[Federal Register: July 17, 2008 (Volume 73, Number 138)]
[Proposed Rules]
[Page 41213-41230]
[DOCID:fr17jy08-27]

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Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 214

Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway
Workers; Proposed Rule

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 1]
RIN 2130-AB93

Railroad Workplace Safety; Adjacent-Track On-Track Safety for
Roadway Workers

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes to amend its regulations on railroad workplace
safety to reduce further the risk of serious injury or death to roadway
workers. In particular, FRA proposes to require that railroads adopt
specified on-track safety procedures to protect certain roadway work
groups from the movement of trains or other on-track equipment on
``adjacent track.'' FRA proposes to define ``adjacent track'' as ``any
controlled track whose track center is 19 feet or less from the track
center of the occupied track.'' These on-track safety procedures would
be required for each adjacent track when a roadway work group with at
least one of the roadway workers on the ground, is engaged in a common
task with an on-track roadway maintenance machine or coupled equipment
on an occupied track. FRA also proposes to require that railroads,
contractors to railroads, and roadway workers comply with these
procedures.

DATES: Written comments must be received no later than August 18, 2008.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
    FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to August 18, 2008, one 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: Comments: You may submit comments on this NPRM, identified
by Docket No. FRA-2008-0059, Notice No. 1, by any of the following
methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery or Courier: Docket Management Facility, U.S.
Department of Transportation, West Building, Ground Floor, M-33, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m.
and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: For detailed instructions on submitting comments, and
additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this preamble. 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'' subheading under
the ``Regulatory Impact and Notices'' heading, below, in section
VIII.I. of this preamble.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov anytime, or to the
Docket Management Facility, U.S. Department of Transportation, West
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday,
except Federal holidays. Follow the online instructions for accessing
the docket.

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 Anna Winkle, Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10,
Washington, DC 20590 (telephone<PHONE_NUMBER> or<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Public Participation
II. Overview of the Existing Roadway Worker Protection (RWP) Rule
    A. Applicability and Basic Definitions
    B. Authorized Methods of Establishing On-Track Safety
    C. Existing On-Track Safety Requirements for Roadway Work Groups
with Respect to Adjacent Tracks
III. Notice of Safety Advisory 2004-01
IV. Recent Roadway Worker Accidents (1997-2008)
V. Joint Petition to FRA for an Emergency Order
VI. Current Rulemaking to Revise the RWP Rule
    A. Overview of the RSAC [Railroad Safety Advisory Committee]
    B. Proceedings in this Rulemaking to Date Generally
    C. Proceedings concerning On-Track Safety Procedures for
Adjacent Tracks
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act
IX. List of Subjects in 49 CFR Part 214

I. Public Participation

    The Administrative Procedure Act (5 U.S.C. 551-559) permits an
agency to dispense with notice of rulemaking when it is otherwise not
required by statute and the agency ``for good cause finds that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B). FRA finds that
the typically long periods for notice and public participation are, in
this case, unnecessary and contrary to the public interest for the
reasons set forth below; thus, an abbreviated comment period of 30 days
is appropriate for this NPRM.
    As will be detailed in this NPRM, the recent increase in roadway
worker fatalities that have occurred on an adjacent track (i.e., under
the existing rule, any track within 25 feet of the centerline of the
track to which the roadway work group was assigned to perform one or
more roadway worker duties) has caused considerable concern at FRA and
throughout the industry, even prompting the filing of a joint petition
for emergency order under 49 U.S.C. 20104 on April 11, 2008. See 49 CFR
part 214, subpart C (``Roadway Worker Protection Rule'' or ``RWP
Rule''). FRA issued a notice of safety advisory to address the issue in
May of 2004; however, it appears that the salutary effects of the
safety advisory, which produced a period of 16 months with no
fatalities on an adjacent track, were not long-lasting, as four
fatalities have since occurred on an adjacent track where a roadway
work group, with at least one of the roadway workers on the ground, was
engaged in a common task with an on-track roadway maintenance machine
or coupled equipment on an occupied track. FRA believes that these
proposed amendments to the Roadway Worker Protection Rule are non-
controversial in nature because they are based on and substantively the
same as the consensus language developed

through the Roadway Worker Protection (RWP) Working Group of FRA's
Railroad Safety Advisory Committee (RSAC), which is comprised of
various representatives of the groups that are affected by this rule
(including railroad management, railroad labor organizations, and
contractors). Moreover, FRA finds that, based on the data available,
any further delay in issuance of this NPRM \1\ and a subsequent final
rule would fail to reduce the risk of additional fatalities on adjacent
track that are likely to occur late this year or early next year in the
absence of further regulatory action.
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    \1\ While the consensus language relating to adjacent track
issues that was developed through the RSAC was originally intended
to be published as part of a larger NPRM, FRA has decided to propose
these adjacent-track-related provisions in this separate NPRM so
that an appropriate provision will be in effect in a more timely
fashion than if the provision were one of many in the larger
rulemaking that would need to undergo internal review and approval
and public notice and comment. The remaining provisions not related
to adjacent track will be proposed in a separate NPRM at a later
date, as part of the larger RWP rulemaking.
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    In summary, FRA believes that the identification of a serious and
escalating safety concern which FRA's actions to date have not been
sufficient to remedy and the non-controversial nature of the proposed
amendments justify a comment period of 30 days, rather than the normal
60 days, in this NPRM. FRA will consider, however, any comments
received after that date to the extent possible without incurring
additional expense or delay.

II. Overview of the Existing RWP Rule

A. Applicability and Basic Definitions

    The RWP Rule requires each railroad that operates rolling equipment
on track that is part of the general railroad system of transportation
to ``adopt and implement a program that will afford on-track safety to
all roadway workers whose duties are performed on that railroad.'' See
49 CFR 214.3, 214.303(a).\2\ ``On-track safety'' is defined as ``a
state of freedom from the danger of being struck by a moving railroad
train or other railroad equipment, provided by operating and safety
rules that govern track occupancy by personnel, trains and on-track
equipment.'' See Sec.  214.7. The roadway workers that must be afforded
on-track safety are any employees of a railroad, or of a contractor to
a railroad, whose duties include ``inspection, construction,
maintenance or repair of railroad track, bridges, roadway, signal and
communication systems, electric traction systems, roadway facilities or
roadway maintenance machinery on or near track or with the potential of
fouling a track, and flagmen and watchmen/lookouts * * *.'' See Sec.
214.7, ``Roadway worker.''
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    \2\ All references in this preamble to a section or other
provision of a regulation are to a section, part or, other provision
in title 49, Code of Federal Regulations unless otherwise specified.
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B. Authorized Methods of Establishing On-Track Safety

    Several methods are authorized to be used to provide on-track
safety for roadway workers, and many of those methods involve
establishing ``working limits,'' which is defined in part as ``a
segment of track with definite boundaries established in accordance
with [part 214] upon which trains and engines may move only as
authorized by the roadway worker having control over that defined
segment of track.'' See Sec. Sec.  214.7 and 214.319. Working limits
may be established on controlled track (i.e., ``track upon which the
railroad's operating rules require that all movements of trains must be
authorized by a train dispatcher or a control operator'') through
exclusive track occupancy (Sec.  214.321), foul time (Sec.  214.323),
or train coordination (Sec.  214.325). See Sec. Sec.  214.7 and
214.319. Regardless of which method is chosen, the working limits are
only permitted to be under the control of a qualified roadway worker in
charge, and all affected roadway workers must be notified and either
clear of the track or provided on-track safety through train approach
warning (in accordance with Sec.  214.329) before the working limits
are released to permit the operation of trains or other on-track
equipment through the working limits. See id.
    Train approach warning is another common method of establishing on-
track safety in which a trained and qualified watchman/lookout provides
warning to roadway worker(s) of the approach of a train or on-track
equipment in sufficient time to enable each roadway worker to move to
and occupy a previously arranged place of safety not less than 15
seconds before a train moving at the maximum speed authorized on that
track would arrive at the location of the roadway worker. See
Sec. Sec.  214.329 and 214.7 ``Watchman/lookout.'' Train approach
warning is sometimes used as a temporary form of on-track safety when a
roadway worker in charge needs to nullify the on-track safety
previously established by working limits in order to permit a train or
piece of on-track equipment to enter the roadway work group's working
limits. Train approach warning permits the roadway workers to continue
working for longer if the working limits span several miles and the
train or equipment will not be passing by the work area for some time
due to a speed restriction, the distance away, or the train or
equipment halting its movement. It should be noted that switching
temporarily to ``train approach warning'' is permissible only if the
change was previously discussed in detail with the roadway work group
either in the on-track safety job briefing prior to beginning work or
in an updated on-track safety job briefing pursuant to Sec.
214.315(d). See Sec.  214.315.

C. Existing On-Track Safety Requirements for Roadway Work Groups with
Respect to Adjacent Tracks

    Section 214.335(c) of the RWP Rule currently requires that roadway
work groups engaged in ``large-scale maintenance or construction'' be
provided with on-track safety in the form of ``train approach warning''
for train or equipment movements on adjacent tracks if the adjacent
tracks are not already included within the working limits. Under the
current definition of ``adjacent tracks,'' on-track safety as discussed
above is required for any tracks with track centers spaced less than 25
feet apart from the track to which a roadway work group is assigned to
perform large-scale maintenance or construction. See Sec. Sec.  214.7,
214.335(c). The track to which the roadway work group is assigned to
perform the large-scale maintenance or construction is commonly
referred to as the ``occupied track.'' Thus, in triple-main track
territory, if a roadway work group is occupying the middle track (e.g.,
Main Track No. 2) in order to perform large-scale maintenance or
construction, and the track centers of the tracks on either side of the
occupied track are within 25 feet of the occupied track, then on-track
safety is required to be established on both adjacent tracks (e.g.,
Main Track Nos. 1 and 3). In some yards or territories, where track
centers may be spaced only 12 feet apart, an occupied track (e.g., Yard
Track No. 3) may have up to four adjacent tracks (e.g., Yard Track Nos.
1, 2, 4, and 5). In such cases, the current rule requires on-track
safety to be established on all four adjacent tracks, in addition, of
course, to the on-track safety required for the occupied track itself.
See Sec. Sec.  214.335(c) and 214.337(a).
    Although the term ``large-scale maintenance or construction'' is
not specifically defined in the regulation, FRA noted in the preamble
to the 1996 final rule establishing the RWP Rule that the principle
behind the reference to large-scale maintenance or construction ``is
the potential for distraction, or the possibility that a

roadway worker or roadway maintenance machine might foul the adjacent
track and be struck by an approaching or passing train,'' and further
stated that ``conditions in which the risk of distraction is
significant'' require measures to provide on-track safety on adjacent
tracks. See 61 FR 65959, 65971 (December 16, 1996). To further clarify
what was meant by the term ``large-scale maintenance or construction,''
FRA adopted the recommendation of the Roadway Worker Safety Advisory
Committee, which described large-scale track maintenance and/or
renovations, such as but not limited to, ``rail and tie gangs,
production in-track welding, ballast distribution, and undercutting.''
See id. Under such guidance, many railroads were not providing on-track
safety on adjacent tracks for surfacing operations, small tie renewal
operations, or similar maintenance operations that, while smaller in
scale, still included one or more on-track roadway maintenance machines
or coupled equipment. Fatalities occurred on the adjacent track during
such operations when on-track safety was not established on the
adjacent track or had been temporarily or permanently nullified or
suspended to permit the passage of a train or other on-track equipment.

