thefederalregister.com

Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 3]

RIN 2130-AB96

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

AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
SUMMARY: FRA proposes to amend its regulations on railroad workplace safety to reduce further the risk of serious injury or death to roadway workers. In particular, FRA proposes to require that railroads adopt specified on-track safety procedures to protect certain roadway work groups from the movement of trains or other on-track equipment on "adjacent controlled track." FRA proposes to define "adjacent controlled track" to mean "a controlled track whose track center is spaced 19 feet or less from the track center of the occupied track." These on-track safety procedures would be required for each adjacent controlled track when a roadway work group with at least one of the roadway workers on the ground is engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. FRA also proposes to require that railroads, contractors to railroads, and roadway workers comply with these procedures. The NPRM issued as "Notice No. 1" under this same docket number and published July 17, 2008 (73 FR 41214), was withdrawn by "Notice No. 2" published August 13, 2008 (73 FR 47124).
DATES: (1) Written comments must be received no later than January 25, 2010. 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, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to December 28, 2009, one will be scheduled and FRA will publish a supplemental notice in theFederal Registerto inform interested parties of the date, time, and location of any such hearing.

ADDRESSES: *Federal eRulemaking Portal:Go tohttp://www.regulations.gov.Follow the online instructions for submitting comments.

*Mail:Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

*Hand Delivery or Courier:Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

*Fax:202-493-2251.

Instructions:For detailed instructions on submitting comments, and additional information on the rulemaking process, see the "Public Participation" heading of theSUPPLEMENTARY INFORMATIONsection of this preamble. Note that all comments received will be posted without change tohttp://www.regulations.gov,including any personal information provided. Please see the "Privacy Act" subheading under the "Regulatory Impact and Notices"heading, below, in Section VIII.I. of this preamble.

Docket:For access to the docket to read background documents or comments received, go tohttp://www.regulations.govanytime, or to the Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-15, Mail Stop 25, Washington, DC 20590 (telephone 202-493-6236); or Anna Winkle, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6166 or 202-493-6052).
SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Impetus for Rulemaking II. Overview of the Existing Roadway Worker Protection (RWP) Rule A. Applicability and Basic Definitions B. Authorized Methods of Establishing On-Track Safety C. Existing On-Track Safety Requirements for Roadway Work Groups With Respect to Adjacent Tracks III. Notice of Safety Advisory 2004-01 IV. Recent Roadway Worker Accidents (1997-2008) V. Joint Petition to FRA for an Emergency Order VI. Current Rulemaking To Revise the RWP Rule A. Overview of the RSAC [Railroad Safety Advisory Committee] B. Proceedings in This Rulemaking to Date Generally C. Proceedings concerning On-Track Safety Procedures for Adjacent Tracks, Including Response to Comments on the July 17, 2008 NPRM 1. Joint Comments of BMWED and BRS 2. Draft Comments of AAR 3. Comments of Additional Interested Parties VII. Section-by-Section Analysis VIII. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. Environmental Impact F. Unfunded Mandates Reform Act of 1995 G. Energy Impact H. Trade Impact I. Privacy Act I. Impetus for Rulemaking

As will be detailed in this NPRM, the recent increase in roadway worker fatalities that have occurred on an adjacent track (i.e.,under the existing rule, any track within 25 feet of the centerline of the track to which the roadway work group was assigned to perform one or more roadway worker duties) has caused considerable concern at FRA and throughout the industry, even prompting the filing of a joint petition for emergency order under 49 U.S.C. 20104 on April 11, 2008.See49 CFR part 214, subpart C (“Roadway Worker Protection Rule” or “RWP Rule”). FRA had issued a notice of safety advisory to address this same issue in May of 2004; however, it appears that the salutary effects of the safety advisory, which produced a period of 16 months with no fatalities on an adjacent track, were not long-lasting, as four fatalities have since occurred on an adjacent track where a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. These proposed amendments to the Roadway Worker Protection Rule are based on the consensus language developed through the Roadway Worker Protection (RWP) Working Group of FRA's Railroad Safety Advisory Committee (RSAC), which is comprised of various representatives of the groups that are affected by this rule (including railroad management, railroad labor organizations, and contractors). Because incidents involving adjacent controlled tracks appear to present clear evidence of significant risk that is not effectively addressed by the current regulation, FRA has concluded that moving forward with this proposal in advance of the other proposals contained in the RSAC consensus1 is necessary and appropriate.

1While the consensus language relating to adjacent track issues that was developed through the RSAC was originally intended to be published as part of a larger NPRM, FRA has decided to propose these adjacent-track-related provisions in this separate NPRM so that an appropriate provision will be in effect in a more timely fashion than if the provision were one of many in the larger rulemaking that would need to undergo internal review and approval and public notice and comment. The remaining provisions not related to adjacent track will be proposed in a separate NPRM at a later date, as part of the larger RWP rulemaking.

II. Overview of the Existing RWP Rule A. Applicability and Basic Definitions

The RWP Rule requires each railroad that operates rolling equipment on track that is part of the general railroad system of transportation to “adopt and implement a program that will afford on-track safety to all roadway workers whose duties are performed on that railroad.”See49 CFR 214.3, 214.303(a).2 “On-track safety” is defined as “a state of freedom from the danger of being struck by a moving railroad train or other railroad equipment, provided by operating and safety rules that govern track occupancy by personnel, trains and on-track equipment.”See§ 214.7. The roadway workers that must be afforded on-track safety are any employees of a railroad, or of a contractor to a railroad, whose duties include “inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts . * * * ”See§ 214.7, “Roadway worker.”

