
[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Proposed Rules]
[Pages 50323-50370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20065]



[[Page 50323]]

Vol. 77

Monday,

No. 161

August 20, 2012

Part V





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 214





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

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

[[Page 50324]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

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


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

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

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

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track 
Division, Office of Safety Assurance and Compliance, FRA, 1200 New 
Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590 
(telephone (202) 493-6236); or Joseph St. Peter, Trial Attorney, Office 
of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-10, Mail Stop 
10, Washington, DC 20590 (telephone (202) 493-6047 or 202-493-6052).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Executive Summary

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

[[Page 50325]]

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

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

II. Rulemaking Authority and Background of the Existing RWP Rule

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

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

III. RSAC Overview

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

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

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

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

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

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

[[Page 50328]]

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

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

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

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

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

[[Page 50329]]

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

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

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

VIII. Additional Items for Comment

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

A. RWP and Blue Signal Protections in Shop Areas

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

[[Page 50330]]

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

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

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

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

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

[[Page 50331]]

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

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

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

D. Use of Tunnel Niches as a Place of Safety

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

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

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

F. Splitting of Roadway Worker in Charge Qualifications

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

G. Effective Date of Final Rule

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

IX. Executive Order 13563 Retrospective Review

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

[[Page 50332]]

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

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

X. Section-by-Section Analysis

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

Section 214.7 Definitions

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

[[Page 50333]]

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

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

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

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

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

[[Page 50334]]

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

[[Page 50335]]

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

Subpart B--Bridge Worker Safety Standards

Section 214.113 Head Protection

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

[[Page 50336]]

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

Section 214.115 Foot Protection

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

Section 214.117 Eye and Face Protection

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

Subpart C--Roadway Worker Protection

Section 214.301 Purpose and Scope

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

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

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

[[Page 50337]]

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

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

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

Section 214.302 Information Collection Requirements

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

Section 214.305 Compliance Dates

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

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

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

[[Page 50338]]

Section 214.309 On-Track Safety Manual

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

Section 214.315 Supervision and Communication

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

[[Page 50339]]

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

Section 214.317 On-Track Safety Procedures, Generally

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

[[Page 50340]]

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

[[Page 50341]]

Because FRA believes that the reference to the Sec.  214.7 definition 
of ``restricted speed'' is necessary, as that term defines restricted 
speed for the purposes of part 214 (a railroad's ``restricted speed'' 
for purposes of weed spraying could be more permissible than that of 
the existing Sec.  214.7 definition and of that proposed in the 
consensus language, which for safety reasons FRA would seek to avoid). 
The other minor AAR-suggested changes do not alter the substance of the 
consensus language, but also do not seem to clearly enhance its utility 
or clarity. Therefore, FRA is proposing the consensus language 
contained in the Working Group's recommendation in this paragraph.
    Proposed paragraph (c)(1)(iii) would require that the procedure 
adopted by a railroad ensures there is a means of communication between 
on-track equipment conducting snow removal and weed spraying operations 
and any other on-track movements in the area (which FRA anticipates 
would be via radio communication). Proposed paragraph (c)(1)(iv) 
prohibits remotely controlled hump yard facility operations from being 
in effect while snow removal or weed spraying operations are in 
progress, and also prohibits the kicking of cars unless agreed to by 
the roadway worker in charge of the snow removal or weed spraying 
operation. This last requirement is intended to help ensure that there 
is no free rolling equipment in the vicinity of on-track snow removal 
or weed spraying operations. As discussed above, FRA has amended the 
consensus language to list the proposed requirement that hump 
operations be suspended to this paragraph (c)(1)(iv). As such, the text 
as recommended by the RSAC has been slightly modified for organization 
purposes, and is not substantive in nature.
    Proposed paragraph (c)(2) would provide that roadway workers 
engaged in snow removal or weed spraying operations retain an absolute 
right to utilize the provisions of Sec.  214.327 (inaccessible track). 
This proposal parallels existing Sec.  214.337(b), which governs on-
track safety procedures for lone workers, and would permit a roadway 
worker to establish on-track safety by making the track inaccessible in 
accordance with Sec.  214.327. FRA has slightly amended this proposed 
paragraph as recommended by the RSAC. FRA added the words ``subject to 
this section'' to the proposed language. This amendment is only 
intended for clarity purposes. This amendment would make clear that if 
snow removal operations not subject to this section were taking place 
that on-track safety would obviously be required to be established, 
regardless of the absolute right to make track inaccessible under this 
provision.
    Proposed paragraph (c)(3) would provide that roadway workers 
engaged in snow removal or weed spraying operations subject to Sec.  
214.317, are permitted to line switches for the machine's movement 
without establishing a form of on-track safety in accordance with 
Sec. Sec.  214.319 through 214.337, but may not engage in any roadway 
work activity. For example, if a roadway worker needs to clean the snow 
from a switch with tools, or adjust a switch, a method of on-track 
safety compliant with Sec. Sec.  214.319 through 214.337 would be 
required prior to conducting such activities. Notwithstanding the 
above, FRA notes that existing Sec.  214.313(b) requires that roadway 
workers shall not foul any track unless necessary for the performance 
of their duties. FRA notes this proposed provision would extend to 
roadway workers other than the actual operator of a roadway maintenance 
machine, as roadway workers other than the machine operator may be 
assigned to throw switches in order to facilitate a machine's movement.
    Finally, proposed paragraph (c)(4) contains the consensus 
recommendation of the Working Group for the roadway equipment utilized 
under this provision. Proposed paragraph (c)(4) would require that each 
machine engaged in snow removal or weed spraying operations under 
proposed Sec.  214.317(c) be equipped with: (1) An operative 360-degree 
intermittent warning light or beacon; (2) an illumination device, such 
as a headlight, capable of illuminating obstructions on the track ahead 
in the direction of travel for a distance of 300 feet under normal 
weather and atmospheric conditions; (3) a brake light activated by the 
application of the machine braking system, and designed to be visible 
for a distance of 300 feet under normal weather and atmospheric 
conditions; and, (4) a rearward viewing device, such as a rearview 
mirror. If a machine is utilized in snow removal or weed spraying 
operations conducted during the period between one-half hour after 
sunset and one-half hour before sunrise, or in dark areas such as 
tunnels, that machine would also be required to be equipped with work 
lights, unless equivalent lighting is otherwise provided. Equivalent 
lighting refers to situations where a rail facility might already be 
equipped with appropriate lighting or where lighting is installed in a 
tunnel. These proposed requirements which would apply to snow blowing 
or weed spraying operations conducted pursuant to the operating rules 
of a railroad, would be in addition to any applicable existing 
requirements for such machines found in subpart D of part 214, which 
governs roadway maintenance machine requirements. These proposed 
requirements would help ensure that persons operating such machines 
during snow removal and weed spraying operations and relying on 
railroad operating rules and procedures for safety have appropriate 
lighting and sight distance to perform their duties, while also 
ensuring that such machines are clearly visible to others in the 
vicinity of such operations in all lighting conditions.

Section 214.319 Working Limits, Generally

    Section 214.319 sets forth the requirements for establishing 
working limits in accordance with part 214. FRA is proposing a minor 
amendment to this section. The existing first sentence in the 
introductory paragraph of that section states, in part, that 
``[w]orking limits established on controlled track shall conform to the 
provisions of'' Sec. Sec.  214.321 Exclusive track occupany, or 
214.323, Foul time, or 214.325, Train coordination.'' Each of these 
sections explain the requirements for establishing working limits 
through the various methods recognized by part 214. As discussed in the 
section-by-section analysis of proposed Sec.  214.324 below, however, 
FRA is proposing to add a new section setting forth a new method of 
establishing working limits on controlled track (verbal protection). 
Thus, FRA is simply proposing to revise the introductory paragraph of 
Sec.  214.319 to reference proposed Sec.  214.324.
    FRA is also proposing to replace the words ``roadway worker'' in 
existing paragraphs (a) and (b) with the words ``roadway worker in 
charge.'' As discussed above, this proposed change is to provide 
uniformity of reference throughout the RWP regulation to the roadway 
worker who establishes and controls working limits. This proposed 
change is also to reflect that under existing paragraph (a) of this 
section only a ``roadway worker who is qualified in accordance with 
Sec.  214.353 of this part shall establish or have control over working 
limits for the purpose of establishing on-track safety.'' As previously 
discussed, FRA is proposing to refer to a roadway worker qualified in 
accordance with Sec.  214.353 as a ``roadway worker in charge.''

[[Page 50342]]

Section 214.321 Exclusive Track Occupancy

    Section 214.321 generally sets forth the requirements for 
establishing working limits on controlled track through the use of 
exclusive track occupancy procedures. FRA is proposing several 
amendments to this section, including both Working Group consensus 
items and non-consensus items. First, FRA is proposing to replace the 
words ``roadway worker'' in existing paragraph (a) with ``roadway 
worker in charge.'' This proposed change is to consistently refer to 
the ``roadway worker in charge'' as appropriate throughout the RWP 
regulation, in order to clarify the existing variety of generic 
references to that position. Also, this change is appropriate because 
only a ``roadway worker in charge'' (or a lone worker who is also a 
roadway worker in charge) can establish working limits via Sec.  
214.321. FRA is also proposing to make this same change to the latter 
half of existing paragraph (b), which would be amended to specify that 
an authority for exclusive track occupancy must be communicated to the 
``roadway worker in charge,'' as opposed to the existing reference to 
``roadway worker''.
    Existing paragraph (b) states that a ``data transmission'' may be 
used to transmit an exclusive track occupancy authority to a roadway 
worker (i.e., a roadway worker in charge). However, existing paragraph 
(b)(2) states only that the roadway worker in charge must maintain 
possession of a ``written or printed authority'' while the authority 
for working limits is in effect, and does not currently account for 
authorities conveyed via data transmission that may be displayed on the 
screen of an electronic device. Thus, FRA is proposing to amend 
paragraph (b)(2) to state that an authority displayed on an electronic 
screen may be used in place of the ``written or printed'' authority 
required by existing Sec.  214.321(b)(2). Electronic authorities would 
also be required to comply with the requirements of proposed Sec.  
214.322, which is discussed in the section-by-section analysis for that 
section below. As electronic devices are already currently used to 
display authorities in the railroad industry, this proposed paragraph 
is intended to help clarify that such use is permissible.
    Existing Sec.  214.321(b)(3) requires that the train dispatcher or 
control operator in charge of track make a ``written or electronic'' 
record of all authorities issued to establish exclusive track 
occupancy. In post-Working Group comments on the recommended consensus 
items, AAR commented that in addition to proposing consensus paragraph 
(b)(4) of Sec.  214.321, FRA should also amend existing paragraph 
(b)(3) by removing the words ``written or electronic record'', and just 
generically refer to ``records,'' in order to accommodate the display 
of an authority via the use of an electronic device. However, as 
explained above and below, FRA is proposing a new Sec.  214.322, which 
would govern the use of authorities transmitted via electronic display. 
Accordingly, FRA believes that differentiating between written or 
electronic records is appropriate.
    The Working Group recommended consensus language that would require 
that an exclusive track occupancy authority specify a unique roadway 
work group number, an employee name, or other unique identifier. The 
Working Group recommended that this language be included as a new 
paragraph (b)(4) to Sec.  214.321. FRA agrees with this recommendation 
and has incorporated language consistent with the Working Group's 
recommendation into proposed paragraph (b)(4) of this section. This 
requirement would simply codify what is already common practice in the 
railroad industry; a practice that helps ensure the ability of trains, 
dispatchers, and other employees to differentiate between roadway 
workers in charge/roadway work groups who may be performing work at 
various locations along the right-of-way. The use of a unique 
identifier or roadway work group number should reduce the chance for 
potential confusion if a railroad has multiple employees with the same 
or similar names. This proposed paragraph would also require that a 
railroad's procedures establish guidelines for communication between 
trains or other on-track equipment and the roadway worker in charge (or 
lone worker), in accordance with existing Sec.  214.319(c). This 
requirement refers to effective procedures for trains or other on-track 
equipment to contact the roadway worker in charge to receive permission 
through working limits when appropriate. In post-RSAC comments, AAR 
requested that FRA remove the reference to lone workers in this 
recommended consensus section as per existing Sec.  214.337, lone 
workers are traditionally only used in conjunction with individual 
train detection. However, lone workers who are qualified to act as 
roadway workers in charge may establish working limits in order to 
perform their work. As such, FRA has decided to retain the recommended 
reference to lone workers in this proposed paragraph.
    For clarity purposes FRA amended the language from that contained 
in the recommended consensus language for this paragraph. The second 
sentence of the recommend language read that ``[t]he railroad's 
procedures shall include precise communication to ensure trains and 
other on-track equipment communicate, either directly or through the 
dispatcher, with the roadway worker in charge or lone worker 
controlling the working limits in accordance with Sec.  214.319.'' FRA 
is proposing that the second sentence of this paragraph instead read, 
``[a] railroad shall adopt procedures that require precise 
communication between trains and other on-track equipment and the 
roadway worker in charge or lone worker controlling the working limits 
in accordance with Sec.  214.319. The procedures may permit 
communications to be made directly between a train or other on-track 
equipment and a roadway worker in charge or lone worker, or through a 
train dispatcher or control operator.'' This proposed change to the 
recommendation is not intended to be substantive in nature, but is 
being made because a railroad's procedures obviously cannot contain the 
precise ``communication'' between a train and a roadway worker in 
charge, but instead, would include the guidance or instructions on the 
requirements of such communications. Thus, FRA is proposing this 
language to clarify that a railroad's procedures under this section 
would have to govern the necessary communications between trains and 
roadway workers in charge when exclusive track occupancy working limits 
are in effect. FRA is also adding the words ``train'' and ``or control 
operator'' directly before and after reference to the ``dispatcher'' 
that was contained in the RSAC recommendation because throughout the 
controlled track working limits sections, the words ``train dispatcher 
or control operator'' are used interchangeably.
    Existing paragraph (d) of this section requires that the movement 
of trains and other on-track equipment within exclusive track occupancy 
working limits may only be made under the direction of the ``roadway 
worker having control over the working limits.'' Although FRA is 
proposing no substantive revision to this paragraph, FRA is proposing 
to amend the paragraph to refer to the ``roadway worker in charge.'' As 
noted previously, this change is being proposed in multiple locations 
in this NPRM in order to replace the varying existing language that 
generically refers to the ``roadway worker in charge'' throughout the 
regulation text. FRA previously issued Technical Bulletin G-05-22 that

[[Page 50343]]

addresses existing paragraph (d). That technical bulletin recognized 
that there may be times, such as during an emergency, when a roadway 
worker in charge cannot be contacted by a train or other on-track 
equipment wishing to make a movement. The bulletin explained that ``in 
extraordinary circumstances trains must be authorized to move despite 
lack of permission from the RWIC. The present regulation does not 
address this irregular situation and thus, FRA's enforcement action 
under these circumstances will be determined on a case-by-case basis.'' 
FRA is not proposing language in this NPRM which would address such 
extraordinary circumstances, and FRA's enforcement action in such 
instances will still be determined on a case-by-case basis. However, 
FRA intends proposed paragraph (b)(4) to work in conjunction with the 
requirements of existing paragraph (d). Proposed paragraph (b)(4) would 
require procedures governing communications between trains and roadway 
workers in charge be adopted by railroads. FRA would expect that 
railroads would adopt procedures that would address what actions should 
be taken in the event a roadway worker in charge cannot be contacted by 
a train crew or the operator of other on-track equipment.
    Also, the existing text of the beginning of the second sentence of 
paragraph (d) currently reads that ``[s]uch movements shall be 
restricted speed * * * .'' FRA has proposed to amend that text to 
instead read that ``[s]such movements shall be made at restricted speed 
* * * .'' (emphasis added). This minor amendment is only for purposes 
of reading clarity and is not intended to be substantive.
    FRA is also proposing to add a new paragraph (e) to this section. 
This paragraph would establish minimum requirements when an exclusive 
track occupancy authority is given to a roadway worker in charge (or 
lone worker) ahead of the time working limits are to be occupied, or 
when train(s) may be occupying the same limits. These authorities are 
sometimes referred to as ``occupancy behind'', ``conditional'', or ``do 
not foul the limits ahead of'' authorities.\8\ Occupancy behind 
procedures enable a train dispatcher or control operator to issue an 
authority which would permit a roadway work group to occupy a track, 
provided such occupancy only occurred after the passage of certain 
trains or other on-track equipment. When occupancy behind authorities 
are issued, trains may still be ahead of the point to be occupied by 
the roadway work group, or in some cases may be past the point to be 
occupied but still within the working limits. Such occupancy behind 
authorities have long been in use in the railroad industry. Due to the 
volume of train operations in certain areas, and the corresponding time 
demands on train dispatchers, railroads have expressed to FRA that the 
use of such authorities is crucial to their ability to be able to 
efficiently conduct train operations.
---------------------------------------------------------------------------

    \8\ FRA notes that 49 CFR 220.61 contains requirements for the 
issuance of ``mandatory directives'' via radio transmission for both 
trains and on-track equipment. Exclusive track occupancy authority 
to establish working limits granted by a train dispatcher or control 
operator to a roadway worker in charge are in some instances also 
considered ``mandatory directives'' under that section. The existing 
requirements in Sec.  214.321 are considered to be in addition to 
the requirements of existing Sec.  220.61.
---------------------------------------------------------------------------

    For example, a track inspector (a roadway worker in charge/lone 
worker) in centralized traffic control territory may be called on to 
use a hi-rail vehicle to inspect a track. In order to more efficiently 
utilize time and available track, a dispatcher may issue the track 
inspector an exclusive track occupancy working limits authority, often 
referred to as ``track and time'', to occupy such track while a train 
or trains are still within the working limits to be occupied by the 
track inspector. This procedure does not first require the dispatcher 
to wait until all trains have entirely cleared the working limits 
before issuing the authority to the roadway worker in charge, or 
require that all trains have passed the point to be occupied. This 
procedure also allows the roadway worker in charge/lone worker to 
occupy such limits behind a train movement while a train is still 
within the working limits (much sooner chronologically than if required 
to first wait for all trains to clear the entire working limits track 
segment). This procedure enables the hypothetical track inspector to 
begin his or her work sooner, and correspondingly, to relinquish such 
limits sooner to allow for the passage of trains again.
    One of the concerns with the use of such authorities focuses on the 
fact that trains that are already within the same limits of an 
authority that is being issued to a roadway worker in charge may not 
have a copy of such authority or otherwise be aware of it. This 
situation differs from those when track maintenance activities are 
planned in advance, where all trains would typically have a copy of a 
track bulletin denoting the existence of working limits at a particular 
location. Another concern involves miscommunications occurring and 
roadway workers potentially fouling tracks before the last affected 
train passes the point to be occupied.
    The Working Group discussed the problems of miscommunication with 
the use of ``occupancy behind'' authorities, but did not achieve 
consensus on recommended regulatory text. However, FRA believes it 
necessary to propose minimum safety requirements regarding the use of 
such authorities by roadway workers in charge to establish exclusive 
track occupancy working limits. FRA believes this proposal largely 
codifies current industry best practices and would help ensure safety, 
and also seeks comment on the costs and benefits of this proposal.
    Proposed paragraph (e)(1) states that an authority would only be 
considered to be in effect after the roadway worker in charge or lone 
worker confirmed that the affected train(s) had passed the point to be 
occupied or fouled by the roadway work group or lone worker. This 
proposed provision is necessary as the train(s) listed in the authority 
may still be ahead of (i.e., may have not yet reached and traveled 
past) the point to be occupied or fouled. The proposed text would 
permit such confirmation to be made in three manners. Confirmation 
could be made by visually identifying the affected train(s), via direct 
radio contact with a crew member of the affected train(s), or by 
receiving information about the affected train(s) from the dispatcher 
or control operator.
    Proposed paragraph (e)(2) states that when such confirmation is 
made by the roadway worker in charge visually identifying the affected 
train(s), the railroad's operating rules must include procedures to 
prohibit such trains from making a reverse movement into the limits 
being fouled or occupied (this provision, in addition to the 
requirements of proposed Sec.  214.321(e)(4) below, would provide 
protection for roadway worker(s) located ahead of the point to be 
occupied who intend to ``piggyback'' on a roadway worker in charge's 
exclusive track occupancy authority). FRA believes this provision is 
necessary, as this method of making confirmation would not require the 
roadway worker in charge to actually talk to the crew of the affected 
train(s) (or for the train dispatcher to talk with the crew or verify 
that that train is beyond the point to be occupied), such that the crew 
might not be cognizant of the working limits or point to be occupied.
    Proposed paragraph (e)(3) would require that after confirmation of 
the passage of affected train(s) is made, the roadway worker in charge 
shall record on the authority document (or display)