III. Notice of Safety Advisory 2004-01

    After the occurrence of five roadway worker fatalities in one
calendar year (2003), including one on an adjacent track, FRA responded
on April 27, 2004, by issuing Notice of Safety Advisory 2004-01, which
was later published in the Federal Register on May 3, 2004. See 69 FR
24220. FRA issued this safety advisory to recommend certain safety
practices, to review existing requirements for the protection of
roadway workers from traffic on adjacent tracks, and to heighten
awareness to prevent roadway workers from inadvertently fouling a track
when on-track safety is not provided. See id. The safety advisory
explained that the requirements of the RWP Rule, including the
requirement to provide adjacent track on-track safety for large-scale
maintenance or construction in Sec.  214.335(c), are only minimum
standards; railroads and railroad contractors are free to prescribe
additional or more-stringent standards consistent with the rule. See
id. at 24222 and Sec.  214.301(b). FRA recommended that railroads and
contractors to railroads develop and implement basic risk assessment
procedures for use by roadway workers to determine the likelihood that
a roadway worker or equipment would foul an adjacent track prior to
initiating work activities, regardless of whether those activities were
``large-scale'' or ``small-scale.'' The safety advisory provided
examples of relevant factors to consider in making such an assessment,
including whether the work could be conducted by individuals positioned
between the rails of a track on which on-track safety has been
established, as opposed to being on the field side of such a track
toward an adjacent track; whether there was a structure between the
tracks to prevent intrusion (such as a fence between the tracks at a
passenger train station and the tall beam of a through-plate girder
bridge); the track-center distance, to ensure that the adjacent track
would not be fouled if a worker were to inadvertently trip and fall;
the nature of the work (inspection or repair); the sight distances; and
the speed of trains on the adjacent track. See 69 FR 24222. FRA further
noted that, upon completion of an on-site risk assessment, the on-track
safety briefing required by Sec.  214.315(a) would be the ideal
instrument to implement preventive measures concerning adjacent tracks.
See id.
    In addition to the above recommendation concerning basic risk
assessment, FRA recommended that railroads and contractors to railroads
consider taking the following actions:
     Use of [sic] working limits for activities where equipment
could foul adjacent track (whether large-scale or small-scale
activities);
     Use rotation stops to mitigate the dangers associated with
on-track equipment and trains passing on adjacent tracks;
     Review procedures for directing trains through adjacent
track working limits, and enhance such procedures when necessary;
     Install adjacent track warning signs/devices in the
operating cab of on-track machines to remind roadway maintenance
machine operators to not inadvertently depart the equipment onto a
track where there may be trains and other on-track equipment passing;
     Provide additional training and monitoring to [their]
employees, emphasizing the need to cross tracks in a safe manner (i.e.,
single file and after looking in both directions);
     Reinforce to individual roadway workers that it is
critical not to foul a track except in the performance of duty and only
when on-track safety has been established. This training could be
accomplished through training sessions, as well as daily job briefings;
and
     Institute peer-intervention measures by which workers are
encouraged to intervene when observing another roadway worker engaging
in potentially non-compliant and unsafe activity.

See id.

IV. Recent Roadway Worker Accidents (1997-2008)

    Since the RWP Rule went into effect on January 15, 1997, there have
been nine roadway worker fatalities on an adjacent track. Seven of
those fatalities have occurred on a controlled track that was adjacent
to the track on which a roadway work group, with at least one of the
roadway workers on the ground, was engaged in a common task with an on-
track roadway maintenance machine or coupled equipment. FRA notes that
there has been only one adjacent-track fatality where a roadway work
group had been engaged in a common task with a lone hi-rail vehicle,
defined in Sec.  214.7 as ``a roadway maintenance machine that is
manufactured to meet Federal Motor Vehicle Safety Standards and is
equipped with retractable flanged wheels so that the vehicle may travel
over the highway or on railroad tracks.'' \3\ In addition, there have
been no adjacent-track fatalities where a roadway work group had been
engaged in a common task with a catenary maintenance tower car on the
occupied track. This is likely because the duties normally performed by
an employee operating a hi-rail or a catenary maintenance tower car
tend to be less distracting to on-ground roadway workers and produce
less dust and noise than a typical on-track roadway maintenance
machine. Given the above, FRA proposes that adjacent-track on-track
safety not be required for roadway work groups engaged in a common task
with a hi-rail or a catenary maintenance tower car, as discussed in the
section-by-section analysis of paragraphs (b)(2) and (b)(3),
respectively, in new proposed Sec.  214.336.
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    \3\ In that case, the roadway workers were under the impression
that adjacent-track on-track safety was in effect, but it was not,
due to a miscommunications.
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    Of the seven fatalities that occurred under the circumstances
described above and which this rule proposes to address, three occurred
during the period after the effective date of the rule and before the
publication of the safety advisory on May 3, 2004, and four have
occurred since that period. In the four-year period prior to May of
2004 (May 1, 2000-April 30, 2004), there has been one adjacent-track
fatality known to have occurred under such circumstances, for a rate of
.25 per year. In the four-year period since (May 1, 2004-April 30,
2008), there have been four adjacent-track fatalities, for a rate of

one per year, which is four times the rate of the previous four-year
period. While FRA recognizes that even one death can make rates change
dramatically when the total number of deaths is small, the increase in
the rate of these deaths despite the safety advisory leads FRA to
conclude that prompt regulatory action is needed to avert an escalating
number of deaths. Moreover, given the extensive participation in
developing these consensus regulatory provisions by representatives of
all of the key interests involved in this issue, it is contrary to the
public interest to wait for all of the other issues in the larger RWP
rulemaking to be resolved or to engage in lengthy periods for notice
and public comment before acting to prevent more deaths.
    The following is a brief summary of the results of FRA's
investigations of the four most recent incidents that resulted in these
unfortunate fatalities:
     October 5, 2005: A roadway surfacing gang tamper operator,
with 28 years of service, was walking up to the front of the tamper to
put away the light buggies as his surfacing gang, having just completed
its work, was getting ready to travel to clear the number two main
track. The operator was walking east on the side of the tamper between
the two main tracks when he was struck by a westbound train on the
adjacent track. The track centers were spaced approximately 13 feet
apart, and the train was traveling at an estimated speed of 40 miles
per hour (mph).
     March 12, 2007: A surfacing gang was occupying the number
one main track in a double-main territory. The surfacing gang foreman
(the roadway worker in charge), who earlier had notified the other
members of the gang of pending movement on the adjacent track, was
standing in the gage of the same adjacent track when he was struck by a
train. It remains unclear why he was fouling the adjacent track at the
time of the incident. The track centers were spaced approximately 13
feet, 6 inches apart, and the maximum authorized speed on the adjacent
track was 50 mph.
     February 10, 2008: A train struck a roadway worker inside
an interlocking on a triple-main track territory. The worker was part
of a gang that consisted of approximately 10 workers that were engaged
in the repair of a crossover on the middle main track with a tamper.
Foul time was being used as adjacent-track on-track protection, but
this protection was removed by the roadway worker in charge, who gave
permission to the dispatcher to permit a train to operate on the
adjacent track through the roadway work group working limits. As the
train entered the interlocking on a limited clear signal indication for
a crossover move past the work area, one of the roadway workers
attempted to cross the track in front of the train and was struck. The
track centers were spaced approximately 13 feet apart, and the maximum
authorized speed for the train on the adjacent track was 45 mph.
     March 27, 2008: Information at this time is preliminary,
but it is understood that a surfacing gang was working on multiple-
track territory. The surfacing gang foreman was standing in the foul of
the adjacent track while his surfacing crew worked on the number two
main track. A train operating on the same adjacent track struck the
foreman. No on-track safety was in effect on the adjacent track
involved at the time of the incident. The track centers were spaced
approximately 14 feet, 7 inches apart, and the maximum authorized speed
on the adjacent track was 70 mph.
    While the above discussion focuses on those fatalities that have
occurred on an adjacent track where a roadway work group, with at least
one of the roadway workers on the ground, was engaged in a common task
with an on-track roadway maintenance machine or coupled equipment on an
occupied track, it is important to discuss some of the common
circumstances in all nine of the fatalities that have occurred on an
adjacent track since the rule went into effect, as these circumstances
were considered by FRA in its decision to issue this NPRM. The first
common circumstance is the type of track. All nine of the fatalities
occurred on ``controlled'' track, rather than ``non-controlled'' track.
This was taken into consideration in writing FRA's proposed definition
of ``adjacent track,'' which would be included as part of proposed new
Sec.  214.336(a), would essentially replace the term ``adjacent
tracks'' in Sec.  214.7, and would be limited to controlled tracks
whose track centers are spaced 19 feet or less from the track center of
the occupied track.
    Second, all nine of the fatalities occurred on an adjacent track
that was quite closely-spaced to the track that the roadway work group
was occupying. Six of the adjacent tracks had track centers that were
spaced approximately 14 feet or less from the respective track centers
of the tracks that the roadway work groups were occupying, and all nine
of the adjacent tracks were spaced 15 feet or less from the track
centers of the respective occupied tracks. This common circumstance was
also taken into consideration in FRA's proposed definition of
``adjacent track,'' which would no longer include tracks with track
centers that were spaced more than 19 feet (but less than 25 feet) away
from the track center of the occupied track.
    The third common circumstance of the nine fatalities on adjacent
track is the time of year. Four of the fatalities occurred during the
first quarter (January-March), none of the fatalities occurred in the
second and third quarters of the year (April-June and July-September,
respectively), and the other five fatalities occurred during the fourth
quarter (October-December). As noted earlier in Section I., above, if
this pattern continues, any further delay in issuance of this rule
would fail to reduce the risk of additional fatalities on adjacent
track that are likely to occur late this year or early next year in the
absence of further regulatory action. Thus, FRA has decided to proceed
with an NPRM with an abbreviated comment period.