2All references in this preamble to a section or other provision of a regulation are to a section, part or, other provision in title 49, Code of Federal Regulations unless otherwise specified.

B. Authorized Methods of Establishing On-Track Safety

Several methods are authorized to be used to provide on-track safety for roadway workers, and many of those methods involve establishing “working limits,” which is defined in part as “a segment of track with definite boundaries established in accordance with [part 214] upon which trains and engines may move only as authorized by the roadway worker having control over that defined segment of track.”See§§ 214.7 and 214.319. Working limits may be established on controlled track (i.e.,“track upon which the railroad's operating rules require that all movements of trains must be authorized by a train dispatcher or a control operator”) through exclusive track occupancy (§ 214.321), foul time (§ 214.323), or train coordination (§ 214.325).See§§ 214.7 and 214.319. Regardless of which method is chosen, the working limits are only permitted to be under the control of a qualified roadway worker in charge, and all affected roadway workers must be notified and either clear of the track or provided on-track safety through train approach warning (in accordance with § 214.329) before the working limits are released to permit the operation of trains or other on-track equipment through the working limits.See id.

Train approach warning is another common method of establishing on-track safety in which a trained and qualified watchman/lookout provides warning to roadway worker(s) of the approach of a train or on-track equipment in sufficient time to enable each roadway worker to move to and occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum speed authorized on that track would arrive at the location of the roadway worker.See§§ 214.329 and 214.7 “Watchman/lookout.” Train approach warning is sometimes used as a temporary form of on-track safety when a roadway worker in charge needs to nullify the on-track safety previously established by working limits in order to permit a train or piece of on-track equipment to enter the roadway work group's working limits. Train approach warning permits the roadway workers to continue working for longer (than if working limits were the only form of on-track safety in effect) if the working limits span several miles and the train or equipment will not be passing by the work area for some time due to a speed restriction, the distance away, or the train or equipment halting its movement. It should be noted that switching temporarily to “train approach warning” is permissible only if the change was previously discussed in detail with the roadway work group either in the on-track safety job briefing prior to beginning work or in an updated on-track safety job briefing pursuant to § 214.315(d).See§ 214.315.

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

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

Although the term “large-scale maintenance or construction” is not specifically defined in the regulation, FRA noted in the preamble to the 1996 final rule establishing the RWP Rule that the principle behind the reference to large-scale maintenance or construction “is the potential for distraction, or the possibility that a roadway worker or roadway maintenance machine might foul the adjacent track and be struck by an approaching or passing train,” and further stated that “conditions in which the risk of distraction is significant” require measures to provide on-track safety on adjacent tracks.”See61 FR 65959, 65971 (December 16, 1996). To further clarify what was meant by the term “large-scale maintenance or construction,” FRA adopted the recommendation of the Roadway Worker Safety Advisory Committee, which described large-scale track maintenance and/or renovations, such as but not limited to, “rail and tie gangs, production in-track welding, ballast distribution, and undercutting.”See id.Under such guidance, many railroads were not providing on-track safety on adjacent tracks for surfacing operations, small tie renewal operations, or similar maintenance operations that, while smaller in scale, still included one or more on-track roadway maintenance machines or coupled equipment. Fatalities occurred on the adjacent track during such operations when on-track safety was not established on the adjacent track or had been temporarily or permanently nullified or suspended to permit the passage of a train or other on-track equipment.

III. Notice of Safety Advisory 2004-01

After the occurrence of five roadway worker fatalities in one calendar year (2003), including one on an adjacent track, FRA responded on April 27, 2004, by issuing Notice of Safety Advisory 2004-01, which was later published in theFederal Registeron May 3, 2004.See69 FR 24220. FRA issued this safety advisory to recommend certain safety practices, to review existing requirements for the protection of roadway workers from traffic on adjacent tracks, and to heighten awareness to prevent roadway workers from inadvertently fouling a track when on-track safety is not provided.See id.

The safety advisory explained that the requirements of the RWP Rule, including the requirement to provide adjacent track on-track safety for large-scale maintenance or construction in § 214.335(c), are only minimum standards. The advisory emphasized that railroads and railroad contractors are free to prescribe additional or more-stringent standards consistent with the rule.See id.at 24222 and § 214.301(b).

FRA recommended that railroads and contractors to railroads develop and implement basic risk assessment procedures for use by roadway workers to determine the likelihood that a roadway worker or equipment would foul an adjacent track prior to initiating work activities, regardless of whether those activities were “large-scale” or “small-scale.” The advisory provided examples of relevant factors to consider in making such an assessment. These factors included whether the work could be conducted by individuals positioned between the rails of a track on which on-track safety has been established, as opposed to being on the field side of such a track toward an adjacent track; whether there was a structure between the tracks to prevent intrusion (such as a fence between the tracks at a passenger train station and the tall beam of a through-plate girder bridge); the track-center distance, to ensure that the adjacent track would not be fouled if a worker were to inadvertently trip and fall; the nature of the work (inspection or repair); the sight distances; and the speed of trains on the adjacent track.See69 FR 24222. FRA further noted that, upon completion of an on-site risk assessment, the on-track safety briefing required by § 214.315(a) would be the ideal instrument to implement preventive measures concerning adjacent tracks.See id.