[[Page 50344]]

both the time of passage and the engine (locomotive) numbers of the 
affected train(s). If passage confirmation is made via radio 
communication with the train crew, the time of that communication along 
with the engine numbers must be recorded on the authority. When 
confirmation of the passage of the affected train(s) is made via the 
train dispatcher or control operator, the time of such confirmation and 
the engine numbers must be recorded on the authority. If the time and 
engine numbers are not recorded on the authority itself, FRA would 
consider a separate written document used to record information 
regarding passing trains to be a component of the authority, and that 
document would be required to be maintained along with the authority 
while it is in effect.
    Proposed paragraph (e)(4) would require that roadway workers (who 
are afforded on-track safety by the roadway worker in charge) who are 
located between the rear end of the last affected train and the roadway 
worker in charge, or who are still located ahead of the last affected 
train, may only foul track after receiving permission to do so from the 
roadway worker in charge and after the roadway worker in charge had 
fulfilled the provisions of proposed Sec. Sec.  214.321(e)(1) & (e)(3). 
In addition, each group of roadway workers being provided on-track 
safety by the roadway worker in charge must be accompanied by an 
employee qualified to the level of a roadway worker in charge, who 
would also be required to have a copy of such authority and fulfill the 
requirements of Sec. Sec.  214.321(e)(1) & (e)(3) before working limits 
could be occupied or fouled at that particular location. The authority 
information may be verbally transmitted by the roadway worker in charge 
to the additional person utilizing the working limits. The cumulative 
effect of this proposed provision is that roadway workers located 
between the rear end of any affected train and the roadway worker in 
charge would not be permitted to foul track until all of the same 
procedures the roadway worker in charge was initially required to 
comply with were also accomplished at the actual location of the 
roadway workers. FRA has included this proposed requirement to address 
situations where a roadway worker in charge permits another roadway 
work group or another roadway worker to foul the track between his or 
her occupancy point and the rear end of affected train(s). Because FRA 
agrees with the Working Group's concerns and recognizes that in this 
context, miscommunication can have serious safety consequences, FRA is 
proposing to require these additional measures.
    Under proposed paragraph (e)(5), each lone worker subject to this 
proposed paragraph would also be required to have a copy of the 
authority and to comply with all of the communications requirements of 
this section. Proposed paragraph (e)(6) would establish that train 
movements within working limits where roadway workers were otherwise 
located (not ahead of the last affected train and not between the rear 
end of the last affected train and the roadway worker in charge) would 
continue to be governed by existing Sec.  214.321(d), or under the 
direction of the roadway worker in charge.
    Finally, with regard to exclusive track occupancy, FRA often 
receives inquiries regarding multiple roadway work groups working 
within the limits of one authority. FRA notes that while there may be 
multiple roadway work groups performing work within one set of working 
limits, existing Sec.  214.319 requires that only one roadway worker in 
charge can have control over working limits on any one segment of 
track, and that all roadway workers shall be notified before working 
limits are released for the operation of trains. Further, existing 
Sec.  214.319(c) states that ``[w]orking limits shall not be released 
until all affected roadway workers have either left the track or have 
been afforded on-track safety through train approach warning in 
accordance with Sec.  214.329 of this subpart.'' FRA is not proposing 
any change to these existing requirements with regard to multiple 
roadway work groups working within the limits of one authority. FRA 
believes the current regulation is clear on this point, and FRA does 
not believe that considering permitting more than one roadway worker in 
charge to have control of working limits would be conducive to safety. 
FRA believes doing so would promote confusion among roadway workers and 
work groups. If further guidance on situations where multiple roadway 
work groups may conduct work within the limits of one authority is 
desired, existing FRA Technical Bulletins G-05-02 and G-05-17 address 
those issues.

Section 214.322 Exclusive Track Occupancy, Electronic Display

    Existing Sec.  214.321(b)(3) permits an exclusive track occupancy 
authority to be issued via data transmission from the train dispatcher 
or control operator to the roadway worker in charge. Currently, FRA is 
aware that some railroads utilize electronic devices to display such 
authorities received via data transmission. With the current Positive 
Train Control system requirements and other technological developments 
in the railroad industry, FRA anticipates that the use of such 
electronic devices to display working limits authorities will continue 
to grow. As such, the Working Group considered this topic, and 
contemplated minimum requirements concerning the use of such electronic 
displays. The Working Group agreed in principle to basic concepts 
concerning the use of electronic display for working limits. However, 
the Working Group did not agree to overall consensus language. As such, 
FRA is proposing Sec.  214.322 to address the use of such electronic 
displays. This proposed section incorporates those concepts agreed to 
in principle by the Working Group, as well as additional minimum 
operating and technical attributes of such electronic displays.
    Proposed paragraph (a) contains the items agreed to in principle by 
the Working Group, and would establish that an electronically displayed 
authority must be readily viewable by the roadway worker in charge 
while such authority is in effect. Proposed paragraph (a)(1) would 
require that when a device malfunction or fails, or cannot otherwise 
display an authority in effect (e.g., batteries powering the electronic 
device displaying the authority lose charge), the roadway worker in 
charge must instruct all roadway workers to stop and occupy a place of 
safety until a written or printed copy of the authority can be 
obtained, or another form of on-track safety can be established. FRA 
requests comment on whether a better approach, if a device fails, is to 
first allow the roadway worker in charge the opportunity to immediately 
obtain a written copy of an authority before requiring the members of 
the roadway work group to stop work and occupy a place of safety (and 
if a written authority could not immediately be obtained, then 
requiring the work group to occupy a place of safety).
    If a copy of the authority cannot be obtained and no other form of 
on-track safety can be established, proposed paragraph (a)(2) would 
require that the roadway worker in charge conduct an on-track job 
safety briefing to determine the safe course of action with the roadway 
work group. Proposed paragraph (a)(2) attempts to provide flexibility 
in situations where an electronic display fails and the roadway worker 
in charge cannot communicate with the train dispatcher via radio, which 
might occur in a deep rock cut or a tunnel, and a roadway work group 
may have to move within established working limits to a location where 
they are able to occupy a place of safety and/

[[Page 50345]]

or re-establish communication with the dispatcher.
    Proposed paragraphs (b)-(g) would address the technical attributes 
of the electronic display of exclusive track occupancy authorities. FRA 
requests comment on this proposal, specifically regarding whether 
electronic display systems currently in use comply, or are capable of 
complying, with these proposed requirements. The proposed requirements 
are safety and security-related. While the contents of an exclusive 
track occupancy authority transmitted to a roadway worker in charge are 
not typically confidential in nature, the integrity of such information 
is vitally important to the safety of roadway workers and trains. FRA 
proposes these requirements to take a proactive approach with regard to 
the integrity of data transmissions of electronic authorities.
    Proposed paragraphs (b) and (c) provide for the identification and 
authentication of users. A user would typically refer to the roadway 
worker in charge and train dispatcher or control operator, as they are 
the persons who are most often involved in an exclusive track occupancy 
authority transaction. A user could also be a process or a system that 
accesses or attempts to access an electronic display system to perform 
tasks or process an authority. Identification is the process through 
which a user presents an identifier that is uniquely associated with 
that user, in order to gain access to an electronic authority display 
system.
    Authentication is the process through which an individual user's 
identity is validated. Most authentication techniques follow the 
``challenge-response'' model by prompting the user (the challenge) to 
provide some private information (the response). Basic authentication 
factors for individual users could involve information an individual 
knows, something an individual possesses, or something an individual is 
(e.g., personal characteristics or ``biometrics'', such as a 
fingerprint or voice pattern).
    Proposed paragraph (c) would require that any authentication scheme 
utilized ensures the confidentiality of authentication data and 
protects that data from unauthorized access. Such schemes would be 
required to utilize algorithms approved by the Federal government's 
National Institute of Standards and Technology (NIST), or any similarly 
recognized standards body. This requirement parallels a similar 
requirement for Positive Train Control systems found at 49 CFR 
236.1033(b),\9\ and is proposed to help prevent deliberate ``spoofing'' 
or ``man in the middle'' attacks on exclusive track occupancy authority 
information communicated and displayed via electronic device. NIST is 
the agency responsible for defining cryptographic algorithms for non-
Department of Defense entities.
---------------------------------------------------------------------------

    \9\ 75 FR 2598, 2676 (Jan. 15, 2010).
---------------------------------------------------------------------------

    Proposed paragraph (d) would address the transmission, reception, 
processing, and storage of exclusive track occupancy authority data, 
and is proposed to help ensure the integrity of such data. Data 
integrity is the property of data not being altered since the time data 
was created, transmitted, or stored, and generally refers to the 
validity of the data. This paragraph proposes that new electronic 
authority display systems placed into service after the effective date 
of a final rule in this rulemaking would be required to utilize message 
authentication codes (MAC) to ensure data integrity. Similar to the 
proposed requirements of paragraph (c), MAC's would be required to 
utilize algorithms approved by NIST or a similarly recognized standards 
body. Unlike cyclical redundancy codes (CRC), MAC's provide protection 
against malicious interference. Proposed paragraph (d) would permit the 
use of systems implemented prior to the date of a final rule in this 
rulemaking to utilize CRC's, but would require that the collision rate 
for the CRC checks utilized be less than or equal to 1 in 2\32\. This 
proposed collision rate would help provide reasonable protection 
against accidental or non-malicious errors on channels that are subject 
to transmission errors, and is based on a Department of Defense 
standard. Existing systems utilizing CRC's that do not meet this 
minimum standard would be required to be retired and replaced with 
systems that utilize MAC's not later than one year after the effective 
date of a final rule. Proposed paragraph (d)(2) would require that MAC 
or CRC checks only be used to verify the accuracy of a message, and 
that an authority must fail if the checks do not match.
    Proposed paragraph (e) would also require that the actual 
electronic device used to display an authority issued via data 
transmission retain any authorities issued for a minimum of 72-hours 
after expiration of such authority. This minimum proposed requirement 
is primarily for investigation purposes, as it would give investigating 
bodies such as FRA or the NTSB an opportunity to study authority data 
in non-reportable accident/incident situations, and to compare it to a 
dispatcher or control operator's corresponding electronic authority 
transmission records. This requirement could also be helpful in 
compliance audit situations.
    Proposed paragraph (f) mirrors the language found in 49 CFR 
229.135(e) of FRA's Railroad Locomotive Safety Standards. Section 
229.135(e) governs the preservation of data from locomotive event 
recorders or other locomotive mounted recorders in the event of an 
accident. This proposed paragraph uses the same language as found in 
existing Sec.  229.135(e), and would require that railroads preserve 
data from any electronic device used to display an authority for one 
year from the date of a reportable accident/incident under 49 CFR part 
225, unless FRA or the NTSB notifies the railroad in writing that the 
data are desired for analysis.
    Proposed paragraph (g) would require that new electronic display 
systems implemented after the effective date of a final rule, would 
provide Level 3 assurance as defined by the December 2011, version of 
NIST Special Publication 800-63-1, ``Electronic Authentication 
Guideline.'' NIST Special Publication 800-63-1 provides technical 
guidelines for widely used methods of electronic authentication, and is 
publicly available online at http://csrc.nist.gov/publications/nistpubs/800-63-1/SP-800-63-1.pdf. Systems that were implemented prior 
to the effective date of a final rule in this rulemaking would be 
required to provide at least Level 2 assurance as described in NIST 
Special Publication 800-63-1, and systems that do not provide Level 2 
assurance or higher would be required to be retired or updated to 
provide such assurance no later than one year after the effective date 
of a final rule. These assurance levels govern the elements of the 
authentication process. Level 2 assurance requires some identity 
proofing, and passwords are accepted (but not PINS). Level 3 assurance 
requires more stringent identity proofing and multi-factor 
authentication, typically a password or a biometric factor used in 
combination with a software or hardware token.
    FRA acknowledges that if this proposed paragraph (g) were included 
in a final rule in this rulemaking, that FRA must first gain approval 
to do so from the Director of the Federal Register in accordance with 5 
USC 552(a) and 1 CFR part 51. If interested parties do not have a copy 
of this document to be incorporated by reference, FRA can make a copy 
available for review upon request. FRA notes that this document is 
publicly available online at the web

[[Page 50346]]

site address listed in the discussion above.
    FRA has limited information regarding whether existing electronic 
display systems in use already comply with the above requirements. FRA 
requests comment, to include potential cost information, on this 
proposal. As stated above, FRA proposes these requirements in an effort 
to be proactive. FRA is coordinating these proposed requirements with 
the U.S. Department of Homeland Security.
    FRA notes that a portable device used to display an authority can 
be a laptop computer or hand held device. Because of continuous 
improvement in technology, FRA is not proposing any technical 
specifications for the physical attributes of a display device. 
Nevertheless, FRA expects railroads to take into account the 
environment that such devices will be subject to during use. Finally, 
FRA notes that railroads are always allowed to implement more 
restrictive security requirements provided the requirements do not 
conflict with Federal regulation.

Section 214.323 Foul Time

    Section 214.323 generally sets forth the requirements for 
establishing working limits on controlled track through the use of foul 
time. FRA is proposing to make several amendments to existing Sec.  
214.323. FRA is proposing to adopt the Working Group's recommended 
consensus language, as well as certain other amendments. First, FRA is 
proposing to add the words ``or other on track equipment'' to existing 
paragraph (a) which currently provides that foul time may be provided 
only after the relevant train dispatcher or control operator has 
withheld authority ``of all trains'' to move into or within the working 
limits. This change is only for consistency purposes within this 
existing section, as existing paragraph (c) prohibits the movement of 
both trains and on-track equipment from moving into working limits 
while foul time is in effect. This proposed revision also acknowledges 
that the incursion of on-track equipment into or within working limits 
while foul time is in effect presents the same type of safety concern 
to roadway workers as would train movements.
    Next, FRA is proposing to amend reference to ``roadway worker'' in 
existing paragraph (b) to ``roadway worker in charge.'' This proposed 
change is only to reflect that a new definition for that term is being 
proposed in this NPRM, and is being proposed to replace the varying 
generic references to that roadway worker position that are currently 
located throughout the existing RWP regulation. FRA also intends this 
change to make it clear that roadway workers in charge are the only 
employees who may establish working limits, which the RWP regulation 
has always required at Sec.  214.319(a). FRA is also proposing to make 
this same change to existing Sec.  214.323(c).
    FRA is also proposing to add a new paragraph (d) to this section. 
Paragraph (d) would expressly state that the roadway worker in charge 
would be prohibited from permitting the movement of trains or other on-
track equipment into or within working limits protected by foul time. 
As background, foul time is a more abbreviated form of establishing 
working limits than that of exclusive track occupancy, and has its 
historical roots in the Northeast United States. Foul time was 
typically for short-duration work activities with limited to no 
disturbance of the track structure. Foul time is a form of working 
limits under the control of a roadway worker in charge, it does not 
provide for the same flexibility as does exclusive track occupancy 
(i.e., movement into or through the foul time limits under the 
direction of the roadway worker in charge). The original RWP regulation 
and accompanying section-by-section analysis did not describe what type 
of activities could occur under foul time procedures, or expressly 
state that the roadway worker in charge was not permitted to allow the 
movement of trains or equipment into or within working limits. As such, 
foul time in some locations is not being used as was originally 
intended. Proposed paragraph (d) is intended to address this issue, and 
proposed Sec.  214.324 below would provide for added flexibility in 
establishing working limits within manual interlocking and controlled 
points.
    In post-Working Group comments on a draft of the consensus items, 
AAR raised the issue of a railroad's rules referring to a form of on-
track safety as ``foul time'', when in actuality the form of protection 
meets the requirements of Sec.  214.321 (exclusive track occupancy). In 
response, FRA recognizes that some railroads may refer to a form of on-
track safety as ``foul time'' when they are actually using exclusive 
track occupancy procedures. FRA notes that for enforcement purposes, 
the agency looks to how a railroad's form of on-track safety protection 
actually functions, rather than what name is used for such protection.

Section 214.324 Verbal Protection

    The Working Group recommended a new proposed Sec.  214.324, which 
would enable the establishment of working limits through the use of 
``verbal protection.'' FRA is proposing this recommendation, which 
helps to address a discrepancy discussed during the Working Group 
process regarding how on-track safety is used in the Western portion of 
the United States. Verbal protection is similar to foul time, but would 
be a permitted method to establish working limits specifically within 
manual interlockings or controlled points. Verbal protection differs 
from foul time in that on-track equipment and trains would be permitted 
to move into and within working limits after receiving permission to do 
so from the roadway worker in charge and after receiving authority from 
the train dispatcher or control operator. Since controlled points and 
manual interlockings generally encompass a relatively small area, 
roadway workers in charge would encounter reduced instances of other 
employees, who might be some distance away, requesting to use the 
roadway worker in charge's established working limits for a separate 
task. Also, such locations typically provide an additional level of 
protection because the dispatcher or control operator would be required 
to apply blocking devices to govern the signals and/or switches at the 
limits of a manual interlocking or controlled point to prevent movement 
into working limits (in accordance with the requirement in proposed 
paragraph (a) that dispatchers and control operators would be required 
to withhold authority for trains to move into working limits). It is 
important that when verbal protection is used to establish working 
limits, there is a clear understanding of which track(s) are being 
protected. For example, if the verbal protection only applies to one 
track inside an interlocking containing multiple tracks, the roadway 
workers utilizing that verbal protection would be required to establish 
an alternate method of on-track safety on any other tracks they may 
need to foul while performing their work.
    The following table provides a comparative reference between the 
use of foul time and verbal protection:

[[Page 50347]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Permissible locations                                       On-track occupancy
                                    --------------------------------------------------------------------------------------------------------------------
        Type working limits             Controlled track outside
                                        manual interlockings and         Manual interlocking and                Trains              On-track equipment
                                            controlled points               controlled points
--------------------------------------------------------------------------------------------------------------------------------------------------------
Foul time..........................  Yes...........................  Yes...........................  No.........................  No.
Verbal protection..................  No............................  Yes...........................  Yes, movement permitted      Yes.
                                                                                                      with permission of roadway
                                                                                                      worker in charge and
                                                                                                      permission by dispatcher/
                                                                                                      control operator to pass
                                                                                                      stop signal at entrance to
                                                                                                      control point/manual
                                                                                                      interlocking.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The proposed introductory text of this new section specifically 
states that verbal protection may only be used within manual 
interlockings or controlled points (as the chart above denotes, foul 
time may also still be used within the limits of a manual interlocking 
subject to the requirements of Sec.  214.323). Proposed paragraph (a) 
mimics the corresponding paragraph in the foul time provision (Sec.  
214.323(a)), including the reference to movement of ``other on-track 
equipment'' as well as train movements. As explained above, this is to 
acknowledge that the unauthorized or inadvertent incursion of on-track 
equipment into or within working limits presents the same type of 
safety concern to roadway workers as do train movements.
    Proposed paragraph (b) mirrors the text of Sec.  214.323(b) 
regarding foul time and proposes to require each RWIC to whom verbal 
protection is transmitted repeat the track number, track limits and 
time limits of the verbal protection to the issuing employee for 
verification. In post-RSAC comments on the recommended consensus 
language for this paragraph, AAR suggested that the phrase ``track 
number'' be amended to refer instead to ``track identifier.'' AAR 
suggested such to allow for commonly used descriptions for certain 
tracks (such as ``westward main track'' or where tracks may not be 
numbered). FRA notes that the phrase ``track number'' is also used in 
the existing foul time section. While FRA may consider revising this 
term in a final rule, such revision may not be necessary. FRA believes 
it is understood, and has been permissible under the existing RWP 
regulation, that where applicable, a track identifier may be used to 
positively identify the track(s) on which working limits are being 
established.
    Proposed paragraph (c) differs from its corresponding paragraph 
under foul time, in that it would permit movements into and within 
working limits if both the roadway worker in charge and train 
dispatcher or control operator give permission for such movements. In 
post-Working Group comments on the recommended consensus language, AAR 
noted that the words ``control operator'' were omitted from the 
consensus language at the end of this proposed paragraph. As the words 
``train dispatcher'' and ``control operator'' are used in tandem for 
purposes of both this section and the foul time section, FRA believes 
these words were inadvertently omitted. Therefore, in this proposal, 
FRA has included the words ``or control operator'' after the words 
``train dispatcher'' in this proposed paragraph.
    Like foul time, under verbal protection the roadway worker in 
charge would not be required to copy a written authority and maintain 
possession of it while working limits were in effect. The roadway 
worker in charge would only be required to correctly repeat back the 
applicable working limits information to the train dispatcher or 
control operator. However, because verbal protection differs from foul 
time in that the roadway worker in charge may permit trains or other 
on-track equipment to move through the working limits, FRA requests 
comment on whether a roadway worker in charge should be required to 
make and maintain a copy of the working limits information. This 
requirement would ensure that a roadway worker in charge could 
reference a written document if questions regarding the working limits 
arose, but FRA also recognizes such a requirement could potentially 
mitigate the utility of this proposed RSAC consensus recommendation.