V. Joint Petition to FRA for an Emergency Order

    On April 11, 2008, the Brotherhood of Maintenance of Way Employes
Division (BMWED) and the Brotherhood of Railroad Signalmen (BRS) filed
a joint petition requesting that FRA issue an emergency order requiring
adjacent-track protection for roadway work groups. The petition notes
that similar requests, which were filed on October 7, 2005, November 7,
2003, and December 21, 1999, were denied by FRA. The petitioners
expressed their belief that, under the existing provisions of the rule,
roadway workers will continue to suffer preventable serious injuries
and death. The petitioners assert that FRA should require railroads and
their contractors to establish on-track safety on adjacent tracks
(``adjacent-track on-track safety'') for a wider range of work
activities. In FRA's January 5, 2006 denial of the October 2005
petition, FRA noted that the RSAC working group to review and revise
the RWP Rule (``RWP Working Group'') was ``committed to presenting
comprehensive draft language * * * that would more closely tailor the
solution to the problem.'' And while the RWP Working Group did in fact
draft this language, and both the Working Group and the full RSAC were
able to reach consensus on such language, BMWED and BRS are concerned
that the language, which has not been published as an NPRM, would not
become a final rule for a considerable period of time, leaving the
possibility for further preventable fatalities. BMWED and BRS urge FRA
to issue an emergency order that would adopt the adjacent-track
consensus language of the RWP RSAC.

    On April 18, 2008, the American Train Dispatchers Association
(ATDA) filed a letter in support of the BMWED and BRS joint petition.
In the letter, ATDA agreed that preventable injuries and deaths
continue to occur because of a lack of positive regulation mandating
adjacent-track on-track safety and urged FRA to issue an emergency
order based upon the RSAC-approved and consensus-based replacement
language for Sec.  214.235(c), as indicated in the joint petition.

VI. Current Rulemaking To Revise the RWP Rule

A. Overview of the RSAC

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

B. Proceedings in This Rulemaking to Date Generally

    On January 26, 2005, the RSAC formed the RWP Working Group
(``Working Group'') to consider specific actions to advance the on-
track safety of employees of covered railroads and their contractors
engaged in maintenance-of-way activities throughout the general system
of railroad transportation, including clarification of existing
requirements. The assigned task was to review the existing rule,
technical bulletins, and a safety advisory dealing with on-track
safety. The Working Group was to consider implications and, as
appropriate, consider enhancements to the existing rule. The Working
Group would report to the RSAC any specific actions identified as
appropriate, and would report planned activity to the full Committee at
each scheduled Committee meeting, including milestones for completion
of projects and progress toward completion.
    The Working Group is comprised of members from the following
organizations:
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway Company (CN), Canadian Pacific Railway,
Limited (CP), Consolidated Rail Corporation (Conrail), CSX
Transportation, Inc. (CSXT), Kansas City Southern (KCS), Norfolk
Southern Corporation (NS), and Union Pacific Railroad Company (UP);
     Belt Railroad of Chicago;
     BLET;
     BMWED;
     BRS;
     Federal Railroad Administration (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);
     United Transportation Union (UTU); and
     Western New York and Pennsylvania Railroad (WNY&P).

    The Working Group held 12 multi-day meetings. The group worked
diligently and was able to reach consensus on 32 separate items.

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

    One of the items on which the Working Group was able to reach
consensus dealt specifically with the adjacent-track on-track safety
issue in Sec.  214.335. The consensus language developed by the Working
Group for this topic, which was approved by the full RSAC and formally
recommended to FRA, is as follows:

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

* * * * *
    (c) On-track safety is required for adjacent controlled track
within 19 feet of the centerline of the occupied track when roadway
work group(s) consisting of roadway workers on the ground and on-
track self-propelled or coupled equipment are engaged in a common
task on an occupied track.
    (1) Except as provided by paragraph (c)(3) of this section, when
trains are cleared through working limits on an adjacent controlled
track, or when watchman/lookout warning in accordance with Sec.
214.329 is the form of adjacent on-track safety, roadway workers
shall occupy a predetermined place of safety and all on-ground work
and equipment movement activity within the fouling space of the
occupied track shall cease upon notification of pending adjacent
track movement (working limits) or upon receiving the watchman/
lookout warning.
    (2) When single or multiple movements are cleared through
adjacent controlled track working limits, on-ground work and
equipment movement on the occupied track may resume only after all
such movements on adjacent track have passed each component of the
Roadway Work Group(s). If the train stops before passing all roadway
workers, the employee in charge shall communicate with the engineer
prior to allowing the work to resume.
    (3) When single or multiple movements are cleared through
adjacent controlled track working limits at a speed no greater than
25 mph, work performed exclusively between the rails of the occupied
track, or to the field side of the occupied track with no adjacent
track, may continue upon notification of each roadway worker of
movement on adjacent track. On-ground work shall not be performed
within 25 feet to the front or 25 feet to the rear of roadway
maintenance machine(s) on the occupied track during such adjacent
track movement.
    (d) Equipment may not foul an adjacent controlled track unless
protected by working limits and there are no movements authorized
through the working limits by the roadway worker in charge.
    (e) The mandatory provisions for adjacent controlled track
protection under this subpart are not applicable to work activities
involving--
    (1) A hi-rail vehicle as defined in Sec.  214.7, provided such
hi-rail vehicle is not coupled to railroad cars. Where multiple hi-
rail vehicles are engaged in a common task, the on-track safety
briefing shall include discussion of the nature of the work to be
performed to determine if adjacent controlled track protection is
necessary. Nothing in this subpart prohibits the roadway worker in
charge of the hi-rail vehicle from establishing adjacent controlled
track protection, as he/she deems necessary.
    (2) On-ground roadway workers exclusively performing work on the
field side of the occupied track.
    (3) Catenary maintenance tower cars with roadway workers
positioned on the ground within the gage of the occupied track for
the sole purpose of applying or removing grounds. Nothing in this
subpart prohibits the roadway worker in charge of the catenary
maintenance tower car from establishing adjacent track protection,
as he/she deems necessary.
    Upon reviewing the joint petition of the BRS and BMWED for an
emergency order, the consensus language of the Working Group quoted
above, and the relevant accident data concerning roadway workers
fouling adjacent track, FRA has decided to issue this NPRM to lower the
safety risk associated with roadway workers fouling adjacent track.
Although FRA's safety advisory may have had an initial effect and have
raised awareness enough to help keep the number of all categories of
roadway worker fatalities in 2004 and through almost six months in 2005
at zero, the effect was not sustained enough to combat the rise of
roadway worker fatality incidents since late June of 2005, when the
first roadway worker fatality occurred after the issuance of the safety
advisory, or since October of 2005, when the first adjacent track
roadway worker fatality occurred.
    In light of recent roadway worker fatality trends, FRA has
determined that the agency must propose a more prescriptive approach to
prevent further fatalities. The need to mandate adjacent-track on-track
safety was recognized by FRA, members of the Working Group, and members
of the full RSAC. The consensus language developed by the Working Group
and recommended by the full RSAC is expected to reduce the risk of
roadway worker fatalities due to fouling an adjacent track while
working in conjunction with on-track equipment on an occupied track. As
part of the process in drafting the NPRM in the larger RWP
rulemaking,\4\ FRA circulated the consensus rule text concerning
adjacent track and other items for errata review. Both AAR and BMWED
submitted comments on this provision. To address these issues, and
other potential ambiguities discovered upon a closer review of the rule
text, FRA has reorganized and modified the consensus text in issuing
this NPRM, as discussed below in the section-by-section analysis.
---------------------------------------------------------------------------

    \4\ As noted in Section I. of this document, the provisions
related to adjacent track were originally intended to be published
as part of a larger NPRM concerning Part 214, but have been proposed
here as a separate NPRM to expedite the effective date of such
provisions.
---------------------------------------------------------------------------

VII. Section-by-Section Analysis

Amendments to 49 CFR Part 214, Railroad Workplace Safety

Subpart A--General
Section 214.7 Definitions
    FRA proposes to modify this section by removing the definition of
``adjacent tracks.'' As also discussed under Sec.  214.336, FRA
proposes to convert the term ``adjacent tracks'' to the singular, then
move the definition of ``adjacent track'' from Sec.  214.7 to the only
section where the term would actually be used, and finally define the
new term more narrowly by limiting it to a controlled track whose track
center is located 19 feet or less from the track center of the occupied
track. The current definition of ``adjacent tracks'' includes any
tracks, controlled or non-controlled, whose track centers are spaced
less than 25 feet apart.
    As discussed above in ``IV. Recent Roadway Worker Accidents (1997-
2008),'' in all nine of the fatal accidents that occurred on ``adjacent
tracks'' as currently defined, the adjacent track was a controlled
track with a track center that was spaced 15 feet or less from the
track center of the occupied track. Six of the adjacent tracks had
track centers that were spaced approximately 14 feet or less from the
respective track centers of the tracks that the roadway work groups
were occupying. In examining whether to expand the types of work
activities requiring adjacent-track on-track safety in Sec.
214.335(c), the Working Group also considered whether the recommended
amendments to the section would be over-inclusive when applied in
conjunction with the existing definition of ``adjacent tracks.'' After
examining the accident data, the Working Group agreed that 19 feet
would be a reasonable and safe threshold to trigger the requirement to
establish adjacent-track on-track safety and that it would be
reasonable to cover controlled tracks within that 19-foot zone but to
exclude non-controlled tracks. FRA notes that the lack of fatalities on
non-controlled adjacent tracks may be attributable to the reduced
operating speeds on non-controlled tracks, where railroad operating
rules generally require that movements must stop short of obstructions
within half the range of

vision. The Working Group discussed and the full RSAC recommended for
inclusion in Sec.  214.335(c) that on-track safety be required for
``adjacent controlled track within 19 feet of the centerline of the
occupied track'' for certain work activities. FRA agrees with this
analysis and has reflected it in the proposed definition of ``adjacent
track.''
Subpart C--Roadway Worker Protection
Section 214.315 Supervision and Communication
    Given the importance of an on-track safety job briefing in roadway
workers' understanding of the nature of the work they will be
conducting and the conditions under which they will conduct it, FRA
also thinks that the existing requirements in Sec.  214.315 for a job
briefing ``when an employer assigns duties to a roadway worker that
call for that employee to foul a track'' should be expanded to cover
the new proposed procedures for adjacent-track on-track safety in Sec.
214.336 if such procedures are required for that assignment. With a few
minor changes, the text concerning the additional components of an on-
track safety job briefing that is proposed in this NPRM was also
consensus language developed by the Working Group and recommended by
the full RSAC. The consensus language relating to adjacent-tracks was
proposed as a new paragraph (a)(2) in Sec.  214.315, to read as
follows:

    (2) Information about any tracks adjacent to the track to be
occupied, on-track safety for such tracks, and identification of
roadway maintenance machines that will foul any adjacent track. In
such cases, the briefing shall include procedural instructions
addressing the nature of the work to be performed and the
characteristics of the work location to ensure compliance with this
part.
    On December 18, 2007, FRA e-mailed the Working Group members and
requested an errata review of a document in which FRA had compiled all
of the consensus items. In its errata review comments, AAR requested
that FRA clarify that the provision is not intended to require a
discussion on the on-track safety of an adjacent track unless on-track
safety was required on that track by part 214. FRA agrees that this is
not the intent of the proposed requirement, and has added the language
``if required by this subpart'' to the consensus rule text, which has
been proposed as new paragraph (a)(3). This proposed section would
still require the on-track safety job briefing to include information
concerning any ``tracks adjacent'' (in the general sense of the word
``adjacent'') to the track to be fouled, so as to serve as a warning to
each roadway worker of the potential danger in fouling such a track,
even if no on-track safety is required for that particular track
because it does not meet the definition of ``adjacent track.'' FRA has
further clarified in a proposed revision to introductory paragraph (a)
that this section lists only the minimum items that must be discussed
in an on-track safety briefing. The words ``at a minimum'' were added,
and the rest of existing paragraph (a) has been moved to proposed
paragraphs (a)(1) and (a)(2).
Section 214.335 On-Track Safety Procedures for Roadway Work Groups,
General
    FRA proposes to amend this section by deleting paragraph (c) and
replacing it with a new section to address adjacent-track on-track
safety for roadway work groups, Sec.  214.336, for the reasons
discussed below. Existing paragraph (c) reads as follows:

    (c) Roadway work groups engaged in large-scale maintenance or
construction shall be provided with train approach warning in
accordance with Sec.  214.327 for movements on adjacent tracks that
are not included within working limits.

The proposal would also amend the heading of Sec.  214.335 to reflect
the general nature of the remaining requirements in that section.
Section 214.336 Adjacent-Track On-Track Safety for Roadway Work Groups;
Procedures, Training, and Recordkeeping
Paragraphs (a), Procedures; general; and (b), Exceptions to the
requirement for adjacent-track on-track safety
    As discussed in section II.C., above, Sec.  214.335(c) currently
requires adjacent-track on-track safety for a roadway work group only
if such a work group is engaged in ``large-scale maintenance or
construction.'' Under this criterion and the limited guidance provided
in the preamble to the final rule, many railroads have not been
providing on-track safety on adjacent tracks for surfacing operations,
small tie-renewal operations, or similar maintenance operations that,
while smaller in scale, still include on-track, self-propelled
equipment. This proposed new section seeks to eliminate this
interpretive issue by establishing new, more objective criteria for
determining whether adjacent-track on-track safety is required for a
roadway work group. Fatalities have occurred in connection with such
operations, which many believe the existing language should be
interpreted to cover.
    In developing language to address the increasing number of roadway
worker fatalities on an adjacent track, the Working Group considered
that most of the fatalities on an adjacent track occurred when a
roadway work group with at least one of the roadway workers on the
ground, was engaged in a common task with on-track, self-propelled
equipment on an occupied track. In those circumstances, the potential
for a roadway worker in the group to be distracted from the danger of
an oncoming train was great due to the noise and dust generated by
operation of the roadway maintenance machines, the need to avoid
entanglement in the operation of those machines, and the need to
monitor the quality of the work being performed. This set of factual
circumstances became the basis for the proposed new criteria for
triggering the requirement to establish adjacent-track on-track safety
in introductory paragraph (c)(1) of the consensus language, and in
paragraph (a) of proposed new Sec.  214.336, which, as a general rule,
would require that on-track safety be established for each adjacent
track when a roadway work group with at least one of the roadway
workers on the ground, is engaged in a common task with an on-track
roadway maintenance machine or coupled equipment on an occupied track.
In particular, the on-track safety would have to be provided in
accordance with Sec.  214.319 (Working limits, generally); Sec.
214.321 (Exclusive track occupancy); Sec.  214.323 (Foul time); Sec.
214.325 (Train coordination); or Sec.  214.329 (Train approach warning
provided by watchmen/lookouts). The general rule in paragraph (a) would
have three exceptions described in proposed paragraph (b).
    Paragraph (a) would also add definitions of two terms used in Sec.
214.336: ``adjacent track'' and ``occupied track.'' For purposes of
this section (the only section where the term is used), ``adjacent
track'' would mean ``a controlled track whose track center is spaced 19
feet or less from the track center of the occupied track.'' The current
definition of ``adjacent tracks'' (in Sec.  214.7) includes any tracks,
controlled or non-controlled, whose track centers are spaced less than
25 feet apart. As the term ``adjacent track'' was used several times in
the recommended consensus language of Sec.  214.335(c), and to avoid
any confusion of terms, FRA proposes to remove the definition of
``adjacent tracks'' from Sec.  214.7, to convert the term to the
singular, and to adopt this new, narrower definition of ``adjacent
track'' based on the roadway worker fatality data discussed above under
the section-by-section analysis of Sec.  214.7, which show that the
adjacent

tracks on which the roadway worker fatalities occurred were all
controlled tracks and the track centers of these controlled tracks were
within 15 feet of the track centers of the occupied track.
    The second proposed definition to be used for purposes of Sec.
214.336 is ``occupied track.'' FRA proposes to define the term
``occupied track'' to mean the track on which a roadway maintenance
machine or coupled equipment is located while engaged in a common task
with a roadway work group. FRA replaced the consensus language of ``on-
track, self-propelled or coupled equipment'' with ``on-track roadway
maintenance machine or coupled equipment'' so as to use a term that is
already defined in part 214. It should be noted that while the language
that would trigger the requirement to establish adjacent-track on-track
safety contains the term ``on-track roadway maintenance machine''
(which excludes hi-rails), the proposed definition of ``occupied
track'' contains the broader term ``roadway maintenance machine''
(which includes hi-rails), since a roadway work group that is engaged
in a common task with a hi-rail would still be ``occupying'' the track,
regardless of whether adjacent-track on-track safety would be required
during that task. The language in RSAC-recommended paragraph (a) was
also modified in light of the proposed new definition of ``adjacent
track,'' namely by moving references to ``controlled track'' and the
19-foot track center distance and placing them in the definition.
    The Working Group also considered whether it is safe to permit work
to continue under certain limited circumstances, and proposed some
exceptions in paragraphs (c)(2)-(c)(3) and (e)(1)-(e)(3) of the
consensus language, which the full RSAC later recommended to FRA. FRA
has adopted all of the exceptions recommended by the full RSAC in this
proposal and has reorganized and modified the text for clarity, in
response to comments received from the AAR and the BMWED in their
errata review of the consensus language, and to address other potential
ambiguities discovered upon a closer review of the rule text.
    In an effort to make the section easier to understand, FRA has
reorganized the section into proposed paragraph (a)(1), which lists the
procedures to follow for adjacent-track movements over 25 mph (i.e., if
a train or other on-track equipment is authorized to move on an
adjacent track at a speed greater than 25 mph), and proposed paragraph
(a)(2), which lists the procedures to follow when adjacent-track
movements are authorized at a speed of 25 mph or less.\5\ Proposed
paragraph (a)(1) would require that each roadway worker in the roadway
work group stop any work on the ground and stop the movement of any
roadway maintenance machine or coupled equipment in the fouling space
of the occupied track and the adjacent track, and occupy a
predetermined place of safety. If on-track safety has been established
on the adjacent track through train approach warning in accordance with
Sec.  214.329, all work would have to cease upon receiving a watchman/
lookout warning. On the other hand, if working limits have been
established on the adjacent track and the roadway work group has not
been assigned a watchman/lookout, all work would have to cease upon
receiving notification that the roadway worker in charge intends to
authorize one or more train movements or other on-track equipment
movements through the working limits on an adjacent track. This
notification would have to occur before the roadway worker in charge
releases the working limits, in order to comply with existing Sec.
214.319(c).
---------------------------------------------------------------------------

    \5\ If a roadway worker in charge, in his discretion, authorizes
a train through working limits on an adjacent track at 30 mph, but
the train is actually traveling at a speed of only 20 mph, the
procedures in proposed paragraph (a)(1), regarding adjacent-track
movements over 25 mph, would still apply. Where exclusive track
occupancy is the method of on-track safety established on the
adjacent track, FRA notes that existing Sec.  214.321(d) provides
that movements of trains and roadway maintenance machines within
working limits shall be made only under the direction of the roadway
worker having control over the working limits, and further notes
that such movements shall be at restricted speed unless a higher
speed has been specifically authorized by the roadway worker in
charge of the working limits.
---------------------------------------------------------------------------