In addition to the above recommendation concerning basic risk assessment, FRA recommended that railroads and contractors to railroads consider taking the following actions:

• Use of working limits for activities where equipment could foul adjacent track (whether large-scale or small-scale activities);

• Use rotation stops to mitigate the dangers associated with on-trackequipment and trains passing on adjacent tracks;

• Review procedures for directing trains through adjacent track working limits, and enhance such procedures when necessary;

• Install adjacent track warning signs/devices in the operating cab of on-track machines to remind roadway maintenance machine operators to not inadvertently depart the equipment onto a track where there may be trains and other on-track equipment passing;

• Provide additional training and monitoring to employees, emphasizing the need to cross tracks in a safe manner (i.e., single file and after looking in both directions);

• Reinforce to individual roadway workers that it is critical not to foul a track except in the performance of duty and only when on-track safety has been established. This training could be accomplished through training sessions, as well as daily job briefings; and

• Institute peer-intervention measures by which workers are encouraged to intervene when observing another roadway worker engaging in potentially non-compliant and unsafe activity.

See id. IV. Recent Roadway Worker Accidents (1997-2008)

In the twelve years since the RWP Rule went into effect on January 15, 1997, there have been nine roadway worker fatalities on an adjacent track. Seven of those fatalities have occurred on a controlled track that was adjacent to the track on which a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment. FRA notes that there has been only one adjacent-track fatality where a roadway work group had been engaged in a common task with a lone hi-rail vehicle, defined in § 214.7 as “a roadway maintenance machine that is manufactured to meet Federal Motor Vehicle Safety Standards and is equipped with retractable flanged wheels so that the vehicle may travel over the highway or on railroad tracks.”3 In addition, there have been no adjacent-track fatalities where a roadway work group had been engaged in a common task with a catenary maintenance tower car on the occupied track. This is likely because the duties normally performed by an employee operating a hi-rail or a catenary maintenance tower car tend to be less distracting to on-ground roadway workers and produce less dust and noise than a typical on-track roadway maintenance machine. Given the above, FRA proposes that adjacent-track on-track safety not be required for roadway work groups engaged in a common task with a hi-rail or a catenary maintenance tower car, as discussed in the section-by-section analysis of paragraphs (b)(2) and (b)(3), respectively, in new proposed § 214.336.

3In that case, the roadway workers were under the impression that adjacent-track on-track safety was in effect, but it was not, due to a miscommunication.

Of the seven fatalities that occurred under the circumstances described above and which this rule proposes to address, three occurred during the period after the effective date of the rule and before the publication of the safety advisory on May 3, 2004, and four have occurred since that period. In the four-year period prior to May of 2004 (May 1, 2000—April 30, 2004), there has been one adjacent-track fatality known to have occurred under such circumstances, for a rate of .25 per year. In the four-year period since (May 1, 2004—April 30, 2008), there have been four adjacent-track fatalities, for a rate of one per year, which is four times the rate of the previous four-year period. While FRA recognizes that even one death can make rates change dramatically when the total number of deaths is small, the increase in the rate of these deaths despite the safety advisory leads FRA to conclude that regulatory action is needed to avert an escalating number of deaths. Moreover, given the extensive participation in developing these consensus regulatory provisions by representatives of all of the key interests involved in this issue, it is contrary to the public interest to wait for all of the other issues in the larger RWP rulemaking to be resolved or to engage in lengthy periods for notice and public comment before acting to prevent more deaths.

The following is a brief summary of the results of FRA's investigations of the four most recent incidents that resulted in these unfortunate fatalities:

October 5, 2005:A roadway surfacing gang tamper operator, with 28 years of service, was walking up to the front of the tamper to put away the light buggies as his surfacing gang, having just completed its work, was getting ready to travel to clear the number two main track. The operator was walking east on the side of the tamper between the two main tracks when he was struck by a westbound train on the adjacent track. The track centers were spaced approximately 13 feet apart, and the train was traveling at an estimated speed of 40 miles per hour (mph).

March 12, 2007:A surfacing gang was occupying the number one main track in a double-main territory. The surfacing gang foreman (the roadway worker in charge), who earlier had notified the other members of the gang of pending movement on the adjacent track, was standing in the gage of the same adjacent track when he was struck by a train. It remains unclear why he was fouling the adjacent track at the time of the incident. The track centers were spaced approximately 13 feet, 6 inches apart, and the maximum authorized speed on the adjacent track was 50 mph. The foreman was the only roadway worker on the ground at the time of the incident.

February 10, 2008:A train struck a roadway worker inside an interlocking on a triple-main track territory. The worker was part of a gang that consisted of approximately 10 workers that were engaged in the repair of a crossover on the middle main track with a tamper. Foul time was being used as adjacent-track on-track protection, but this protection was removed by the roadway worker in charge, who gave permission to the dispatcher to permit a train to operate on the adjacent track through the roadway work group working limits. As the train entered the interlocking on a limited clear signal indication for a crossover move past the work area, one of the roadway workers attempted to cross the track in front of the train and was struck. The track centers were spaced approximately 13 feet apart, and the maximum authorized speed for the train on the adjacent track was 45 mph.

March 27, 2008:A surfacing gang was working on double-main track territory. The surfacing gang foreman was standing in the foul of the adjacent track while his surfacing crew worked on the number two main track (the occupied track). A train operating on the adjacent track struck the foreman. No on-track safety was in effect on the adjacent track involved at the time of the incident. The track centers were spaced approximately 14 feet, 7 inches apart, and the maximum authorized speed on the adjacent track was 70 mph. The foreman was the only roadway worker on the ground at the time of the incident.