Section 214.325 Train Coordination

    FRA is proposing a minor amendment to existing Sec.  214.325. As 
established by existing Sec.  214.319, Sec.  214.325 governs the 
establishment of working limits on controlled track via train 
coordination. However, unlike the other controlled track working limits 
provision (Sec. Sec.  214.321, 214.323, and proposed Sec.  214.324), 
the existing text of Sec.  214.325 does not actually state that is 
applies to working limits established on controlled tracks. Therefore, 
FRA is proposing to add the words ``on controlled tracks'' to the first 
sentence of the introductory paragraph of Sec.  214.325. This amendment 
is proposed simply for consistency and clarity purposes. FRA is also 
proposing to add the words ``in charge'' after the existing words 
``roadway worker'' in the first sentence of the introductory paragraph. 
This proposed change would help provide uniformity of reference to 
``roadway worker[s] in charge'' at various locations in the RWP 
regulation text, and is also to reflect that under existing Sec.  
214.319, that only a roadway worker in charge may establish working 
limits.

Section 214.327 Inaccessible Track

    FRA is proposing to add three new provisions to Sec.  214.327, all 
of which are consensus items recommended by the Working Group. Existing 
Sec.  214.327 governs the establishment of working limits on non-
controlled track. As explained in the preamble to the final rule which 
promulgated the original RWP regulation, trains can operate on non-
controlled track without first having to receive specific authority to 
do so. 61 FR 65791. Unlike in an exclusive track occupancy situation on 
controlled track governed by Sec.  214.321, a dispatcher or control 
operator cannot withhold a train's movement authority to enter a 
specified set of working limits on non-controlled track. Thus, in order 
to establish working limits on non-controlled track, the track must be 
rendered inaccessible. These three new proposed consensus provisions 
would expand the number of available methods to make such non-
controlled track inaccessible.
    First, proposed paragraph (a)(6) would permit what informally may 
be referred to as an ``iron flagman'' to render non-controlled track 
inaccessible. This provision would permit the use of a manned 
locomotive as a point of inaccessibility. This procedure mimics some of 
the provisions of train coordination under existing Sec.  214.325, 
which is a method of establishing working limits on controlled track. 
However, it is critical that this provision not be confused with train 
coordination. When train coordination is used, on-track safety is 
derived through the use of a train's occupancy authority. On non-
controlled

[[Page 50348]]

track, no occupancy authority exists and additional trains could move 
into the same segment of track at any time.
    Proposed paragraph (a)(6) anticipates locations where a locomotive 
with or without cars may be used as a physical feature at multiple 
points of entry into working limits. For example, if a locomotive with 
cars coupled to it is located on a ladder track in a yard, that train 
could be used to block the entrance to all the tracks connected to the 
switches under the train.
    Proposed paragraph (a)(6) would require that to establish a 
locomotive as a point of inaccessibility, the roadway worker in charge 
would first have to communicate with the train crew in control of the 
such locomotive and determine that the locomotive was visible to the 
roadway worker in charge. Next, the locomotive would be required to be 
stopped, and any further movements of the locomotive would only be made 
as permitted by the roadway worker in charge. These requirements all 
parallel existing requirements in the train coordination provision at 
Sec.  214.325. FRA has amended the recommended consensus language for 
this paragraph for purposes of clarity. The introductory text of 
existing paragraph (a) of this section states that ``[w]orking limits 
on non-controlled track shall be established by rendering the track 
within working limits physically inaccessible to trains at each 
possible point of entry by one of the following features:'' and then 
goes on to list what features may be used to render track inaccessible 
in existing paragraphs (a)(1)-(a)(5). The recommended consensus text of 
paragraph (a)(6) reads that a ``[t]rain crew directly in control of a 
locomotive with or without cars may be considered a physical feature at 
one or more points of entry to working limits.'' However, as the train 
crew is not the physical feature being used to block access to the 
track, but rather the locomotive that the crew is in control of is, FRA 
has amended the first sentence to reflect such. FRA has also replaced 
the words ``roadway worker'' with ``roadway worker in charge who is 
responsible for establishing working limits.'' This change is intended 
to reflect that, as discussed throughout this document, only a roadway 
worker in charge can establish working limits, and also for uniformity 
of reference throughout the regulations. FRA has also proposed this 
change as it wishes to emphasize that if this method of establishing 
working limits is utilized, that it is important that the roadway 
worker in charge of the working limits and the train crew assigned to 
the locomotive communicate directly with one another and have a clear 
understanding of the procedures to be followed. FRA has also slightly 
amended the numbering of the requirements from that as originally 
recommended. The amendments to the consensus language are not intended 
to be substantive, but only to try to better organize the text into 
final regulatory format.
    In addition, proposed paragraph (a)(6) of this section would 
require that the crew of the locomotive shall not leave the locomotive 
unattended or go off duty unless communication occurs with the roadway 
worker in charge, and an alternate means of on-track safety protection 
is established. The last requirement of this paragraph would address 
the concern of movement of any cars that may be coupled to the 
locomotive were those cars to be uncoupled. Cars coupled to the end of 
the locomotive where roadway workers are being protected (nearest to 
the roadway workers) would be required to be connected to the train's 
air brake system, and such system would be required to be charged with 
compressed air in order to initiate an emergency brake application in 
case of unintended uncoupling. Cars coupled to the locomotive on the 
same track on the opposite end of the roadway workers would be required 
to have sufficient braking capability to control movement.
    Proposed paragraph (a)(7) addresses the use of block register 
territory rules as a method to render track inaccessible. FRA notes 
that while block register territory is generally considered non-
controlled track, where a train dispatcher or other employee must 
authorize occupancy or movement on a track in block register territory, 
this proposed section would not apply. FRA considers such track 
controlled track, and the permissible on-track safety methods for 
controlled track under the RWP regulation would apply.
    Generally, in block register territory trains can only occupy a 
block of track after viewing a log book or register sheet to ensure no 
other trains or equipment are occupying that block. After making such 
verification, the train crew wishing to occupy that block would then 
make an entry into the log book indicating the block was occupied by 
their train. Upon exiting a block, the crew would make an entry noting 
that the block was cleared. Typically, only one train can occupy a 
block of track in block register territory at one time. The 
verifications and entries discussed above can be made in a variety of 
different manners, to include via radio to an employee who keeps the 
log book.
    Under the existing RWP regulation, it is necessary to utilize one 
of the existing methods of making track inaccessible under Sec.  
214.327 in order to establish working limits on non-controlled track. 
The rules governing block register territory are not currently 
included. Railroads expressed concern to FRA about having to use 
portable derails to render a segment of track inaccessible in block 
register territory under existing Sec.  214.327, especially because 
track in a block register territory can be main track.
    The Working Group addressed this issue and recommended consensus 
language, which would permit a roadway worker in charge or lone worker 
to utilize the procedures governing block register territory to 
establish working limits within such territory. Under this proposed 
section, working limits will have been permissibly established if a 
roadway worker in charge or lone worker complies with the applicable 
railroad procedures for occupying a block register territory and makes 
the required log entries to indicate the block is occupied. By doing 
so, no trains or other on-track equipment would be permitted to enter 
such block under a railroad's operating rules. However, under this 
provision the lone worker or roadway worker in charge would have the 
absolute right to render such track in a block register territory 
inaccessible via the existing inaccessible track provisions at 
paragraphs (a)(1)-(a)(5) of this section if they chose to do so for any 
reason. In order to conform to regulatory text drafting practices, FRA 
has varied from the recommended consensus language slightly and is 
proposing to the words ``under the provisions of paragraphs (a)(1) 
through (a)(6) of this section'' in the last sentence of paragraph 
(a)(7). This language is being proposed in place of the recommended 
Working Group language that read ``under the provisions of Sec. Sec.  
214.327(a)(1) through 214.327(a)(5).'' This change to reference that 
newly proposed paragraph (a)(6), rather than existing paragraph (a)(5), 
would be the last paragraph in this section that could be used to 
physically render track inaccessible. FRA requests comment on whether 
newly proposed paragraph (a)(8) should also be included in that list.
    FRA notes that roadway workers are already required by existing 
Sec.  214.313(a) of the RWP regulation to follow all on-track safety 
rules and procedures of a railroad. Thus, in complying with proposed 
paragraph (a)(7), roadway workers would be required to comply with all 
applicable rules governing the

[[Page 50349]]

occupation of track in a block register territory. FRA also notes that 
it has slightly amended the recommended consensus text at the beginning 
of the first sentence of proposed paragraph (a)(7), to read ``[a] 
railroad's procedures governing block register territory.'' The 
recommended consensus text initially contained reference to ``[t]he 
provisions of a block register territory * * *.'' FRA has made this 
slight change only for purposes of reading clarity. While there can be 
no provisions of a block register territory, there can be provisions or 
procedures which govern the use of such a territory. This change is not 
intended to be substantive in nature.
    New proposed paragraph (a)(8) would address the establishment of 
working limits on non-controlled main tracks within yard limits via the 
use of a bulletin. This provision was a Working Group consensus item 
and would permit working limits to be established whereby trains are 
issued bulletins in advance of occupying such main track which would 
notify them of such working limits.
    As background, while FRA believes the definitions of controlled 
track and non-controlled track to be clear, FRA has received past 
inquiries regarding the differences. This is partly due to a 
misconception that the term ``main track'' is synonymous with 
``controlled track.'' In fact, a main track is often a non-controlled 
track, which typically is the case within yard limits or restricted 
limits. Restricted limits generally refer to main track where trains 
may only proceed at restricted speed, even if operating on a clear 
signal indication. In yard limits, trains or other on-track equipment 
can occupy the main track in most instances without obtaining 
authorization from a train dispatcher or control operator. Where this 
is the case, and trains or other on-track equipment derive their 
authority to occupy the main track in yard limits from the railroad's 
operating rules, such track is considered non-controlled track. In some 
cases, a non-controlled main track through yard limits may even be 
equipped with a signal system as discussed in the analysis for Sec.  
214.301 above, and when trains are operating on a signal indication 
more favorable than ``restricting'' they may be permitted to move at 
greater than restricted speed. However, if via railroad operating rules 
there is a control operator or dispatcher in control of all occupancy 
by trains, engines, and on-track equipment within yard limits, such 
track would be considered controlled track. FRA notes that trains may 
be required by railroad rules to contact a yardmaster before entering 
main track in yard limits. Where this mandatory contact is not 
authoritative in nature, and occupancy authority is still gained via 
railroad operating rules, such track would still be considered non-
controlled track.
    Since main track within yard limits is generally non-controlled 
track, the Working Group addressed this issue and came to consensus to 
recommend allowing working limits to be established via the use of 
track bulletins. Under proposed paragraph (a)(8), railroad operating 
rules would be required to prohibit movements on main track within yard 
limits unless the train or engine crew or operator of on-track 
equipment was first required to receive notification of any working 
limits in effect. Before occupying such main track where the 
notification denoted that working limits were in effect, the crews or 
operators would first be required to receive permission from the 
roadway worker in charge to enter the working limits. Working limits 
established in this manner would be issued by a railroad for planned 
work activities, such that bulletins or other forms of notification 
would be prepared ahead of the work to be performed in time to be 
issued to train crews or operators (unplanned work that would not allow 
notifications to be issued appropriately ahead of time would still 
require that another form of working limits or on-track safety be 
established).
    This provision would also require, where the maximum authorized 
speed was restricted speed, that red flags or signs be displayed at the 
limits of the authority. This requirement would provide an extra 
measure of safety by providing train crews notice that, unless they had 
received permission through working limits, they must stop their 
movement. Where restricted speed is in effect, train crews or operators 
are required to stop their movement within one-half the range of 
vision. Therefore, crews who had not received permission into working 
limits from the roadway worker in charge, and who came upon such a red 
flag, would be required to stop their movement within one-half the 
distance to the flag, which would be short of working limits.
    Where the maximum authorized speed is in excess of restricted 
speed, advance warning flags or signs must be displayed, such that a 
crew would have an opportunity to stop their train short of working 
limits if they had not received permission to enter the limits from the 
roadway worker in charge. The proposed language states that advance 
flags must be used ``where physical characteristics permit.'' This 
could refer to locations where entrances exist within the working 
limits (other than main tracks connected to the main track within the 
working limits) and only red flags would be necessary. Otherwise, where 
speeds within yard limits are in excess of restricted speed, FRA would 
expect every reasonable effort that advance flags be placed far enough 
out to provide advance warning such that a train crew could stop an on-
track movement short of entering working limits. Railroad operating 
rules in effect would govern the use of such advance flags.
    FRA has slightly amended the language of this paragraph as 
recommended by the RSAC. The first sentence of the recommended text 
read ``[r]ailroad operating rules that require train or engine 
movements to be prohibited on a main track within yard limits or 
restricted limits until the train or engine receives notification of 
any working limits in effect and do not enter working limits until 
permission is received by the roadway worker in charge.'' For purposes 
of reading clarity only, FRA has instead proposed that the first 
sentence read ``[r]ailroad operating rules that prohibit train or 
engine movements on a main track within yard limits or restricted 
limits until the train or engine receives notification of any working 
limits in effect and prohibit the train or engine from entering any 
working limits until permission is received by the roadway worker in 
charge.'' This amendment is not intended to be substantive in nature.
    FRA is proposing this paragraph (a)(8), as it was a Working Group 
consensus recommendation and because it has the potential to provide 
more flexibility for the industry in yard limits operating situations. 
However, requests comment on whether this provision has the potential 
to cause confusion over whether track is controlled track or non-
controlled track, as in some respects it mixes aspects of both (train 
crews need a bulletin and may be required to contact a dispatcher or 
yardmaster to enter yard limits, but at the same time do not 
technically need ``permission'' to occupy such track).\10\ Further, FRA 
requests comment on the last sentence of the consensus text recommended 
by the Working Group. Paragraph (a)(8) would require advance flags to 
be placed out to protect working limits when speeds greater than 
restricted

[[Page 50350]]

speed are authorized, and where physical characteristics permit such 
placement of flags. As mentioned above, FRA is aware it is not possible 
(or necessary) to always place advance flags out under this proposed 
provision. However, FRA is contemplating whether, if this provision was 
adopted in a final rule, more specific rule text is needed to govern 
the use of advance flags where speeds greater than restricted speed are 
authorized within yard limits. FRA wishes to avoid any situation where, 
at the discretion of a roadway worker in charge, advance flags are not 
placed out in situations where they necessarily should be and whereby a 
risk of train incursion into working limits is created.
---------------------------------------------------------------------------

    \10\ As background, the Northeast Operating Rules Advisory 
Committee (NORAC, the operating rules adopted by many railroads in 
the northeast United States) has treated main track within yard 
limits as controlled track, while the General Code of Operating 
Rules (GCOR, the operating rules primarily used by many railroads in 
the western United States) treats such track as non-controlled 
track.
---------------------------------------------------------------------------

Section 214.329 Train Approach Warning Provided by Watchmen/Lookouts

    Section 214.329 addresses the use of watchmen/lookouts to provide 
warning of approaching trains to roadway workers in a roadway work 
group who foul any track outside of working limits. FRA is proposing 
four amendments to this section. The first proposed amendment is to 
accommodate one item being proposed in the passenger station platform 
snow removal section, as discussed at length below. Specifically, 
proposed Sec.  214.338(a)(2)(iii) provides that during snow removal 
operations being performed under that section, that train approach 
warning may be based on available sight distance, which in some 
geographical circumstances may provide for less warning time than 
prescribed by existing Sec.  214.329(a). In order to account for that 
proposed provision, FRA is proposing to amend the first sentence of 
Sec.  214.329 by inserting the words ``[e]xcept as provided for in 
Sec.  214.338(a)(2)(iii) '' at the beginning of the sentence.
    FRA is also proposing to amend paragraph (a) to change reference to 
``maximum speed authorized'' to instead read ``maximum authorized 
speed.'' During the Working Group meetings, consensus was reached to 
define the term ``maximum authorized speed'' for purposes of providing 
clarity to existing sections Sec. Sec.  214.329(a) and 214.337(c)(4), 
as discussed above in the section-by-section analysis for Sec.  214.7, 
the definitions section. However, the Working Group recommended adding 
a definition for the term ``maximum authorized speed'' rather than 
adopting the wording as it currently exists in Sec. Sec.  214.329 and 
214.337. As the term ``maximum authorized speed'' is the more commonly 
used word order in the railroad industry, FRA is proposing to amend 
those two sections to reflect the new consensus term recommended by the 
Working Group. FRA is proposing this for both accuracy and consistency 
purposes. FRA is not proposing to amend the substance of these 
regulations with this proposal.
    FRA is also proposing to amend paragraph (a) of this section by 
adding a sentence to the end of the paragraph that reads ``[t]he place 
of safety to be occupied upon the approach of a train may not be on a 
track, unless working limits are established on that track.'' This 
exact language is already included in existing Sec.  214.337(d), which 
governs on-track safety procedures for lone workers. This requirement 
is also the subject of FRA Technical Bulletin G-05-10. As explained in 
that Technical Bulletin, it is expected that roadway workers clear all 
tracks upon being given train approach warning, as by clearing onto 
another track where only train approach warning (or no form on-track 
safety) is being provided presents an extremely dangerous situation 
which may potentially trap workers if multiple train movements occur 
simultaneously. FRA has long interpreted existing Sec.  214.329 to 
already largely prohibit the use of another track as a place of safety, 
and this proposed amendment would merely codify that interpretation.
    FRA is also proposing to add a new paragraph (h) to this section. 
This paragraph would prohibit the use of train approach warning as an 
acceptable form of on-track safety for a roadway work group using 
equipment or material that cannot be readily removed by hand from the 
track to be cleared. The existing RWP regulation is silent on this 
point, and FRA wished to establish minimum safety standards governing 
this issue. The Working Group discussed this provision and agreed in 
concept with the prohibition, but was unable to reach a consensus 
recommendation concerning the mobility of equipment on the track and 
three variations of its removal. The three variations of removal 
discussed were equipment that was readily removable: (1) By hand; (2) 
by hand by one employee; or, (3) by hand by two employees. FRA is 
proposing that the new paragraph (h) indicate that train approach 
warning may be used when the equipment or material used by the workers 
fouling the track can be removed ``by hand'' upon the notification of 
the approach of a train. By stating only ``by hand,'' and not 
specifying the number of persons, the proposed amendment still allows 
for flexibility for railroads in various operating situations. Where 
only one roadway worker is performing work, and he or she is being 
provided train approach warning by another roadway worker, this would 
necessitate that the equipment being used is of the nature that it can 
be removed from the track by hand by one person. Where additional 
roadway workers are present and in the immediate work area, this would 
allow for multiple roadway workers to remove a piece of equipment by 
hand upon being given train approach warning, so long as all roadway 
workers are able to remove the equipment and occupy a place of safety 
not less than 15 seconds before a train passes, as required by existing 
paragraph (a). An example of an activity that would be prohibited by 
proposed paragraph (h) would be the use of train approach warning as 
the method of on-track safety to place a crane boom into the foul of a 
track. However, on non-controlled track at location where it is 
feasible to stop a train, such as yard track, the use of a flagman via 
existing Sec.  214.327(a)(1) might be appropriate. In that example, it 
may be practical during the on-track safety briefing to reassign a 
watchman/lookout to instead serve as a flagman (if so qualified and 
equipped) to stop trains short of any equipment fouling the track. On 
controlled track it would be appropriate to establish working limits.
    During the Working Group discussion on this topic, a representative 
of a labor organization stressed that Sec.  214.329 was promulgated in 
order to provide protection for roadway workers, and not for equipment. 
FRA agrees, but feels this requirement, if complied with appropriately, 
will advance railroad safety. Roadway workers who are unable to remove 
equipment from a track and occupy a place of safety prior to the 
arrival of a train place themselves at risk, amongst other things, of 
being struck by objects that are hit by trains. They also may obviously 
be at risk if they have to struggle to try to remove heavy equipment 
from a track on which a train is approaching and do not occupy a place 
of safety before the train's arrival. Train crews and passengers and 
the general public are also placed at risk if equipment left on the 
tracks is struck and the train derails as a result. Therefore, FRA 
feels it is necessary to propose an amendment expressly limiting when 
train approach warning may be used based on the type of equipment that 
is fouling a track. FRA is also proposing a similar requirement in the 
lone worker section, as discussed further in the section-by-section 
analysis for Sec.  214.337 below. FRA requests additional comment on 
these proposals.
    FRA wishes to address a question regarding existing Sec.  214.329 
that often arises. FRA is often asked whether the

[[Page 50351]]

use of a portable radio or a cell phone may be used as the sole method 
used to provide train approach warning to roadway workers. As explained 
in FRA Technical Bulletin G-05-28, portable radios and cell phones 
cannot be used as the sole communication to provide train approach 
warning. FRA believes this practice to be dangerous; especially should 
these devices fail in any manner as a train approaches a roadway work 
group. Further, these devices are not among those expressly listed in 
the existing watchman/lookout definition in Sec.  214.7. While FRA has 
no objection to a radio or a cell phone being used to supplement the 
equipment issued to a watchman/lookout to provide train approach 
warning, FRA does not consider them to be proper equipment to provide 
sole auditory warning in accordance with this section.