    In its errata review comments on the FRA document compiling all of
the Working Group consensus language, AAR requested that FRA clarify
whether work would be permitted to resume at a particular location
after the head-end of the movement had passed or after the entire train
had passed, under the RSAC-recommended Sec.  214.335(c)(2). A review of
the available accident data shows that none of the fatalities that
occurred on the adjacent track were due to an employee walking into the
side of the train; rather, the employees walked in front of the train's
path. Thus, it is reasonable to permit work to resume after the head-
end of the movement has passed the location of each component of the
roadway work group (provided that the roadway workers do not later
advance to a position ahead of the head-end), and the relevant language
in consensus text in paragraph (c)(2) has been modified accordingly by
FRA in its proposed paragraph (a)(1)(ii).
    In modifying the language in consensus paragraph (c)(2) for
inclusion in its proposal, FRA realized that this same paragraph did
not address whether such work would be permitted to continue if a train
or other on-track equipment, due to the maximum timetable speed of 25
mph, were operating at speeds no greater than 25 mph on an adjacent
track, where train approach warning was the established method of
adjacent-track on-track safety. As the roadway workers are presented
with similar safety risks and would still receive notification of the
train or other on-track equipment movements, regardless of the method
of adjacent-track on-track safety established, FRA has decided to adopt
clarifying language and has combined consensus paragraphs (c)(1) and
(c)(2) into a new paragraph (a)(1)(ii) in this NPRM. Under the
proposal, a component of a roadway work group may resume on-ground work
and movement of any roadway maintenance machine or coupled equipment on
the occupied track only after the head-end of all trains or other on-
track equipment moving on the adjacent track (either authorized through
the working limits by the roadway worker in charge or for which a
watchman/lookout has provided a warning) has passed and remains ahead
of that component of the roadway work group. This provision may be best
explained through examples showing how the proposed requirements would
apply under various factual scenarios.
    For example, if a roadway worker in charge were to authorize three
trains through the working limits, and only working limits were in
effect, the work would not be permitted to continue until all three
movements had passed the roadway work group component's location. If
train approach warning procedures were also in effect under the same
circumstances, the roadway work group component would be allowed to
continue all work after the head-end of the first train passed, (so
long as the work remained behind the head-end and would not foul the
adjacent track) until receiving the warning for the second train, and
so on.
    On the other hand, if the train or other on-track equipment were to
stop before its head-end passed all of the roadway workers in the
roadway work group (or if a roadway worker in the roadway work group
moved to a position on or fouling the occupied track in advance of the
head-end of the adjacent-track movement), the work to be performed on
or while fouling the occupied track ahead of the train or other on-
track equipment on the adjacent track would be permitted to resume only
if adjacent-

track on-track safety is currently in effect or re-established. In most
cases, this would likely mean that on-track safety through train
approach warning (Sec.  214.329) is still in effect or has been re-
established on the adjacent track. In the remaining cases, this would
mean that the roadway worker in charge has communicated with the train
engineer or equipment operator and obtained or regained control of such
train or other on-track equipment. Of course, any work that would foul
the adjacent track on which the movement is occurring would not be
permitted to resume immediately upon the head-end of the movement
passing by the roadway work group component, as adjacent track on-track
safety cannot be re-established for that adjacent track at least until
the entire train or other on-track equipment movement has passed (and
remains past) the roadway work group component's location, unless the
train or other on-track equipment were stopped and under the control of
the roadway worker in charge.
    The proposed procedures to be followed for adjacent-track movements
of 25 mph or less are the same as those procedures for adjacent-track
movements over 25 mph, except that work would be permitted to continue
in certain circumstances without regard to when the head-end passed the
roadway work group's location, due to the low speed of the movements.
In proposed paragraph (a), FRA makes clear that if an occupied track
has two adjacent tracks, and one of the tracks has one or more
adjacent-track movements authorized at 25 mph or less, and the other
has one or more concurrent adjacent-track movements authorized at over
25 mph, the more restrictive procedures in paragraph (a)(1) would
apply.
    The circumstances under which work may continue during low-speed
movements on adjacent tracks have been included in proposed paragraphs
(a)(2)(i)-(a)(2)(ii). In both sets of circumstances, any work that
would be permitted to continue after notification of an adjacent-track
movement would have to be performed more than 25 feet away from the
front or rear of any roadway maintenance machine that is on or fouling
the occupied track. While existing Sec.  214.341(a)(5) requires each
employer to include in its on-track safety program specific provisions
addressing spacing ``between machines and roadway workers to prevent
personal injury,'' the rule does not prescribe a specific distance, as
certain work activities may require a roadway worker to work closer to
a machine than others. Many railroads that subscribe to the General
Code of Operating Rules (``GCOR''), for example, have adopted a 15-foot
work zone in which roadway workers are not permitted to enter without
first communicating with the operator of the equipment and establishing
safe work procedures. See GCOR Rule 136.7.3. The Working Group proposed
a larger work zone of 25 feet to help lessen the distraction and danger
posed by a roadway maintenance machine working on or fouling an
occupied track, as both an on-ground roadway worker and an operator of
a roadway maintenance machine will be performing work with the
additional distraction of one or more adjacent-track movements. FRA
proposes to adopt this recommendation as one of the circumstances for
permitting work to continue as described in proposed paragraphs
(a)(2)(i) and (a)(2)(ii).
    The first set of circumstances is when work is performed
exclusively while positioned between the rails of the occupied track,
provided that any on-ground work is performed more than 25 feet away
from the front or rear of any roadway maintenance machine that is on or
fouling the occupied track during such an adjacent-track movement. The
rationale for permitting work to continue between the rails is that a
roadway worker who is positioned between the rails of the occupied
track is in little danger of fouling the adjacent track. This proposed
condition is similar to an existing provision in Sec.  214.103(d) that
permits bridge workers to perform minor repair work exclusively between
the rails without any fall protection. As this condition has worked
well in the bridge worker area, FRA proposes to adopt the RSAC-
recommended condition in the roadway worker area.
    The first set of circumstances is when work is performed
exclusively while positioned between the rails of the occupied track,
provided that any on-ground work is performed more than 25 feet away
from the front or rear of any roadway maintenance machine that is on or
fouling the occupied track during such an adjacent-track movement. The
rationale for permitting work to continue between the rails is that a
roadway worker who is positioned between the rails of the occupied
track is in little danger of fouling the adjacent track. This proposed
condition is similar to an existing provision in Sec.  214.103(d) that
permits bridge workers to perform minor repair work exclusively between
the rails without any fall protection. As this condition has worked
well in the bridge worker area, FRA proposes to adopt the RSAC-
recommended condition in the roadway worker area.
    It should be noted that paragraph (a)(2) only directly addresses
the types of work that a component of a roadway work group may continue
performing while waiting for the head-end of an adjacent-track movement
to pass by that component's location. It does not directly address when
all other work (i.e., work that paragraph (a)(2) does not cover) may
resume. Thus, roadway workers who are assigned to perform work not
covered by paragraph (a)(2) must look to the procedures in paragraph
(a)(1) for guidance. For example, since on-ground work that would be
performed near a roadway maintenance machine (i.e., within 25 feet of
the front or rear of a machine that is on or fouling the occupied
track) is not covered by paragraph (a)(2), such work would not be
permitted to resume until the conditions in paragraph (a) had been
fulfilled. That is to say, such work (as well as all other work not
covered by paragraph (a)(2) that would not foul the adjacent track)
would be permitted to resume only after the head-end of all movements
(authorized through the working limits by the roadway worker in charge
or for which a watchman/lookout has provided a warning) have passed by
(and remain ahead of) the roadway work group component's location.
    The second set of circumstances for permitting work to continue
when a movement on the adjacent track is authorized at 25 mph or less
is when work is performed to the field side of the occupied track
furthest from the adjacent track where the movement is occurring,
provided that there is no danger posed by an adjacent track on that
side (i.e., either no adjacent track is on that side or else on-track
safety has been established on any adjacent track on that side), and
provided that any on-ground work is performed more than 25 feet away
from the front or rear of any roadway maintenance machine on or fouling
the occupied track during such adjacent track-movement. Both the
Working Group and FRA recognize that if there is little danger of a
roadway worker fouling an adjacent track (e.g., Main Track No. 1) while
positioned between the rails of the occupied track (e.g., Main Track
No. 2), a roadway worker is in even less danger of fouling that
adjacent track if he or she is positioned on the field side of the
occupied track furthest from the adjacent track. If, however, there is
another adjacent track present (e.g., Main Track No. 3) on the field
side farthest from the adjacent track on which a train or other on-
track

