214.115 discussed above, FRA proposes to update this section by
deleting the existing incorporation by reference to ANSI Standard
Z87.1-1989, Practice for Occupational and Educational Eye and Face
Protection. In its place, FRA proposes to cross reference OSHA's
general industry foot protection regulation at 29 CFR 1910.133(b).
Section 1910.133(b) permits the continued use of eye and face
protection meeting ANSI standard Z87.1-1989, and also permits the use
of PPE meeting two updated versions of that standard. Adoption of this
approach would help eliminate any potential costs associated with the
continual updating of PPE standards, while also facilitating compliance
with Federal regulation.

Subpart C--Roadway Worker Protection

Section 214.301 Purpose and Scope

    Section 214.301 sets forth the purpose and scope of subpart C of
part 214. FRA is proposing to amend only paragraph (c) of this section.
FRA is proposing regulatory text to clarify existing paragraph (c)'s
meaning and also to address a certain situation that has arisen since
the 1996 promulgation of the RWP regulation. Specifically, the second
sentence of existing paragraph (c) permits the movement of roadway
maintenance machines to be conducted under the authority of a train
dispatcher, a control operator, or the operating rules of a railroad.
As such, FRA Technical Bulletin G-05-14 explained that under existing
paragraph (c) ``[r]oadway maintenance machines operating/traveling over
non-controlled track do so under the operating rules of the railroad.''
When these machines are actually conducting work, however, on-track
safety must first be established (e.g., if working on non-controlled
track, working limits must be established via the inaccessible track
working limits procedures of Sec.  214.327). FRA is proposing
regulatory text that explicitly states that while roadway maintenance
machines are traveling under the authority of a train dispatcher, a
control operator, or the operating rules of the railroad, on-track
safety in accordance with part 214 is not required to be established
for such movements. This amendment is not substantive in nature and is
only intended to clarify the existing meaning of this paragraph. An
example of a roadway maintenance machine movement permitted to be
conducted under this section would be the movement of a roadway
maintenance machine between two separate work locations. Another
example would be when traveling to or from a work location, or
traveling between a worksite and a repair or storage facility.\6\
---------------------------------------------------------------------------

    \6\ FRA is also proposing an RSAC consensus recommendation at
Sec.  214.317 below, whereby roadway workers conducting snow blowing
and weed spraying operations on non-controlled track would be
permitted to conduct such operations under this existing section
rather than being required to establish working limits in all
circumstances.
---------------------------------------------------------------------------

    FRA wishes to discuss another situation that often occurs with
regard to this topic. Railroad officials (such as transportation
superintendents) often travel their territories in hi-rail vehicles for
a variety of purposes. Because a railroad official such as a
transportation superintendent would not typically be a ``roadway
worker'' under that term's definition at Sec.  214.7, such movements
are not subject to the requirements of subpart C. However, most roadway
maintenance machine operators are roadway workers as their duties
include the inspection, construction, maintenance, or repair of
railroad track, bridges, roadway, signal and communication systems,
electric tractions systems, roadway facilities or roadway maintenance
machinery on or near track or with the potential of fouling a track.
Any roadway maintenance machine movements made by roadway workers are
required to comply with the requirements of subpart C, and part 214
generally (i.e., if a roadway maintenance machine is merely
``traveling'' it may be moved in accordance with paragraph (c) of this
section without the establishment of working limits, but if a roadway
maintenance machine is actually conducting work, working limits must be
established, unless part 214 contains an exception for a particular
type of operation).
    FRA is also proposing an amendment to paragraph (c) to address a
potential safety issue that has arisen when roadway maintenance machine
movements are made on non-controlled track under this section.
Movements on non-controlled track may be made without authorization
from a train dispatcher or control operator, per the definition of the
term ``non-controlled track'' at Sec.  214.7. Thus, such movements have
traditionally been made under railroad operating rules requiring that
they be made at speeds not exceeding restricted speed. Restricted speed
rules require that trains or other on-track equipment be able to stop
within one-half the operator's range of vision. The requirement to stop
within one-half the range of vision prevents collisions between any
equipment that may be operating on the same non-controlled track. As
such, under existing Sec.  214.301(c), operations at restricted speed
allow for roadway maintenance machines to safely travel over non-
controlled track without having to establish working limits. FRA is
aware, however, that some stretches of non-controlled track have been
equipped with automatic block signal (ABS) systems. ABS systems are
designed to prevent collisions while allowing for trains to operate at
speeds greater than restricted speed. This scenario is problematic for
purposes of the movement of roadway maintenance machines on non-
controlled track under existing paragraph (c) because roadway
maintenance machines do not all shunt ABS signal systems. Absent the
establishment of inaccessible track working limits or other
protections, nothing prevents a train operating on non-controlled ABS-
signaled track at a speed greater than restricted speed from colliding
with roadway maintenance machines traveling on the same track