Section 214.331 Definite Train Location

    FRA is proposing to require that the use of definite train location 
as a form of on-track safety be discontinued one year after publication 
of a final rule in this rulemaking. Railroads were permitted to use 
this form of on-track safety if they already had such procedures in 
effect as of January 15, 1997, as established by existing Sec. Sec.  
214.331(a) & (c)(1). Class I and commuter railroads that were 
grandfathered in by that date were required to schedule a phase-out of 
the use of definite train location by a definite date, as more positive 
forms of on-track safety are now available. As it has been over 15 
years since the scheduled phase-out requirement was promulgated, FRA is 
proposing to end the use of this method of providing on-track safety. 
The use of this method of providing on-track safety is not common, and 
FRA staff is currently unaware of any railroads that are using this 
form of on-track safety. However, FRA requests comment on this 
proposal.

Section 214.333 Informational Line-Ups of Trains

    FRA is proposing to require that the use of informational line-ups 
of trains as a form of on-track safety be discontinued one year after 
publication of a final rule in this rulemaking. Railroads were 
permitted to use this form of on-track safety if they already had such 
procedures in effect as of March 14, 1996, as established by existing 
Sec.  214.333(a). Railroads that were grandfathered in by that date 
were required by paragraph (c) to schedule a phase-out of the use of 
information line-ups of trains, as more positive forms of on-track 
safety are now available. As it has been over 15 years since the 
scheduled phase-out requirement was promulgated, FRA is proposing to 
end the use of this form of on-track safety. As discussed in the 
preamble to the final rule which promulgated this section, the Advisory 
Committee involved in creating the original RWP regulation stated that 
the use of train line-ups was not common at that time, and recommended 
that such use be further reduced and discontinued. 61 FR 65971. FRA 
staff is currently unaware of any railroads that are using this form of 
on-track safety. FRA requests comment on this proposal.

Section 214.335 On-Track Safety Procedures for Roadway Work Groups, 
General

    Section 214.335 sets forth the general on-track safety procedures 
for roadway work groups and, in part, requires that before a member of 
a roadway work group fouls a track, on-track safety must be established 
in accordance with part 214. This NPRM reflects that the adjacent track 
rulemaking slightly amended the title of this existing section by 
adding the word ``general.'' FRA is proposing four amendments to this 
section. First, FRA is proposing to amend existing paragraph (a) of 
this section in order to include reference to proposed Sec.  214.324 
(verbal protection) and to Sec.  214.336 (adjacent track protections) 
in the sections listed. This proposal is simply to update that list 
should proposed Sec.  214.324 be adopted in a final rule in this 
rulemaking, and should Sec.  214.336 of the adjacent track rulemaking 
go into effect as planned on July 1, 2013.
    Next, similar to the proposed amendment to Sec.  214.329(a), FRA is 
proposing to add the words ``except as provided for in Sec.  214.338'' 
to the beginning of paragraph (a). This proposed amendment is intended 
to acknowledge the new station platform snow removal section, proposed 
in Sec.  214.338 below, represents an exception from (or is a hybrid 
form of) the typical methods of providing on-track safety. Work 
performed under proposed Sec.  214.338 would be governed by the 
requirements of that section.
    FRA is also proposing to replace the word ``and'' from the existing 
text of paragraph (a) between reference to Sec.  214.329 and Sec.  
214.331, and to replace it with the word ``or''. The word ``and'' has 
appeared in the text of this section since the RWP regulation's 
inception in 1996. However, FRA noticed that, as written, the word 
``and'' could imply that all of the on-track safety/working limits 
sections listed would have to be provided when a roadway worker fouls a 
track. This is obviously not what was intended when this section was 
promulgated, nor is it how this section has been applied. FRA believes 
the use of the word ``or'' is more appropriate when listing the various 
sections that may be utilized to provide on-track safety for roadway 
workers.
    Finally, for consistency purposes, FRA is proposing to incorporate 
the new term ``roadway worker in charge'' into existing paragraph (b) 
of this section. That new proposed term would replace the existing 
language in paragraph (b) that generically refers to the ``roadway 
worker responsible for the on-track safety of the roadway work group.'' 
This proposed change would help provide uniformity of reference to 
``roadway worker[s] in charge'' at various locations in the RWP 
regulation text.

Section 214.337 On-Track Safety Procedures for Lone Workers

    Section 214.337 governs the on-track safety procedures for lone 
workers. FRA is proposing two changes to this section, both of which 
are Working Group consensus recommendations. First, existing Sec.  
214.337 prohibits lone workers from using individual train detection 
(ITD) as the method of establishing on-track safety in certain 
locations. Specifically, existing paragraph (c)(3) prohibits the use of 
ITD within the limits of a manual interlocking, a controlled point, or 
a remotely controlled hump yard facility. In a hump yard, equipment can 
simultaneously move in either direction on a multitude of tracks. 
Similarly, within the limits of a manual interlocking or a controlled 
point, a particular physical layout may contain multiple switches, 
tracks, diamonds, or a movable bridge(s). As such, the prohibition on 
using ITD in those locations recognized that it would be difficult for 
a lone worker to perform work while safely detecting trains that could 
be approaching from multiple directions on multiple tracks.
    The Working Group did address expanding the use of ITD in certain 
instances in those prohibited locations where the safety concerns 
discussed above are not implicated. Specifically, the Working Group 
came to consensus to recommend the allowance of ITD at controlled 
points that consist of signals only. The use of ITD at a controlled 
point consisting of signals only presents no more danger than using ITD 
for on-track safety on any track within a traffic control system. There 
is no additional risk to lone worker safety because if a controlled 
point consists of signals only, there are no switches, diamonds, or 
movable bridges that the lone worker

[[Page 50352]]

needs to monitor for purposes of train detection on multiple tracks.
    Based on the above, FRA is proposing to amend existing paragraph 
(c)(3) to incorporate this consensus recommendation which states that 
ITD can only be used ``outside the limits of a manual interlocking, a 
controlled point (except those consisting of signals only), or a 
remotely controlled hump yard facility.'' The Working Group discussed 
potentially recommending expansion of this exception by adding 
additional manual interlockings and controlled point locations where 
ITD could be used by lone workers. However, no consensus recommendation 
on those additional locations was reached. FRA recognizes that 
expanding the number of locations where ITD is permitted to be used 
could represent a cost-savings to the railroad industry. For example, 
if the use of ITD were expanded to encompass more physical layouts, 
there would then be additional locations where lone workers would not 
have to establish working limits or a roadway worker would not have to 
utilize an additional employee in the form of a watchman/lookout to 
perform his or her work.
    However, the nature of the work performed in interlockings and 
controlled points is often complicated, and the simultaneous detection 
of trains via ITD might not be safe. For example, signal maintainers 
often perform intricate work inside the limits of a manual interlocking 
or controlled point that requires great attention to detail. A failure 
to properly perform such work could result in signal or switch 
malfunctions, and resultant train accidents. While engaged in such 
intricate work at locations where the physical layout potentially 
permits the approach of trains from a multitude of tracks or 
directions, a lone worker may not be able to devote the vigilant 
attention necessary to detect approaching trains. Therefore, due to 
safety concerns, FRA is not proposing to expand the use of ITD beyond 
that of the Working Group consensus recommendation.
    Next, FRA is proposing to add a new paragraph (g) to this section. 
This new paragraph would prohibit the use of ITD as an acceptable form 
of on-track safety for a lone worker using equipment or material that 
cannot be readily removed from a track by hand. This new consensus 
paragraph was recommended by the Working Group in part to address 
concerns that a lone worker might not be able to remove a piece of 
equipment he or she is using before the arrival of an approaching 
train, making a track unsafe for the passage of the train. This 
proposed paragraph is also intended to help ensure a lone worker does 
not have to struggle to remove a piece of equipment located on a track 
such that the lone worker is not able to remove the equipment from the 
track and occupy a place of safety in the time specified by existing 
paragraph (c)(4) of this section. This requirement parallels a similar 
requirement discussed above that is being proposed in Sec.  214.329. 
However, the requirement being proposed in Sec.  214.329 permits the 
use of equipment that might have to be removed by hand by more than one 
roadway worker. Because Sec.  214.337 is specific to lone workers, the 
proposal in this section obviously requires a lone worker to be able to 
remove such equipment by hand by his or herself, as lone workers work 
independently from other roadway workers.

Section 214.338 Passenger Station Platform Snow Removal and Cleaning

    The proposal contained in this new section was discussed 
extensively by the Working Group, but no consensus recommendation was 
made to FRA. FRA recognizes that certain activities, such as janitorial 
work in a passenger station away from the edge of a passenger platform, 
under limited circumstances, can occur safely without on-track safety 
being established in accordance with part 214. However, work at the 
edge of a station platform, including snow removal with hand tools 
within the four-foot fouling zone, requires that a form of on-track 
safety be established in order to ensure the worker's safety. While 
such work may not be of the same intensity as maintenance or 
construction of track or structures that is typically associated with 
roadway worker activities, such activities are governed by the existing 
RWP regulation.
    Regarding work such as passenger station platform snow removal, 
railroads have traditionally expressed concern about their inability to 
provide roadway workers in charge for each work group (often consisting 
of contractors) at a large number of locations to remove snow from 
passenger station platforms when snowstorms occur. It can be extremely 
difficult to provide on-track safety for platform snow removal due to 
the transitory nature of such work. Railroads' concerns on this issue 
are heightened because such work might not typically involve fouling a 
track, except for the use of hand tools in the same area where 
passengers typically stand to wait for, and to enter and exit, trains. 
Also, accident data does not point to a significant number of incidents 
or any pattern of problems at passenger platforms. However, FRA 
recognizes that roadway workers performing snow removal duties on 
passenger station platforms are exposed to the risks associated with 
moving trains. FRA also recognizes that while roadway workers 
performing snow removal duties might occupy the same place on a 
platform as rail passengers do, they would actually be conducting work, 
which increases risk exposure.
    In order to address this issue, FRA is proposing a new Sec.  
214.338, which would permit, under certain enumerated circumstances, a 
single roadway worker in charge to oversee several station platform 
work coordinators. Such station platform work coordinators could 
supervise roadway workers using hand tools to remove snow from 
passenger platforms or performing light duty cleaning, such as picking 
up trash or mopping. A station platform work coordinator would not 
replace, but would supplement the duties of a roadway worker in charge. 
Either a railroad employee or a contractor employee may be trained and 
qualified to hold this position. A station platform work coordinator 
would be required to be trained and qualified in accordance with the 
specific requirements of proposed Sec.  214.352, which is discussed 
further below. In proposing this section, FRA has attempted to balance 
the necessity for railroads to timely provide a safe environment for 
their passengers while also providing for the safety of roadway workers 
who perform snow removal or cleaning work.
    Proposed paragraph (a) of this section states that snow removal or 
cleaning activities on passenger station platforms may be performed 
without establishing working limits in accordance with part 214 
provided that numerous conditions are met. Paragraph (a)(1) would 
require that the railroad designate a station platform work coordinator 
responsible for directing the on-track safety of the roadway worker or 
roadway work group performing the snow removal or cleaning. Paragraph 
(a)(2) would require that the railroad ensure that the fouling areas in 
which only non-powered hand tools may be used are clearly delineated, 
and are no less than four feet from the field side of the nearest rail. 
Such delineations could be made via a tactile strip, via temporary 
safety cones, or even by printed diagrams being provided to affected 
roadway workers. Proposed paragraph (a)(3) would require that a station 
platform work coordinator must also have access to either a landline or 
wireless communication device (cell phone, railroad radio, or other 
radio) that would permit him or

[[Page 50353]]

her to communicate with the roadway worker in charge, and, in 
emergencies, to communicate with the train dispatcher or control 
operator in charge of train and on-track equipment movements on the 
track(s) at the station. The railroad must provide to the work 
coordinator the contact information and instructions for reaching both 
the designated roadway worker in charge and the train dispatcher or 
control operator.
    In accordance with proposed paragraph (a)(4), prior to beginning 
work, the station platform work coordinator must inform the designated 
roadway worker in charge of the work to be performed, and the work 
coordinator must also remain at the station platform the entire time 
the work is being performed. The station platform work coordinator must 
also conduct an on-track job safety briefing with the roadway worker or 
roadway work group performing such work in accordance with the 
requirements of existing Sec.  214.315. The station platform work 
coordinator must also establish train approach warning that requires a 
watchman/lookout to warn of the approach of any train or on-track 
equipment. When such train approach warning is given, affected roadway 
workers would be required to withdraw hand-held non-powered tools from 
the delineated fouling area. Due to the myriad of physical layouts that 
may exist and the unobtrusive nature of the work being performed, FRA 
proposes that this warning may be based on available sight distance and 
may give less timely notice than that prescribed by Sec.  214.329(a). 
To require the full regime of sight and clearing time under train 
approach warning could require advance watchmen be placed along the 
right-of-way during inclement weather, creating an unnecessary 
dangerous situation. Also, the establishment of a significant number of 
simultaneous working limits in inclement weather could potentially 
affect the safe movement of trains. The station platform work 
coordinator may provide the train approach warning as long as he or she 
is not engaged in or distracted by any other activities. As such, the 
station platform work coordinator must inform workers to cease work at 
the edge of a station platform whenever he is unable to devote full 
attention to his or her train approach warning task. In any case, each 
employee providing train approach warning services must be trained in 
accordance with the requirements of Sec.  214.349.
    Proposed paragraph (a)(5) would establish that roadway workers 
conducting snow removal or cleaning in accordance with Sec.  214.338 
must position themselves on the station platform outside the delineated 
fouling area, and may only use hand-held, non-powered tools to perform 
such duties. FRA has not proposed rule text requiring workers to wear 
highly visible garments while performing work subject to this section. 
FRA is, however, considering adopting a provision in a final rule 
requiring workers performing work subject to this section to wear 
highly visible garments that would meet existing American National 
Standards Institute/International Safety Equipment Association 107-
2010, American National Standard for High-Visibility Safety Apparel and 
Headwear. FRA requests comment on this issue, and is specifically 
interested in comment on whether this requirement would enhance safety 
by helping to clearly identify which persons on a passenger station 
platform were engaged in such snow removal or cleaning work. FRA also 
requests comment regarding whether such a requirement would be cost 
effective, and the basis for the content of comments on that point.
    Proposed paragraph (a)(6) would only permit this section to be 
utilized if the maximum authorized speed on the track adjacent to the 
platform does not exceed 79 mph. Finally proposed paragraph (b) 
requires that if any of the conditions in paragraph (a) are no longer 
be met during the course of the work (e.g., if the provided wireless 
communication device or landline is no longer functioning, or if the 
designated roadway worker in charge is no longer accessible), all work 
that would require a roadway worker to encroach the delineated fouling 
area shall cease. Work in the delineated fouling area may resume only 
after all the requirements of this proposed section are met, or if a 
roadway worker in charge arrives at the work site to provide on-track 
safety consistent with the requirements of this proposed section, or 
consistent with other part 214 on-track safety procedures.
    FRA notes that the following activities would not be governed by 
this proposed section, but would continue to be governed by the 
existing on-track safety requirements subpart C: (1) When a roadway 
worker actually positions him or herself within the delineated fouling 
space; (2) when a roadway worker places a power tool of any type (e.g., 
a snow blower) in the delineated fouling space; or, (3) when a roadway 
worker performs work of any nature in a crosswalk spanning the track(s) 
at station platforms.
    In proposing this section, FRA recognizes that there are 
differences in the work environment on high versus low-level station 
platforms. In addition, railroads vary with respect to their 
established clearance dimensions. Therefore, FRA is proposing that each 
railroad specifically delineate the fouling point on such platforms at 
which roadway workers must position themselves clear of while 
performing work under this section. With respect to enforcement 
activities associated with this section, FRA intends to use the 
railroad's designated delineation to identify the fouling area, 
provided the area delinated is at least four feet from the field side 
of the rail nearest the station platform.
    Finally, this proposed section does not contemplate the use of ITD. 
As such, if a lone worker is performing work at the edge of a station 
platform, regardless of the nature of the work being performed, all of 
the requirements of Sec.  214.337 would apply.

Section 214.339 Audible Warning From Trains

    The Working Group recommended language that would replace the 
existing text of Sec.  214.339. Since promulgation of the original RWP 
regulation, enforcement issues have arisen regarding whether an audible 
warning must be sounded in accordance with existing Sec.  214.339 when 
roadway workers are not fouling track but are in the vicinity, and also 
regarding the required frequency of such warning while trains pass 
large roadway work groups. There are currently four FRA Technical 
Bulletins, G-05-08, G-05-15, G-05-26, and G-05-27, which provide 
guidance to the railroad industry on the requirements of Sec.  214.339. 
As discussed further below, those technical bulletins would be 
supplanted upon adoption of any revision to the audible warning 
requirement in a final rule in this rulemaking. The proposed consensus 
text significantly modifies existing Sec.  214.339 in order to provide 
more clarity, and also provides discretion for railroads to develop 
audible warning procedures to address various operating situations.
    Proposed paragraph (a) states that each railroad shall have in 
effect and comply with written procedures which govern the audible 
warning to be given by trains or locomotives. Such procedures must 
require an audible warning be given when approaching roadway workers or 
roadway maintenance machines that are either on the track on which the 
movement is occurring, or are about the track if at the risk of 
fouling. For example, if roadway workers are engaged in work on a track 
adjacent to a track upon which a train

[[Page 50354]]

is approaching, such procedures must require that an audible warning be 
given. The same would apply to roadway maintenance machines that are 
moving or are in use on a track adjacent to an approaching locomotive. 
Roadway machines might obscure the locomotive engineer's view of 
roadway workers on the ground in the vicinity of a machine. While these 
two examples focus on roadway workers and roadway maintenance machines 
located on a track adjacent to the track occupied by an approaching 
train, it is not FRA's intent to limit the adoption of procedures which 
require an audible warning be given for workers or equipment located 
further than the adjacent track.
    FRA has slightly amended the introductory text of proposed 
paragraph (a) as recommended by the RSAC. The recommended consensus 
text of the first sentence read that ``[e]ach railroad shall have in 
effect and comply with written procedures that prescribe effective 
requirements for audible warning by horn and/or bell for trains and 
locomotives approaching any roadway workers or roadway maintenance 
machines that are either on the track on which the movement is 
occurring, or about the track if at risk of fouling.'' FRA has proposed 
replacing the recommended words ``or about the track at risk of 
fouling'' with the words ``or about the track if the roadway workers or 
roadway maintenance machines are at risk of fouling the track.'' This 
proposed amendment is not substantive in nature, but is only intended 
for clarity.
    Proposed paragraph (a) would also specifically require the 
procedures adopted by a railroad address both the initial horn warning 
to be given, and subsequent warnings. FRA notes that an audible warning 
consisting only of the locomotive horn being blown for one sequence by 
a train or locomotive upon the approach and passage of a large roadway 
work group, such as a tie and surfacing production crew that is spaced 
out over a long distance, would violate this proposed regulation. At a 
minimum in such situations, the governing procedures must require that 
the locomotive horn be sounded and bell be rung upon the approach of 
each unit of such a work crew. However, FRA is cognizant of the 
sensitivity of residents who live in close proximity to railroad 
tracks. As such, when maintenance equipment is obviously just being 
stored on siding tracks adjacent to a main track, FRA would generally 
not take exception to a train that does not sound its horn for 
equipment that is clearly not in use.
    Proposed paragraph (a) would also require that the procedures 
adopted by a railroad address alternative warnings in areas where 
sounding the horn adversely affects roadway workers. Such alternative 
warnings may be provided for in locations such as tunnels or passenger 
terminals, where a train horn could create a hearing hazard for roadway 
workers and other people. Alternative warning procedures could also be 
implemented in yards, where a locomotive might frequently pass roadway 
workers due to the back and forth movement cycles that are common in 
switching and classification operations. The frequent sounding of horns 
in such situations can defeat the effectiveness of the warning.
    If proposed paragraph (a) is adopted in a final rule in this 
rulemaking, FRA Technical Bulletins G-05-08, G-05-15 and G-05-27 would 
be supplanted. Technical Bulletins G-05-08 and G-05-15 addressed 
audible warnings over a large work area and duration of warnings, 
respectively, while G-05-27 addressed when an audible warning was 
required. These technical bulletins would be supplanted as this section 
would require that a railroad's procedures prescribe when an audible 
warning is required when roadway workers or roadway maintenance 
machines are on or about tracks, and also requires that such procedures 
address both initial and subsequent warnings.
    Proposed paragraph (b) reiterates an existing requirement of Sec.  
214.339, and states that required audible warnings cannot substitute 
for on-track safety procedures prescribed in part 214. The on-track 
safety must be one of the forms of protection prescribed by the RWP 
regulation. The audible warning requirement is only intended to provide 
an additional measure of safety in the event that roadway workers might 
be fouling the track upon which a train or locomotive is approaching.
    Next, FRA has received inquiries regarding audible warnings during 
shoving movements, and also regarding multiple-unit (MU) passenger 
train equipment not equipped with a bell. With regard to MU equipment 
not equipped with a bell, FRA Technical Bulletin G-05-26 stated that 
such equipment would still be in compliance with existing Sec.  214.339 
so long as the horn was sounded to provide an audible warning when 
necessary. The proposed amendments to Sec.  214.339 are still 
consistent with the guidance in Technical Bulletin G-05-26, and if such 
amendments are adopted in a final rule, the technical bulletin would be 
supplanted. With regard to audible warnings during shoving movements, 
the requirement to provide an audible warning is predicated on the 
locomotive engineer or train operator being able to see roadway workers 
ahead of his or her movement. Therefore, if a locomotive engineer does 
not have the capability to see roadway workers ahead of his or her 
movement (e.g., a significant number of cars ahead of the locomotive), 
and does not sound the horn, the engineer would not be considered to be 
in violation of this section. However, with increased remote control 
operations in the railroad industry, in which a large percentage of 
moves are considered shoving movements, FRA would encourage railroads' 
to address remote control operations with respect to this proposed 
section in their adopted procedures.
    FRA notes that it encourages the use of highly visible reflective 
clothing and personal protective equipment to help provide clear 
indication to locomotive engineers and train operators that roadway 
workers are present in the vicinity of railroad tracks. The current RWP 
regulation does not require such equipment, but as discussed in the 
analysis of Sec.  214.338 above, FRA is requesting comment on such a 
requirement for roadway workers who perform certain duties. Finally, 
FRA notes that railroads would be required to comply with the 
requirements of this section even within highway-rail grade crossing 
quiet zones.