equipment movement has been authorized (e.g., Main Track No. 1), then
the roadway worker would potentially be in danger for fouling the other
adjacent track (e.g., Main Track No. 3). FRA makes clear that even if
adjacent-track on-track safety in the form of working limits had been
established on the other adjacent track, the roadway worker would still
be in potential danger if he or she were to foul the other adjacent
track if the protection had in effect been nullified by the roadway
worker in charge authorizing a train or other on-track equipment
movement through the working limits on that other adjacent track.
    Given the potential danger posed by concurrent movements on two
adjacent tracks, it is important to note that while the proposed Sec.
214.336 would apply to each adjacent track individually, the impact on
the type of work that would be permitted to continue on the occupied
track must be examined as a whole. Thus, where a roadway worker
receives notification of adjacent-track movements authorized at 25 mph
or less that are occurring concurrently on both adjacent tracks, FRA
proposes that the roadway worker would not be permitted to work to
either field side of the occupied track, as the movement on one
adjacent track would not permit any work to the field side closest to
it, and the movement on the other adjacent track would not permit any
work to the field side closest to it. See proposed paragraph
(a)(2)(ii). On-ground work closer than 25 feet, and all other work
(including work to the field side) that would not foul either adjacent
track, would be permitted to continue once the head-end of all
movements (authorized through by the roadway worker in charge or for
which a watchman/lookout has provided a warning) has passed by (and
remains ahead of) the roadway work group component's location. Field-
side work that would foul the closest adjacent track would not be
permitted to resume until on-track safety has been re-established on
the closest adjacent track; thus, work would not be permitted to resume
until the entire length (i.e., not just the head-end) of all movements
on the closest adjacent track (authorized through the working limits by
the roadway worker in charge or for which a watchman/lookout has
provided a warning) has passed by (and remains ahead of) the roadway
work group component's location.
    The Working Group also discussed, and the RSAC recommended, three
exceptions when adjacent-track on-track safety would not have to be
established at all. See consensus paragraphs (e)(1)-(e)(3). FRA
proposes to adopt all three exceptions in this NPRM. See proposed Sec.
214.336(b).
    The first proposed exception to the requirement for adjacent-track
on-track safety would be for an on-ground roadway worker performing
work while exclusively positioned on the field side of the occupied
track, provided that there should essentially be no danger posed by any
other adjacent track. In particular, there would be no danger posed by
any other adjacent track either because there is no adjacent track on
the field side of the occupied track or, even though there is an
adjacent track on the field side of the occupied track, on-track safety
has been established in accordance with the RWP Rule on that adjacent
track.
    The second exception to the requirement for adjacent-track on-track
safety would be for a hi-rail vehicle on the occupied track, provided
such hi-rail vehicle is not coupled to any equipment. See proposed
Sec.  214.336(b)(2). As discussed in section IV. of this preamble,
there has been only one adjacent-track fatality where a roadway work
group had been engaged in a common task with a hi-rail vehicle as
defined in Sec.  214.7, and the roadway workers in that case were under
the impression that adjacent-track on-track safety was in effect when,
due to a miscommunication, it was not. Given the circumstances of the
one fatality and because the duties normally performed by an employee
operating a hi-rail tend to be less distracting to on-ground roadway
workers and produce less dust and noise than a typical on-track roadway
maintenance machine, FRA proposes that adjacent-track on-track safety
not be required for roadway work groups engaged in a common task with a
hi-rail. The consensus language for this exception also included
language indicating that where multiple hi-rails are engaged in a
common task, the on-track safety briefing shall include discussion of
the nature of the work to be performed to determine if adjacent-track
on-track safety is necessary. FRA has removed this language in its
proposal because the roadway worker in charge must always consider the
nature of the work to be performed to determine the appropriate level
of on-track safety. In fact, the consensus language emphasizes that
nothing in this subpart prohibits the roadway worker in charge from
establishing adjacent-track on-track safety as he or she deems
necessary.
    The third proposed exception to the requirement for adjacent-track
on-track safety is for a catenary maintenance tower car with one or
more roadway workers positioned on the ground exclusively within the
gage of the occupied track for the sole purpose of applying or removing
grounds. As discussed in section IV. of this preamble, there have been
no adjacent-track fatalities where a roadway work group had been
engaged in a common task with a catenary maintenance tower car on the
occupied track and the duties normally performed by an employee
operating a catenary maintenance tower car tend to be less distracting
to on-ground roadway workers and produce less dust and noise than a
typical on-track roadway maintenance machine.
    In its errata review comments on the FRA document compiling all of
the Working Group consensus language that was recommended to FRA by the
RSAC, BMWED noted that from the manner in which the consensus
exceptions (paragraphs (e)(1)-(e)(3)) were constructed, one could
interpret that the roadway worker in charge of on-ground roadway
workers exclusively performing work on the field side of the occupied
track described in consensus paragraph (e)(2) would not be afforded the
same right to establish a greater level of adjacent-track on-track
safety as the roadway worker in charge of the hi-rail vehicle or
catenary maintenance tower car described in paragraphs (e)(1) and
(e)(3), respectively. FRA agrees that the provisions should be
consistent. The section has been reorganized so that the language
indicating that nothing in this subpart prohibits the roadway worker in
charge from establishing adjacent-track on-track safety as he or she
deems necessary has been removed from paragraphs (e)(1) and (e)(3) and
moved into the body of the introductory text of proposed new paragraph
(b) so as to apply to all three exceptions in proposed paragraphs
(b)(1)-(b)(3). Consensus paragraph (e)(1) (now proposed paragraph
(b)(2)) was also amended to remove the words ``as defined in Sec.
214.7'' from the hi-rail exception, since each time that a term defined
in Sec.  214.7 is used in part 214, FRA intends the term to be
interpreted in the manner in which it is defined in Sec.  214.7, unless
otherwise noted.
    Regarding the prohibition in consensus paragraph (d) against
``equipment'' fouling an adjacent track unless protected by working
limits, FRA has changed the term to ``roadway maintenance machine'' to
clarify that this prohibition is meant to be broad and would include
hi-rails that are part of the roadway work group. See proposed Sec.
214.336(b)(3). While a hi-rail alone would not trigger the requirement
to establish adjacent-track on-track safety, once a hi-rail has become
part of

a roadway work group involving at least one roadway worker on the
ground and ``an on-track roadway maintenance machine or coupled
equipment,'' the hi-rail would be subject to this prohibition against
fouling, as well as to the machine spacing requirement in consensus
paragraph (c)(3). See proposed Sec. Sec.  214.336(a)(2), 214.336(a)(3),
and 214.336(b)(2). Further, FRA clarifies that the prohibition was not
meant to be so broad that a roadway worker would not be permitted to
use readily portable tools or equipment similar to a jackhammer, such
as a pneumatic tamping gun or a spike driver, on an adjacent track
while afforded on-track safety through train approach warning. FRA
would urge that employers and employees use common sense in determining
which tools or equipment they would permit to be used or use under
train approach warning. If there is any doubt as to whether the
equipment could be readily removed, the employee must not foul the
track with those tools or equipment under watchman/lookout (i.e., train
approach warning) protection.
Paragraph (c), Training, and (d), Recordkeeping, of Sec.  214.336
    Training and recordkeeping requirements were also added to ensure
compliance with this new section. Proposed new paragraph (c) provides
that before an employer (``a railroad, or a contractor to a railroad,
that directly engages or compensates individuals to perform any of the
duties defined in [part 214]'') assigns an employee to perform roadway
worker duties for which adjacent-track on-track safety is required, the
employer shall provide such an employee either with training on this
section or a copy of a railroad-issued bulletin, order, general order,
notice, operating rule, or other document adopting the adjacent-track
on-track safety requirements of this section. See Sec.  214.7. FRA
expects that each railroad would revise its on-track safety program and
documents required by Sec. Sec.  214.303 and 214.309 as necessary to
include the requirements of this proposed new section. Issuing a
bulletin, order, general order, notice, or other document adopting the
adjacent-track on-track safety requirements of this section would
suffice until a more permanent update is made. A contractor to a
railroad would have to ensure that its employees are aware of this
change and of any other changes to a railroad's operating and safety
rules related to this proposed new section, and FRA would ask each
railroad to cooperate with its contractors to have these documents or
any other updates to its on-track safety program and documents required
by Sec. Sec.  214.303 and 214.309 available for contractors performing
roadway worker duties on its property. The proposed requirements for
providing training or a copy of a railroad-issued document (i.e., that
adopts the new adjacent-track on-track safety requirements) is intended
to allow railroads and contractors to railroads the maximum
flexibility, while still ensuring that employees are aware of the
requirements prior to performing a roadway worker duty for which
adjacent-track on-track safety would be required. Thus, an employee
performing only the duty of a lone worker would not need to be trained
by the effective date of this rule, under the proposed requirements. A
railroad or a contractor to a railroad would also be able comply with
this proposed training requirement by providing its employees with an
extended on-track safety job briefing that discusses the new
requirements prior to assigning them to perform a roadway worker duty
affected by this section.
    Proposed new paragraph (d) would require each employer to obtain
from each affected employee a written receipt or acknowledgement of the
delivery of a copy of the adjacent-track on-track safety training or
document required by paragraph (c), and retain such a receipt or
acknowledgement until the employee receives, pursuant to Sec.  214.343,
recurrent training that includes discussion of the procedures for
adjacent-track on-track safety required by this section. If the
training is received for the first time as part of an employee's
recurrent training, a record kept pursuant to Sec.  214.343(d) will
serve as the receipt or acknowledgement for purposes of this section.
If an employee receives training for the first time, but not as part of
recurrent training and does not receive recurrent training within two
years of the initial training (e.g., if the employee is on extended
leave or no longer works for the employer), then the record would no
longer need to be kept. Further, under the proposed language, records
of the written receipts or acknowledgements would need to be made
available to representatives of FRA and States participating under part
212 for inspection and copying during normal business hours.

VIII. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM has been evaluated in accordance with existing policies
and procedures, and determined not to be significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034
(Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory
evaluation addressing the economic impact of this NPRM. Document
inspection and copying facilities are available at the Federal Docket
Management Facility, U.S. Department of Transportation, West Building,
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC
20590. Docket material is also available for inspection on the Internet
at http://www.regulations.gov. Photocopies may also be obtained by
submitting a written request to the FRA Docket Clerk at Office of Chief
Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0059, Notice No. 1.
    Certain of the requirements reflect current industry practice, or
restate existing regulations, or both. As a result, in calculating the
costs of this NPRM, FRA has neither included the costs of those actions
that would be performed voluntarily in the absence of a regulation, nor
has FRA included the costs of those actions that would be required by
an existing regulation.
    This evaluation includes quantitative measurements and qualitative
discussions of implementation costs for this proposed rule. The costs
would primarily be imposed by a small increase in job briefing time and
additional resources spent to provide protection for the safe conduct
of other than large-scale maintenance and construction of track
adjacent to track with train movements. Training and recordkeeping
costs would also accrue. The benefits would primarily accrue from a
reduction in roadway worker casualties (fatalities and injuries).
Business benefits stemming from avoided train delays and property
damages would also accrue.
    FRA estimates that the present value (PV, 7%) of the total 20-year
costs which the industry would be expected to incur to comply with the
requirements in this NPRM is $137.8 million. FRA also estimates the PV
(7%) of the total 20-year benefits accruing to society from the
implementation of the requirements is $88.1 million. FRA believes that
taking into account non-quantifiable benefits, including reduced train
delays and property damages resulting from roadway worker incidents,
the benefits associated with this proposed rule would justify the
implementation costs.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket a Small Entity Impact Assessment and Evaluation that assesses
the small entity impact of this NPRM. Document inspection and copying
facilities are available at the Docket Management Facility, U.S.
Department of Transportation, West Building, Ground Floor, Room W12-
140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material
is also available for inspection on the Internet at http://
www.regulations.gov. Photocopies may also be obtained by submitting a
written request to the FRA Docket Clerk at Office of Chief Counsel,
Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590; please refer to Docket No. FRA-2008-0059,
Notice No. 1.
    This Small Entity Impact Assessment and Evaluation concludes that
this proposed rule would not have a significant economic impact on a
substantial number of small entities. In order to determine the
significance of the economic impact for the final rule's Regulatory
Flexibility Act (RFA) requirements, FRA invites comments from all
interested parties concerning data and information regarding the
potential economic impact caused by this proposed rule, during the
comment period.
    The U.S. Small Business Administration (SBA) stipulates in its
``Size Standards'' a ``for profit'' railroad business firm may not have
more than 1,500 employees for ``Line-Haul Operating'' Railroads, and
500 employees for ``Switching and Terminal Establishments'' to be
considered as a ``small entity.'' \6\ ``Small entity'' is defined in 5
U.S.C. 601 as a small business concern that is independently owned and
operated, and is not dominant in its field of operation. SBA's ``size
standards'' may be altered by Federal agencies upon consultation with
SBA and in conjunction with public comment.
---------------------------------------------------------------------------