that do not shunt the signal system (no authority is needed to occupy
such track and trains are not required to stop within one-half their
operator's range of vision).
    Based on the above-described situation, FRA is proposing that
roadway maintenance machine movements on non-controlled track may only
be made under paragraph (c) (e.g., without establishing working limits)
if train and locomotive speeds on such track are required to be made at
restricted speed. Because such situations have arisen in the past, FRA
is proposing regulatory text to prevent future occurrences.\7\ As
explained above, FRA believes that most non-controlled track is already
limited to restricted speed operations (with one exception being block
register territories, which are addressed further in proposed Sec.
214.327(a)(7) below). Thus, this proposed requirement should not
represent a cost burden to the industry. However, in order to provide
additional flexibility on this point, FRA is proposing that railroads
may also utilize other operating rules that provide a level of
protection equivalent to that provided by the provisions of restricted
speed rules on non-controlled track. As proposed, such other operating
rules must first be approved by FRA in writing if they are intended to
be used to satisfy this requirement.
---------------------------------------------------------------------------

    \7\ One Class I railroad had a significant stretch of ABS non-
controlled track (within yard limits) where such a situation did
exist, and an incident occurred where a hi-rail machine was struck
by a train. FRA is aware that this railroad has since required
movements over this track to be made at restricted speed. Another
Class I railroad has such a situation involving non-controlled
signaled track, but while moving roadway maintenance machines over
such track, FRA understands that the railroad creates working limits
via a dispatcher controlling the signals at either end of the non-
controlled limits to make such limits inaccessible.
---------------------------------------------------------------------------

    FRA notes that this proposed provision only refers to train and
locomotive speeds on non-controlled track. This provision would not
affect the speeds that roadway maintenance machines are authorized to
travel over non-controlled track. Existing Sec.  214.341 already
requires each railroad's on-track safety program address the spacing
between machines and the maximum working and travel speeds for machines
depending on weather, visibility, and stopping capabilities. Roadway
maintenance machines typically have stopping capabilities far in excess
of that of trains. The intent of this provision is to address
situations where trains and locomotives are not required to stop within
one-half the range of vision on non-controlled track, and could collide
with roadway maintenance machines that do not shunt signal systems.

Section 214.302 Information Collection Requirements

    FRA is proposing to remove this existing section from part 214.
This section is both outdated and superfluous, as the Paperwork
Reduction Act section below lists all of the information collection
requirements pertaining to each section of part 214 as proposed in this
NPRM. The Paperwork Reduction Act discussion that will be published in
a final rule in this proceeding will also list all final information
collection requirements. For a detailed summary of the information
collection requirements, please see the Paperwork Reduction Act
discussion in Section XI of the preamble below.

Section 214.305 Compliance Dates

    FRA is proposing to delete existing Sec.  214.305, as that section
is now obsolete. Section 214.305 only references the phase-in dates by
which a railroad's on-track safety program was required to comply with
the original 1996 RWP rulemaking. Those dates are no longer applicable,
and existing railroads' programs have been required to comply with the
RWP regulation since those dates in 1997. Further, if a new railroad
that is subject to part 214 is formed, that railroad's program is
required to comply with the requirements of the existing RWP regulation
upon commencing operations, as already established by existing
Sec. Sec.  214.301, 214.303, 214.317, and 214.335. Currently, the
relevant date by which a railroad's on-track safety program will be
required to comply with any changes or additions to the RWP regulation
that are adopted by FRA in this rulemaking will be the effective date
of any final rule issued.