While the above discussion focuses on those fatalities that have occurred on an adjacent track where a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track, it is important to discuss some of the common circumstances in all nine of the fatalities that have occurred on anadjacent track since the rule went into effect, as these circumstances were considered by FRA in its decision to issue this NPRM. The first common circumstance is the type of track. All nine of the fatalities occurred on “controlled” track, rather than “non-controlled” track. This was taken into consideration in writing FRA's proposed definition of “adjacent controlled track,” which would be included in proposed new § 214.336(a)(3) and would be limited to controlled tracks whose track centers are spaced 19 feet or less from the track center of the occupied track. The term would only be applicable to § 214.336 and would not replace the broader term “adjacent tracks,” which is defined in § 214.7.

Second, all nine of the fatalities occurred on an adjacent track that was quite closely-spaced to the track that the roadway work group was occupying. Six of the adjacent tracks had track centers that were spaced approximately 14 feet or less from the respective track centers of the tracks that the roadway work groups were occupying, and all nine of the adjacent tracks were spaced 15 feet or less from the track centers of the respective occupied tracks. This common circumstance was also taken into consideration in FRA's proposed definition of “adjacent controlled track,” which would have a narrower applicability for purposes of proposed § 214.336 than the term “adjacent tracks,” because it would not include tracks with track centers that were spaced more than 19 feet (but less than 25 feet) away from the track center of the occupied track.

The third common circumstance of the nine fatalities on adjacent track is the time of year. Four of the fatalities occurred during the first quarter (January-March), none of the fatalities occurred in the second and third quarters of the year (April-June and July-September, respectively), and the other five fatalities occurred during the fourth quarter (October-December). As noted earlier in Section I., above, because incidents involving adjacent controlled tracks appear to present clear evidence of significant risk that is not effectively addressed by the current regulation, FRA has concluded that moving forward with this proposal in advance of the other proposals contained in the RSAC consensus is necessary and appropriate in order to reduce the risk of additional fatalities on adjacent track that are likely to occur late this year or early next year in the absence of further regulatory action.

V. Joint Petition to FRA for an Emergency Order

On April 11, 2008, the Brotherhood of Maintenance of Way Employes Division (BMWED) and the Brotherhood of Railroad Signalmen (BRS) filed a joint petition requesting that FRA issue an emergency order under 49 U.S.C. 20104(a) requiring adjacent-track protection for roadway work groups. The petition noted that similar requests, which were filed on October 7, 2005, November 7, 2003, and December 21, 1999, were denied by FRA. The petitioners expressed their belief that, under the existing provisions of the rule, roadway workers will continue to suffer preventable serious injuries and death. The petitioners asserted that FRA should require railroads and their contractors to establish on-track safety on adjacent tracks (“adjacent-track on-track safety”) for a wider range of work activities. In FRA's January 5, 2006 denial of the October 2005 petition, FRA noted that the RSAC working group tasked to review and revise the RWP Rule (“RWP Working Group”) was “committed to presenting comprehensive draft language * * * that would more closely tailor the solution to the problem.” And while the RWP Working Group did in fact draft this language, and both the Working Group and the full RSAC were able to reach consensus on such language, BMWED and BRS were concerned that the language, which has not been published as an NPRM, would not become a final rule for a considerable period of time, leaving the possibility for further preventable fatalities. BMWED and BRS urged FRA to issue an emergency order that would adopt the adjacent-track consensus language of the RWP RSAC.

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

As an emergency order does not require prior notice to the affected party or an opportunity to be heard prior to issuance of the order, Congress declared that such an order may be invoked only where an unsafe condition or practice “causes an emergency situation involving a hazard of death or personal injury.” 49 U.S.C. 20104. By letter dated June 4, 2008, FRA denied the joint petition for emergency order, noting that the increased rate of adjacent-track-related fatalities cited in the joint petition makes a strong case for regulatory action, but does not constitute an emergency situation “that has developed suddenly and unexpectedly in which the danger is immediate.” To address this serious safety concern, FRA decided to issue a separate NPRM with an abbreviated comment period, as further discussed in Section VI.C., below.

VI. Current Rulemaking To Revise the RWP Rule A. Overview of the RSAC

In March 1996, FRA established RSAC, which provides a forum for developing consensus recommendations to FRA's Administrator on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows:

• American Association of Private Railroad Car Owners (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); • ATDA; • Association of American Railroads (AAR); • Association of Railway Museums; • Association of State Rail Safety Managers (ASRSM); • Brotherhood of Locomotive Engineers and Trainmen (BLET); • BMWED; • BRS; • Chlorine Institute; • Federal Transit Administration (FTA)*; • Fertilizer Institute; • High Speed Ground Transportation Association (HSGTA); • Institute of Makers of Explosives; • International Association of Machinists and Aerospace Workers; • International Brotherhood of Electrical Workers (IBEW); • Labor Council for Latin American Advancement*; • League of Railway Industry Women*; • National Association of Railroad Passengers (NARP); • National Association of Railway Business Women*;
• National Conference of Firemen Oilers; • National Railroad Construction and Maintenance Association (NRC); • National Railroad Passenger Corporation (Amtrak); • National Transportation Safety Board (NTSB)*; • Railway Supply Institute (RSI); • Safe Travel America (STA); • Secretaria de Comunicaciones y Transporte*; • Sheet Metal Workers International Association (SMWIA); • Tourist Railway Association, Inc.; • Transport Canada*; • Transport Workers Union of America (TWU); • Transportation Communications International Union/BRC (TCIU/BRC); • Transportation Security Administration (TSA)*; and • United Transportation Union (UTU). * Indicates associate, non-voting membership.

When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The individual task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on a recommendation for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings.