    \6\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR Part 121.
---------------------------------------------------------------------------

    Pursuant to that authority, FRA has published a final policy that
classifies ``small entities'' as being railroads that meet the line
haulage revenue requirements of a Class III railroad.\7\ Currently, the
revenue requirements are 20 million inflation-adjusted dollars or less
in annual operating revenue. The $20-million limit is based on the
Surface Transportation Board's threshold of a Class III railroad
carrier, which is adjusted by applying the railroad revenue deflator
adjustment.\8\ The same dollar limit on revenues is established to
determine whether a railroad shipper or contractor is a small entity.
FRA is using this definition of ``small entity'' for regulatory
flexibility purposes in this rulemaking.
---------------------------------------------------------------------------

    \7\ See 68 FR 24891 (May 9, 2003).
    \8\ For further information on the calculation of the specific
dollar limit, please reference 49 CFR part 1201.
---------------------------------------------------------------------------

    There are approximately 665 small railroads.\9\ Potentially all
small railroads could be impacted by this proposed regulation. However,
because of certain characteristics that these railroads typically have,
there should not be any impact on the majority of them. Most only have
single-track operations. Some small railroads such as the tourist and
historic railroads, operate across the lines of other railroads that
would bear the burden or impact of the proposed rules requirements.
Finally, others, if they do have more than a single track, typically
have operations that are light enough such that the railroads have
generally always performed the pertinent trackside work with the track
and right-of-way taken out of service, or conducted the work during
hours the track is not used.
---------------------------------------------------------------------------

    \9\ 715 railroads -50 (large freight, medium freight, passenger,
and commuter railroads) = 665 small railroads.
---------------------------------------------------------------------------

    In addition, FRA is not aware of any commuter railroads that
qualify as small entities. This is likely because commuter railroad
operations in the United States are part of larger governmental
entities whose jurisdictions exceed 50,000 in population.
    FRA is uncertain as to the number of contractors that would be
affected by this issue. FRA is aware that some railroads hire
contractors to conduct some of the functions of roadway workers on
their railroads. However, most of the costs associated with the burdens
from this rulemaking would ultimately get passed on to the pertinent
railroad. Most likely, the contracts would be written to reflect that,
and the contractor would bear no additional burden for the proposed
requirements. In addition, FRA is uncertain as to the number of
contractors that would be considered to be small entities. FRA requests
any information during the rulemaking comment period related to
contractors and the burdens that might impact them as a result of this
proposed rulemaking.
    No other small businesses (non-railroads) are expected to be
impacted by this proposed rulemaking.
    There are some minor recordkeeping requirements in the new section
of the proposed rule. These proposed requirements relate to documenting
that all affected roadway workers are trained on the new section.
However, since FRA believes that no small railroads will be required to
establish adjacent-track on-track safety to perform track work under
the proposed requirements, these recordkeeping requirements are not
expected to impact any small railroads. As noted prior, these railroads
either only have a single track, and therefore no adjacent track to
protect, or currently take all pertinent track out of service when
performing track work.
    The impacts from this regulation are primarily a result of the
proposed requirements for roadway work groups to be provided on-track
safety when working on a track within close proximity of an adjacent
track. Again, since small railroads either do not have any adjacent
track or conduct track work on the occupied track with an adjacent
track when the adjacent track is out of service, there is no impact for
small railroads. Since FRA does not anticipate that this proposed rule
would impose any burdens on small entities, there is no alternative
treatment proposed for small entities.
    Having made these determinations, FRA certifies that this NPRM is
not expected to have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act or
Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 19995, 44 U.S.C. 3501 et
seq. The sections that contain the new information collection
requirements, and the estimated time to fulfill each requirement are as
follows:

----------------------------------------------------------------------------------------------------------------
                                  Respondent      Total annual     Average time    Total annual    Total annual
         CFR section               universe        responses       per response    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.1119--Part     350 Safety       150 forms......  4 hours........             600         $24,000
 214 Railroad Workplace         Inspectors.
 Safety Violation Report.
214.303--Railroad On-Track
 Safety Programs:
    --Amendments to Programs.  718 Railroads..  20 prog. amend.  20 hours: 4               2,736         139,536
                                                 + 584 prog.      hours.
                                                 amend.
    --Subsequent Years: New    5 New Railroads  5 safety prog..  250 hours......           1,250          63,750
     Programs.
214.313--Good Faith            20 Railroads...  80 challenges..  4 hours per                 320          12,800
 Challenges to On-Track                                           challenge.
 Safety Rules.
214.315/335--Supervision and   50,000 Roadway   16,350,000       2 minutes 30            640,375      21,800,000
 Communication Job Briefings.   Workers.         briefings.       seconds.
214.321--Exclusive Track       8,583 Roadway    700,739 written  1 minute.......          11,679         467,160
 Occupancy--Working Limits.     Workers.         authorities.
214.325--Train Coordination:
    --Establishing Working     50,00 Roadway    36,500           15 seconds.....             152           6,080
     Limits through             Workers.         communications.
     Communication.
214.327--Inaccessible Track:
    --Working Limits on Non-   718 Railroads..  50,000           10 minutes.....           8,333         333,320
     controlled Track:                           occurrences or
     Notifications.                              notifications.
214.336--Procedures for
 Adjacent-Track Movements
 Over.
    25 mph (New Requirements)  100 Railroads..  10,000 warnings  15 seconds.....              42           1,680
     : Notifications/Watchmen/
      Lookout Warnings.
    --Roadway Worker           100 Railroads..  3,000            1 minute.......              50           2,000
     Communication with Train                    communications.
     Engineers or Equipment
     Operators.
    --Procedures for Adjacent- 100 Railroads..  3,000 warnings.  15 seconds.....              13             520
     Track Movements 25 mph
     or less: Notifications/
     Watchmen/Lookout
     Warnings.
    --Roadway Worker           100 Railroads..  1,500 communic.  1 minute.......              25           1,000
     Communication with Train
     Engineers or Equipment
     Operators.
    --Training...............  718 Railroads..  35,000 tr. empl  5 minutes......           2,916           \1\ 0
    --Recordkeeping..........  718 Railroads..  35,000 receipts  1 minute; 3                 612          24,480
                                                 + 35,000         seconds.
                                                 coopies.
214.337--On-Track Safety       718 Railroads..  2,080,000        30 seconds.....          17,333         693,320
 Procedures for Lone Workers:                    statements.
 Statements by Lone Workers.
214.343/345/347/349/351/353/   50,000 Roadway   50,000 tr. Empl  4.5 hours......         225,000       9,000,000
 355--Training Requirements.    Workers.
--Records of Training........  50,000 Roadway   50,000 records.  2 minutes......           1,667          85,017
                                Workers.
214.503--Good Faith            50,000 Roadway   125              10 minutes.....              21             840
 Challenges; Procedures for     Workers.         notifications.
 Notification and
 Resolution.--Notice of
 Unsafe Vehicle or Non-
 compliance with FRA rules.
    --Development of           644 Railroads..  10 procedures..  2 hours........              20           1,020
     Resolution Procedures.
214.505--Req'd Environmental   644 Railroads..  9 lists........  1 hour.........               9             459
 Control and Protection
 Systems for New On-Line
 Roadway Maintenance Machines
 with Enclosed Cabs.
214.507--A-Built Light Weight  644 Railroads..  1,000 stickers.  5 minutes......              83           3,320
 on New Roadway Maintenance
 Machines.
214.511--Req'd Audible         644 Railroads..  3,700            5 minutes......             308          12,320
 Warning Devices for New On-                     identified
 Track Roadway Maintenance                       mechanisms.
 Machines.
214.513--Retrofitting of
 Existing On-Track Roadway
 Maintenance Machines:
    --Identification of        644 Railroads..  200 mechanisms.  5 minutes......              17             680
     Triggering Mechanism--
     Horns.
214.515--Overhead Covers for   645 Railroads..  500 requests +   10 minutes; 20              250          11,837
 Existing On-Track Roadway                       500 responses.   minutes.
 Maintenance Machines.
214.517--Retrofitting of       644 Railroads..  500 stencils...  5 minutes......              42           1,680
 Existing On-Track Roadway
 Maintenance Machines
 Manufactured After 1990:
 Stenciling/Marking of Light
 Weight.

214.518--Safe and Secure
 Position for Riders:
    --Positions identified by  644 Railroads..  1,000 stencils.  5 minutes......              83           3,320
     stencilings/markings/
     notices.
214.523--Hi-Rail Vehicles....  644 Railroads..  2,000 insp.      60 minutes.....           2,000          80,000
                                                 record.
    --Non-Complying            644 Railroads..  500 tags + 500   10 minutes; 15              208           8,320
     Conditions.                                 reports.         minutes.
214.527--Inspection for        644 Railroads..  550 tags + 550   5 minutes; 15               184           7,360
 Compliance; Repair Schedules.                   reports.         minutes.
214.533--Schedule of Repairs;  644 Railroads..  250 records....  15 minutes.....              63          3,213
 Subject to Availability of
 Parts: Compliance Records.
----------------------------------------------------------------------------------------------------------------
\1\ Incl. RIA.

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Nakia Poston at
202-493-6073.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Poston, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Poston at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

D. Federalism Implications

    FRA has analyzed this NPRM in accordance with the principles and
criteria contained in Executive Order 13132, issued on August 4, 1999,
which directs Federal agencies to exercise great care in establishing
policies that have federalism implications. See 64 FR 43255. This NPRM
will not have a substantial direct effect on the States, on the
relationship between the National government and the States, or on the
distribution of power and responsibilities among various levels of
government.
    One of the fundamental federalism principles, as stated in section
2(a) of Executive Order 13132, is that ``Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government closest to the
people.'' Congress expressed its intent that there be national
uniformity of regulation concerning railroad safety matters when it
enacted 49 U.S.C. 20106. That section provides that all regulations
prescribed by the Secretary of Transportation with respect to railroad
safety matters and the Secretary of Homeland Security with respect to
railroad security matters preempt any State law, regulation, or order
covering the same subject matter, except a provision necessary to
eliminate or reduce an essentially local safety or security hazard that
is not incompatible with a Federal law, regulation, or order and that
does not unreasonably burden interstate commerce. Nothing in this NPRM
proposes to alter the preemptive effect of the RWP Rule.
    FRA notes that the above factors have been considered throughout
the development of this NPRM both internally and through consultation
within the RSAC forum, as described in Sections VI and VII of this
preamble. The full RSAC, which, prior to the publication of this NPRM,
reached consensus on the proposed rule text and recommended the
proposal to FRA, has as permanent voting members two organizations
representing State and local interests: AASHTO and ASRSM. As such,
these State organizations concurred with the proposed requirements,
which differ in only limited respects from the requirements contained
in this NPRM. The RSAC regularly provides recommendations to the FRA
Administrator for solutions to regulatory issues that reflect
significant input from its State members. To date, FRA has received no
indication of concerns about the Federalism implications of this
rulemaking from these representatives or from any other representative.
    For the foregoing reasons, FRA believes that this NPRM is in
accordance with the principles and criteria contained in Executive
Order 13132.