Section 214.307 Review of Individual On-Track Safety Programs by FRA

    Existing Sec.  214.307 requires railroads to notify FRA in writing
at least one month in advance of its on-track safety program becoming
effective and sets forth FRA's formal review and approval process for
such plans. FRA is proposing to amend this section to modify the
existing on-track safety program approval process. This proposed
revision was not contemplated by the Working Group, but parallels
similar updated requirements in recent FRA rulemakings and is intended
to ease burdens imposed under the existing section.
    First, the proposed text would rescind the current requirement in
this section that railroads notify FRA not less than one month before
the effective date of their on-track safety programs. The proposed text
also modifies the existing requirement that FRA review and approve
every railroad's program. The proposed text would instead only require
that FRA be permitted to review a railroad's on-track safety program
upon request. This proposed change reflects that, generally, the
railroad industry now has much experience with this regulation, as the
regulation has been in effect for approximately 15 years. As such, the
wholesale review of every aspect of a railroad's program that took
place when the original rule was promulgated is not warranted. The
approach as proposed in this section recognizes that typically FRA
would review a railroad's program during audits or investigations. Upon
review of a program, the proposed text would provide FRA's Associate
Administrator for Railroad Safety/Chief Safety Officer with the
authority to disapprove a program if it does not meet the requirements
of part 214.
    If the FRA Associate Administrator for Railroad Safety/Chief Safety
Officer disapproves a program, proposed paragraph (b)(1) provides that
a railroad would be required to respond within 35 days by either
amending its program and submitting those proposed amendments for
approval, or by providing a written response in support of its program.
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer
would subsequently render a decision in writing either approving or
disapproving the program. Paragraph (b)(2) provides that FRA would
consider a failure to submit an amended program or provide a written
response as required by the section to be a failure to implement a
program under this part.
    The proposed amendments to this section also ease the burden on
both railroads and FRA as railroads would no longer be required to
notify FRA of changes to their on-track safety programs, and FRA would
be able to better utilize its limited resources to address legitimate
safety concerns brought to its attention, rather than conducting
mandatory reviews of on-track safety programs, the bulk of whose
contents have already been established and approved by FRA for many
years. Finally, the proposed text would also eliminate reference to the
compliance dates in Sec.  214.305, because as explained above, those
dates are obsolete.