B. Proceedings in This Rulemaking to Date Generally

On January 26, 2005, the RSAC formed the RWP Working Group (“Working Group”) to consider specific actions to advance the on-track safety of employees of covered railroads and their contractors engaged in maintenance-of-way activities throughout the general system of railroad transportation, including clarification of existing requirements. The assigned task was to review the existing rule, technical bulletins, and a safety advisory dealing with on-track safety. The Working Group was to consider implications and, as appropriate, consider enhancements to the existing rule. The Working Group would report to the RSAC any specific actions identified as appropriate, and would report planned activity to the full Committee at each scheduled Committee meeting, including milestones for completion of projects and progress toward completion.

The Working Group is comprised of members from the following organizations:

• Amtrak; • APTA; • ASLRRA; • ATDA; • AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway Company (CN), Canadian Pacific Railway, Limited (CP), Consolidated Rail Corporation (Conrail), CSX Transportation, Inc. (CSXT), Kansas City Southern (KCS), Norfolk Southern Corporation (NS), and Union Pacific Railroad Company (UP); • Belt Railroad of Chicago; • BLET; • BMWED; • BRS; • Federal Railroad Administration (FRA); • Indiana Harbor Belt Railroad (IHB); • Long Island Rail Road (LIRR); • Metro-North Commuter Railroad Company (Metro-North); • Montana Rail Link; • NRC; • Northeast Illinois Regional Commuter Railroad Corporation (Metra); • RailAmerica, Inc.; • Southeastern Pennsylvania Transportation Authority (SEPTA); • UTU; and • Western New York and Pennsylvania Railroad (WNYP).

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

C. Proceedings Concerning On-Track Safety Procedures for Adjacent Tracks, Including Response to Comments on the July 17, 2008 NPRM

One of the items on which the Working Group was able to reach consensus dealt specifically with the adjacent-track on-track safety issue in § 214.335 On-track safety procedures for roadway work groups. The consensus language developed by the Working Group for this topic, which was approved by the full RSAC and formally recommended to FRA for paragraphs (c), (d), and (e), is as follows:

For paragraph (c)—“On-track safety is required for adjacent controlled track within 19 feet of the centerline of the occupied track when roadway work group(s) consisting of roadway workers on the ground and on-track self-propelled or coupled equipment are engaged in a common task on an occupied track.

• “Except as provided by paragraph (c)(3) of this section, when trains are cleared through working limits on an adjacent controlled track, or when watchman/lookout warning in accordance with § 214.329 is the form of adjacent on-track safety, roadway workers shall occupy a predetermined place of safety and all on-ground work and equipment movement activity within the fouling space of the occupied track shall cease upon notification of pending adjacent track movement (working limits) or upon receiving the watchman/lookout warning.

• “When single or multiple movements are cleared through adjacent controlled track working limits, on-ground work and equipment movement on the occupied track may resume only after all such movements on adjacent track have passed each component of the Roadway Work Group(s). If the train stops before passing all roadway workers, the employee in charge shall communicate with the engineer prior to allowing the work to resume.

• “When single or multiple movements are cleared through adjacent controlled track working limits at a speed no greater than 25 mph, work performed exclusively between the rails of the occupied track, or to the field side of the occupied track with no adjacent track, may continue upon notification of each roadway worker of movement on adjacent track. On-ground work shall not be performed within 25 feet to the front or 25 feet to the rear of roadway maintenance machine(s) on theoccupied track during such adjacent track movement.”

For paragraph (d), the Working Group recommended “Equipment may not foul an adjacent controlled track unless protected by working limits and there are no movements authorized through the working limits by the roadway worker in charge.”

And for paragraph (e), the Working Group recommended “The mandatory provisions for adjacent controlled track protection under this subpart are not applicable to work activities involving—

• “A hi-rail vehicle as defined in § 214.7, provided such hi-rail vehicle is not coupled to railroad cars. Where multiple hi-rail vehicles are engaged in a common task, the on-track safety briefing shall include discussion of the nature of the work to be performed to determine if adjacent controlled track protection is necessary. Nothing in this subpart prohibits the roadway worker in charge of the hi-rail vehicle from establishing adjacent controlled track protection, as he/she deems necessary.

• “On-ground roadway workers exclusively performing work on the field side of the occupied track.

• “Catenary maintenance tower cars with roadway workers positioned on the ground within the gage of the occupied track for the sole purpose of applying or removing grounds. Nothing in this subpart prohibits the roadway worker in charge of the catenary maintenance tower car from establishing adjacent track protection, as he/she deems necessary.”

Upon reviewing the joint petition of the BRS and BMWED for an emergency order, the consensus language of the Working Group quoted above, and the relevant accident data concerning roadway workers fouling adjacent tracks, FRA decided to issue a separate NPRM4 to lower the safety risk associated with roadway workers fouling adjacent tracks. Although FRA's safety advisory may have had an initial effect and have raised awareness enough to help keep the number of all categories of roadway worker fatalities in 2004 and through almost six months in 2005 at zero, the effect was not sustained enough to combat the rise of roadway worker fatality incidents since late June of 2005, when the first roadway worker fatality occurred after the issuance of the safety advisory, or since October of 2005, when the first adjacent track roadway worker fatality occurred.