E. Environmental Impact

    FRA has evaluated this NPRM in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (see 64 FR 28545
(May 26, 1999)) as required by the National Environmental Policy Act
(see 42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and related regulatory requirements. FRA has determined that
this NPRM is not a major FRA action (requiring the preparation of an
environmental impact statement or environmental assessment) because it
is categorically excluded from detailed

environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28547 (May 26, 1999). In accordance with section 4(c) and (e)
of FRA's Procedures, the agency has further concluded that no
extraordinary circumstances exist with respect to this regulation that
might trigger the need for a more detailed environmental review. As a
result, FRA finds that this NPRM is not a major Federal action
significantly affecting the quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. No. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires the following:

    [B]efore promulgating any general notice of proposed rulemaking
that is likely to result in the promulgation of any rule that
includes any Federal mandate that may result in expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (annually adjusted for
inflation) in any 1 year, and before promulgating any final rule for
which a general notice of proposed rulemaking was published, the
agency shall prepare a written statement* * *

    The written statement must detail the effect on State, local, and
tribal governments and the private sector. This NPRM will not result in
the expenditure, in the aggregate, of $132,300,000 in any one year, and
thus preparation of such a statement is not required.

G. Energy Impact

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

H. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. No. 96-39, 19 U.S.C. 2501
et seq.) prohibits Federal agencies from engaging in any standards or
related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this NPRM on foreign
commerce and believes that its requirements are consistent with the
Trade Agreements Act. The requirements imposed are safety standards,
which, as noted, are not considered unnecessary obstacles to trade.

I. Privacy Act

    Anyone is able to search the electronic form of all comments
received into any of FRA's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://
DocketsInfo.dot.gov.

IX. List of Subjects in 49 CFR Part 214

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

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend part 214
of chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:

PART 214--[AMENDED]

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

    Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304; 28
U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General

Sec.  214.7  [Amended]

    2. Section 214.7 is amended by removing the definition of
``Adjacent tracks''.

Subpart C--Roadway Worker Protection

    3. Section 214.315 is amended by revising paragraph (a) to read as
follows:

Sec.  214.315  Supervision and communication.

    (a) When an employer assigns a duty to a roadway worker that calls
for that employee to foul a track, the employer shall provide the
employee with an on-track safety job briefing that, at a minimum,
includes the following:
    (1) Information on the means by which on-track safety is to be
provided for each track identified to be fouled;
    (2) Instruction on each on-track safety procedure to be followed;
and
    (3) Information about any tracks adjacent to the track to be
fouled, on-track safety for such tracks, if required by this subpart,
and identification of any roadway maintenance machines that will foul
such tracks. In such cases, the on-track safety job briefing shall
address the nature of the work to be performed and the characteristics
of the work location to ensure compliance with this subpart.
* * * * *
    4. Section 214.335 is amended by removing paragraph (c) and
revising the section heading to read as follows:

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

* * * * *
    5. New Sec.  214.336 is added to read as follows:

Sec.  214.336  Adjacent-track on-track safety for certain roadway work
groups; procedures, training, and recordkeeping.

    (a) Procedures; general. Except as provided in paragraph (b) of
this section, on-track safety is required for each adjacent track when
a roadway work group with at least one of the roadway workers on the
ground, is engaged in a common task with an on-track roadway
maintenance machine or coupled equipment on an occupied track. The
required on-track safety shall be in accordance with Sec.  214.319
(Working limits, generally); Sec.  214.321 (Exclusive track occupancy);
Sec.  214.323 (Foul time); Sec.  214.325 (Train coordination); or Sec.
214.329 (Train approach warning provided by watchmen/lookouts) and as
more specifically described in this paragraph (a). If an occupied track
has two

adjacent tracks, and one of the tracks has one or more adjacent-track
movements authorized at 25 mph or less, and the other has one or more
concurrent adjacent-track movements authorized at over 25 mph, the more
restrictive procedures in paragraph (a)(1) of this section apply. For
purposes of this section, ``adjacent track'' means a controlled track
whose track center is spaced 19 feet or less from the track center of
the occupied track, and ``occupied track'' means the track on which a
roadway maintenance machine or coupled equipment is located while
engaged in a common task with a roadway work group.
    (1) Procedures for adjacent-track movements over 25 mph. If a train
or other on-track equipment is authorized to move on an adjacent track
at a speed greater than 25 mph, each roadway work group to which this
section applies must comply with the following procedures:
    (i) Each roadway worker in the roadway work group shall cease any
on-ground work and movement of any roadway maintenance machine or
coupled equipment in the fouling space of the occupied track and the
adjacent track, and occupy a predetermined place of safety upon
receiving--
    (A) A watchman/lookout warning, if on-track safety through train
approach warning (Sec.  214.329) has been established on the adjacent
track; or
    (B) A notification in accordance with Sec.  214.319(c) that the
roadway worker in charge intends to authorize one or more train or
other on-track equipment movements through the working limits on the
adjacent track, if adjacent-track on-track safety has been established
through working limits alone.
    (ii) A component of a roadway work group may resume on-ground work
and movement of any roadway maintenance machine or coupled equipment on
or fouling the occupied track only after the head-end of all trains or
other on-track equipment moving on the adjacent track (either
authorized through the working limits by the roadway worker in charge
or for which a watchman/lookout has provided a warning) has passed and
remains ahead of that component of the roadway work group; however, if
the train or other on-track equipment stops before its head-end has
passed all of the roadway workers in the roadway work group (or if a
roadway worker in the roadway work group moves to a position on or
fouling the occupied track in advance of the head-end of the adjacent-
track movement), the work to be performed on or fouling the occupied
track ahead of the train or other on-track equipment on the adjacent
track may resume only--
    (A) If on-track safety through train approach warning (Sec.
214.329) is still in effect or has been re-established on the adjacent
track; or
    (B) After the roadway worker in charge has communicated with the
train engineer or equipment operator and obtained or regained control
of such train or other on-track equipment, if adjacent-track on-track
safety has been established by working limits alone.
    (2) Procedures for adjacent-track movements 25 mph or less. If a
train or other on-track equipment is authorized to move on an adjacent
track at a speed of 25 mph or less, each roadway work group to which
this section applies must comply with the procedures listed in
paragraph (a)(1) of this section, except that the following work may
continue:
    (i) Work that is performed exclusively while positioned between the
rails of the occupied track, provided that any on-ground work is
performed more than 25 feet away from the front or rear of any roadway
maintenance machine on or fouling the occupied track during such
adjacent-track movement;
    (ii) Work that is performed exclusively to the field side of the
occupied track furthest from the adjacent track where the movement is
authorized, provided that--
    (A) Either no adjacent track is on that side or on-track safety has
been established in accordance with this subpart on any adjacent track
on that side; and
    (B) Any on-ground work is performed more than 25 feet away from the
front or rear of any roadway maintenance machine on or fouling the
occupied track during such adjacent-track movement.
    (3) Procedures for a roadway maintenance machine or coupled
equipment fouling an adjacent track. A roadway maintenance machine or
coupled equipment shall not foul an adjacent track unless working
limits have been established on the adjacent track and there are no
movements authorized through the working limits by the roadway worker
in charge.
    (b) Exceptions to the requirement for adjacent-track on-track
safety. Adjacent-track on-track safety is not required for the work
activities described in paragraphs (b)(1) through (b)(3) of this
section. Nothing in this section prohibits the roadway worker in charge
from establishing adjacent-track on-track safety as he or she deems
necessary.
    (1) One or more on-ground roadway workers performing work while
exclusively positioned on the field side of the occupied track,
provided that either no adjacent track is on that side or on-track
safety has been established in accordance with this subpart on any such
adjacent track.
    (2) A hi-rail vehicle on or fouling the occupied track while
engaged in a common task with one or more roadway workers on the
ground, provided such hi-rail vehicle is not coupled to one or more
railroad cars.
    (3) A catenary maintenance tower car on or fouling the occupied
track that is engaged in a common task with one or more roadway workers
positioned on the ground within the gage of the occupied track for the
sole purpose of applying or removing grounds.
    (c) Training. Prior to assigning an employee to perform roadway
worker duties for which adjacent-track on-track safety is required, the
employer shall provide the employee with--
    (1) Training on the procedures for adjacent-track on-track safety
required by this section; or
    (2) A copy of a railroad-issued bulletin, order, general order,
notice, operating rule, or other document adopting the procedures for
adjacent-track on-track safety required by this section.
    (d) Recordkeeping. (1) Each employer shall obtain from each
affected employee a written receipt or acknowledgement of the adjacent-
track on-track safety training or document required by paragraph (c).
If the training is received for the first time as part of an employee's
recurrent training, a record kept pursuant to Sec.  214.343(d) serves
as the receipt or acknowledgement for purposes of this section.
    (2) Each employer shall retain the written receipt or
acknowledgement required by paragraph (d)(1) of this section--
    (i) Until the employee receives, pursuant to Sec.  214.343,
recurrent training that includes discussion of the procedures for
adjacent-track on-track safety required by this section; or

    (ii) For two years following the date the employee was provided
with the training or document required by paragraph (d)(1) of this
section.
    (3) Records of the written receipts or acknowledgements shall be
made available to representatives of FRA and States participating under
49 CFR part 212 for inspection and copying during normal business
hours.

    Issued in Washington, DC, on July 9, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-16140 Filed 7-16-08; 8:45 am]

BILLING CODE 4910-06-P