Section 214.309 On-Track Safety Manual

    Existing Sec.  214.309, titled ``On-track safety program
documents,'' mandates, in part, that rules and operating procedures
governing track occupancy and protection be maintained together in one
manual and be readily available to all roadway workers. With minor
exceptions (discussed below), FRA is proposing amendments to this
section consisting of consensus language recommended by the Working
Group. As explained above in the section-by-section analysis for the
definitions section, the proposed revisions to this section incorporate
the definition for the new term ``on-track safety manual.'' That
definition and the discussion above establish the minimum contents such
manual should include. FRA is also proposing to amend the title of this
section, to more accurately reflect the proposals to update this
section.
    Proposed paragraph (a) of this section incorporates the new
proposed term ``on-track safety manual.'' Other than that change, the
Working Group's consensus recommendation language for the first
sentence of this paragraph then only repeated the text of the section
as it currently exists. However, that existing language describes the
``[r]ules and operating procedures governing track occupancy and
protection,'' which is the language that described what is now being
proposed to be expressly defined as the ``on-track safety manual.'' As
there is now a proposed definition for that term which describes what
must be included in the on-track safety manual, the description of
those items as it exists in the current regulation text is no longer
necessary. Thus, FRA has proposed to amend the first sentence of the
Working Group's recommended paragraph (a) to state ``[t]he applicable
on-track safety manual (as defined by Sec.  214.7) shall be readily
available to roadway workers.''
    Proposed paragraph (b) addresses the difficulty that a lone worker,
such as a signal maintainer or a walking track inspector, might
experience in carrying a large on-track safety manual. Paragraph (b)
proposes that a railroad must provide for an alternate process for such
a lone worker to obtain on-track safety information. The alternate
process may include the use of a phone or radio for the lone worker to
contact an employee who has the contents of the on-track safety manual
readily accessible. FRA has added the words ``on-track safety'' before
the word ``manual,'' which appears twice in this proposed paragraph.
This amendment to the consensus recommendation is to consistently and
accurately refer to the newly proposed term ``on-track safety manual''
throughout this section.
    Although FRA is adopting the Working Group's consensus language
recommended to be included in the last sentence of proposed paragraph
(b) (which read ``[s]uch provisions for alternative access shall be
addressed and included in the training provisions of Sec.  214.347''),
FRA is moving that language to Sec.  214.347, which is discussed
further below. FRA decided to make this change in the interests of
simplicity and ease of use of the regulations. By putting the consensus
language recommended by the Working Group setting forth this
substantive training requirement in the lone worker training section
itself (Sec.  214.347), FRA eliminates an unnecessary cross reference
to another section of the RWP regulation, and thus keeps the applicable
training requirements in the actual training sections.
    Proposed paragraph (c) recognizes that in practice changes often
occur to on-track safety rules and procedures. Often, it is necessary
for a railroad to publish and distribute new or revised on-track safety
measures or protection rules on an as-needed basis before those
documents can be permanently incorporated into a revised manual, or to
sometimes publish temporary changes to a program via bulletin or
notice. While these amendments to an on-track safety program must be
incorporated into an on-track safety manual, existing Sec.  214.309
does not include any allowance for the temporary nature of some
documents or the practical difficulties with incorporating such changes
immediately after issuance. This proposed text would account for
updates or changes to the on-track safety manual.

Section 214.315 Supervision and Communication

    Existing Sec.  214.315 mandates that job briefings be provided to
roadway workers assigned duties that require the fouling of track and
sets forth certain communication requirements between members of a
roadway work group, and, in the case of a lone worker, between that
lone worker and his or her supervisor or other designated employee. The
Working Group recommended that FRA add new requirements to existing
Sec.  214.315. Those items largely govern the substance of job
briefings performed prior to roadway workers fouling track, and also
change reference to these job briefings to ``on track safety job
briefing[s].'' Most of those consensus recommendations were addressed
in FRA's adjacent track rulemaking. 74 FR 74614. However, one item that
was not included in the adjacent track rulemaking involves information
during the on-track safety job briefing regarding the accessibility of
the roadway worker in charge and alternative procedures in the event
the roadway worker in charge is not accessible to the members of the
roadway work group. FRA is now proposing the recommended consensus
language addressing this issue.
    As a roadway worker in charge is the person who establishes and
directs the on-track safety for a roadway work group, it is critical
that each roadway worker in a roadway work group have access to the
roadway worker in charge. Access is necessary where a member of the
group invokes a good faith challenge, or where he or she has other
questions concerning the established on-track safety protection. Thus,
a roadway worker in charge must be located in the immediate vicinity of
the work activity. As discussed in FRA Technical Bulletin G-05-07,
sometimes it may be necessary for a roadway worker in charge to depart
a work location for a short period to travel to another area
encompassing the same work activity (e.g., to conduct on-track safety
checks throughout a large mechanized production activity). During such
periods where the roadway worker in charge may be away from a work site
for a short period, it is imperative the roadway work group have a
readily available means to communicate with this employee. When a
roadway worker in charge departs a work site for an extended period, a
substitute employee with the relevant qualifications must be
designated. If any exclusive track occupancy authorities are involved,
the change in the roadway worker in charge designation must be formally
addressed in the railroad operating rule. To eliminate confusion, FRA
notes that this recommended consensus item regarding the accessibility
of the roadway worker in charge was initially listed by the Working
Group as new paragraph (a)(3) of Sec.  214.315. However, after
numbering and other minor changes as promulgated in the adjacent track
rulemaking, FRA is proposing to include this provision as new Sec.
214.315(a)(5). In the regulation text as proposed below, new paragraphs
(a)(3) and (a)(4) of this section, as promulgated in the adjacent track
rulemaking, also appear again. This is to reflect that FRA has to
remove the ``and'' from the end of paragraph (a)(3) and move it to the
end of paragraph (a)(4). This change is necessary as the