Sec.  214.343 Training and Qualification, General

    Existing Sec.  214.343 sets forth the general training and 
qualification requirements for roadway workers. Specifically, 
paragraphs (a), (b), and (d) of this section prohibit an employer from 
assigning an employee the duties of a roadway worker (and prohibits an 
employee from accepting such an assignment), until that employee has 
received training in the on-track safety procedures associated with the 
assignment, and also require that roadway workers receive initial and 
recurrent training once every calendar year on the on-track safety 
rules and procedures they are required to follow, and requires 
employers of roadway workers to maintain records of each roadway worker 
qualification in effect.
    Paragraph (c) of existing Sec.  214.343 requires that railroad 
employees other than roadway workers who are associated with on-track 
safety procedures, and whose primary duties involve the movement and 
protection of trains, be trained ``to perform their functions related 
to on-track safety through the training and qualification procedures 
prescribed by the operating

[[Page 50355]]

railroad for the primary position of the employee.
    FRA is proposing one amendment to this existing section. That 
proposed amendment is to add the words ``[e]xcept as provided for in 
Sec.  214.353 * * *'' to the beginning of paragraph (c). This change is 
to reflect that FRA is proposing to amend the existing rule text of 
Sec.  214.353 to also expressly govern the training of employees other 
than ``roadway workers'' (typically transportation employees such as 
conductors) who act as roadway workers in charge. FRA's explanation of 
this change is contained in the section-by-section analysis for Sec.  
214.353 below.

Sec.  214.345 Training for All Roadway Workers

    Existing Sec.  214.345 sets forth the minimum content of training 
provided to roadway workers in accordance with part 214. As recommended 
by the Working Group, FRA is proposing to amend this section by adding 
the words ``[c]onsistent with Sec.  214.343(b)'' to the beginning of 
the first sentence of the existing introductory paragraph of that 
section. This amendment is proposed for clarity, and reinforces that 
the existing RWP regulation requires that each roadway worker must be 
trained, at a minimum, on the items listed in this section both 
initially and once every calendar year. FRA also notes that per 
existing Sec.  214.343(b), roadway workers must also be trained once 
every calendar year on the on-track safety rules and procedures they 
are required to follow. Existing FRA Technical Bulletin G-05-16 
previously provided guidance on these existing requirements.
    FRA is also proposing to amend this section by adding a new 
paragraph (f). As discussed above in the section-by-section analysis 
for proposed Sec.  214.317(b), the Working Group recommended a 
consensus requirement that all roadway worker training include 
instruction on an employer's procedures governing the determination of 
whether it is safe to walk across railroad tracks. FRA removed that 
consensus item from Sec.  214.317(b), and has proposed to insert it 
into this section with the other existing roadway worker training 
requirements, where it is more appropriately located. This proposed 
requirement is intended to help enable roadway workers safely traverse 
tracks they may need to cross while not directly engaged in their 
roadway worker duties when no formal on-track safety is in place on the 
tracks to be crossed (e.g., when crossing tracks to retrieve a tool or 
to reach a work area). Fatalities have occurred when roadway workers 
walked across tracks and were struck by rolling equipment, and this 
proposal is intended to help prevent similar incidents from occurring 
in the future.

Sec.  214.347 Training and Qualification for Lone Workers

    Section 214.347 sets forth the training and qualification 
requirements applicable to lone workers. FRA is proposing one change to 
this existing section, and is requesting further comment on whether to 
make additional amendments in a final rule. First, as discussed above, 
the Working Group's consensus recommendation for the proposed 
amendments to Sec.  214.309 contained a requirement that lone workers 
receive instruction on the alternative means to access the information 
in a railroad's on-track safety manual when his or her duties make it 
impracticable to carry the manual. FRA removed that consensus 
recommendation from Sec.  214.309, and has proposed to insert it here 
with the other existing lone worker training requirements, where FRA 
believes it is more appropriately located. The alternate means to 
access the information by a lone worker could include the use of a 
phone or radio for the lone worker to contact an employee who has the 
contents of the on-track safety manual readily accessible. This 
provision would require an employer to train lone workers on the 
alternative means of access that the employer adopts.
    Next, as discussed in the preamble above, the Working Group 
recommended consensus amendments that would have expressly required 
recurrent qualification every 24 months and recurrent lone worker 
training every calendar year (for all of the additional roadway worker 
qualifications in part 214, e.g., lone worker, watchman/lookout, 
flagman, roadway worker in charge, and roadway maintenance machine 
operator). However, in the time period that has passed since the 
Working Group proposed consensus text for this section, RSIA 2008 
mandated that FRA undertake a rulemaking to set minimum training 
standards for ``each class and craft of safety-related railroad 
employee,'' to include training standards for roadway workers. That 
rulemaking was undertaken by the RSAC, and FRA recently published an 
NPRM proposing such minimum training standards. 77 FR 6412. The 
training standards NPRM contains an extensive proposal for refresher 
training and qualification requirements for roadway workers. Because 
the consensus recommendation of the RSAC do not parallel the proposed 
refresher training and qualification requirements in the statutorily 
mandated training standards rulemaking, FRA is not proposing specific 
rule text pertaining to additional roadway worker recurrent training 
and qualification requirements, but rather is requesting further 
comment on how to proceed in a final rule.
    Finally, as also discussed in the preamble above, FRA is 
contemplating adding a requirement to a final rule in this rulemaking 
that lone workers be qualified on the physical characteristics at 
locations where the lone worker fouls track to perform work. FRA 
believes that such qualification on the physical characteristics at a 
particular location could aid in a lone worker's ability to be able to 
safely detect approaching trains and make the appropriate distance 
determination as required by existing Sec.  214.337(a). FRA is not, 
however, proposing rule text for this potential requirement, and 
requests further comment.

Section 214.352 Training and Qualification of Station Platform Work 
Coordinators

    FRA is proposing a new Sec.  214.352 that would address training 
requirements for station platform work coordinators. As new proposed 
Sec.  214.338 would establish procedures allowing multiple station 
platform work coordinators to oversee snow removal or light cleaning 
work under the direction of one roadway worker in charge, minimum 
training and qualification requirements need to be established for such 
coordinators.
    As a station platform snow removal coordinator would for practical 
purposes be an ``assistant'' roadway worker in charge, FRA is proposing 
training requirements that closely mirror the existing training 
requirements for a roadway worker in charge, with two exceptions. 
First, a station platform work coordinator would not be required to be 
trained on the application of the operating rules pertaining to the 
establishment of working limits, but only on their content. FRA 
believes that with training on the rules governing working limits, the 
coordinator could ensure work remained within the limited scope of that 
proposed in Sec.  214.338, and be cognizant of when it may be necessary 
to contact the roadway worker in charge to establish working limits. As 
the station platform work coordinator would never actually be 
establishing working limits, training on how to do so would be 
unnecessary. Second, FRA is not proposing to require that station 
platform work coordinators be trained on the relevant physical 
characteristics

[[Page 50356]]

of the territory upon which work was being performed. As work could 
only be performed on a station platform under limited circumstances, 
such training would not be necessary. This training is also not 
necessary because if working limits or another form of on-track safety 
needed to be established, a roadway worker in charge who is qualified 
on the physical characteristics would first be required to be present. 
Instead, FRA is proposing that station platform work coordinators would 
have to receive training on the procedures to access the roadway worker 
in charge, or the train dispatcher or control operator in an emergency, 
per the requirements of proposed Sec.  214.338.
    Such training would be required to be given initially before an 
employee may perform work as a station platform work coordinator. 
Refresher training and qualification for each station platform work 
coordinator would be required to be evidenced by a recorded 
examination, at the frequency dictated by the existing additional 
roadway worker qualification sections. This proposed requirement is in 
addition to the once each calendar year roadway worker training 
requirements established by existing Sec. Sec.  214.343 and 214.345. 
The approach that FRA ultimately adopts in a final rule with regard to 
qualification and training frequencies for additional roadway worker 
qualifications will also be adopted here.
    FRA notes that under this proposed section, station platform work 
coordinators would necessarily be required to understand the procedures 
for, and be able to address, a good faith challenge. They would also 
necessarily be required to provide a safety briefing as prescribed by 
the roadway worker in charge and be qualified to provide train approach 
warning.

Section 214.353 Training and Qualification of Each Roadway Worker in 
Charge

    Existing Sec.  214.353 is titled ``[t]raining and qualification of 
roadway workers who provide on-track safety for roadway work groups'' 
and sets forth the general training and qualification requirements for 
roadway workers who are responsible for the on-track safety of groups 
of roadway workers through the establishment of working limits. FRA is 
proposing several changes to this existing section, including both 
recommended consensus items and non-consensus amendments. First, FRA is 
proposing to change the title of this section to ``[t]raining and 
qualification of each roadway worker in charge.'' This change is to 
reflect FRA's proposal to adopt this new term, and is in accordance 
with the proposals to use that new term to replace the varying generic 
references to that position that appear throughout the existing RWP 
regulation.
    FRA is also proposing to add a new paragraph (a)(5) to this 
section. Proposed paragraph (a)(5) is a Working Group consensus 
recommendation that would require roadway workers in charge to be 
trained on procedures ensuring they remain immediately accessible to 
the roadway workers being protected by the on-track safety they are 
responsible for establishing. This new proposed paragraph would 
parallel the proposed requirement in Sec.  214.315(a)(5) that the on-
track safety job briefing given by a roadway worker in charge to a 
roadway worker include information on the accessibility of the roadway 
worker in charge, and on alternate procedures in the event the roadway 
worker in charge is no longer accessible to members of the roadway work 
group.
    FRA is also proposing an additional amendment to existing paragraph 
(a) of this section. This proposed amendment to the existing rule text 
addresses situations where employees other than roadway workers act as 
roadway workers in charge. There was much discussion by the Working 
Group regarding conductors providing for the protection of roadway work 
groups, but no consensus recommendation regarding this issue was 
proposed for this NPRM.
    As background, existing Sec.  214.343(c) states that railroad 
employees other than roadway workers (often conductors or brakemen) 
``who are associated with on-track safety procedures, and whose primary 
duties are concerned with the movement and protection of trains, shall 
be trained to perform their functions related to on-track safety 
through the training and qualification procedures prescribed by the 
operating rules for the primary position of the employee.'' This means 
that when a non-roadway worker employee (such as a conductor) is 
involved in providing for the on-track safety of a roadway work group 
(such as by serving as a flagmen for a roadway work group), that the 
non-roadway worker employee does not necessarily have to receive 
training to perform such task in accordance with the existing RWP 
regulation training section, but rather may receive the relevant 
training to be able to proficiently perform such function via his or 
her railroad's conductor training procedures.\11\ FRA Technical 
Bulletin G-05-18 discussed Sec.  214.343(c), and explained that the 
interval of such training may be permitted to occur on an alternate 
basis from that required for a roadway worker in the RWP regulation 
(according to a railroad's training frequency procedures prescribed for 
a conductor in the above example, rather than for a roadway worker). 
Regardless of the employee's traditional craft, it is essential that 
any employee associated with on-track safety have sufficient knowledge 
to assure that protection is properly applied.
---------------------------------------------------------------------------

    \11\ FRA notes that employees of some smaller railroads may 
perform work in a variety of crafts. An employee may perform track 
maintenance work as a ``roadway worker'' one day, while then working 
as a certified locomotive engineer the next day. FRA is not 
attempting to describe such a situation in this section, but rather 
is referring to situations where dedicated transportation employees 
do not actually perform ``roadway worker'' duties, but are called on 
to provide on-track safety for a roadway work group.
---------------------------------------------------------------------------

    Next, existing Sec.  214.315(c) provides that one roadway worker in 
charge must be designated to provide on-track safety for a roadway work 
group. Sometimes, non-roadway worker employees may be called upon to 
act as roadway workers in charge for roadway work groups. FRA Technical 
Bulletin G-05-04 provides guidance regarding the use of employees other 
than roadway workers who act as roadway workers in charge. That 
bulletin explains that when transportation employees, such as 
conductors, are assigned to provide on-track safety for roadway 
workers, that those employees must have received the relevant training 
to assume those responsibilities. The role of a roadway worker in 
charge is a critical one, as a roadway worker in charge is responsible 
for establishing and maintaining the appropriate form of on-track 
safety upon which the safety of an entire roadway work group often 
depends. Roadway workers in charge must also be capable of conducting 
the on-track safety job briefings required by the RWP regulation, of 
handling a good faith challenge that may arise at a work site, and of 
locating relevant guidance in an on-track safety manual. Because the 
role of the roadway worker in charge is so important, it is imperative 
that any employee, whether considered a roadway worker or not, acting 
in the role of the roadway worker in charge have the required training 
and the capability to fulfill those functions safely. Simply, Technical 
Bulletin G-05-04 explained that any employee acting in the role of a 
roadway worker in charge must be trained as such. That technical 
bulletin also provided a table which, in part, helped illustrate the 
items that a conductor acting as a roadway worker in charge must be

[[Page 50357]]

trained and qualified on. Those items are the same items that a roadway 
worker in charge is required to be trained and qualified on. That chart 
is reproduced here, with new proposed Sec.  214.324 included:

------------------------------------------------------------------------
                                         Train and engine (T&E) service
       Section          Description              employees (1)
------------------------------------------------------------------------
309.................  On-track safety  A
                       manual at work
                       site.
311.................  Good faith       A
                       challenge and
                       written
                       procedures.
315.................  On-track safety  A
                       job briefing.
321.................  Exclusive track  D
                       occupancy.
323.................  Foul time......  A
324.................  Verbal           A
                       protection.
325.................  Train            R
                       coordination.
327.................  Inaccessible     A (2)
                       track.
329.................  Train approach   A
                       warning.
335.................  Adjacent track   A
                       on-track
                       safety.
339.................  Train audible    R
                       warning.
341.................  Roadway          A (3)
                       maintenance
                       machine
                       procedures.
351.................  Flagmen........  D
353.................  Physical         D
                       characteristic
                       s.
------------------------------------------------------------------------
D Default training received through craft training.
R On-track training received in addition to craft qualification as
  required by Sec.   214.343.
A Additional qualification of employee providing on-track safety for
  roadway workers. Qualifications may be limited to those required for a
  specific situation. For example, a T&E employee providing on-track
  safety for a railroad contractor working on a single controlled main
  track with exclusive track occupancy without roadway maintenance
  machines. The employee in such scenario will not need to be qualified
  on roadway maintenance machine on-track safety procedures, train
  approach warning, or inaccessible track (only the elements that are
  utilized are applicable). Regardless of the frequency of general T&E
  training of such an employee, the applicable elements must comply with
  Sec.   214.353. In addition, it is important to note that if trains
  operate while the work disturbs the track, a person qualified under
  Sec.   213.7(a) must be present.
(1) A T&E employee who is qualified to obtain a track permit (exclusive
  track occupancy), but not otherwise qualified/trained in the necessary
  roadway worker protection elements, may be directed by another person
  so qualified. In such a case, the T&E employee is in ``pilot service''
  for another person who must fulfill the roadway worker in charge role
  (and trained/qualified as appropriate under Sec.   214.353). A common
  example would be where a T&E employee pilots a roadway maintenance
  machine over the track that the roadway worker in charge may not have
  the physical characteristic qualification but otherwise has the
  requisite qualifications.
(2) Railroad operating rule that would prohibit conductor from pulling
  spike in a switch used to make the track inaccessible.
(3) An employee providing on-track safety is not required to be fully
  qualified to operate every roadway maintenance machine but must have
  knowledge of the general and specific on-track safety procedures for
  each machine.