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

In light of recent roadway worker fatality trends, FRA determined that the agency must propose a more prescriptive approach to prevent further fatalities. The need to mandate adjacent-track on-track safety was recognized by FRA, members of the Working Group, and members of the full RSAC. The consensus language developed by the Working Group and recommended by the full RSAC is expected to reduce the risk of roadway worker fatalities due to fouling an adjacent track while working in conjunction with on-track equipment on an occupied track. As part of the process in drafting the NPRM in the larger RWP rulemaking, FRA circulated the consensus rule text concerning adjacent track and other items for errata review. Both AAR and BMWED submitted comments on this provision. To address these issues, and other potential ambiguities discovered upon a closer review of the rule text, FRA reorganized and modified the consensus text in issuing an NPRM.

FRA published an NPRM addressing adjacent-track on-track safety on July 17, 2008 (73 FR 41214), but formally withdrew the notice on August 13, 2008 (73 FR 47124). The withdrawal stated, in part—“[i]n crafting the NPRM, FRA presented the RSAC consensus language in the preamble verbatim and transparently explained its rationale for all changes it made to the consensus language. As this was an NPRM, FRA sought comment on the entire proposal, including those portions that FRA sought to clarify.

“FRA recognizes that inadvertent errors do sometimes occur in formulating a proposal and expects that interested parties would provide comments to both FRA and all other interested parties through the established comment process detailed in the NPRM. Given the alleged discrepancies between the consensus language and the proposed rule, the need to clarify the essential issues and move toward resolution of the safety concern at hand, and the ex parte communications regarding this proposed rule, FRA has decided to withdraw this rulemaking and will take such further regulatory steps as safety requires.”

Id.Due to the inherent dangers of roadway workers working in multiple-track territories among machines, FRA has decided to revisit the issues and language of the withdrawn NPRM in light of the comments received, formal and informal, and issue this revised NPRM. In accordance with the Department of Transportation's Policy (Order No. 2100.2 (1970)), all communications (including emails) between FRA employees and other parties since the publication of the July 17, 2008 NPRM and prior to its withdrawal were reduced to writing and placed in the public docket. While some comments were marked “draft” or received after the withdrawal of the NPRM, FRA has decided to post them to the docket, since they were still taken into consideration in drafting this NPRM. A summary of the comments received follows, below. 1. Joint Comments of BMWED and BRS

BMWED and BRS filed a joint request to extend the comment period to 60 days on July 28, 2008, as well as preliminary joint comments detailing their concerns with the substance of FRA's initial NPRM on August 10, 2008 (just after FRA issued the withdrawal notice, but prior to the publication of the notice in theFederal Register). FRA has considered all of the comments submitted by BMWED and BRS, formal and informal, and recognizes areas where the initial proposed rule text could be adjusted to address their concerns with FRA's initial proposal, while still addressing FRA's concerns with the consensus language that was recommended to FRA by RSAC. While BMWED also commented on the rule through ex parte communications, as posted to the docket, FRA believes that the joint initial comments address these same concerns, as well as those summarized in the joint request to extend the comment period, in one document; thus, FRA will be referencing the comments made in the preliminary joint comments, rather than those made through ex parte communications and the joint request to extend the comment period.

The first issue raised in the joint comments was the proposed removal of the definition of the term “Adjacent tracks” in § 214.7. BMWED and BRS stated that the removal of the definition in § 214.7 would remove tens of thousands of miles of non-controlled track from the scope of the regulation. FRA disagrees with this interpretation of the NPRM, since the proposed removal of the definition is not what would have removed non-controlled track from the scope of adjacent-track on-track safety; rather, it was the substantive provision itself that the RSAC recommended and that formed the basis for FRA's proposal that would have removed it. Since the term was no longer being used anywhere else in part 214, it would have caused confusion to have a definition that included non-controlled tracks within 25 feet of the occupied track and controlled tracks greater than 19 feet, but less than 25 feet from the occupied track, without any relevance to a substantive provision. BMWED and BRS believe that leaving the definition in would give the roadway worker in charge the necessary discretion to establish on-track safety on an adjacent track, even when on-track safety is not mandated by FRA. FRA believes that this concern may be addressed by adjusting the proposed section concerning the on-track safety job briefing (§ 214.315) to use the term “adjacent tracks”5 and adding language to that section regarding the roadway worker in charge, and by modifying the language in § 214.336 to make it clear that the new requirement does not prohibit the roadway worker in charge from establishing additional on-track safety on one or more adjacent tracks as he or she deems necessary.

5The consensus language stated “information about any tracks adjacent to the track to be occupied.” One could interpret this language to have included a discussion of adjacent tracks without regard to a set distance, since the term limiting the distance to 25 feet was not used. The term “adjacent tracks” would thus limit the discussion to those within 25 feet.

The joint comments also describe a concern with the withdrawn NPRM's proposed language in § 214.336(a)(1)(ii) that would have permitted a component of a roadway work group to resume all on-ground work and equipment movement after the “head-end” of a movement passed by the component's location when trains are cleared through working limits at speeds greater than 25 mph. The joint comments insist that the RSAC Working Group's intent was for work to stop for the entire movement, not just the head-end.

While drafting this section in the withdrawn NPRM, FRA made a good faith determination of the meaning of the consensus language and could not distinguish whether the Working Group meant “head-end” or entire “movement.” (This determination is reflected in the preamble, and comments were requested.) Based on AAR's errata review comments and FRA's review of the January 10-11, 2006 Working Group meeting minutes, it appeared possible that an error was made, with respect to the “head-end only” requirement, by the Working Group in creating the final draft of the consensus language that was eventually presented to the full RSAC for approval. The draft being discussed at the January meeting allowed work to commence at the head-end during movement at 30 mph, but required that the entire movement pass before allowing work to commence at speeds greater than 30 mph. The Working Group reached consensus on the “concepts of the proposal” for this item at its February 1-2, 2006 meeting.6 While it was clear from the Working Group meeting minutes that the speed threshold of 30 mph was being negotiated (railroad management proposed that it be raised to 40 mph, while railroad labor proposed that it be lowered to 10 mph), the meeting minutes did not clearly capture the discussion that led to the use of the term “movement,” rather than “head-end” or “entire movement.”