newly proposed (a)(5) would be the new last paragraph under (a).
    FRA is also proposing a minor change to existing Sec.  214.315(b).
FRA is proposing to replace the word ``worker'' in the first sentence
of that paragraph with the word ``worker(s)'', merely to reflect that
roadway work groups often include multiple roadway workers. In
addition, FRA is proposing to slightly amend existing paragraphs (c)
and (d) of this section, by adding the new term ``roadway worker in
charge'' to the first sentence of each of those paragraphs. The new
term replaces the existing language in those paragraphs that
generically refers to the person or roadway worker designated to
provide on-track safety for a roadway work group. It is generally
understood by the industry that this person is the ``roadway worker in
charge.'' This change, along with the new definition for that term,
only acknowledge this understanding and provide uniformity of reference
to ``roadway worker[s] in charge'' in the regulation text. Finally, FRA
is proposing to amend the first sentence of paragraph (e) of this
section to replace the words ``job briefing'' with ``on-track safety
job briefing'', merely for uniformity to reflect the Working Group's
consensus recommendation regarding job briefings as referred to in
paragraph (a) of this section.

Section 214.317 On-Track Safety Procedures, Generally

    Currently, Sec.  214.317 generally requires employers to provide
on-track safety for roadway workers by adopting on-track safety
programs compliant with Sec. Sec.  214.319 through 214.337. FRA is
proposing two substantive amendments to this existing section. These
two proposed amendments are consensus recommendations of the Working
Group and would impose requirements for roadway workers who walk across
railroad track and provide for new allowances when snow removal or weed
spraying operations are conducted on non-controlled tracks.
    FRA is proposing to redesignate the existing text of Sec.  214.317
as paragraph (a) of this section in order to account for the additional
proposed amendments. In that existing text, FRA is proposing to amend
the reference to Sec.  214.337 to instead refer to proposed Sec.
214.338. This change is to acknowledge that if proposed Sec.  214.338
is adopted in a final rule, Sec.  214.337 would no longer
chronologically be the last section in this part governing on-track
safety procedures, but rather the last section would be Sec.  214.338.
    Consistent with the consensus recommendation of the Working Group,
FRA is proposing a new paragraph (b) regarding procedures for roadway
workers to walk across railroad track. This section addresses the
practical reality that roadway workers often have to walk across tracks
while not directly engaged in activities covered by the existing RWP
regulation. For example, a roadway worker might incidentally walk from
a work site on a track in which working limits are in effect to a
vehicle adjacent to the right of way. While walking to a vehicle, a
roadway worker may have to cross over other ``live'' tracks where
working limits or another form of on-track safety is not in effect.
This proposed section, a consensus recommendation of the Working Group,
is intended to prevent roadway workers from being struck by trains
while incidentally crossing track, while at the same time recognizing
the need for procedures enabling roadway workers to cross tracks safely
without the need for formal on-track safety to be in place.
    Proposed paragraph (b) would require that if roadway workers walk
across track they must first stop and look in all directions from which
a train or other on-track equipment could approach before starting
across, in order to ensure they may safely clear the track before the
arrival of any train or other on-track equipment. The proposal to