    Per the above discussion, under the existing RWP regulation, a 
conductor (or other employee) acting as a roadway worker in charge is 
currently required to be trained on the same items as a traditional 
roadway worker in charge. However, existing Sec.  213.353 only 
currently governs training and qualification requirements for ``roadway 
workers'' who provide for the establishment of on-track safety for 
roadway work groups. Conductors and other transportation employees have 
not been considered to be ``roadway workers''. While by its terms 
existing Sec.  214.343(c) requires such other employees to still be 
trained and qualified to perform their functions related to on-track 
safety, FRA is proposing to expressly state such with regard to roadway 
worker in charge duties by amending Sec.  214.353. FRA's proposed 
amendment would expressly state that roadway workers, or any other 
employee acting in the role of a roadway worker in charge, would have 
to be trained and qualified in accordance with Sec.  213.353. While FRA 
does not believe this to be a substantive amendment, this proposal is 
to reflect that the role of a roadway worker in charge is different 
than that implicated by other levels of roadway worker qualification, 
due to both the many responsibilities involved and safety critical role 
such employees play.
    This proposed amendment, for example, would still permit a 
conductor to receive training relevant to fulfilling the requirements 
to act as a roadway worker in charge ``through the training and 
qualification procedures prescribed by the operating railroad for the 
primary position of the employee.'' See Sec.  214.343(c). The only 
differences between FRA's proposed amendment to paragraph (a) and 
existing Sec.  214.343(c) relate to the requirement for a recorded 
examination for a roadway worker in charge and to the frequency of 
training required. By expressly proposing to include employees other 
than roadway workers who act as roadway workers in charge under Sec.  
214.353, a recorded examination would be required to evidence such 
employee's qualification. Under existing Sec.  213.343, while many 
railroads may already give a recorded examination under their 
procedures for qualifying non-roadway workers on the functions related 
to on-track safety, some may not. If this proposed requirement were 
included in a final rule in this rulemaking, a recorded examination 
would be required for qualification of any employee acting in the 
capacity of a roadway worker in charge.
    With regard to the frequency of training and qualification, FRA has 
chosen to proceed in the same manner as discussed above for the 
proposed amendments to Sec. Sec.  214.347 through 214.352. FRA is 
requesting comment on whether to adopt the consensus recommendation of 
the Working Group as discussed above (qualification every 24 months and 
annual refresher training) or the proposals in the training standards 
rulemaking (refresher training and qualification be performed every 
three calendar years). Existing Sec.  214.343(c) currently controls on 
this point for non-roadway workers who serve as roadway workers in 
charge, and only specifies that training and qualification may be 
performed according to the frequency of training ``prescribed by the 
operating railroad for the primary position of the employee.'' The 
proposed training standards rulemaking would also apply to these other 
``safety related employees,'' and proposed Sec.  243.201 of that rule 
would already require that those employees be trained and qualified 
every three calendar years. If FRA adopted the training and 
qualification interval as proposed by the training standards rulemaking 
in a final rule, conductors or other employees who act as roadway 
workers in charge would be required to be trained and qualified at the 
same

[[Page 50358]]

interval as would a roadway worker. If FRA adopts an approach requiring 
a more frequent training and qualification interval for roadway workers 
in charge, there could be additional costs with regard to training 
conductors or other non-roadway worker employees who serve in such 
positions.
    Next, FRA wishes to address what has been referred to as the 
bifurcation, or the splitting, of roadway worker in charge duties. FRA 
refers to scenarios where a roadway worker in charge may not be 
qualified on the physical characteristics of a territory, and a 
conductor who is qualified on the physical characteristics is assigned 
to serve as a pilot for the roadway worker in charge (analogous to a 
locomotive engineer being unfamiliar with the physical characteristics 
who is provided a pilot in accordance with Sec.  240.231). While this 
situation is not currently addressed by the RWP regulation, Technical 
Bulletin G-05-04 notes that FRA does not currently object to the 
splitting of on-track safety qualification elements, and provided the 
example of a conductor obtaining an exclusive track occupancy work 
permit (authority) for a roadway work group while a roadway worker 
fulfilled the other duties of a roadway worker in charge, such as 
performing the on-track safety job briefing. However, in a final rule 
in this rulemaking, FRA is considering adopting a requirement that 
would only permit the splitting of qualifications to occur in 
situations where a conductor or other railroad employee serves as a 
pilot to a roadway worker in charge (or employee acting as a roadway 
worker in charge) who was not qualified on the physical characteristics 
of a particular territory where work was being performed. FRA is 
considering such, as every roadway work group is already required to 
have a roadway worker in charge, and if the proposed amendment to 
paragraph (a) is adopted in a final rule in this rulemaking, any 
employee acting as a roadway worker in charge would be required to be 
trained on the substantive requirements listed in Sec.  214.353. FRA 
believes this would alleviate most instances where there would be any 
need for the splitting of qualifications, except with regard to 
qualification on the physical characteristics of a territory. FRA 
recognizes that when roadway work groups perform system-wide work on a 
large railroad, that it may not be possible for each roadway worker who 
is qualified as a roadway worker in charge to be qualified on the 
physical characteristics of each territory on which the group performs 
work. Thus, as similarly recognized by FRA in parts 240 and 242 (FRA's 
new Conductor Certification regulation, promulgated via a final rule 
published on November 9, 2011 (76 FR 69802)), the use of pilots is 
often necessary in order to efficiently conduct railroad operations, 
and the use of such pilots is recognized to be an acceptably safe 
practice in the industry (the use of pilots in the industry pre-dates 
the Federal regulations on the subject). FRA requests additional 
comment on this issue.
    As also noted in Technical Bulletin G-05-04, FRA would not take 
exception to providing a ``limited'' qualification for a roadway worker 
in charge who would only perform such duties in certain situations. For 
example, a roadway worker in charge who was performing such duties on a 
railroad consisting entirely of non-controlled track would be permitted 
to have a limited qualification which would only involve the roadway 
worker in charge's being trained and qualified to establish working 
limits via the inaccessible track procedures (in addition to being 
trained on all other Sec. Sec.  214.343, 214.345, and 214.353 
requirements). However, FRA would take exception to a limited roadway 
worker in charge qualification where work was being performed on 
controlled track and where such limited qualification did not include 
the ability to use all of a railroad's controlled track working limits 
procedures. For example, limiting qualification to use of foul time 
only, when exclusive track occupancy is also an integral part of a 
railroads' on-track safety program, would not be permissible. FRA 
requests comment on this point, and whether additional forms of 
bifurcation of roadway worker in charge duties should continue to be 
permitted, such as where one employee obtains a track permit for 
another employee who is acting as the roadway worker in charge.

XI. Regulatory Impact and Notices

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

    This proposed rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under 
Executive Orders 12866 and 13563, and DOT policies and procedures. See 
44 FR 11034, Feb. 26, 1979. FRA has prepared and placed a regulatory 
impact analysis (RIA) addressing the economic impact of this proposed 
rule in the Docket (No. FRA-2008-0086). Document inspection and copying 
facilities are available at Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590.
    As part of the RIA, FRA has assessed quantitative measurements of 
the cost and benefit streams expected to result from the implementation 
of the proposed rule. Overall, the proposed rule would result in safety 
benefits and potential business benefits for the railroad industry. It 
would also, however, generate an additional burden on railroads mainly 
due to the additional requirements for job briefing under certain 
circumstances, as well as various training requirements.
    Table 1 summarizes the quantified costs and benefits expected to 
accrue over a 20-year period. It presents costs associated with 
expanded job briefing requirements under Sec.  214.315 Supervision and 
Communication, railroad policy change under Sec.  214.339 Audible 
Warning from Trains, and training of various types of employees under 
Sec. Sec.  214.345, 214.347, 214.352 and 214.353.
    The RIA also presents the quantified benefits expected to accrue 
over a 20-year period. These benefits are primarily cost savings or 
business benefits. They largely accrue due to time savings because of 
the proposed amendments, including no longer having to submit plans to 
FRA for review under Sec.  214.307, being able to more expeditiously 
remove snow from track and platforms under Sec. Sec.  214.317 and 
214.338, using inaccessible track under Sec.  214.327, and using 
individual train detection under Sec.  214.337. The largest benefit 
from this proposed rule is the new provision for using verbal 
protection under Sec.  214.324. The use of verbal protection would 
provide greater flexibility and would create a time savings because the 
cycle of getting foul time and having to release it in between trains 
is very time consuming. All other proposed amendments result in no cost 
or benefits because they represent current industry practice and/or the 
adoption of current FRA Technical Bulletins.
    For the 20-year period analyzed, the estimated quantified cost that 
would be imposed on industry totals $5,840,921 with a present value of 
$3,103,980 (PV, 7 percent) and $4,350,537 (PV, 3 percent). FRA also 
estimates that for the 20-year period analyzed, the estimated 
quantified benefits total $119,507,405 with a present value of 
$63,310,902 (PV, 7 percent) and $88,902,763 (PV, 3 percent). This 
analysis demonstrates that the benefits for this proposed rule would 
exceed the costs.

[[Page 50359]]



                                Table 1--Costs and Benefits of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                      Year 1           2-20        Total 20 year       7% PV           3% PV
----------------------------------------------------------------------------------------------------------------
Costs:
    214.315 Job Briefings.......        $143,055        $143,055      $2,861,100      $1,515,527      $2,128,297
    214.339 Audible Warning from          24,976               0          24,796          23,174          24,074
     Trains.....................
    214.345 Training on Safe              72,250          72,250       1,445,000         765,418       1,074,898
     Crossing of Track..........
    214.347 Training on Access            10,838          10,838         216,750         114,813         161,235
     to Manual..................
    214.352 Training Platform             22,759          22,759         455,175         241,107         338,593
     Work Coordinate............
    214.353 Training RWIC.......          41,905          41,905         838,100         443,942         623,441
                                 -------------------------------------------------------------------------------
        Total...................         315,602         290,806       5,840,921       3,103,980       4,350,537
Benefits:
    214.307 Plans No Longer              $19,553            $426         $27,653         $22,392         $24,912
     Reviewed...................
    214.317 Track Snow Removal..         292,613         292,613       5,852,250       3,099,941       4,353,335
    214.324 Use of Verbal              5,386,021       5,386,021     107,720,415      57,059,581      80,130,388
     Protection.................
    214.327 Inaccessible Track..         204,016         204,016       4,080,319       2,161,348       3,035,242
    214.337 ITD.................           4,335           4,335          86,700          45,925          64,494
    214.338 Platform Snow                 87,003          87,003       1,740,069         921,716       1,294,392
     Removal....................
                                 -------------------------------------------------------------------------------
        Total...................       5,993,541       5,974,414     119,507,405      63,310,902      88,902,763
                                 -------------------------------------------------------------------------------
        NET BENEFITS............       5,677,938       5,683,608     113,666,484      60,206,922      84,552,226
----------------------------------------------------------------------------------------------------------------
*Dollars are discounted over a 20-year period.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impacts on small 
entities. FRA developed the proposed rule in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure 
potential impacts of rules on small entities are properly considered.
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a threshold analysis to determine if the proposed rule will or 
may have a significant economic impact on a substantial number of small 
entities (SEISNOSE) or not. Then it must prepare an initial regulatory 
flexibility analysis (IRFA) unless it determines and certifies that a 
rule is not expected to have a SEISNOSE.
    As discussed earlier, FRA proposes to amend its regulations on 
railroad workplace safety to resolve interpretative issues that have 
arisen since the 1996 promulgation of the original Roadway Worker 
Protection (RWP) regulation. Specifically, this Notice of Proposed 
Rulemaking (NPRM) proposes to define certain terms, establish new 
procedures for the removal of snow from passenger station platforms, 
amend certain training requirements for roadway workers, resolve 
interpretive issues, and codify certain of FRA's Technical Bulletins. 
FRA is also proposing to update three incorporations by reference of 
industry standards in existing sections of Subpart B of Part 214 that 
address Bridge Worker Safety Standards
    The small entity segment of the railroad industry faces little in 
the way of intramodal competition. Small railroads generally serve as 
``feeders'' to the larger railroads, collecting carloads in smaller 
numbers and at lower densities than would be economical for the larger 
railroads. They transport those cars over relatively short distances 
and then turn them over to the larger systems which transport them 
relatively long distances to their ultimate destination, or for handoff 
back to a smaller railroad for final delivery. Although the relative 
interests of various railroads may not always coincide, the 
relationship between the large and small entity segments of the 
railroad industry are more supportive and co-dependent than 
competitive.
    It is also extremely rare for small railroads to compete with each 
other. Small railroads generally serve smaller, lower-density markets 
and customers. They exist, and often thrive, doing business in markets 
where there is not enough traffic to attract the larger carriers that 
are designed to handle large volumes over distance at a profit. As 
there is usually not enough traffic to attract service by a large 
carrier, there is also not enough traffic to sustain more than one 
smaller carrier. In combination with the huge barriers to entry in the 
railroad industry (e.g., due to the need to own the right-of-way, build 
track, purchase a fleet, etc.), small railroads rarely find themselves 
in competition with each other. Thus, even to the extent that the 
proposed rule may have an economic impact, it should have no impact on 
the intramodal competitive position of small railroads.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only 
those small entities that can reasonably be expected to be directly 
affected by the provisions of this rule. For the rule there is only one 
type of small entity that is affected: small railroads.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Sec.  3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operations.
    The U.S. Small Business Administration (SBA) has authority to 
regulate issues related to small businesses, and stipulates in its size 
standards that a ``small entity'' in the railroad industry is a for 
profit ``line-haul railroad'' that has fewer than 1,500 employees, a 
``short line railroad'' with fewer than 500 employees, or a ``commuter 
rail system'' with annual receipts of less than seven million dollars. 
See ``Size Eligibility Provisions

[[Page 50360]]

and Standards,'' 13 CFR part 121 subpart A.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
statement of agency policy that formally establishes ``small entities'' 
or ``small businesses'' as being railroads, contractors and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891 (May 9, 2003), codified at Appendix C to 49 CFR part 
209. The $20 million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad carrier. Railroad 
revenue is adjusted for inflation by applying a revenue deflator 
formula in accordance with 49 CFR part 1201-1. The same dollar limit on 
revenues is established to determine whether a railroad shipper or 
contractor is a small entity. FRA is proposing to use this definition 
for this rulemaking. Any comments received pertinent to its use will be 
addressed in the final rule.
    Included in the entities impacted by the proposed rule are 
governmental jurisdictions or transit authorities--most of which are 
not small for purposes of this certification. There are two commuter 
railroads that are privately owned and would be considered small 
entities. However, both of these entities are owned by Class III 
freight railroads and therefore are already considered to be small 
entities for purposes of this certification.
Railroads
    There are approximately 708 small railroads.\12\ Class III 
railroads do not report to the STB, and the precise number of Class III 
railroads is difficult to ascertain due to conflicting definitions, 
conglomerates, and even seasonal operations. Potentially all small 
railroads (a substantial number) could be impacted by this proposed 
regulation. However, because of certain characteristics that these 
railroads typically have, there should be very little impact on most, 
if not all of them. A large number of these small railroads only have 
single-track operations. Some small railroads, such as the tourist and 
historic railroads, operate on the lines of other railroads that would 
bear the burden or impact of the proposed rules requirements. Finally, 
other small railroads, if they do have more than a single track, 
typically have operations that are infrequent enough such that the 
railroads have generally always performed the pertinent trackside work 
with the track and right-of-way taken out of service, or conducted 
during hours that the track is not used.
---------------------------------------------------------------------------

    \12\ FRA data for 2010 indicates that there are 754 railroads. 
Thus, 754 Total Railroads--7 Class I Railroads--12 Class II 
Railroads (Includes Alaska RR)--27 Commuter/Amtrak (non-small) = 708 
Small Railroads.
---------------------------------------------------------------------------

    Almost all commuter railroads do not qualify as small entities. 
This is likely because almost passenger/commuter railroad operations in 
the United States are part of larger governmental entities whose 
jurisdictions exceed 50,000 in population. As noted above two of these 
commuter railroads are privately owned and would be considered small. 
However, they are already considered to be small because of being owned 
by a Class III freight railroad. FRA is uncertain as to how many 
contractor companies would be involved with this issue. FRA is aware 
that some railroads hire contractors to conduct some of the functions 
of roadway workers on their properties. However, the costs for the 
burdens associated with the proposed requirements of this rulemaking 
would get passed on to the pertinent railroad. Most likely the 
contracts would be written to reflect that, and the contractor would 
bear no additional burden for the proposed requirements. Since 
contractors would not be the entities directly impacted by any burdens, 
it is not necessary to assess them in the certification.
    No other small businesses (non-railroads) are expected to be 
impacted by this proposed rulemaking.
    The process used to develop most of this proposed rule provided 
outreach to small entities in two ways. First, the RSAC Working Group 
had at least one representative from a small railroad association, the 
American Short Line and Regional Railroad Association (ASLRRA). Second, 
members of the RSAC itself include the ASLRRA and other organizations 
that represent small entities. Thus, it is possible to conclude that 
small entities had an opportunity for input as part of the process to 
develop a consensus-based RSAC recommendation made to the FRA 
Administrator.
Impacts
    The impacts from this regulation are primarily a result of the 
proposed requirements for certain changes to the existing roadway 
worker protection regulations, particularly regarding job briefings and 
training of roadway workers.
    The Regulatory Impact Analysis for this rulemaking estimates that 
for the 20-year period analyzed, the estimated quantified cost that 
would be imposed on industry totals $5,840,921, discounted to 
$3,103,980 (PV, 7 percent) and $4,350, 537 (PV, 3 percent). FRA 
believes nearly all of this cost will fall to railroads other than 
small railroads. Short line railroads, the vast majority of which are 
Class III railroads, represent an estimated 8 percent of the railroad 
industry. Since small railroads generally collect carloads in such 
small numbers and low densities, at low speeds, they require much less 
track maintenance. Furthermore, generally small railroads have single 
tracks that are not active around the clock. As such, road work can be 
done when the track is not active, greatly reducing the burden of 
having to provide roadway worker protection. As such, the cost of this 
rulemaking is very minimal to the small railroad segment of the 
industry. Eight percent of the total 20-year cost is $467,274. That is 
an average annual cost of $33 per small railroad.\13\ Although the rule 
may impact a substantial number of small entities, FRA is confident 
that this proposed rulemaking does not impose a significant burden.
---------------------------------------------------------------------------

    \13\ $5,840,921 * .08 = $467,274/20 years/708 small railroads = 
$33 per year per small railroad.
---------------------------------------------------------------------------

    This proposed rule would produce very large benefits (or cost 
savings) for railroads with the addition of Section 214.324 and the 
provision of verbal protection. However, most small railroads would not 
be impacted by these cost savings because of the size of these 
railroads and the nature of their operations. Most small railroads 
would already be able to utilize other forms of protection, such and 
individual train detection, which are in the current regulation.
2. Certification
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA 
certifies that this proposed rule would not have a significant economic 
impact on a substantial number of small entities. Furthermore, FRA 
expects that any impact on small entities would be favorable by 
providing time savings. FRA invites all interested parties to submit 
data and information regarding this certification. FRA will consider 
all comments received in the public comment process when making a final 
determination for certification of the final rule.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are

[[Page 50361]]

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

----------------------------------------------------------------------------------------------------------------
                                   Respondent        Total annual                                  Total annual
         CFR Section                universe          responses       Average time per  response   burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214  350 Safety         150 forms........  4 hours....................             600
 Railroad Workplace Safety      Inspectors.
 Violation Report.
214.301--Purpose and Scope...  60 Railroads.....  60 operating rule  8 hours....................             480
                                                   documents.
--Written Approval by FRA of
 Equivalent Level of
 Protection in RR Operating
 Rules for Roadway
 Maintenance Machines on Non-
 Controlled Track (New
 Requirement).
214.303--Railroad On-Track     15 New Railroads.  15 programs......  30 minutes.................               8
 Safety Programs--(Current
 Requirement) (New
 Requirements).
--Provisions by RR for Lone    754 Railroads....  754 provisions...  60 minutes.................             754
 Worker to Have Alternative
 Access to Information in On-
 Track Safety Manual.
--Publication of Bulletins by  754 Railroads....  100 bulletins....  60 minutes.................             100
 RRs Reflecting Changes in On-
 Track Safety Manual.
214.313--Good Faith            20 Railroads.....  80 challenges....  8 hours per challenge......             640
 Challenges to On-Track
 Safety Rules.
214.315/335--Supervision       50,000 Rdwy        16,350,000 brf...  2 minutes..................         545,000
 +communication.                Workers.
--Job Briefings..............
--Adjacent-Track Safety        24,500 Rdwy        2,403,450 brf....  30 seconds.................          20,029
 Briefings.                     Workers.
--Information on               300 Roadway Work   59,400 briefings.  20 seconds.................           3,267
 Accessibility of Roadway       Gangs (10
 Worker in Charge (RWIC) and    Employees in
 Alternative Procedures in      Each Gang).
 Event RWIC is No Longer
 Accessible to Work Gang (New
 Requirement).
214.317--On-Track Procedures   20 Railroads.....  20 operating       60 minutes.................              20
 (New Requirements)--For Snow                      procedures.
 Removal.
On-Track Procedures for Weed   754 Railroads....  754 operating      60 minutes.................             754
 Spray Equipment.                                  procedures.
214.322--Exclusive Track       754 Railroads....  100 written        10 minutes.................              17
 Occupancy, Electronic                             Authorities.
 Display (New Requirements).
--Written Authorities/Printed
 Authority Copy If Electronic
 Display Fails or
 Malfunctions.
On-Track Safety Briefings in   754 Railroads....  100 briefings....  2 minutes..................               3
 Event Written Authority/
 Printed Authority Copy
 Cannot Be Obtained.
--Data File Records Relating   25 Railroads.....  380 data file      2 hours....................             760
 to Electronic Display Device                      records.
 Involved in Part 225
 Reportable Accident/Incident.
214.324--Verbal Protection     150 Railroads....  2,623,500 verbal   5 minutes..................         218,625
 (New Requirement)--Working                        protection
 Limits Established Through                        messages.
 Verbal Protection Within
 Manual Interlockings/
 Controlled Points.
214.325--Train Coordination..  50,00 Roadway      36,500 comm......  15 seconds.................             152
                                Workers.
--Establishing Working Limits
 through Communication.
214.327--Inaccessible Track..  10 Railroads.....  9,125 talks/       10 minutes.................           1,521
                                                   communications.
--Working Limits Established
 by Locomotive With/Without
 Cars to Prevent Access--
 Communication by RWIC with
 Locomotive Crew Member (New
 Requirement).
--Notification to Train or     10 Railroads.....  1,750              10 minutes.................             292
 Engine on Any Working Limits                      notifications.
 in Effect That Prohibit
 Train Movement Until RWIC
 Gives Permission to Enter
 Working Limits (New
 Requirement).
--Working Limits on Non-       754 Railroads....  50,000             10 minutes.................           8,333
 controlled Track:                                 notifications.
 Notifications.
214.329--Train Approach        754 Railroads....  795,000 messages/  30 seconds.................           6,625
 Warning Provided by Watchmen/                     communic.
 Lookouts--Communications.
--Written Designation of       754 Railroads....  26,250             30 seconds.................             219
 Watchmen/Lookouts.                                designations.