6On page 13 of the meeting minutes, the facilitator “reminded the group that the vote would be on the concepts of the proposal and the language may change and be simplified when finalized.” A representative of AAR then asked if everyone agreed on “the principles of the write-up.” At the March 15-16, 2006 meeting, the “RWP Working Group Table” included the language that was eventually approved by the full RSAC (except that “employee in charge” was changed to “roadway worker in charge” in paragraph (d)) and indicated “Consensus 02/02/06. Draft language from 02/02/06 revised by consolidating the exceptions.”

Upon reviewing other documents from that meeting, FRA has determined that railroad management's proposal that included the 40-mph threshold also appears to have conceded that the entire movement must pass before permitting work to resume, regardless of speed. While it is possible that the concession of the entire movement passing was conditioned upon railroad labor accepting railroad management's proposal as a whole (including the 40-mph threshold), FRA did not receive any further comments from AAR or any of its members on this issue, despite the request for comments on this issue in the July 17, 2008 NPRM. Since the consensus language eventually approved by the full RSAC most closely resembled that which railroad labor proposed to the Working Group, FRA has decided to edit the language in this NPRM to require that all work not subject to an exception be permitted to resume only after the entire movement (i.e.,the trailing-end of the movement) has passed by the location of the roadway work group component. This requirement would apply regardless of the speed of the movement.

Regarding the limited work activities that would be permitted to continue under FRA's initial proposal when trains are passing on an adjacent controlled track at speeds of 25 mph or less, BMWED and BRS note that the language proposed by FRA in paragraph (a)(2) differed from the consensus language in paragraph (c)(3) (indicating that work conducted “exclusively between the rails of the occupied track, or to the field side of the occupied track with no adjacent track” would be permitted to continue, provided that the work was not conducted within 25 feet of the front or rear of any roadway maintenance machine). BMWED and BRS expressed their concern that it would be unsafe to permit work to the field side if working limits are not specifically required on any adjacent track on that side.

While paragraph (c)(3) of the consensus language permitted all work to continue to the field side of the occupied track only if there was no adjacent track present, the consensus language did not impose such a limitation in the broad exception for on-ground work on the field side of the occupied track in paragraph (e)(2) (now proposed paragraph (e)(1)). FRA's original proposal would have permitted certain work to continue to the field side, provided that on-track safety (including train approach warning) had been established in accordance with this subpart on any adjacent track on that side.

In consideration of the concern raised by BMWED and BRS in their joint comments, FRA has adjusted the language originally proposed so as to better ensure the safety of the workers on that side of the occupied track. In addition to permitting work to continue while exclusively positioned on the field side of an occupied track that has no adjacent track on that side, the new proposal would also permit work to continue while exclusively positioned on the field side of an occupied track that has an adjacent track on that side provided that working limits have been established on the closest adjacent track on that side and there are no movements authorized through the working limits by the roadway worker in charge on that adjacent track. The above proposed conditions for conducting work while positioned on the field side have been summarized in the definition of a new term, “clear side,” in § 214.336(a)(3), so as to avoid having to repeat these conditions in the rule text proposed in paragraphs (c) and (e)(1) of this section. In applying the exception in proposed paragraph (e)(1), FRA notes that the “clear side” portion of the proposal would have the effect of requiring that working limits be established on an adjacent track (on the field side where the on-ground roadway workers are exclusively positioned) that is non-controlled and whose centerline is 25 feet from the centerline of the occupied track, while no form of on-track safety (i.e.,working limits or train approach warning) would be required on the adjacent controlled track that is located on the other side of the occupied trackand whose centerline is within 12 feet of the occupied track. FRA seeks comment as to the frequency with which these, or similar, circumstances would occur, and whether the “clear side” portion of the exception in proposed paragraph (e)(1) imposes an unreasonable burden.

Another issue that BMWED and BRS would like FRA to reconsider is the proposed requirement for railroads to provide training or issue a bulletin with the proposed new requirements for adjacent-track on-track safety. The proposed requirement that railroads issue a bulletin or other document to the roadway workers was intended as a stop-gap measure, together with extended on-track safety job briefings, since most railroads provide their employees with annual training at the beginning of the calendar year. This was not a new concept, as the proposal was based on a similar provision in Emergency Order No. 24, and because FRA believes that this, in conjunction with job briefings on the issue, is the approach most railroads take to train their employees when an operating rule change goes into effect mid-year. BMWED and BRS, however, noted in their joint comments that this was not adequate training, and expressed their fear that that this would shift the burden for effective training from the employer to unsuspecting employees. They also noted a concern that the proposed requirement for the employers to obtain a written receipt or acknowledgement may also affect their memberships' legal rights under the Federal Employers' Liability Act. Because of the timing of the withdrawal of the NPRM, FRA believes that it can coordinate this NPRM and final rule to correspond with the railroad's annual training cycle for roadway worker protection, thus making the requirement to issue a bulletin unnecessary as a stop-gap measure.