require roadway workers to stop and look before crossing a track would
provide an opportunity for roadway workers to physically stop what they
are doing and consider the on-track circumstances before proceeding
across live track. Although the Working Group recommended that roadway
workers ``look in both directions'' before crossing any track, FRA has
amended that consensus language to require roadway workers look in
``all directions from which a train or other on-track equipment could
approach.'' FRA understands the Working Group's recommendation, but to
require roadway workers to look in ``both directions'' without
providing further context is ambiguous. FRA believes it is more precise
to require roadway workers to first look in all directions from which a
train could approach before crossing track. This proposed amendment
also acknowledges that varying physical layouts could allow for trains
to approach from more than two directions (a diamond, certain turnouts,
etc.).
    Next, asserting that depending on the sight distances groups of
tracks may be safely crossed without stopping between each track, in
post-Working Group comments on the consensus recommendations, AAR
requested that FRA amend the language to permit roadway workers to walk
across more than one track at a time without stopping and looking
before crossing each track. FRA agrees that in certain instances, where
sight distance allows, multiple tracks may be crossed safely without
stopping and looking between each track. FRA is concerned, however,
that incorporating such a change into the regulatory text with no
limiting language could potentially be unsafe in certain circumstances
(e.g., walking across tracks in a hump yard where there may be limited
sight distance and the constant potential for rolling equipment to
simultaneously be moving on many tracks exists). Accordingly, FRA is
not proposing to deviate from the recommended consensus language in
this regard, but requests additional comment on whether a roadway
worker should be required to look in all directions before crossing
each track.
    Paragraph (b)(1) proposes to require that railroads adopt rules
governing how roadway workers determine that it is safe to cross track,
and that employees comply with those rules. FRA is modifying the
language recommended by the Working Group by inserting the words
``governing how to'' into the lone sentence in this paragraph, as the
rules themselves do not determine that it is safe to cross the track,
but they govern the conduct of the person making that determination.
This change is not substantive, and is intended for clarity only.
Paragraph (b)(2) proposes to require that roadway workers move directly
and promptly across tracks. Again, FRA modified the Working Group's
recommended language by adding the word ``shall'' into the consensus
language of that paragraph. FRA added ``shall'' in order to clearly
indicate that this would be a mandatory requirement. Proposed paragraph
(b)(3) would establish that Sec.  214.317(b) would not substitute for
the on-track safety that is required when roadway workers are required
to foul a track while actually engaged in roadway worker duties.
    FRA notes, as discussed in relation to the definition of the term
``roadway worker'' above, that when a roadway worker fouls track to
install a device such as a portable derail or temporary sign to
delineate working limits, on-track safety is required to be
established. This proposed paragraph would not amend that existing
requirement. FRA is also removing the words ``as defined in the rule''
from the language recommended by the Working Group, as neither the
existing RWP regulation nor this NPRM define on-track equipment. In the
context of this section, FRA would interpret roadway maintenance

