
[Federal Register: July 17, 2008 (Volume 73, Number 138)]
[Proposed Rules]               
[Page 41213-41230]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy08-27]                         


[[Page 41213]]

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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: 202-493-2251.
    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 202-493-6236); or Anna Winkle, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6166 or 202-493-6052).

SUPPLEMENTARY INFORMATION:

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

[[Page 41215]]

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

[[Page 41216]]

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

[[Page 41217]]

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.

[[Page 41218]]

    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).

[[Page 41219]]

    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

[[Page 41220]]

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

[[Page 41221]]

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-

[[Page 41222]]

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

[[Page 41223]]

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

[[Page 41224]]

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.

[[Page 41225]]

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:

[[Page 41226]]



----------------------------------------------------------------------------------------------------------------
                                  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.

[[Page 41227]]


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 202-493-6292, 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: robert.brogan@dot.gov; nakia.poston@dot.gov.
    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

[[Page 41228]]

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

[[Page 41229]]

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

[[Page 41230]]

    (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