Finally, the joint comments note that FRA's initial proposal also differs from the RSAC consensus language because FRA proposed to move the section of the rule that pertains to adjacent-track on-track safety from § 214.335(c) to a new proposed § 214.336. FRA does not agree with these comments and denies that moving language from one section to another, for clarification purposes, changes the substance and intent of the provision. Currently, § 214.335 of the existing regulation for on-track safety for roadway work groups contains only one short provision that is applicable to adjacent track protection, that is, paragraph (c). The RSAC recognized that this provision is vague as to what circumstances mandate adjacent-track on-track safety, and this was the very reason for the RSAC's recommendation to amend it. Because of the complex revisions to the regulation with respect to adjacent-track on-track safety, and to avoid having too many levels of subparagraphs in the rule text, FRA believes it is necessary to create a new section. A new section would not change the substance or application of the regulation in any way, and additions to regulations often require the restructuring of subsections in order to promote clear, concise interpretation.

2. Draft Comments of AAR

AAR submitted draft comments to FRA on September 16, 2008. Although the draft comments were received after the date that the NPRM was formally withdrawn, FRA has decided to post them to the docket and discuss them in this NPRM, in an effort to continue FRA's transparency in these proceedings as well as to encourage an open discussion and resolution of the related issues at this NPRM stage, rather than at the later, final rule stage.

The first issue concerns the applicability of proposed § 214.336(a) to “a roadway work group with at leastone of the roadway workers on the ground”(emphasis added). AAR urges FRA to return to the consensus language, which applied “when roadway work group(s) consisting ofroadway workers on the groundand on-track self-propelled equipment are engaged in a common task on an occupied track” (emphasis added). AAR is concerned that this subtle change would bring several work activities into the scope of the rule that were not intended to be covered by the Working Group consensus language. Specifically, AAR is concerned about work activities such as “an employee remaining within the gage of the occupied track fueling a machine; getting off equipment to load anchors, spikes, or other equipment; deploying a laser device for a tamping machine; and checking cross level.” AAR proposes that FRA amend part of the first sentence of § 214.336(a) from “with at least one of the roadway workers on the ground” to “with more than one roadway worker on the ground,” and make further conforming amendments by deleting the phrase “one or more” in paragraphs (b)(1), (2), and (3).

FRA had proposed to amend this portion of the consensus language for clarity, since the consensus language (“when roadway work group(s) consisting of roadway workers on the ground and on-track self-propelled or coupled equipment are engaged in a common task on an occupied track”) contained the words “roadway work group(s)” and “equipment,” both of which could be interpreted as plural and result in confusion concerning how many roadway workers needed to be on the ground before this section would apply. FRA specifically chose the clarifying words “one or more roadway workers on the ground” because FRA believed that this was the intent of the Working Group, since there was no safety rationale for excluding roadway work groups that consist of only two roadway workers. In choosing this language, FRA assumed that in a two-person roadway work group, one roadway worker was assigned to operate the equipment, and the other was assigned to perform duties on the ground in a common task with the machine and presumably its operator. The potential for distraction of the one roadway worker on the ground in a roadway work group consisting of only two roadway workers is the same as for each of the two roadway workers on the ground in a roadway work group consisting of three roadway workers. Moreover, FRA analysis of the agency's accident investigations of these types of incidents has revealed that four7 of the seven fatalities on an adjacent track occurred with only one of the roadway workers on the ground that had been engaged in a common task with an on-track roadway maintenance machine.

7The dates and locations of those incidents were October 9, 1999 (Juniata, NE), October 30, 2003 (Argyle, IA), March 12, 2007 (Piketon, OH), and March 27, 2008 (Emporia, KS).

AAR also requested that the exception for hi-rails in proposed § 214.336(b)(2) of the former NPRM be expanded to include rail-bound geometry and detection equipment, since the level of distraction posed by this equipment is similar to that of hi-rails. AAR suggests that the language in that section be amended by adding “or self-propelled track geometry or detector car.” FRA notes that while a rail-bound geometry car tends to be much larger than a hi-rail, it seems that the level of distraction is similar for a roadway worker on the ground who is field-verifying a measurement behind a geometry car and a roadway worker on the ground who is replacing a bolt behind a hi-rail; nonetheless, FRA seeks comment as to whether this type of equipment should be added to the exception.

The comments further request that an exception be added (i.e.,that no adjacent-controlled-track on-track safety be required) when there is a physical barrier between the occupied track and the adjacent controlled track. AAR indicates that there are several locations where there is a physical barrier, such as a fence, between tracks operated bydifferent railroads, especially where the corridor is shared by both freight and passenger railroads. AAR believes that this barrier is sufficient to protect against movements on an adjacent track located on the other side of the barrier, and suggests that a fourth exception be added as follows: “Work on occupied track where there is a physical barrier such as a fence between the occupied track and the adjacent track.” While FRA agrees that a continuous permanent or semi-permanent barrier could be sufficient to prevent accidental fouling of an adjacent controlled track located on the other side of the barrier, FRA is concerned that the language that AAR has suggested is overly broad and could be interpreted to allow orange construction cones or barrels connected with flimsy plastic “fences” to be sufficient. FRA seeks comment on whether a fourth exception should be added and, if so, whether it should be limited to where there is a continuous permanent or semi-permanent physical barrier of a certain height, such as a chain-linked fence at least 4′ in height or a concrete barrier of at least 32″ in height, between the occupied track and the adjacent controlled track.

AAR also recommended that FRA permit the machine operator to perform work on the ground within 25 feet of the front or rear of the roadway maintenance machine that he or she is operating, during adjacent-controlled-track movements of 25 mph or less. It would be impractical not to allow the operator to step off of his machine and walk directly behind it. Accordingly, AAR suggests that the proposed paragraph 214.336(a)(2)(i) (now proposed as § 214.336(