machines, hi-rail vehicles, or any other on-track equipment with the
capability to strike a roadway worker as on-track equipment.
    FRA does not intend for this new paragraph (b) to apply to what is
commonly referred to as ``casual fouling.'' For example, if a track
inspector is conducting a track inspection on No. 1 track from a hi-
rail vehicle and on-track safety is provided for on No. 1 track (e.g.,
by exclusive track occupancy), typically no occupancy authority exists
on the adjacent No. 2 track. If the track inspector departs the hi-rail
vehicle on the same side as the adjacent track, and the centerline
distance is insufficient to enable the employee to remain clear of the
adjacent track as the inspector walks along the hi-rail vehicle to
reach the front or rear of the vehicle, such fouling of the adjacent
track would not be considered a ``track crossing'' under paragraph (b).
    As a related matter, proposed paragraph (b) is not intended to
affect how roadway workers move over highway-rail grade crossings. The
movement of workers or equipment over designated public or private
highway-rail grade crossings should occur in accordance with traffic
laws and railroad safety rules (e.g., adherence to active and passive
warning devices). Trains always have the right-of-way at highway-rail
grade crossings. FRA notes that if any type of work activity as
regulated under existing part 214 occurs at a highway-rail grade
crossing, such an activity would require that an appropriate form of
on-track safety be established.
    The Working Group also recommended language for a new paragraph
(b)(4) of this section, which would require that a railroad's safety
rules governing walking across railroad tracks be included in all
roadway worker training. FRA is proposing this recommended training
requirement, but in order to eliminate unnecessary cross references and
for the regulation's ease of use, FRA is proposing to include it in
proposed Sec.  214.345. Section 214.345 contains the mandatory items on
which roadway workers must be annually trained and, as discussed in the
section-by-section analysis for proposed Sec.  214.309 above, FRA
believes that all training requirements should be contained in the
actual training sections.
    The Working Group also provided recommended consensus language
pertaining to on-track snow removal and weed spraying on non-controlled
track. FRA proposes to include this recommended language in Sec.
214.317(c). The proposed language would permit on-track snow removal
and weed spraying operations on non-controlled track without requiring
that such track first be made inaccessible. This proposed provision was
crafted due to the difficulty of establishing working limits on non-
controlled track for the operation of equipment that moves over long
distances, and where there are limited to no on-ground work activities
being conducted by roadway workers. FRA notes that this proposed
language is specific to weed spraying and snow removal operations being
conducted with on-track roadway maintenance machines, including on-
track snow removal equipment, such as jet snow blowers. This provision
is not intended to apply to situations where equipment, such as a
front-end-loader, fouls track when being used to plow or scoop snow off
of track or railroad right-of-way. This provision would also not apply
to controlled track, where some form of working limits would still be
required to be established. In addition, this provision would only
apply where on-track snow removal and weed spraying operations are
actually being conducted. Roadway maintenance machines not engaged in
that work, but rather just traveling over non-controlled track, would
still do so under the operating rules of the railroad as established in
existing Sec.  214.301(c) of the RWP regulation.
    This proposed provision contains many requirements. First, before
machines could operate under this provision in remotely controlled hump
yard facilities, the recommended consensus introductory text of
paragraph (c) would require that remotely controlled hump yard
operations be suspended. FRA has proposed this requirement regarding
the suspension of hump operations, but has moved it to proposed
paragraph (c)(1)(iv) of this section. FRA made this amendment to the
recommended consensus language only for purposes of organizing the
regulatory text. The introductory text of paragraph (c) contains the
permissive language which would allow weed spraying and snow removal
operations to proceed under the provisions of Sec.  214.301, with the
limitations and/or conditions for utilizing that permissive provision
listed in paragraphs (c)(1)-(c)(4). As the requirement to suspend hump
operations is also a limitation on when the permissive provision may be
utilized, FRA believed that requirement would be more appropriately
listed with all of the other requirements in paragraphs (c)(1)-(c)(4).
    In a post-Working Group consensus language draft that was
circulated for comment, the BMWED noted that the language regarding the
status of hump operations in the first sentence of proposed paragraph
(c) initially read ``in effect'', rather than ``in progress''. AAR's
post-RSAC recommendation indicated that it favored the words ``in
progress'', but did not explain the reason for favoring such. The
BMWED's post-RSAC comment indicated it favored ``in effect'', as that
term is more inclusive as hump operations might be ``in effect'' but
not actually ``in progress'' (e.g., cars not literally being humped
right at the moment that weed spraying operations begin). FRA agrees
with the BMWED's position and is proposing the initial Working Group's
consensus wording of ``in effect'', but also requests further comment
on this issue from all interested parties.
    Proposed paragraph (c)(1) would require that each railroad adopt
and comply with a procedure for on-track snow removal and weed spraying
operations. Proposed paragraph (c)(1)(i) would require the procedure to
ensure that all other persons conducting on-track movements in the
affected area are informed of the snow removal or weed spraying
operations. FRA has slightly amended the RSAC's recommended consensus
language for proposed paragraph (c)(1)(i) by adding the words ``in the
affected area''. This change is only intended to clarify that on-track
movements in the affected area must be informed of the snow removal or
weed spraying operations, as otherwise there would be no limiting
descriptor as to which operations must be notified. For consistency
purposes, FRA has also amended all references to ``movements''
throughout paragraph (c)(1) to instead refer to ``on-track movements'',
because the consensus text for paragraph (c)(1)(i) (and for paragraph
(c) in its entirety) specifically refers only to on-track movements.
Proposed paragraph (c)(1)(ii) would require that the adopted procedure
ensure that all such weed spraying and snow removal operations operate
at a speed not greater than restricted speed as currently defined in
Sec.  214.7, except on other than yard tracks and yard switching leads,
where movements may operate at no more than 25 miles-per-hour (mph) and
be prepared to stop within one-half the range of vision. In its post-