[[Page 50362]]

 
214.336--Procedures for        100 Railroads....  10,000 notific...  15 seconds.................              42
 Adjacent-Track Movements
 Over 25 mph--Notifications/
 Watchmen/Lookout Warnings.
--Roadway Worker               100 Railroads....  3,000 comm.......  1 minute...................              50
 Communication with Train
 Engineers or Equipment
 Operators.
--Procedures for Adjacent-     100 Railroads....  3,000 notific....  15 seconds.................              13
 Track Movements 25 mph or
 less--Notifications/Watchmen/
 Lookout Warnings.
--Roadway Worker               100 Railroads....  1,500 comm.......  1 minutes..................              25
 Communication with Train
 Engineers or Equipment
 Operators.
--Exceptions to the            100 Railroads....  1,030,050          15 seconds.................           4,292
 requirements in paragraphs                        briefings.
 (a), (b), and (c) for
 adjacent-controlled-track on-
 track safety: Work
 activities involving certain
 equipment and purposes--On-
 Track Job Safety Briefings.
214.337--On-Track Safety       754 Railroads....  2,080,000          30 seconds.................          17,333
 Procedures for Lone Workers:                      statements.
 Statements by Lone Workers.
--Statement of On-Track        754 Railroads....  200 statements...  30 seconds.................              21
 Safety Using Individual
 Train Detection on Track
 Outside Manual Interlocking,
 a Controlled Point, or a
 Remotely Controlled Hump
 Yard Facility (New
 Requirement).
214.338--Passenger Station     15 Railroads.....  1,115              1 minute...................              19
 Platform Snow Removal and                         designations.
 Cleaning (New Requirements)--
 Designation of a Station
 Work Platform Coordinator.
--Communication of Contact     15 Railroads.....  223 messages/      5 minutes..................              19
 Information/Instructions to                       communications.
 Station Platform Work
 Coordinator for Reaching
 Both RWIC and Train
 Dispatcher or Control
 Operator.
--Communication by Station     15 Railroads.....  223 messages/      5 minutes..................              19
 Platform Work Coordinator to                      communications.
 RWIC of Work to Be Performed.
--Station Platform Work        15 Railroads.....  1,115 briefings..  2 minutes..................              37
 Coordinator Conduct of an
 Initial On-Track Safety
 Briefing.
--Briefing by Station          15 Railroads.....  16,725 briefings.  30 minutes.................             139
 Platform Work Coordinator to
 Establish Train Approach
 Warning.
214.339--Audible Warning from  25 Railroads.....  25 written         12 hours + 2 hours.........             120
 Trains (Revised                                   procedures.
 Requirement)--Written
 Procedures That Prescribe
 Effective Requirements for
 Audible Warning by Horn and/
 or Bell for Trains.
214.343/345/347/349/351/353/   50,000 Rdwy        50,000 tr. RW....  4.5 hours..................         225,000
 355--Annual Training for All   Workers.
 Roadway Workers (RWs).
--Additional Training for All  50,000 Rdwy        50,000 tr. RW....  30 minutes.................          25,000
 RWs Resulting from Proposed    Workers.
 Rule (New/Revised
 Requirements).
--Training of Trainmen         22,150 RR Workers  22,150 tr Workers  5 minutes + 10 minutes.....           2,108
 (Conductors & Brakemen) to
 Act as RWIC and Training of
 Station Platform Work
 Coordinators (New
 Requirement).
--Additional adjacent on-      35,000 Rdwy        35,000 tr. RW....  5 min......................           2,917
 track safety training for      Workers.
 Roadway Workers.
--Records of Training........  50,000 Roadway     50,000 records...  2 min......................           1,667
                                Workers.
214.503--Good Faith            50,000 Rdwy        125 notific......  10 minutes.................              21
 Challenges; Procedures for     Workers.
 Notification and Resolution.
--Notifications for Non-
 Compliant Roadway
 Maintenance Machines or
 Unsafe Condition.
--Resolution Procedures......  644 Railroads....  10 procedures....  2 hours....................              20
214.505--Required              644 Railroads/200  500 lists........  1 hour.....................             500
 Environmental Control and      contractors.
 Protection Systems For New
 On-Track Roadway Maintenance
 Machines with Enclosed Cabs.
--Designations/Additions to    644 Railroads/200  150 additions/     5 mintues..................              13
 List.                          contractors.       designations.
214.507--A-Built Light Weight  644 Railroads....  1,000 stickers...  5 minutes..................              83
 on New Roadway Maintenance
 Machines.
214.511--Required Audible      644 Railroads....  3,700 identified   5 minutes..................             308
 Warning Devices For New On-                       mechanisms.
 Track Roadway Maintenance
 Machines.

[[Page 50363]]

 
214.513--Retrofitting of       703 Railroads....  200 mechanisms...  5 minutes..................              17
 Existing On-Track Roadway
 Maintenance Machines--
 Identification of Triggering
 Mechanism--Horns.
214.515--Overhead Covers For   644 Railroads....  500 requests +     100 minutes; 20 minutes....             250
 Existing On-Track Roadway                         500 responses.
 Maintenance Machines.
214.517--Retrofitting of       644 Railroads....  500 stencils.....  5 minutes..................              42
 Existing On-Track Roadway
 Maintenance Machines
 Manufactured On or After
 Jan. 1, 1991.
214.518--Safe and Secure       644 Railroads....  1,000 stencils...  5 minutes..................              83
 Position for riders.
--Positions idenified by
 stencilings/markings/notices.
214.523--Hi-Rail Vehicles....  644 Railroads....  2,000 records....  60 minutes.................           2,000
--Non-Complying Conditions...  644 Railroads....  500 tags + 500     10 min.; 15 min............             208
                                                   reports.
214.527--Inspection for        644 Railroads....  550 tags + 550     5 min.; 15 min.............             184
 Compliance; Repair Schedules.                     reports.
214.533--Schedule of Repairs;  644 Railroads....  250 records......  15 minutes.................              63
 Subject to availability of
 Parts.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone 
at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@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

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This proposed rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained

[[Page 50364]]

above, FRA has determined that this proposed rule has no federalism 
implications, other than the possible preemption of State laws under 
Federal railroad safety statutes, specifically 49 U.S.C. 20106. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

E. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this 
proposed rule is not a major FRA action (requiring the preparation of 
an environmental impact statement or environmental assessment) because 
it is categorically excluded from detailed environmental review 
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
The proposed rule will not result in the expenditure, in the aggregate, 
of $140,800,000 or more (as adjusted annually for inflation) in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

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

H. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards setting 
or related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. FRA has 
assessed the potential effect of this NPRM on foreign commerce and 
believes that its requirements are consistent with the Trade Agreements 
Act of 1979. The requirements imposed are safety standards, which, as 
noted, are not considered unnecessary obstacles to trade.

I. Privacy Act

    Interested parties should be aware that anyone is able to search 
the electronic form of all written comments received into any agency 
docket by the name of the individual submitting the document (or 
signing the document, if submitted on behalf of an association, 
business, labor union, etc.). You may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (65 FR 
19477-78) or you may visit http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 214

    Occupational safety and health, Penalties, Railroad safety.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
Part 214 of Chapter II, Subtitle B of Title 49, Code of Federal 
Regulations, as follows:

PART 214--[AMENDED]

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

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

    2. Amend Sec.  214.7 by adding definitions for controlled point; 
interlocking, manual; maximum authorized speed; on-track safety manual; 
roadway worker in charge; station platform work coordinator; verbal 
protection; and revising the definitions for effective securing device 
and watchman/lookout to read as follows:

Subpart A--General


Sec.  214.7  Definitions.

* * * * *
    Controlled point means a location where signals and/or other 
functions of a traffic control system are controlled from the control 
machine.
* * * * *
    Effective securing device means a vandal and tamper resistant lock, 
keyed for application and removal only by the roadway worker(s) for 
whom the protection is provided. In the absence of a lock, it is 
acceptable to use a spike driven firmly into a switch tie or a switch 
point clamp to prevent the use of a manually operated switch. It is 
also acceptable to use portable derails secured with specifically 
designed metal wedges. Securing devices without a specially keyed lock 
shall be designed in such a manner that they require railroad track 
tools for installation and removal and the operating rules of the 
railroad must prohibit removal by employees other than the class, 
craft, or group of employees for whom the protection is being provided. 
Regardless of the type of securing device, the throwing handle or hasp 
of the switch or derail shall be uniquely tagged. If

[[Page 50365]]

there is no throwing handle, the securing device shall be tagged.
* * * * *
    Interlocking, manual means an arrangement of signals and signal 
appliances operated from an interlocking machine and so interconnected 
by means of mechanical and/or electric locking that their movements 
must succeed each other in proper sequence, train movements over all 
routes being governed by signal indication.
* * * * *
    Maximum authorized speed means the highest speed permitted for the 
movement of trains permanently established by timetable/special 
instructions, general order, or track bulletin.
* * * * *
    On-track safety manual means the entire set of instructions 
designed to prevent roadway workers from being struck by trains or 
other on-track equipment. These instructions include operating rules 
and other procedures concerning on-track safety protection and on-track 
safety measures.
* * * * *
    Roadway worker in charge means a roadway worker who is qualified in 
accordance with Sec.  214.353 of this part for the purposes of 
establishing on-track safety for roadway work groups.
* * * * *
    Station platform work coordinator means a roadway worker who is 
qualified in accordance with Sec.  214.352 of this part for the purpose 
of coordinating, with a designated roadway worker in charge, the on-
track safety of a roadway worker or roadway work group performing snow 
removal or general cleaning on a passenger station platform.
* * * * *
    Verbal protection means the method of establishing working limits 
within an interlocking or controlled point whereby upon request by the 
roadway worker in charge the train dispatcher or control operator 
withholds authority for movements into the working limits. Operating 
rules shall prohibit further movements into the working limits except 
as permitted by the roadway worker in charge as prescribed in Sec.  
214.324 of this part.
    Watchman/lookout means an employee who has been annually trained 
and qualified to provide warning to roadway workers of approaching 
trains or on-track equipment. Watchmen/lookouts shall be properly 
equipped to provide visual and auditory warning such as whistle, air 
horn, white disk, red flag, lantern, or fusee. A watchman/lookout's 
sole duty is to look out for approaching trains/on-track equipment and 
provide at least fifteen seconds advanced warning, except as provided 
for in Sec.  214.338(a)(2)(iii), to employees before arrival of trains/
on-track equipment.
* * * * *
    3. Amend Sec.  214.113 by revising paragraph (b) to read as 
follows:


Sec.  214.113  Head protection.

* * * * *
    (b) Helmets required by this section shall conform to the 
requirements of 29 CFR 1910.135(b), as established by the U.S. 
Department of Labor, Occupational Safety and Health Administration.
    4. Amend Sec.  214.115 by revising paragraph (b) to read as 
follows:


Sec.  214.115  Foot protection.

* * * * *
    (b) Foot protection equipment required by this section shall 
conform to the requirements of 29 CFR 1910.136(b), as established by 
the U.S. Department of Labor, Occupational Safety and Health 
Administration.
    5. Amend Sec.  214.117 by revising paragraph (b) to read as 
follows:


Sec.  214.117  Eye and face protection.

* * * * *
    (b) Eye and face protection equipment required by this section 
shall conform to the requirements of 29 CFR 1910.133(b), as established 
by the U.S. Department of Labor, Occupational Safety and Health 
Administration.
* * * * *

Subpart C--Roadway Worker Protection

    6. Amend Sec.  214.301 by revising paragraph (c) to read as 
follows:


Sec.  214.301  Purpose and scope.

* * * * *
    (c) This subpart prescribes safety standards related to the 
movement of roadway maintenance machines where such movements affect 
the safety of roadway workers. Movements of roadway maintenance 
machines between work locations or to or from work locations that are 
conducted under the authority of a train dispatcher or a control 
operator are not required to be made in accordance with the on-track 
safety procedures described in Sec. Sec.  214.319 through 214.338 of 
this subpart. Movements of roadway maintenance machines between work 
locations or to or from work locations on non-controlled track must 
comply with the on-track safety procedures described in Sec. Sec.  
214.319 through 214.327 of this subpart, unless:
    (1) All train and locomotive movements on such non-controlled track 
are required to be made at speeds not exceeding restricted speed; or
    (2) the railroad's operating rules protect the movements of roadway 
maintenance machines in a manner equivalent to that provided for by 
limiting all train and locomotive movements to restricted speed, and 
such equivalent level of protection is first approved in writing by 
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer.


Sec.  214.302  [Removed and reserved]

    7. Remove and reserve Sec.  214.302.


Sec.  214.305  [Removed and reserved]

    8. Remove and reserve Sec.  214.305.
    9. Amend Sec.  214.307 by revising to read as follows:


Sec.  214.307  Review of individual on-track safety programs by FRA.

    (a) Program. Each railroad subject to this part shall maintain and 
have in effect an on-track safety program which complies with the 
requirements of this subpart. The on-track safety program shall be 
retained at a railroad's system headquarters and division headquarters, 
and shall be made available to representatives of the FRA for 
inspection and copying during normal business hours. Each railroad to 
which this part applies is authorized to retain its program by 
electronic recordkeeping in accordance with Sec. Sec.  217.9(g) and 
217.11(c) of this chapter.
    (b) Approval process. Upon review of a railroad's on-track safety 
program, the FRA Associate Administrator for Railroad Safety/Chief 
Safety Officer may, for cause stated, disapprove the program. 
Notification of such disapproval shall be made in writing and specify 
the basis for the disapproval decision. If the Associate Administrator 
for Railroad Safety/Chief Safety Officer disapproves the program,
    (1) The railroad has 35 days from the date of the written 
notification of such disapproval to:
    (i) Amend its program and submit it to the Associate Administrator 
for Railroad Safety/Chief Safety Officer for approval; or
    (ii) Provide a written response in support of its program to the 
Associate Administrator for Railroad Safety/Chief Safety Officer.
    (2) FRA's Associate Administrator for Railroad Safety/Chief Safety 
Officer will subsequently issue a written decision either approving or 
disapproving the railroad's program.

[[Page 50366]]

    (3) Failure to submit to FRA an amended program or provide a 
written response in accordance with this paragraph will be considered a 
failure to implement an on-track safety program under this subpart.
    10. Amend Sec.  214.309 by revising to read as follows:


Sec.  214.309  On-track safety manual.

    (a) The applicable on track safety manual (as defined by Sec.  
214.7) shall be readily available to all roadway workers. Each roadway 
worker responsible for the on-track safety of others, and each lone 
worker, shall be provided with and shall maintain a copy of the on-
track safety manual.
    (b) When it is impracticable for a lone worker to carry the on-
track safety manual, the employer shall establish provisions for such 
worker to have alternative access to the information in the manual.
    (c) Changes to the on-track safety manual may be temporarily 
published in bulletins or notices. Such publications shall be carried 
along with the on-track safety manual until fully incorporated into the 
manual.
    11. Amend Sec.  214.315 by revising paragraphs (a)(3), (a)(4), (b), 
the first sentence of paragraphs (c)-(e) and adding paragraph (a)(5) to 
read as follows:


Sec.  214.315  Supervision and communication.

    (a) * * *
    (3) Information about any adjacent tracks, on-track safety for such 
tracks, if required by this subpart or deemed necessary by the roadway 
worker in charge, and identification of any roadway maintenance 
machines that will foul such tracks;
    (4) A discussion of the nature of the work to be performed and the 
characteristics of the work location to ensure compliance with this 
subpart; and
    (5) Information on the accessibility of the roadway worker in 
charge and alternative procedures in the event the roadway worker in 
charge is no longer accessible to the members of the roadway work 
group.
    (b) A job briefing for on-track safety shall be deemed complete 
only after the roadway worker(s) has acknowledged understanding of the 
on-track safety procedures and instructions presented.
    (c) Every roadway work group whose duties require fouling a track 
shall have one roadway worker in charge designated by the employer to 
provide on-track safety for all members of the group. * * *
    (d) Before any member of a roadway work group fouls a track, the 
roadway worker in charge designated under paragraph (c) of this section 
shall inform each roadway worker of the on-track safety procedures to 
be used and followed during the performance of the work at that time 
and location. * * *
    (e) Each lone worker shall communicate at the beginning of each 
duty period with a supervisor or another designated employee to receive 
an on-track safety job briefing and to advise of his or her planned 
itinerary and the procedures that he or she intends to use for on-track 
safety. * * *
    12. Amend Sec.  214.317 by revising it to read as follows:


Sec.  214.317  On-track safety procedures, generally.

    (a) Each employer subject to the provisions of this part shall 
provide on-track safety for roadway workers by adopting a program that 
contains specific rules for protecting roadway workers that comply with 
the provisions of Sec. Sec.  214.319 through 214.338 of this part.
    (b) Roadway workers may walk across any track provided each roadway 
worker shall stop and look in all directions from which a train or 
other on-track equipment could approach before starting across the 
track to ensure that they can safely be across and clear of the track 
before a train or other on-track equipment would arrive at the crossing 
point under the following circumstances:
    (1) Employers shall adopt and roadway workers shall comply with 
applicable railroad safety rules governing how to determine that it is 
safe to cross the track before starting across;
    (2) Roadway workers shall move directly and promptly across the 
track; and
    (3) On-track safety protection is in place for all roadway workers 
who are actually engaged in work, including inspection, construction, 
maintenance or repair, and extending to carrying tools or material that 
restricts motion, impairs sight or hearing, or prevents an employee 
from detecting and moving rapidly away from an approaching train or 
other on-track equipment.
    (c) On non-controlled track, on-track roadway maintenance machines 
engaged in weed spraying or snow removal may proceed under the 
provisions of Sec.  214.301(c), under the following conditions:
    (1) Each railroad shall establish and comply with an operating 
procedure for on-track snow removal and weed spray equipment to ensure 
that:
    (i) All on-track movements in the affected area are informed of 
such operations;
    (ii) All on-track movements shall operate at restricted speed as 
defined in Sec.  214.7, except on other than yard tracks and yard 
switching leads, where all on-track movements shall operate prepared to 
stop within one-half the range of vision but not exceeding 25 mph;
    (iii) A means for communication between the on-track equipment and 
other on-track movements is provided; and
    (iv) Remotely controlled hump yard facility operations are not in 
effect, and kicking of cars is prohibited unless agreed to by the 
roadway worker in charge.
    (2) Roadway workers engaged in such snow removal or weed spraying 
operations subject to this section shall retain an absolute right to 
use the provisions of Sec.  214.327 (inaccessible track).
    (3) Roadway workers assigned to work with this equipment may line 
switches for the machine's movement but shall not engage in any roadway 
work activity unless protected by another form of on-track safety.
    (4) Each roadway maintenance machine engaged in snow removal or 
weed spraying under this provision shall be equipped with and utilize:
    (i) An operative 360-degree intermittent warning light or beacon;
    (ii) Work lights, if the machine is operated during the period 
between one-half hour after sunset and one-half hour before sunrise or 
in dark areas such as tunnels, unless equivalent lighting is otherwise 
provided;
    (iii) An illumination device, such as a headlight, capable of 
illuminating obstructions on the track ahead in the direction of travel 
for a distance of 300 feet under normal weather and atmospheric 
conditions;
    (iv) A brake light activated by the application of the machine 
braking system, and designed to be visible for a distance of 300 feet 
under normal weather and atmospheric conditions; and
    (v) A rearward viewing device, such as a rearview mirror.
    13. Amend Sec.  214.319 the first sentence of the introductory 
paragraph, and paragraphs (a) and (b) by revising to read as follows:


Sec.  214.319  Working limits, generally.

    Working limits established on controlled track shall conform to the 
provisions of Sec.  214.321 Exclusive track occupancy, or Sec.  214.323 
Foul time, or Sec.  214.324 Verbal protection, or Sec.  214.325 Train 
coordination. * * *

[[Page 50367]]

    (a) Only a roadway worker in charge who is qualified in accordance 
with Sec.  214.353 of this part shall establish or have control over 
working limits for the purpose of establishing on-track safety.
    (b) Only one roadway worker in charge shall have control over 
working limits on any one segment of track.
* * * * *
    14. Amend Sec.  214.321 by revising paragraphs (a), (b), (b)(2), 
and (d), and adding paragraphs (b)(4) and (e), to read as follows:


Sec.  214.321  Exclusive track occupancy.

* * * * *
    (a) The track within working limits shall be placed under the 
control of one roadway worker in charge by either: * * *
    (b) An authority for exclusive track occupancy given to the roadway 
worker in charge of the working limits shall be transmitted on a 
written or printed document directly, by relay through a designated 
employee, in a data transmission, or by oral communication, to the 
roadway worker in charge by the train dispatcher or control operator in 
charge of the track.
    (1) * * *
    (2) The roadway worker in charge of the working limits shall 
maintain possession of the written or printed authority for exclusive 
track occupancy while the authority for the working limits is in 
effect. A data transmission of an authority displayed on an electronic 
screen may be used as a substitute for a written or printed document 
required under this paragraph. Electronic displays of authority shall 
comply with the requirements of Sec.  214.322.
* * * * *
    (4) An authority shall specify a unique roadway work group number, 
an employee name, or a unique identifier. A railroad shall adopt 
procedures that require precise communication between trains and other 
on-track equipment and the roadway worker in charge or lone worker 
controlling the working limits in accordance with Sec.  214.319. The 
procedures may permit communications to be made directly between a 
train or other on-track equipment and a roadway worker in charge or 
lone worker, or through a train dispatcher or control operator.
* * * * *
    (d) Movements of trains and roadway maintenance machines within 
working limits established through exclusive track occupancy shall be 
made only under the direction of the roadway worker in charge of the 
working limits. Such movements shall be at restricted speed unless a 
higher authorized speed has been specifically authorized by the roadway 
worker in charge of the working limits.
    (e) Working limits established by exclusive track occupancy 
authority may occur behind designated trains moving through the same 
limits in accordance with the following provisions:
    (1) The authority establishing working limits will only be 
considered to be in effect after it is confirmed by the roadway worker 
in charge or lone worker that the affected train(s) have passed the 
point to be occupied or fouled by:
    (i) Visually identifying the affected train(s); or
    (ii) Direct radio contact with a crew member of the affected 
train(s); or
    (iii) Receiving information about the affected train from the train 
dispatcher or control operator.
    (2) When utilizing the provisions of paragraph (e)(1)(i) of this 
section, a railroad's operating rules shall include procedures to 
prohibit the affected train(s) from making a reverse movement into the 
limits being fouled or occupied.
    (3) After the roadway worker in charge or lone worker has confirmed 
that the affected train(s) have passed the point to be occupied or 
fouled, the roadway worker in charge shall record on the authority the 
time of passage and engine number(s) of the affected train(s). If the 
confirmation is by direct communication with the train(s), or through 
confirmation by the train dispatcher or control operator, the roadway 
worker in charge shall record the time of such confirmation and the 
engine number(s) of the affected trains on the authority.
    (4) Roadway workers afforded on-track safety by the roadway worker 
in charge and located between the rear end of affected train(s) and the 
roadway worker in charge, or ahead of the rear end of any affected 
train, shall:
    (i) Occupy or foul the track only after receiving permission from 
the roadway worker in charge to occupy the working limits after the 
roadway worker charge has fulfilled the provisions of paragraph (e)(1) 
of this section; and
    (ii) Be accompanied by an employee qualified to the level of a 
roadway worker in charge who shall also have a copy of the authority 
and who shall independently execute the required communication 
requirements of paragraphs (e)(1) and (e)(3) of this section.
    (5) Each lone worker subject to this paragraph shall have a copy of 
the authority and shall comply with the communication requirements of 
paragraphs (e)(1) and (e)(3) of this section.
    (6) Any subsequent train or on-track equipment movements within 
working limits after the passage of the affected train(s) shall be 
governed by paragraph (d) of this section.
    15. Add Sec.  214.322 to read as follows:


Sec.  214.322  Exclusive track occupancy, electronic display.

    (a) While it is in effect, all the contents of an authority 
electronically displayed shall be readily viewable by the roadway 
worker in charge that is using the authority to provide on-track safety 
for a roadway work group.
    (1) If the electronic display device malfunctions, fails, or cannot 
display an authority while it is in effect, the roadway worker in 
charge shall instruct all roadway workers to stop work and occupy a 
place of safety until either a written or printed copy of the authority 
can be obtained in accordance with Sec.  214.321(b)(1), or another form 
of on-track safety can be established.
    (2) In the event that a written or printed copy of the authority 
cannot be obtained, or another form of on-track safety cannot be 
established after failure of an electronic display device, the roadway 
worker in charge shall conduct an on-track safety job briefing to 
determine the safe course of action with the roadway work group.
    (b) All authorized users of an electronic display system shall be 
uniquely identified to support individual accountability. A user may be 
a person, a process, or some other system that accesses or attempts to 
access an electronic display system to perform tasks or process an 
authority.
    (c) All authorized users of an electronic display system must be 
authenticated prior to being granted access to such system. The system 
shall ensure the confidentiality and integrity of all internally stored 
authentication data and protect it from access by unauthorized users. 
The authentication scheme shall utilize algorithms approved by the 
National Institute of Standards and Technology (NIST), or any similarly 
recognized and FRA approved standards body.
    (d) The integrity of all data must be ensured during transmission/
reception, processing, and storage. All new electronic display systems 
implemented after (EFFECTIVE DATE OF THE FINAL RULE TO BE INSERTED) 
shall utilize a Message Authentication Code (MAC) to ensure that all 
data is error free. The MAC shall utilize algorithms approved by NIST, 
or any similarly recognized and FRA approved standards body.

[[Page 50368]]

Systems implemented prior to (EFFECTIVE DATE OF THE FINAL RULE TO BE 
INSERTED) may utilize a Cyclical Redundancy Code (CRC) to ensure that 
all data is error free provided:
    (1) The collision rate for the CRC check utilized shall be less 
than or equal to 1 in 2\32\. Systems implemented prior to (EFFECTIVE 
DATE OF THE FINAL RULE TO BE INSERTED) that do not utilize a CRC with a 
collision rate less than or equal to 1 in 2\32\ must be retired or 
updated to utilize a MAC no later than (A DATE ONE YEAR FROM 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER TO BE INSERTED).
    (2) MAC and CRC checks shall only be used to verify the accuracy of 
an electronic authority data message and shall not be used in an error 
correction reconstruction of the data. An authority must fail if the 
MAC or CRC checks do not match.
    (e) Authorities transmitted to each electronic display device shall 
be retained in the device's non-volatile memory for not less than 72 
hours.
    (f) If any electronic display device used to obtain an authority is 
involved in an accident/incident that is required to be reported to FRA 
under part 225 of this chapter, the railroad or employer that was using 
the device at the time of the accident shall, to the extent possible, 
and to the extent consistent with the safety of life and property, 
preserve the data recorded by each such device for analysis by FRA. 
This preservation requirement permits the railroad or employer to 
extract and analyze such data, provided the original downloaded data 
file, or an unanalyzed exact copy of it, shall be retained in secure 
custody and shall not be utilized for analysis or any other purpose 
except by direction of FRA or the National Transportation Safety Board. 
This preservation requirement shall expire one (1) year after the date 
of the accident unless FRA or the National Transportation Safety Board 
notifies the railroad in writing that the data are desired for 
analysis.
    (g) New electronic display systems implemented after (EFFECTIVE 
DATE OF THE FINAL RULE TO BE INSERTED) shall provide Level 3 assurance 
as defined by NIST Special Publication 800-63-1, ``Electronic 
Authentication Guideline.'' Systems implemented prior to (EFFECTIVE 
DATE OF THE FINAL RULE TO BE INSERTED) shall provide Level 2 assurance. 
Systems implemented prior to (EFFECTIVE DATE OF THE FINAL RULE TO BE 
INSERTED) that do not provide Level 2 or higher assurance must be 
retired, or updated to provide Level 2 assurance, no later than (A DATE 
ONE YEAR FROM PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER TO 
BE INSERTED). This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies may be obtained from the National Institute of 
Standards and Technology, 100 Bureau Drive, Stop 2300, Gaithersburg, MD 
20899-2300. Copies may be inspected at the Federal Railroad 
Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington, 
DC, or at the National Archives and Records Administration (NARA). A 
copy is also publicly available online at: http://csrc.nist.gov/publicat ions/nistpubs/800-63-1/SP-800-63-1.pdf. For information on the 
availability of this material at NARA, call (202) 741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    16. Amend Sec.  214.323 by revising to read as follows:


Sec.  214.323  Foul time.

    Working limits established on controlled track through the use of 
foul time procedures shall comply with the following requirements:
    (a) Foul time may be given orally or in writing by the train 
dispatcher or control operator only after that employee has withheld 
the authority of all trains or other on-track equipment to move into or 
within the working limits during the foul time period.
    (b) Each roadway worker in charge to whom foul time is transmitted 
orally shall repeat the track number, track limits and time limits of 
the foul time to the issuing employee for verification before the foul 
time becomes effective.
    (c) The train dispatcher or control operator shall not permit the 
movement of trains or other on-track equipment into working limits 
protected by foul time until the roadway worker in charge who obtained 
the foul time has reported clear of the track.
    (d) The roadway worker in charge shall not permit the movement of 
trains or other on-track equipment into or within working limits 
protected by foul time.
    17. Add Sec.  214.324 to read as follows:


Sec.  214.324  Verbal Protection.

    Working limits established through verbal protection may only occur 
within manual interlockings or within controlled points and shall 
comply with the following requirements:
    (a) Verbal protection shall be communicated to the roadway worker 
in charge by the train dispatcher or control operator only after that 
employee has withheld the authority of all trains or other on-track 
equipment to move into or within the limits to be protected.
    (b) Each roadway worker in charge to whom verbal protection is 
transmitted shall repeat the track number, track limits and time limits 
of the verbal protection to the issuing employee for verification 
before the verbal protection becomes effective.
    (c) No train or on-track equipment may move into working limits 
protected by verbal protection until permission has been received from 
the roadway worker in charge and authority has been given by the train 
dispatcher or control operator.
    18. Amend Sec.  214.325 by revising the introductory sentence to 
read as follows:


Sec.  214.325  Train coordination.

    Working limits established on controlled track by a roadway worker 
in charge through the use of train coordination shall comply with the 
following requirements:
* * * * *
    19. Amend Sec.  214.327 by adding paragraphs (a)(6), (a)(7), and 
(a)(8) to read as follows:


Sec.  214.327  Inaccessible track.

    (a) * * *
    (6) A locomotive with or without cars placed to prevent access to 
the working limits at one or more points of entry to the working 
limits, provided the following conditions are met:
    (i) The roadway worker in charge who is responsible for 
establishing working limits communicates with a member of the crew 
assigned to the locomotive and determines that:
    (A) The locomotive is visible to the roadway worker in charge that 
is establishing the working limits; and
    (B) The locomotive is stopped.
    (ii) Further movements of the locomotive shall be made only as 
permitted by the roadway worker in charge controlling the working 
limits;
    (iii) The crew of the locomotive shall not leave the locomotive 
unattended or go off-duty unless communication occurs with the roadway 
worker in charge and an alternate means of on-track safety protection 
has been established by the roadway worker in charge; and
    (iv) Cars coupled to the locomotive on the same end and on the same 
track as the roadway workers shall be connected to the train line air 
brake and such system shall be charged with compressed air to initiate 
an emergency

[[Page 50369]]

brake application in case of unintended uncoupling. Cars coupled to the 
locomotive on the same track on the opposite end of the roadway workers 
shall have sufficient braking capability to control their movement.
    (7) A railroad's procedure governing block register territory that 
prevents trains and other on-track equipment from occupying the track 
when the territory is under the control of a lone worker or roadway 
worker in charge. The roadway worker in charge or lone worker shall 
have the absolute right to render such block register territory 
inaccessible under the provisions of paragraphs (a)(1) through (a)(6) 
of this section.
    (8) Railroad operating rules that prohibit train or engine 
movements on a main track within yard limits or restricted limits until 
the train or engine receives notification of any working limits in 
effect and prohibit the train or engine from entering working limits 
until permission is received by the roadway worker in charge. Such 
working limits shall be delineated with stop signs (flags), and where 
speeds are in excess of restricted speed and physical characteristics 
permit, advance signs (flags).
* * * * *
    20. Amend Sec.  214.329 by revising paragraph (a), and adding 
paragraph (h) to read as follows:


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

* * * * *
    (a) Except as provided for in Sec.  214.338(a)(2)(iii), train 
approach warning shall be given in sufficient time to enable each 
roadway worker to move to and occupy a previously arranged place of 
safety not less than 15 seconds before a train moving at the maximum 
authorized speed on that track can pass the location of the roadway 
worker. The place of safety to be occupied upon the approach of a train 
may not be on a track, unless working limits are established on that 
track.
* * * * *
    (h) Train approach warning shall not be used to provide on-track 
safety for a roadway work group using a roadway maintenance machine, 
equipment, or material that cannot be readily removed by hand.
    21. Amend Sec.  214.331 by adding paragraph (e) to read as follows:


Sec.  214.331  Definite train location.

* * * * *
    (e) Each on track safety program that provides for the use of 
definite train location shall discontinue such use by (A DATE 1 YEAR 
FROM THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER 
TO BE INSERTED).
    22. Amend Sec.  214.333 by revising paragraph (c) to read as 
follows:


Sec.  214.333  Informational line-ups of trains.

* * * * *
    (c) Each on track safety program that provides for the use of 
informational line-ups shall discontinue such use by (A DATE 1 YEAR 
FROM THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER 
TO BE INSERTED).
    23. Amend Sec.  214.335 by revising to read as follows:


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

    (a) Except as provided for in Sec.  214.338 of this part, no 
employer subject to the provisions of this part shall require or permit 
a roadway worker who is a member of a roadway work group to foul a 
track unless on-track safety is provided by either working limits, 
train approach warning, or definite train location in accordance with 
the applicable provisions of Sec. Sec.  214.319, 214.321, 213.323, 
214.324, 214.325, 214.327, 214.329, 214.331 or 214.336 of this part.
    (b) No roadway worker who is a member of a roadway work group shall 
foul a track without having been informed by the roadway worker in 
charge of the roadway work group that on-track safety is provided.
    24. Amend Sec.  214.337 by revising paragraph (c)(3) and adding 
paragraph (g) to read as follows:


Sec.  214.337  On-track safety procedures for lone workers.

* * * * *
    (c) * * *
    (3) On track outside the limits of a manual interlocking, a 
controlled point (except those consisting of signals only), or a 
remotely controlled hump yard facility.
* * * * *
    (g) Individual train detection shall not be used to provide on-
track safety for a lone worker using a roadway maintenance machine, 
equipment, or material that cannot be readily removed by hand.
    25. Add Sec.  214.338 to read as follows:


Sec.  214.338  Passenger station platform snow removal and cleaning.

    (a) A roadway worker or roadway work group assigned to perform snow 
removal or cleaning on a passenger station platform, whose duties would 
require a roadway worker to foul a track with a hand-held, non-powered 
tool, may conduct such activities without establishing working limits, 
provided the following conditions are met:
    (1) The railroad has designated a station platform work coordinator 
who is responsible for directing the on-track safety of the roadway 
worker or roadway work group performing the snow removal or cleaning.
    (2) The fouling area in which only hand-held, non-powered tools may 
be used has been clearly delineated and is no less than four feet from 
the field side of the near rail of the track. For purposes of this 
section, delineation may consist of permanent markings (e.g., tactile 
strips or signs), a temporary marking system (e.g., safety cones), or a 
printed diagram showing measurements from the edge of the platform that 
has been provided to the affected roadway workers.
    (3) The station platform work coordinator has ready access to a 
landline or wireless communication device that would permit immediate 
access to the designated roadway worker in charge and, in case of an 
emergency, the train dispatcher or control operator controlling on-
track movements. The contact information and instructions for reaching 
both the designated roadway worker in charge and the train dispatcher 
or control operator shall also be provided to the station platform work 
coordinator prior to the commencement of any work pursuant to this 
section.
    (4) The station platform work coordinator must be present at the 
station platform at all times work is being performed pursuant to this 
section and take the following actions:
    (i) Inform the designated roadway worker in charge of the work to 
be performed;
    (ii) Conduct an initial on-track safety briefing with the roadway 
worker or roadway work group pursuant to Sec.  214.315 of this part; 
and
    (iii) Establish train approach warning that requires a watchman/
lookout to warn of the approach of any train or on-track equipment and 
requires roadway worker(s) to withdraw hand-held, non-powered tools 
from the delineated fouling area upon receiving such warning. Such 
warning may be based on available sight distance and may give less 
timely notice than that prescribed by Sec.  214.329(a) of this part.
    (5) Each roadway worker conducting such work under train approach 
warning shall:
    (i) Position himself or herself on the station platform with his or 
her body entirely outside of the delineated fouling area as described 
in paragraph (a)(2) of this section; and

[[Page 50370]]

    (ii) Only use hand-held, non-powered tools to perform such duties.
    (6) The maximum authorized speed of the track immediately adjacent 
to the platform does not exceed 79 mph.
    (b) If any of the conditions in paragraphs (a)(1) through (6) of 
this section are no longer met during the course of the work (e.g., if 
the available communication device(s) is no longer functioning, or if 
the designated roadway worker in charge is no longer accessible), all 
work that would require a roadway worker to encroach the delineated 
fouling area with a tool shall cease. Work in the delineated fouling 
area may resume only after the requirements of this section are met or 
a roadway worker in charge arrives at the work site to provide on-track 
safety consistent with this part.
    26. Amend Sec.  214.339 by revising to read as follows:


Sec.  214.339  Audible warning from trains.

    (a) Each railroad shall have in effect and comply with written 
procedures that prescribe effective requirements for audible warning by 
horn and/or bell for trains and locomotives approaching any roadway 
workers or roadway maintenance machines that are either on the track on 
which the movement is occurring, or about the track if the roadway 
workers or roadway maintenance machines are at risk of fouling the 
track. At a minimum, such written procedures shall address:
    (1) Initial horn warning;
    (2) Subsequent warning(s); and
    (3) Alternative warnings in areas where sounding the horn adversely 
affects roadway workers (e.g., in tunnels and terminals).
    (b) Such audible warning shall not substitute for on-track safety 
procedures prescribed in this part.
    27. Amend Sec.  214.343 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  214.343  Training and qualification, general.

* * * * *
    (c) Except as provided for in Sec.  214.353, railroad employees 
other than roadway workers, who are associated with on-track safety 
procedures, and whose primary duties are concerned with the movement 
and protection of trains, shall be trained to perform their functions 
related to on-track safety through the training and qualification 
procedures prescribed by the operating railroad for the primary 
position of the employee, including maintenance of records and 
frequency of training.
* * * * *
    28. Amend Sec.  214.345 by revising the introductory text and 
adding paragraph (f) to read as follows:


Sec.  214.345  Training for all roadway workers.

    Consistent with Sec.  214.343(b), the training of all roadway 
workers shall include, as a minimum, the following:
* * * * *
    (f) Instruction on railroad safety rules adopted to comply with 
Sec.  214.317(b) of this subpart.
    29. Amend Sec.  214.347 by adding paragraph (a)(5) to read as 
follows:


Sec.  214.347  Training and qualification for lone workers.

* * * * *
    (a) * * *
    (5) Alternative means to access to the information in a railroad's 
on-track safety manual when a lone worker's duties make it 
impracticable to carry the manual.
* * * * *
    30. Add Sec.  214.352 to read as follows:


Sec.  214.352  Training and qualification of station platform work 
coordinator.

    (a) The training and qualification of each station platform work 
coordinator shall include, as a minimum:
    (1) All the on-track safety training and qualification required of 
the roadway workers to be supervised and protected;
    (2) The content of the operating rules of the railroad pertaining 
to the establishment of working limits;
    (3) The content and application of the rules of the railroad 
pertaining to the establishment of train approach warning; and
    (4) The procedures required to ensure that the station platform 
work coordinator has immediate access to contact the roadway worker in 
charge, and in case of an emergency, the procedures to contact the 
train dispatcher or control operator.
    (b) Initial and periodic qualification of a station platform work 
coordinator shall be evidenced by a recorded examination.
    31. Amend 214.353 by revising the section heading and paragraph (a) 
and adding paragraph (a)(5) to read as follows:


Sec.  214.353  Training and qualification of each roadway worker in 
charge.

    (a) The training and qualification of each roadway worker in 
charge, or any other employee acting as a roadway worker in charge 
(e.g., a conductor or a brakeman), who provides for the on-track safety 
of roadway workers through establishment of working limits or the 
assignment and supervision of watchmen/lookouts or flagmen shall 
include, at a minimum:
* * * * *
    (5) The procedures required to ensure that the roadway worker in 
charge of the on-track safety a group(s) of roadway workers remains 
immediately accessible and available to all roadway workers being 
protected under the working limits or other provisions of on-track 
safety established by the roadway worker in charge.
* * * * *

    Issued in Washington, DC, on August 10, 2012.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2012-20065 Filed 8-17-12; 8:45 am]
BILLING CODE 4910-06-P


